3 The Work of the American Law Institute in Historical Context

This chapter examines the intellectual and social contexts in which the ALI has operated and how they have influenced the course the ALI and its projects have taken, during the 100 years of its history. Our aim is to situate the central preoccupations of the ALI at various times in the larger culture of the American legal profession and the social forces that influence American law. From its origins, the ALI has been a self-consciously elite organization, operating under the premise that a collection of distinguished individuals drawn from the practicing bar, the judiciary, and the legal academy can make significant contributions to the growth and development of American law. But despite that stance, the ALI has not been free from pressures emanating from the broader legal profession and, beyond that, from American society as a whole. Indeed, one of the themes of this chapter is the ALI’s inability, despite its strong commitment to professional independence from outside influences in its mission to improve the state of American law, to be completely immune to those pressures, which—especially during the last fifty years—have regularly affected its work.

On February 23, 1923, a group of judges, practicing lawyers, and law professors met in Washington, D.C., to hear a report of a committee established by the Association of American Law Schools a year earlier.¹ The committee recommended the establishment of a “Permanent Organization for the Improvement of the Law,” to be called the “American Law Institute.”² The formation of that organization was in response to a perceived “general dissatisfaction with the administration of justice,” which was thought to “breed … disrespect for law.”³ That dissatisfaction was associated with “[t]wo chief defects in American law … its uncertainty and its complexity.”⁴

A portion of the report was devoted to analyzing the sources of uncertainty and complexity in greater detail,⁵ but an introductory section summarized them. “Uncertainty” was associated with “lack of agreement among the members of the legal profession on the fundamental principles of the common law, lack of precision in the use of legal terms, conflicting and badly drawn statutory provisions, attempts to distinguished between two cases in which the facts present no distinction in the legal principle applicable, the great volume of recorded decisions, the ignorance of judges and lawyers and the number and nature of novel legal cases.” “Complexity” was associated with “the complexity of the conditions of life, the lack of systematic development of the law, and the unnecessary multiplication of administrative provisions.”⁶

The committee report concluded that “lack of agreement among lawyers concerning the fundamental principles of the common law” was “the most potent cause of uncertainty,” and that complexity primarily manifested itself in “the unnecessary and harmful variation in the law of the different states” and “the lack of precision in the use of legal terms.”⁷ “Fortunately,” the report concluded, “these two causes of uncertainty and complexity are precisely those over which the legal profession has the greatest control.” The fact that “lawyers have so far failed to appreciate the extent of the resulting evil, or to recognize the responsibility of the profession to improve conditions” was “the sole reason why today these defects loom so large.”⁸

The solution, the report argued, was to undertake the “restatement” of the fields of the common law. A Restatement was to differ from existing compilations, encyclopedias, and treatises addressing common law subjects. Encyclopedias were mere summaries of the decisions of courts, and to a limited extent of statutes, without an effort to “point out conflicts and uncertainties that do not lie on the surface,” or “to make a critical analysis of the law,” or “to enter upon a learned discussion of what is or ought to be the law.” The same could be said of most treatises, where “the author’s point of approach is usually that of a photographer, “placing before the reader the law as announced by the courts” without adding any “critical” or “constructive” comments about its content.⁹

The Restatements the committee contemplated were to be different. They were “not only to … help make certain much of which is now uncertain and to simplify unnecessary complexities” but also “to promote those changes which will tend better to adapt the laws to the needs of life.” Restatements were to be “analytical,” “critical,” and “constructive.” “Analytical” meant “a division of topics based on a definite classification of the law that was the result of thorough study by a group of individuals qualified by their studies and their intellectual attainments.” “Critical” meant that the “reason for the law as it is should be set forth,” or “where it is uncertain the reasons for each suggested solution of the problem should be carefully considered “by means of “a thorough examination of legal theory.” And by “constructive,” the committee report meant to convey that the Restatements “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.”¹⁰

The committee report then turned to the form of Restatements. They were to be composed of statements of “principles of law,” comparable to statutory provisions but less detailed, accompanied by “discussion of legal problems, authorities, and reasons” associated with the principles.¹¹ The latter discussion was to be separated from the portions of Restatements setting forth legal principles and was to “contain a complete citation of authorities, decisions, treatises, and articles.”¹²

