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Tuesday, June 27, 2006

On the Restatement of Laws

I am in Saratoga Springs, reporting live from a (very rainy – you get spoiled in San Diego) conference of the Labor Law Group. We had a session this morning on the ALI’s ongoing attempt to restate employment law. Participants included reporter/advisors who have been involved in the ALI’s 3rd Restatement project for several years and others who are vocal critics.

Of course, the debate about a restatement goes far beyond the fascinating questions about the state of employment law. The most fundamental questions concern the goals and authority of restating a particular field of law. Is the purpose of a restatement simply to "distill current blackletter law", identify majority rules,  and identify recent trends in the common law? Or should it incorporate future looking recommendations and normative aspirations? If a restatement is designed as a snapshot of the state of the law at a particular moment in time, is it likely to slow down the development of the law or can it help trigger change? It seems that the stated purposes of the ALI's restatement projects are to “unify, simplify, and clarify”. Each of these goals may require different approaches, ranging from detailed rules to open ended principles.  These question relate to yet another important debate: who is the primary consumer for which a restatement is privately codified, through the vote by the thousands of distinguished members of the ALI? (at the panel, one participant suggested that the primary consumer of a restatement is the “feeble minded, weak and fearful state judge”) Finally, if the  final product of the restatement appears skewed and flawed, what is the best way to challenge it– dismiss it altogether, point out its flaws through academic writing or perhaps, issue a counter restatement by an alternative expert organization?

Posted by Orly Lobel on June 27, 2006 at 11:53 PM | Permalink


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Orly, I don't have it with me here in Michigan, but I recall there is a brief history of ALI and ALI-ABA somewhere in the MacCrate Report on legal education.

Posted by: Jeff Lipshaw | Jun 29, 2006 4:56:04 PM

Thanks for this -- great comments and questions. I think Paul's question about the different between an ALI's Restatement and a treatise is right on the money. The ALI is a private organization and the writers of the Restatement are largely law professors. I don't have empirical evidence of this, but it is my impression that it is given however far more deference than any treatise/article that attempts to similarly synthesize and restate the prevailing common law doctrine on a given matter. In part, this can be justified by the amount of resources, time, energy and people who are involved in the process of restatement. But even so, the concern is that it will be treated similarly to a government codification, even though the ALI is a purely private organization. I would love to learn more about the history of the ALI. A colleague mentioned that the ALI was founded in the 1920s by a group of HLS alumni in reaction to the rise of legal realism at Harvard. In the context of employment law, the problems that are faced by the reporters and committees is that the caselaw is all over the board on worker rights and employer prerogatives. If the restatement will compile a finite list of exceptions to the at will regime, for some states this will be a way of expanding employee protection while for others (like California) this might signify a retreat. I think a better alternative is to restate the exceptions in a rather open-ended way, and then perhaps give examples and hypos, but not suggest that there cannot be other factual patterns that could fit.

Posted by: Orly Lobel | Jun 29, 2006 4:39:39 PM

Prof. Lobel, I have a question related to that of Paul's, how should law students view these restatements? It sometimes seems like these "after-market" products are the best ones, but they subject their users to certain risks. What's the right balance?

Posted by: Bart Motes | Jun 28, 2006 10:39:12 PM

Why should restatements be any different from treatises, hornbooks, and other non-authoritative summaries of the law in a field?

Posted by: Paul Gowder | Jun 28, 2006 9:27:25 PM

Sorry -- I wasn't clear. Judge Linde was very involved in ALI. And he definitely saw it as a reform movement, more than just a restatement. The descriptions I recall made the proceedings sound quasi-legislative.

But I have almost no idea how much these Restatements actually affect judicial decisions. And I'm not sure how much I think they should. Now there's a strong opinion!

Posted by: RCinProv | Jun 28, 2006 2:30:18 PM

By restatement, do you mean essentially codification? If so, is there any serious argument that this is not a good thing in and of itself, in promoting stability and clarity in the law?

Posted by: Simon | Jun 28, 2006 1:42:01 PM

Those are great questions. And I don't mean to be flip, but you're the one at the ALI meeting. So what do you think?

I'll just say this: the judge I clerked for (Hans Linde) was anything but "a feeble minded, weak and fearful state judge." Then again, I'm not sure how much he ever cited ALI. Maybe he was doing it for those other judges.

It always struck me that these restatements were largely snapshots, but with an effort to push at the edges by endorsing select minority views from "leading" states. Or maybe just from a single judge in Oregon. ;-)

Posted by: RCinProv | Jun 28, 2006 12:34:21 PM

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