Introduction to the Centennial History

The American Law Institute (ALI) dates its formal founding to a meeting in Washington, D.C., on February 23, 1923, attended by an august array of judges, law teachers, and practitioners.¹ The meeting heard a “Report of the Committee on the Establishment of a Permanent Organization for the Improvement of the Law.” The Committee was chaired by Elihu Root, the dean of the New York corporate bar, who had been McKinley’s secretary of war and Theodore Roosevelt’s secretary of state, and was dominated by northeastern corporate lawyers, professors from elite law schools, and high court judges. Its roster is a list of the leading moderate Progressive lawyers of the time: among them Judges Benjamin Cardozo, Learned Hand, and Julian Mack; Professors Arthur Corbin, Ernst Freund, Edmund Morgan, Roscoe Pound, John Henry Wigmore, and Samuel Williston; and practitioners such as Charles A. Boston, C.C. Burlingham, Charles Evans Hughes, Russell Leffingwell, and Victor Morawetz.

The intellectual godfathers of the new ALI had been Roscoe Pound, whose famous speech to the American Bar Association in 1906 had identified the “Causes of Popular Dissatisfaction with the Administration of Justice” as the law’s complexity and uncertainty, and Wesley N. Hohfeld, a young law teacher who in 1914 urged the new profession of full-time law teachers to devote themselves, like German jurists, to systematic exposition of legal fields.² The call was taken up by an alliance of academic and practicing law reformers, and given shape, energy, and direction by the remarkable William Draper Lewis, a professor and former Dean of the University of Pennsylvania Law School³ and the ALI’s first Director from 1923 to 1947.

The Committee’s report analyzed the “causes of uncertainty and complexity in the law” and proposed to create a new institute whose task would be the “restatement” of the law to promote greater uniformity, clarity, and systematic organization of case law in different fields. The report even went into detail about the organization of the new institute’s work: the appointment of a Director and Council to select its projects, the assignment to each project of a Reporter drawn from the legal academy, advised by a body of experts, and the submission of ultimate products to the comments of members. Academics were the only branch of the profession who could put in the time necessary to draft Restatements,⁴ but to ensure that their products were usable and acceptable to the profession, the practicing bar and bench would be engaged at every stage of drafting and review. Astonishingly, the broad outlines of this scheme have lasted to the present day.

The unusual form chosen for the new institute’s projects, “Restatements” of the law, was not entirely novel. As David Seipp explains in his chapter for this volume,⁵ the demand for concise and learned digests or abridgments of masses of common law cases has a long history, and something very like the ultimate form of the Restatements, code-like statements of legal rules that were not legislative codes, but designed for use as starting points for legal reasoning for common law courts, had been anticipated in the early nineteenth century by Justice Joseph Story. But nothing on the scale of the ALI’s projects had ever been undertaken, outside of the great Roman and European codifications. The initial ALI Report outlined multiple aims for the Restatements:

To promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific work.⁶

These aims were not always consistent with each other. To reduce complexity, and promote uniformity among jurisdictions, each Restatement sought to state a single version of each rule. This might be the rule adopted by a majority of jurisdictions, or what was, in the Reporters’ judgment, the best rule. To reduce uncertainty caused by variations, or imprecision, in legal terminology across jurisdictions and legal fields, the Restatement aimed to promote adoption of uniform terminology, but also to be careful not to perplex practitioners with novel vocabularies. The most difficult challenge was to reduce uncertainty caused by lack of agreement on fundamental principles or conflicting social policies. The Report urged the ALI to stay away from legal fields riven by social, economic, or political controversy, yet still hoped it could provide guidance on how to adapt rapidly changing fields of law to social change.