Restatements were not expected to be adopted as statutes by state legislatures, or if they were, with the “proviso that they shall have the force of principles enunciated as the basis of decisions of the highest court of the state, the courts having power to declare modifications and exceptions.”¹³ The committee had a “reasonable assurance” that a Restatement’s promulgation of principles in a common law field would “be given by courts … approximately such authority as is now afforded a prior decision of the highest court of the jurisdiction”¹⁴

The last topics addressed by the committee report (other than an estimate of the costs of undertaking Restatements)¹⁵ were the selection of individuals to be engaged in producing Restatement volumes and the process by which those volumes would be produced. Those individuals were initially called Reporters and Critics for individual Restatements. Those individuals had already been designated (all of them being members of the committee itself), and additional discussions between Reporters and Critics took place in the summer and fall of 1922.¹⁶ Initially conflict of laws, torts (perhaps first concentrating on negligence), and business associations were chosen as the common law fields first signaled out as desirous of restatement. Conflict of laws was described as a subject in which “[g]reat confusion exist[ed].” “Torts” was characterized as having “developed unsystematically and … therefore full of the evil of uncertainty,” particularly with respect to negligence, where “the over-elaboration of rules pertaining to what constitutes due care has unnecessarily complicated the law and made a new emphasis on simply fundamental principles important.” And the law of business corporations was also uncertain because of “confusion and conflict in regard to the legal character of the [business] association,” and “real differences of opinion as to the correct statement of the fundamental principles applicable to the solution of the more difficult problems presented.”¹⁷

In considering the process by which Restatements in those three subjects should be produced, the committee noted the experiences of the National Conference of Commissioners on Uniform State Laws, which had been in existence since the last decade of the nineteenth century. The process by which uniform state laws were enacted, although more elaborate than the one endorsed by the committee, emphasized “the combination of three stages”: the “appointment of one person” to be responsible for “the production of a definite draft”; the “submission of this draft to a group of experts on the subject, the experts having authority to make any change no matter how extensive”; and “the submission by the experts of a statement of law satisfactory to them to a larger body of judges, lawyers, and law teachers, who taken as a whole represent wide and varied experience.”¹⁸

As the process for producing Restatements evolved in the ALI, it would consist of a fourth stage. Reporters would submit tentative drafts to their Advisers, who would suggest revisions, and revised drafts would then be submitted to the ALI’s Council, defined by the committee report as a body of twenty-one persons having “full power of management” of the ALI’s affairs, with the proviso that “any legal work done under the direction of the Institute, before being published as an official publication of the Institute, should be submitted to a meeting of members … for their several criticisms or expressions of opinions.”¹⁹ The committee report did not specify how large that membership should be, but recommended that, in addition to the Chief Justice and Associate Justices of the Supreme Court of the United States, the senior judge of each of the federal Circuit Courts of Appeal, the chief judges of all the highest courts of each state, the deans of each law school belonging to the AALS, and various other officials of legal organizations and law societies, “between one and two hundred other persons selected because of their high professional standing and their known interest in constructive work for the improvement of the law” should be invited to the February 23, 1923, meeting.²⁰

The committee also stated some guidelines for selecting Reporters and Advisers for Restatements. It anticipated that initially there would be three Reporters and three “committees of experts,” to be composed of “at least five and not more than ten persons.”²¹ It also anticipated that “the reporters and experts will be drawn mainly from the faculties of the law schools,” although it added that it would be “most desirable” for persons from other sectors of the legal profession to serve on the committees reviewing drafts of Restatements.²²

The committee producing the report which resulted in the creation of the ALI at the February 23, 1923, meeting was composed of some of the most visible members of the early twentieth-century legal profession. Among the judicial members of the committee were Benjamin Cardozo, Learned Hand, Julian Mack, Harlan Fiske Stone, and Cuthbert Pound. The practitioner members were overwhelmingly from cities in the northeast, and its academic members exclusively from elite law schools. It was a conspicuously elitist body.²³

The Restatements needed funding, and here the ALI called upon the Carnegie Foundation, one of the philanthropic organizations that had emerged in the early twentieth century as some of the individuals who had accumulated great wealth in the last decades of the previous century, such as John D. Rockefeller, Andrew Mellon, and Andrew Carnegie, sought ways to dispose of some of that wealth in ways that minimized their exposure to income taxation.²⁴ The creation of tax-exempt foundations with educational or philanthropic missions was a convenient way of accomplishing that purpose. One of the founders of the ALI, Elihu Root, was on the board of the Carnegie Foundation and helped facilitate a substantial grant from that institution to the ALI to help launch the Restatements.

