Richard L. Revesz Posts

In my Winter 2016 Director’s Letter, I looked at the U.S. Supreme Court’s use of ALI materials during the 2013 to 2015 Terms, as part of an effort to examine how the ALI’s influence extends beyond the state courts and affects the development of federal law. Now that four years have passed since my last analysis of the Supreme Court’s use of ALI materials and several new Justices have joined the Court, revisiting this topic seems worthwhile.

On June 30, 1923, William Draper Lewis addressed a gathering of the Maryland State Bar Association at Atlantic City, New Jersey. His speech was entitled, “The Work of The American Law Institute.”

In a recent column published in the New York Law Journal, Hughes Hubbard & Reed partner John Fellas describes the forthcoming Restatement of the Law, The U.S. Law of International Commercial and Investor–State Arbitration, as “a landmark in the field of U.S. international arbitration law that displays all the characteristics of the exemplary Restatement.”

The ALI has been keeping tabs on judicial citations to Restatements of the Law since the early days. At the 1937 Annual Meeting, for instance, Herbert Goodrich reported that as of that time, “there were 459 citations by the Federal Courts, [and] 3023 by the state courts, making a total of 3482 court citations.”

The ALI Style Manual, a somewhat obscure publication that nonetheless plays an important role in our work, provides relatively clear drafting guidance for Restatements and model codes. Drafting guidelines for Principles projects, however, are not as well specified. This gap has led to some confusion and disagreement among project participants and inconsistencies in our drafts. My hope is that this letter’s focus on the issue will lead us to more consistency in our Principles projects.

In the past few years, we frequently have seen the charge that the ALI’s mission is to state what the law “is,” rather than what the Institute thinks the law “ought to be,” and that we recently have strayed from this mission and should right the ship. This charge most often is made when the ALI chooses to restate a minority rule. As one commentator wrote in criticizing the Restatement of the Law, Liability Insurance (which, despite the criticism, followed majority rules in nearly all of its Sections): The adoption of a minority rule in a Restatement “is fundamentally inconsistent with the purpose of a Restatement of Law project.” Such comments rest on the notion that the ALI’s mission is simple, uncontested, and has always been so. That, however, is not the case.

In 1992, ALI completed the Restatement (Third) of Trusts: Prudent Investor Rule, which made several key changes to the law of trusts contained in the Restatement (Second), each under the rubric of a new “prudent investor rule.”

I will focus on a different, less discussed front: federal common law. The ALI’s influence on this front is more recent.