As experience with restating the law was repeatedly to demonstrate, such conflicts of views were unavoidable. No field of law is immune from controversy, often of a fundamental kind. Sometimes conflict was provoked by the critique of outsiders, like the first generation of Legal Realists. As the ALI’s membership expanded to include more varied constituencies—and as many fields of practice segmented into champions for conflicting interests and client constituencies—and, among academics, for competing theoretical views—conflicts within the ALI itself were bound to proliferate, and sometimes threatened to sink projects altogether. As the essays in this volume show, intellectual disagreements have sometimes been tempered, but also sometimes amplified, by the strong personalities and convictions of individual Reporters. Among the more notable conflicts have been those provoked by projects on strict products liability, software contracts, family dissolution, aggregate litigation, the law governing lawyers, employment law, the death penalty, the defense of consent to sexual assault, and—in possibly the most bitter and long-lasting dispute—corporate governance.⁷

The ALI has weathered all these conflicts by developing strategies for managing them. The Legal Realist critiques of the 1920s were absorbed, and to some extent accommodated, in the series of Second Restatements beginning in 1952. The ALI overcame its initial resistance to codification and produced the Model Penal Code and Uniform Commercial Code. Another adjustment has been the conversion of potentially divisive Restatement projects to “Principles” projects, which explicitly recognize rapid change in social trends and conflicting interests and perspectives in legal fields, and try to anticipate and influence directions of change and to achieve compromises on conflicted issues. Yet another has been to include conflicting perspectives in early stages of the drafting process, to forestall last-minute sabotage. And still another has been the development of a strong institutional culture of civility and mutual respect.⁸ Indeed a capacity for adaptation seems to have been the secret to the ALI’s longevity. The ALI always had to struggle to obtain financing, solving the problem in its early years by obtaining a grant from the Carnegie Corporation (of which Root was a director), being creative in tapping new funding sources (including the New Deal’s Works Progress Administration when the Carnegie money ran out, and eventually relying on a combination of member dues, foundation grants, and capital contributions of donors.⁹ It has also modestly expanded, but considerably diversified, its membership. Its early members were virtually all establishment lawyers, white, male, and Protestant (and, like much of the elite bar of the 1920s and 30s, sometimes regrettably nativist in their prejudices). The ALI began with 308 members and set an initial membership limit at 500, raising it by degrees to 3,000 in 1994. The ALI today has 2,767 elected members, 1,686 life members, and a few other categories of membership for a total of 4,778 members. It remains an elite organization, representing about 0.37 percent of all American lawyers, and about 2 percent of the total membership of the American Bar Association. It is however considerably more diverse: 30 percent of the membership is now female, 15 percent is minorities, and women have been elected in equal numbers to classes in recent years. The current membership is split almost equally between academics (1,831) and private practitioners (1,731), and includes 654 judges, 145 government lawyers, 182 lawyers for nonprofit organizations, and 245 corporate in-house counsel.

It was decided early on in discussions between the editors and members of the ALI Council that we should not attempt to celebrate the Centennial with a comprehensive history of the ALI. Such a history would be a monumental undertaking requiring many years’ labor and would run the risk of ending up as a spiritless catalogue of the ALI’s impressively numerous projects.¹⁰ We settled instead on commissioning a multi-author volume of essays on specific ALI undertakings, including some of the more important Restatements and Codes, and a sampling of Principles projects, as well as some additional essays on themes cutting across substantive fields of law, and essays treating of the ALI’s institutional history. We created an editorial advisory committee of distinguished scholars and lawyers to propose subjects and recommend authors—and ultimately many of the advisers became our authors. We gave no instructions to the authors other than to engage with the intellectual substance of the ideas informing the ALI’s projects, to feel free to be critical when warranted, and to try to assess what elements of the projects have turned out to have lasting influence and what may be learned even from apparent failures. The authors, as readers will see, approach the ALI and its works from a variety of perspectives. The resulting book is a window into the course of legal thought over a century.