Not all of the committee’s expectations materialized in the early years of the ALI. The Business Associations Restatement was not included in the series of First Restatements, among other things because the changing content of the field and the emergence of governmental regulation made the content of any established principles in the area uncertain. Contracts, Agency, and Property were quickly added to the list of fields subject to restatement, accompanying Torts and Conflicts. Academics dominated the Reporters and Advisers of First Restatements, and the number of Advisers remained comparatively small, ranging between three or four per Restatement. The committee report anticipated that Reporters would spend most of their time drafting Restatements, but all continued to teach during the gestation process. Although the Council, whose first membership consisted of Cardozo, Hand, Stone, and a number of visible practitioners, would play a substantial role in the generation of Restatements, the membership at large did not, at least through the appearance of the First Restatements.

Historians have disagreed about how to characterize the ideological stance of the ALI at its inception, and those disagreements seem understandable when the jurisprudential goals of the founders of the ALI are identified.²⁵ On the one hand the founders’ search for “certainty” in the attempted reconciliation of multiple common law decisions in multiple jurisdictions might be seen as a deeply conservative project, since it amounted to the boiling down of those decisions to a set of black-letter propositions that, once articulated in Restatements, were expected to remain in place over time.²⁶ The “certainty” produced by Restatements was apparently thought to be connected to the capacity of their black-letter rules to endure. That conception of the course of common law fields over time comes close to equating doctrinal certainty with doctrinal stasis.

On the other hand, Benjamin Cardozo, in setting forth his expectations for the ALI and its Restatements in a series of lectures entitled The Growth of the Law in 1924, maintained that although “the law’s uncertainties are to be corrected … so also are its deformities,” and that “Restatement must include revision when the vestiges of organs, atrophied by disease, will become centers of infection if left within the social body.” Cardozo fully expected that “Restatement will clear the ground of debris. It will enable us to reckon our gains and losses, strike a balance, and start afresh.”²⁷ The ALI, in that sense, was to be an instrument of law reform. It was to be a “progressive” institution in the early twentieth-century sense of that term, one that elites employed to ensure that as modern American society changed, changes were equated with “progress,” the process by which people informed by “scientific” knowledge made the present a qualitative improvement over the past and paved the way for further improvement in the future.²⁸

So perhaps the best way to describe the ALI’s ideological orientation at its origins is as a distinctive combination of “conservative” and “progressive” jurisprudence, its Restatements seeking to produce an authoritative synthesis of black-letter propositions that could be expected to remain in place over time, and also seeking, in the course of that synthesis, to engage in the “critical” and “constructive” discarding of unsound doctrinal “debris,” thereby reforming the common law in the process.

The outstanding characteristic of the ALI on its formation in 1923, however, was not its jurisprudential ideology. Rather, it was its distinctive social and epistemological orientation. The founders were convinced that the state of American common law could be “improved”—made less uncertain and more doctrinally sound—simply though a combination of hard work and cooperative participation by distinguished lawyers charged with the task of “restating” the governing principles of common law fields. The authority of the Restatements, the ALI founders believed, would come from the social and professional stature of those selected to work on them and to oversee that work. Trained intellects, particularly those engaged in scholarship in common law fields in American law schools, could be expected to discern the doctrinal propositions governing a common law field and to set them forth in an articulate and persuasive fashion. If some of those propositions amounted to academic glosses on scattered judicial decisions, and injected aspirational reformist elements into a black-letter synthesis, so much the better: the profession was reaping the benefits of the labors of distinguished jurists.

