This Director’s Letter was originally published in the fall 2020 edition of The ALI Reporter.
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.” The ALI had then been in existence for four months, and Lewis—who had been Dean of the University of Pennsylvania Law School from 1896 to 1914—was serving as Director of the fledgling Institute. His comments at that early juncture provide remarkable insight into the ALI’s mission, as well as valuable gloss on the text of the February 1923 Report proposing the Institute’s establishment, of which Lewis was the primary author.
I would like to share some excerpts from Director Lewis’s address, relating to questions about the role of Restatements of the Law, which we continue to debate to this day and which I discussed in my Summer 2019 Director’s Letter. Interspersed with these excerpts are some lessons we can draw from Lewis’s early comments.
In his address, Lewis explains that:
“[T]here are two or three questions often asked which I would like to state and answer. One is: How far will the restatement change the law?
“The idea of the man on the street is that there is always a pre-existing law for every situation. That of course we lawyers know is not true. There is not a statute or judicial decision applicable to every situation.
“If a situation on which at present there is no law is a situation that is likely to arise, the restatement will deal with it, and dealing with it will make new law.”
Here, Lewis states clearly that a Restatement may address an issue on which courts have not yet ruled, if the issue is likely to arise. This comment links to a passage in the 1923 Report, which states: “The restatement should be constructive. . . . [W]hile necessarily largely based on the two official sources of the law, statutes and decisions, it should not be confined to examining and setting forth the law applicable to those situations which have been the subject of court action or statutory regulation, but should also take account of situations not yet discussed by courts or dealt with by legislatures but which are likely to cause litigation in the future.”
In our current work, commentators sometimes insist that each Section of every Restatement must rest on some direct support in case law. While we nearly always adhere to this practice, it is not a mandate with grounding in the Institute’s history. Sometimes, it is the ALI’s ability to take the long view—anticipating issues on the horizon, and suggesting how existing law could be extended to apply to those issues, or, as Lewis states, even suggesting new legal rules—that allows a Restatement to best add value in an evolving area of the law.
And, while Lewis uses the phrase “make new law,” he knew that Restatements do not constitute “law.” In this context, Lewis uses the verb “make” to refer to the act of stating a legal rule that had not previously been applied by courts. Indeed, later in the address, Lewis says explicitly that he is referring to instances in which a Restatement may “suggest a modification” of the law.
Director Lewis continues on to say:
“Then there are situations where there is a conflict of law, because of conflicting decisions. The Institute will have to decide between them.”
Lewis describes a situation we encounter with regularity: the courts have gone in different directions on a legal question, yet in the Restatement we must select one rule to restate in the black letter. Often, the cases are fairly closely divided, or the sample size of decisions is small, or there are very few rulings from state supreme courts, rendering it difficult to crown an indisputable “majority rule,” making the analysis that much harder. In these scenarios, as Lewis explains, we must choose which rule to restate in the black letter. Fortunately, the ALI has over time developed guideposts for this process, most importantly the “working formula” set forth by Director Herbert Wechsler in the mid-1960s, under which “we should feel obliged in our deliberations to give weight to all of the considerations that the courts, under a proper view of the judicial function, deem it right to weigh in theirs.”
The need to discern the best rule from among competing approaches is a quintessential task of the common-law judge, which is why it likewise comprises a critical part of the ALI’s work in producing Restatements. Our founding Director clearly recognized this need.
Lewis then moves on to his final point in answer to the question, “How far will the restatement change the law?” He asks:
“But suppose a principle already established by all cases or the weight of judicial authority is regarded by the drafters of the restatement as unsound, must they follow the cases or may they set forth what they believe the law ought to be?”
This question continues perennially to inspire debates with respect to ALI projects. Lewis begins his response to it by referring back to the 1923 Report proposing the ALI’s establishment. He cites “the rather cryptic expression which I used” in the 1923 Report: to “make the law better adapted to the needs of life.” In his address, he explains that:
“Where the great weight of public opinion desires the law as applied to a situation to produce a certain result and it does not do so; then the law within the meaning of the expression as used in the Report does not meet the needs of life.”
“[I]f the weight of existing case law supports a rule of law which is out of harmony with the end desired by the overwhelming weight of public opinion in the community, then the drafters of the restatement may refuse to follow the rule established by the weight of the decisions, and to this extent change the law.”
Lewis emphasizes, however, that the ALI is not to be a “reforming” institution “in the popular sense of the word.” He cautions that “[i]t would be fatal to our enterprise if the Bar and the public—primarily the Bar—get the false idea we are going to reform all law.” Thus, going against the overwhelming weight of judicial authority, according to Director Lewis, was something that the ALI could (and should) do sometimes, but not often.
At the same time, Lewis recognized the importance of transparency: “Anybody reading [a Restatement’s citations to authority] will not only get a complete, and we hope, scientific analysis of the problem presented, but also will obtain knowledge of the exact condition of the present law as shown by the decisions—of the confusion, if that exists, or of the certainty, if that exists—so that a person looking at the [full Restatement] can see to what extent, if any, the principles set forth in therestatement [would] modify the existing law.”
As I discussed in the Summer 2019 issue of this newsletter, the ALI has continued to focus on these weighty issues over the course of our near-century of work, including through the leadership of Director Wechsler during the Restatement Second era and through our more recent clarifications to the Style Manual. Ultimately, we have ended up roughly where we started. This continuity underscores the impressive foresight of our founders.
Editor’s Note: The full text of Director Lewis’s address is available here. The full text of the 1923 Report of the Committee on the Establishment of a Permanent Organization for the Improvement of the Law Proposing the Establishment of an American Law Institute is available here.