The chapters in this volume raise a host of interesting descriptive questions. Most fundamentally, what does it mean to restate the law? On one account, Restatements are a means of clarifying the law, and they operate to resolve unnecessary complexity and uncertainty found in the mass of common law precedents.¹¹ From another perspective, Restatements reconstruct common law doctrine, with Reporters acting analogously to appellate judges.¹² Sometimes, Restatements may reform the law’s content while still respecting its conceptual structure, its architecture.¹³ In certain cases, Restatements also support legal reform by anticipating where the path of the law is headed, even if that path is not yet prevalent in the courts. Alternatively, Restatements may seek to change the law more fundamentally, in which case Reporters could more closely resemble a council of revision or a regulatory agency.¹⁴ This is a non-exhaustive list, but it indicates the variety of approaches that emerged over the past century. These differing approaches also raise normative questions: What is the best way to go about restating? Does the answer vary with context?

The authority of Restatements is another common theme. When a Restatement of law is first published, it is not automatically binding in the way that a legal precedent is. Even so, Restatements may be adopted by state supreme courts, with the result that they then become legally binding. A prominent example is Section 402A of the Restatement (Second) of Torts, on products liability—this section has been adopted repeatedly by state courts. Note, however, that even where there is no formal adoption of a Restatement, a Restatement may still be highly influential. Is there a sense in which the more influential Restatements are law?¹⁵ If so, their significance will be different from the significance of treatises and journal articles. Note also that the influence of Restatements also bears on how they are interpreted by the courts. If courts see certain Restatement provisions as canonical (for example, provisions in the Restatement of Contracts), then these Restatements will likewise be interpreted differently from other guiding legal texts.¹⁶

It is a short step from these questions to another inquiry: How does the existence of a Restatement change the path of the law? Does the Restatement project tend to moderate or slow reform, as some Legal Realists feared?¹⁷ Or do Restatements speed up legal evolution? Perhaps both? The concern that Restatements will freeze prior law in place recedes to some extent when Restatements endorse legal reforms. Such Restatements may, of course, now freeze their reforms in place, but they are less likely to preserve an earlier common law status quo. That said, significant deviations from the common law could also affect the degree to which Restatements influence the law. Especially in contested areas of law, courts may react differently to a Restatement’s guidance if it reconstructs existing law than if it alters the law’s course more dramatically.¹⁸ Still, such reactions should not obscure the general pattern of the Restatements’ influence. The impacts of Restatements on the law are legion, sometimes as a direct consequence of legal adoption, and at other times through an indirect change in legal thought.¹⁹

Then again, it is not just the law that changes over time but also the Restatements themselves. Restatements have changed in response to a wide variety of inputs, ranging from changes in the underlying law that is to be restated, to changes in social views and practices, to changes in Reporters’ viewpoints and predilections. Occasionally, the views of outside parties have also had an impact.²⁰ Whatever the source, certain Restatements have evolved considerably from their initial version to subsequent versions. It is noteworthy that changes in the law are only one of the primary factors that have made a difference; changes in social norms have also played a role. Thus, the Restatement of Trusts has reflected shifts in understandings of the family.²¹ Where the law has changed, it goes without saying that a subsequent Restatement may need to change with it, but legal change is but one basis for revision. Again, Restatements have evolved for many reasons, and the influences on this evolution are an important part of understanding the Restatements’ significance.

The scope of topics covered within the Restatements is one of the more notable changes. Sometimes this is a matter of doctrinal scope, as with the Restatement of Property. Historically, Restatements of Property have only covered a subset of the law of property.²² Several of the gaps have now been filled in, and the Restatement (Fourth) of Property, now in progress, is intended to cover substantially more territory than its predecessors. In other cases, the question is jurisdictional. Thus, Restatements are usually concerned with common law at the state law level, and not with international law (at least not directly). With the more recent Restatements of Conflict of Laws, and with the Restatement (Second) of Foreign Relations Law in the United States, international law has gained an increasingly prominent role.²³ A shift in coverage may also concern the type of law at issue. Classically, what is restated is the common law. Statutory material has been relevant to varying degrees over the past century, but restatement of statutory material has not been the norm.²⁴ With recent Restatement projects on corporate governance and on copyright, the proportion of statute-based law expanded considerably. Each of these changes bears on the import and influence of the Restatements.²⁵