It was this epistemological assumption—that highly educated legal academics, judges, and practitioners could improve the state of American common law merely by applying their talents to the derivation and application of black-letter principles—which was to stick in the craw of reviewers of the first set of Restatements when they were eventually published in the 1930s, unaccompanied by any of the ALI-sponsored treatises that were originally envisioned but fell by the wayside. But before turning to the critical reaction to the First Restatements, we want to conclude this snapshot of the ALI at its origins by briefly describing the process by which Restatements were generated in the interval between the formation of the ALI and the publication of the First Restatement, that of Contracts, in 1932.

At the outset, Cardozo and the other founders of the ALI anticipated that Restatements, featuring encapsulations of black-letter doctrinal propositions, would be accompanied by treatises, apparently written by the Reporters for each of the Restatements.²⁹ The treatises would elucidate upon, justify, and apply the doctrinal principles governing common law fields. But as the First Restatements went through successive drafts in the ALI’s process of producing them, the anticipated treatises disappeared from the project. There were two reasons for that development. First, some of the Reporters, such as Samuel Williston, Francis Bohlen, and Joseph Henry Beale, had already published treatises on the subject of their Restatement volumes, and declined to produce additional ones on the ground that such an effort would be not only time-consuming but largely superfluous. Second, ALI leadership concluded that publishing treatises as well as Restatement volumes would be a considerable additional expense for the ALI, and the content of the treatises would not be of abiding interest for most of the ALI’s members.³⁰

As the First Restatements went through drafts in which the Reporters submitted portions of them to Advisers and other interested members, black-letter propositions were frequently accompanied by commentary and citations to cases. From the outset of the Restatement project, it was anticipated that the commentary and cases citations would appear in the final versions of Restatements. But when the First Restatements were eventually published between 1932 and 1937, the commentary and case citations were not included: the volumes were almost exclusively collections of black-letter doctrinal principles and. Illustrations, containing no commentary or case citations.³¹

In light of the strongly critical reaction to the First Restatements that we describe later, in which reviewers suggested that their collections of black-letter principles were sufficiently abstract as to be meaningless, the ALI’s decision not to prepare treatises, and not to include commentary and case citations in the Restatement volumes may appear myopic. But, as we will see, that interpretation was largely driven by the shift in American jurisprudence that was taking place at the very same time the First Restatements were being prepared. That shift eventually abandoned a distinction which was fundamental to traditional late nineteenth- and early twentieth-century conceptions of law and judging, that between the authority of legal sources, which was treated as resting on timeless, foundational principles of law, and the authority of interpreters of those sources (judges, legislators, and executive officials), which rested only on the offices they held. Although being a legislator or an executive official gave those individuals certain “lawmaking” powers, being a judge did not. The only authority judges had was that of their office, to discern existing legal principles and apply them to cases. The idea, animating the First Restatements, that fundamental legal principles could be collected, and that those principles were independent of the judicial decisions embodying them, followed from traditional conceptions of law and judging.³² The appearance of the First Restatements demonstrated that those conceptions had come under pressure.

As the first set of Restatements was being prepared between 1923 and 1932, a jurisprudential movement was emerging in some American law schools that would eventually be identified by two of its adherents in 1930 as “Realism.”³³ The Realist movement would establish itself on two prominent law faculties, Yale and Columbia, in the late 1920s and 1930s, spread to other institutions, and by the United States’ entry into World War II in 1941 would become a mainstream jurisprudential perspective in the American legal academy.³⁴ The advent of Realism would stimulate a series of critical reviews of the First Restatement volumes by academics who had each endorsed, in differing ways, the underlying assumptions of the Realist movement.

Two of those assumptions gave Realism its distinctive cast. One was that the traditional distinction between the authority of sources of law and that of their interpreters was meaningless. When Karl Llewellyn and Jerome Frank published works in the early 1930s expressing dissatisfaction with established understandings of the law, they emphasized the unintelligibility of what Llewellyn called “traditional prescriptive rules.”³⁵ Frank maintained that a belief that “the announced rules are the paramount thing in the law” was a “phantasy.”³⁶

The other defining characteristic of Realism was the insistence of its adherents that legal doctrines could not be understood in the abstract. Rather, that legal doctrines were invariably products of their social context, and that context constantly changed. Therefore, the “the law” at any one time was the sum of decisions and policies responding to on-the-ground developments in society at large. It followed from those two features of Realism that the collections of black-letter principles offered in Restatements, accompanied only by occasional illustrations and bereft of other commentary, would be regarded by Realists as exactly the wrong way to give an account of a common law subject.

