The American Law Institute Turns 100 — Their Restatements of the Law Endure
The 100th Anniversary of the American Law Institute (ALI) is a great reason to celebrate the Restatements of the Law and explore their unique place and history in American legal scholarship. The American Law Institute is a non-profit organization comprised of judges, lawyers, and law professors who meet together to create the Restatements of the Law and other publications. The Restatements are scholarly summaries that restate discrete areas of American common law, such as property, torts, and contracts, into organized, cohesive expressions of the law as it exists in the majority of American jurisdictions.
ALI has many projects in the works at any given time and is expanding into new areas of law. They recently announced a new Restatement on Election Litigation, with University of Washington School of Law’s Professor Lisa Manheim and Professor Derek Muller of the University of Iowa’s College of Law as co-reporters.
The ALI and Development of the Restatements
ALI was created in 1923 and was originally funded by the Carnegie Corporation of New York, augmented by federal relief programs during the Great Depression. In 1945 the ALI’s first director, William Draper Lewis, explained the problem they were trying to solve by creating the Restatements:
The desire of the legal profession for an orderly statement of our Common Law led to the formation of the American Law Institute in 1923. There existed then, as there exists now, a growing feeling among the members of the legal profession that the profession owes a duty to the public to improve the administration of justice. Many lawyers felt that the ‘growing indigestible mass of decisions’ threatened the continuance of our common law system of expressing and developing law.
The pathway to a finished Restatement is complex and involves a lengthy process. As described in the 7th edition of the authoritative text Fundamentals of Legal Research, “Procedurally, this is accomplished by the engagement of eminent legal scholars to be Reporters for the various subjects that are to be restated. Each Reporter prepares tentative drafts, which are then submitted to and approved by the members of the ALI. Often, numerous tentative drafts, with the work extending over many years, are prepared before final agreement can be reached and a Restatement adopted.” ALI’s member directory currently lists 49 members from Washington, including State Supreme Court justices, law professors, and prosecutors.
The first series of the Restatements was written without citation to the underlying case opinions. Bob Berring, one of law librarianship’s leading theorists and an emeritus dean, professor, and law library director at UC Berkeley, explained the original role of the Restatements as part of the legal movement to make American common law less haphazard and more predictable. Annotations to case decisions were eventually added, starting during the late 1920s and increasing in the 1930s when federal relief programs such as the Works Progress Administration and the Civil Work Administration funded lawyers to write annotations for state cases.
Duke Law Professor Deborah DeMott, in a chapter of a forthcoming 2023 Oxford University Press book, The American Law Institute at 100: A Centennial History (Andrew S. Gold and Robert W. Gordon, Eds.), discusses the adoption of local case annotations in the Restatements and their ultimate demise, noting that eventually, “judicial citations to the Restatement itself sufficed to populate a separate book of annotations, The Restatement in the Courts, produced by the ALI’s own staff and organized state-by-state.” Today these judicial citations to the Restatements can be found in published Appendix volumes.
How the Courts Use the Restatements
Most lawyers get a brief taste of doing research in the Restatements in law school, usually alongside other tools for understanding the law and finding precedent, such as American Law Reports, American Jurisprudence 2d, and Corpus Juris Secundum. But the Restatements are more than just a research tool. Courts adopt sections from the Restatements, converting the adopted content from a valued secondary resource into controlling precedent. Courts also cite them in dicta as authoritative sources for understanding an area of law but not formally adopting them as part of a holding in a case.
The Washington Supreme Court most recently cited a Restatement in Norg v. City of Seattle, 200 Wn.2d 749, 522 P.3d 580 (January 12, 2023) where Justice Yu cited Comment A from the Restatement (Second) of Torts § 895B in dicta for the fact that American state sovereign immunity derives from the “sovereign immunity of the British Crown.”
The most recent adoption of a Restatement section by the Washington Supreme Court was in Gerlach v. Cove Apartments, LLC, 196 Wn.2d 111, 471 P.3d 181 (2020) where the court, in an opinion authored by Justice Stephens, adopted Restatement (Second) of Property : Landlord and Tenant § 17.6 “to the extent that we recognize a landlord’s liability in tort to tenants and their guest for breach of the implied warrant of habitability” but declined to adopt the remainder of § 17.6 because Washington largely abandoned negligence per se with the enactment of RCW 5.40.050 in 1986. Gerlach is a good example of a modern court adopting a part of a section of a Restatement that helps clarify state law.
Restatements for Researchers
The Restatements are considered persuasive authority by many courts and have been cited extensively since ALI began publishing them. As of July 2019 there were more than 210,000 judicial citations to the Restatements. State legislatures have even codified Restatement rules directly into statutes.
Restatements can be used to understand common law doctrines in a variety of areas of law. The ALI website lists currently available Restatements. Volumes provide the blackletter rule of law, commentary, illustrations, reporter’s notes, and case summaries. There are several guides available online for the researcher who wants to learn more about using the Restatements, including a Harvard Law School Library guide here and a Loyola University School of Law Library guide here.
Our library has a full set of the Restatements of the Law in print and in Westlaw on our research room computer. Restatements and their many drafts are also available in our HeinOnline American Law Institute database which is a great resource for historical research of the Restatements. Please read our October Indigenous Peoples’ Day and the First Restatement of the Law of American Indians blog post for information about ALI’s recently adopted Restatement of the Law, The Law of American Indians. (RM)