Yet restating the law is not the only important project that the ALI has undertaken over the past 100 years. There are also Principles projects, such as the Principles of Corporate Governance. Scope of coverage is again a noteworthy theme. Notwithstanding an overlap in subject matter, corporate governance concerns are not coextensive with corporate law.²⁶ The Principles of Corporate Governance were, nonetheless, an important influence on the direction corporate law would subsequently take. Indeed, they have paved the way for a forthcoming Restatement of the Law—Corporate Governance, now in progress. Likewise, the Principles of the Law of Family Dissolution have proven a substantial influence on the development of family law. Drafted during a time of flux, they have been an important source of dialogue among courts and legislatures, and also among advocates and academics.²⁷ So, too, the Principles of the Law of Aggregate Litigation have had an incremental impact on the law.²⁸

In addition, the past century has seen full-scale codification projects, as exemplified by the Model Penal Code²⁹ and the Uniform Commercial Code (UCC).³⁰ Such projects have been very consequential, with wide adoption across the United States and dramatic effects on the law’s content and uniformity. To the extent the early ALI was hesitant about codification—indeed, Restatements were historically seen as an alternative to codification—today’s ALI is much more open to codification projects.³¹ Many of the contemporary debates over these codes have concerned updating, rather than codification itself. For example, there have been debates over updates to the Model Penal Code’s treatment of the death penalty.³² In the UCC context, there have been debates over updates for computer information transactions.³³ In each case, the codes themselves are firmly established features of the legal landscape.

A hundred years is a long life span for a law reform project. Most such projects terminate when they achieve their limited initial goals, they fail, or their members lose interest and their funding runs out. The ALI remains an enterprise in full vigor, with an enormous number of projects completed and an impressive array of projects in forward motion. The enterprise has never lacked for critics, beginning with the Legal Realists of the 1920s and 30s (and, although their critiques are not as well remembered, legal conservatives of the same era), but the ALI has survived by constant adaptation to change, accommodating the views of many of its critics, providing a medium for their resolution in its deliberative procedures, and simply updating Restatements (and launching new Principles projects) whenever the older ones are threatened with obsolescence. The ALI’s projects are often the results of compromise, but have been saved from featureless blandness by the commanding intellectual gifts of their principal Reporters and the predominant good faith of dissenters. For a while in the 1980s and 90s, when the legal academy was experiencing the turn to interdisciplinary studies and what Judge Richard Posner has called “the decline of law as an autonomous discipline,”³⁴ it appeared that the ALI might run out of talent to manage its doctrinal projects. The threat was avoided as a series of enterprising and persuasive ALI leaders have recruited first-rate academics and lawyers to undertake and advise on new projects, as these have incorporated insights from neighboring disciplines into the ALI’s work, and as a fresh generation of scholars has revitalized doctrinal studies of private law.³⁵ The unique form of the Restatements—subject to much derision in the ALI’s first decades—has proved remarkably durable. The Restatements have sought both to express concise versions of what their learned community of drafters consider the best examples of existing law, while also encouraging the law’s evolution. The form offers practitioners and judges an overview of legal fields that is more accessible than masses of common law cases, and more flexible than legislation. The critiques of the First Restatements, that the barebones statements of rules, accompanied only by brief illustrations, provided too little in the way of clues to the sources of their authority, and too little commentary on their rationales, have been answered in late Restatements by more extensive commentary and annotations to cases.

Institutions that survive a long time have to avoid hardening into orthodoxy as the founding generation ages, or dissolving into factionalism as newcomers take their place. The culture of the American Law Institute, carefully curated by successive Presidents, Directors, and Councils, unafraid of controversy, but skillful in mediating it, has enabled it to flourish. Its membership, earnest, patient, thorough, and deliberative in its proceedings, has done the same.