The State Bar Association of North Dakota Winter 2013 Gavel Magazine | Page 36

BEYOND RESTATING THE LAW:
The American Law Institute is best known for preparing and publishing the Restatements. The Restatements are meant to reflect the consensus of the legal community on what the law is, and in some cases, what it should be. Part one of this article will review the framework of the ALI. Part two will address the dynamics involved when the Restatements go beyond restating the law, and state it as the ALI believes it should be. The American Law Institute describes itself as “the leading independent organization in the United States producing scholarly works to clarify, modernize, and otherwise improve the law.” i A private organization consisting of law professors, judges, and practicing lawyers, the ALI’s charter states that the Institute’s mission is “to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work.” ii Among the early leaders of the ALI were Judge Benjamin Cardozo, Judge Learned Hand, and Justice William Howard Taft. iii These ALI pioneers founded the organization because of concerns that the law was becoming too uncertain. The number of states was growing, and individual states were starting to take divergent positions. iv Judge Cardozo said of the ALI that it was “the first cooperative endeavor by all the groups engaged in the development of the law to grapple with the monster of uncertainty and slay him.” v Although, as every law student knows, the Restatements are not the law, they are very influential. Most lawyers are happy to have the Restatements on their side when arguing a new point. American courts have cited to them approximately 188,000 times. vi Law schools teach them, and they have been translated into foreign languages. vii And, it is not entirely true to say they are not the law. In the Virgin Islands and the Northern Mariana

THE AMERICAN LAW INSTITUTE
By Larry L. Boschee, Attorney Part One
Islands, they are, by statute, the default common law. viii Perhaps the best example of the power of the Restatements is section 402A of the Restatement Second of Torts. Only one state, California, had adopted strict product liability when it was included as a last minute addition in the Restatement Second of Torts. ix Over the next two decades strict product liability swept through the nation and nearly all states had adopted it or some variation. x Shortly after the ALI’s formation in 1923, the ALI began work on the original Restatements. The original Restatements, now known as the First Restatements, encompassed traditional subjects like torts, contracts, and agency. xi Their object, for the most part, was to tell lawyers and judges what the law was. xii Though it proved not to be the case, some believed that these Restatements would make citation to case law obsolete. xiii In the 1940s after the ALI completed its work on the First Restatements, it created a committee to decide whether to continue. This committee, chaired by Judge Learned Hand, decided that the ALI still had a role to play. The committee concluded that the ALI should embark on another round of Restatements, and this time take a more active role in stating what the law should be. xiv Work began on the Second Restatements in the 1950s. The ALI reworked the original Restatements, and addressed new subjects, like foreign relations law and landlord and tenant law. xv In 1987, the ALI began the Third Restatements. xvi The Third Restatement collection now includes, among other works, the Restatement Third of Agency and the Restatement Third of Torts: Liability for Physical and Emotional Harm. xvii Currently, the ALI is working on a Restatement Third, Employment Law and a Restatement Third, The Law of American Indians, which will be the first Restatements to address those subjects. xviii Besides the Restatements, the ALI also prepares Model Codes and Principles of the Law. Regarding Codes, the ALI has been working jointly with the Uniform Laws Commission on the Uniform Commercial Code and its various updates since the U.C.C. project began in the 1940s. xix Also in the 1940s, the ALI released the Model Code of Evidence, a forerunner to the Federal Rules of Evidence. xx In 1962, the ALI released the Model Penal Code, which helped to modernize the penal codes of many states. xxi The ALI is currently revisiting the sentencing provisions of the Model Penal Code in light of changes in sentencing philosophy and practice. xxii The American Law Institute’s Principles of the Law projects address areas where the law is less settled or is deemed to be in need of reform. Principles of the Law are meant to state the law as it should be, whether or not that is how the law is. xxiii The first Principles project was Principles of Corporate Governance. xxiv Other Principles projects have since addressed topics like family dissolution, aggregate litigation, and software contracts. xxv The 4,300 ALI members consist of elected members, life members, and ex officio members. The ALI chooses its own members. The ALI selects the elected members based on character, ability, and professional standing, and the individual’s interest in the ALI’s work. xxvi Members who have been members for twenty-five years become life members. xxvii Ex officio m V?&W'2??6?VFRV??FVB7FFW27W&V?R6?W'B?W7F?6W2?fVFW&?6?W'B?bV??B7FFR??v?6?W'B6??Vb?W7F?6W2??r66????FV?2??B7FFR&"&W6?FV?G2???f???F????F???G2&WWFF???f?"??'F??G??F?R?6?2?G2?V?&W'2?v?V?V?vv??r???7F?f?F?W2?F?w&?FR?7V???Bf?FR??F?R&6?2?bF?V?"?v?W'6????B&?fW76????6??f?7F???2?6?W&?6?VBG&F?F????bF?R??2F?B?G2?V?&W'2?VfRF?V?"6?V?G2BF?RF??"?3@??F?RvfV?fV''V'?#0???