The result was that between 1933 and 1937 most of the Restatements which were published in that period were subjected to severe criticism in law reviews by scholars whose jurisprudential views generally accorded with Realism. Similar language marked virtually all the reviews of Restatements. In his review of the Restatement of Contracts, Charles Clark, himself an Adviser for the Restatement of Property, called the black-letter form of the Restatements “an unreality” because “the black letter statements are not understandable … without interpretation or background against which meaning can be discovered.” He added that the “general purpose” of the Restatements, that of “clarification and simplification” of common law subjects, was “certainly fallacious” since “[o]ur civilization is complex and our law, if it is to keep abreast of business and social life, cannot be simple.”³⁷

Leon Green had a similar reaction to the Restatement of Torts, which was published in 1935. He described that Restatement as consisting of “overelaborated [doctrinal] generalizations,” when tort law was better organized around “functional” lines, reflecting the social interests at stake in tort cases and the entities that served as plaintiffs and defendants. Tort decisions, Green felt, were produced by a combination of their fact patterns, their social contexts, and the inclinations of the judges who decided them. The Restatement of Torts emphasized none of those factors.³⁸

Ernest Lorenzen took a comparable approach in his review of the Restatement of Conflicts of Law. He described the approach taken in that volume by Reporter Beale as resting on “the old rationalistic absolutist conception of law,” which had inclined Beale to think of the common law as a “body of scientific principle” which remained “unchanged” despite misconceptions and misstatements of it by courts in particular jurisdictions, resulting in “errors.” Lorenzen characterized Beale’s conception of the common law as “now generally discredited.” In his view the subject of conflict of laws was not a collection of “unchanged” rules or all-encompassing principles, but the aggregate of particular judicial decisions in which the choice to apply the laws of one state or another was made by human actors weighing social interests.³⁹

In a 1937 review of the Restatement of Property, Myers McDougal listed some common features of the reviews of other Restatement volumes. Among those were “naivete in fundamental assumptions,” centering on the assumption that “certainty is obtainable and obtainable by high abstractions” and was “more important than flexibility,” and the related assumption that “the defects of ‘the law’ can be cured by restating it as it is.” Other failings of the Restatements were “the omission of historical, economic, and sociological backgrounds” to the doctrines being collected and “a failure to study the social consequences of institutions and doctrines.” There was also “the omission of supporting authorities, reasoned discussion, and contrast of conflicting opinion” in the Restatements, as well as “the use of ‘doctrinal’ rather than ‘factual’ classifications” of common law subjects. Those assumptions, in McDougal’s view, were “little short of fantastic.”⁴⁰

McDougal’s summary of the common objections of critics to the Restatements revealed how thoroughgoing their jurisprudential estrangement from the ALI’s Restatement project was. They were not merely suggesting that the methodology employed in Restatement volumes was flawed. They were asserting that the starting jurisprudential assumptions of the entire project were wrongheaded because a search for essentialist common law principles was bound to fail. “Law” was not a body of those principles but the aggregate of legal decisions made by officials in changing social contexts.

Although the reaction of these leading legal scholars was critical, the profession at large was more supportive. Lawyers seemed to consult Restatements in doing their research and commonly cited Restatements in their briefs and arguments, since the courts were receptive to them. By 1961, the Restatements had been cited over 29,000 times in the state and federal courts.⁴¹ The ALI and its Restatements were a fixture on the American legal scene. The Restatements, with whatever flaws they had in the view of their academic critics, were a success in the world of law in practice.

From its origins, the ALI had sought to ground the authority of its declarations about the state of the law on the distinguished status, and therefore the authoritativeness, of its members. The Restatements had been drafted by academic experts in common law fields who had been advised by other experts, drawn from the judiciary and the bar as well as the legal academy. And, as the critics of the first set of Restatements had pointed out, those volumes were intended to produce “certainty” in the understanding of common law subjects through a discerning collection of the doctrinal principles governing them. It must have been disheartening for those engaged with the production of the First Restatements to learn that at least one sector of the legal profession, academics at elite law schools, was not inclined to find much certainty, or even much intelligibility, in those volumes.

