Ever wonder how the Restatements of the Law which we all read in law school (and have seen in even some modest law libraries throughout our careers) are written – and exactly who the American Law Institute – the credited authority behind the Restatements – is? As a prelude to our new biweekly series of posts analyzing the Restatement of the Law of Liability Insurance, today we’re taking a brief look at the ALI’s history and structure, how ALI defines the purpose of its two primary classifications of treatises – the “Restatements” and the “Principles” – and how the Restatement of the Law of Liability Insurance, which was given the ALI membership’s final approval in the spring of 2017, came to be.
According to the ALI’s website, the Institute was founded in 1923 following a report from a group of well-known judges, lawyers and teachers calling themselves “The Committee on the Establishment of a Permanent Organization for the Improvement of the Law.” The ALI’s incorporators included Chief Justice (and former President) William Howard Taft, future Chief Justice Charles Evans Hughes, and former Secretary of State Elihu Root. Justice Benjamin Cardozo and Second Circuit Judge Learned Hand were early leaders of the group.
Membership in the ALI is by election of the ALI Council following nominations by members. The membership is limited to 3,000, not including life, honorary and ex-officio members, and the group is more-or-less evenly divided between practicing attorneys, judges and academics. All members are expected to participate actively in the Institute’s work, generally by serving as Advisors or Member Consultants to new Restatements and Principles. The ALI is governed by its officers, its directors, and its Council, whose members are elected by the general membership from among its ranks and includes members in all three categories (judges, attorneys and academics).
I was elected to the ALI in October 2006. Since that time, I have served as a Member Consultant for many projects, including the Insurance Restatement.
The most well-known writings of the ALI are Restatements, which are now in their third cycle, and for a few subjects, their fourth. According to the ALI reporters’ manual, “Restatements are primarily addressed to courts. They aim at clear formulations of common law and its statutory elements or variations and reflect the law as it presently stands or might appropriately be stated by a court.” By dealing with an entire area of the law in one document, the Restatements aspire to “discern the underlying principles that gave it coherence and thus restore the unity of the common law as properly apprehended.” Although a Restatement is supposed to be “attentive to and respectful of precedent,” when facing a question where one view merely preponderates, the treatise is permitted to “propose the better rule and provide the rationale for it.” The “Principles” treatises, on the other hand, are permitted to be more aspirational. According to the reporters’ manual: “Principles are primarily addressed to legislatures, administrative agencies, or private actors. They can, however, be addressed to courts when an area is so new that there is little established law. Principles may suggest best practices for these institutions.” All ALI projects go through multiple drafts and are debated by various groups within the Institute: the Preliminary Draft, the Council Draft, the Tentative Draft, the Discussion Draft and the Proposed Final Draft. Projects routinely take seven years from start to finish, and sometimes even more.
In recent years, several commentators have suggested that ALI projects might be straying from those guidelines. As Justice Antonin Scalia wrote in his partial dissent in State of Kansas v. States of Nebraska and Colorado, 574 US —, (2015):
I write separately to note that modern Restatements – such as the Restatement (Third) of Restitution and Unjust Enrichment (2010) . . . are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” [citing the Restatement of Conflict of Laws Introduction]. Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be . . . Section 39 of the Restatement of Restitution and Unjust Enrichment is illustrative . . . Restatement sections such as that should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar.”
The Insurance Restatement began in 2010 as the Principles of the Law, Liability Insurance. The draft Principles caused controversy almost from its earliest drafts, both in debates during Annual Meetings of the entire membership and increasingly among outside commentators. In 2014, the ALI Council reclassified the treatise as a Restatement. Although the draft was revised after that point, controversy continued to spread. I should note in the interests of full disclosure that I voted against every draft of the Insurance Principles and Restatement which came before the Annual Meeting for discussion and approval.
As Justice Scalia said in concluding his dissent in Kansas v. Nebraska: “[I]t cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.” And that will be our project, in biweekly installments, over the coming months: to ascertain how well the Restatement conforms with state law – concentrating on California law, both because of the importance of the state and the location of my firm, but with occasionally forays into other states.
Join us back here next week for the second installment of our series on the law of the Foreign Trade Antitrust Improvement Act, and in two weeks, we’ll return to the Insurance Restatement.