What at first seemed the radical implication of Legal Realism for Restatements, however, slowly evolved into a recognition that the black-letter-only format of the First Restatements had failed to recognize that certainty was not the only value Restatements could supply. Restatements, in modified format, had the potential to be a resource for lawyers and judges, beyond their mere statement of rules, in a variety of ways. Commentary following black-letter rules could explain and elaborate in ways that provided perspective and an understanding of the rules’ purposes that would be useful to lawyers, judges, and academics. In addition, within decades of their completion, the law on many of the issues they addressed had often developed and changed. An ALI committee chaired by Judge Learned Hand recommended, therefore, that a second set of Restatements, not limited to black-letter statements, be commissioned.⁴²

As Reporters and Advisers to the Second Restatements were assigned in the 1950s, in all the common law fields covered by the First Restatements, and some additional ones,⁴³ two matters became clear. First, the individuals who would be directly involved in the drafting of those Restatements had all entered the legal academy during the period in which Realism became the mainstream jurisprudential perspective in the American law schools, and to some extent in the legal profession at large.⁴⁴ The Restatements they prepared would reflect that point of view.

Second, the Second Restatements were going to contain more instances in which Reporters and Advisers had disagreed on the application of a black-letter provision to a particular issue, that disagreement being signified by a “caveat” indicating that the Restatement was not taking a definitive position on the matter. In introducing commentary and signaling occasional disagreements in the process of restating the principles governing common law fields, the ALI was following through on an assumption which had animated Hand’s committee. That assumption was that the restatement of common law rules necessarily involved an evaluation of their current social utility and desirability. The introduction of commentary was also a response to the criticism of the First Restatements as conveying an illusion of certainty in the promulgation of black-letter rules.⁴⁵

Put another way, the Second Restatements were going to be more open about the policy dimensions of common law rules and more aspirational in their reformist thrust. Hand’s committee had distinguished between rules that were “founded on historical facts,” and although “unjustified by any principles of justice,” might be left in place “because of the desirability of certainty” and “rules that were “insupportable in principle and evil in action.”⁴⁶ The latter were to be excised in the Second Restatement. Herbert Wechsler, after becoming Director of the ALI in 1964, made it plain that his goal for the Second Restatements was that they serve as a “modest but essential aid in the improved analysis, clarification, unification, growth, and adaptation of the common law.”⁴⁷ By that comment Wechsler meant that he was entirely prepared to fuse normative and declarative elements in the Second Restatements. In 1968, in response to a memorandum by two ALI members expressing “grave concern that the Institute is in the process of abandoning the long tradition that it undertakes in the Restatement to express established law, as distinguished from the law that a majority of those attending think ought to be, or will at some time in the future be, established by the courts,” Wechsler said that “if we ask ourselves what the courts will do,” we could not “divorce our answers wholly from our view of what they ought to do.” He added that when he had presented the “grave concern” memorandum and his response to the Council at a March 1968 meeting, it had unanimously endorsed his position.⁴⁸ The Second Restatements were thus to differ from the First not only in their greater emphasis on commentary and division on some doctrinal issues, but on adopting, interstitially, a reformist posture.

As those Restatements were being prepared in the 1960s,⁴⁹ changes were taking place within the American legal profession which would affect not only the composition of the ALI’s membership but its internal deliberations as well. Beginning in the mid-1960s, post-undergraduate American higher education underwent a decisive shift in its orientation. The 1950s and early 1960s had been a period of considerable growth in higher education at both the undergraduate and graduate levels, as with the prosperity that followed the end of World War II and incentives such as the G.I. bill for returning veterans to attend colleges more and more American families came to believe that obtaining higher education decrees was a prerequisite for business, professional, and financial success. College enrollments dramatically increased, and with them the number of new faculty positions. The effect was to create a favorable market for undergraduates to pursue graduate training in the arts and sciences, which was required for faculty positions.⁵⁰

By the mid-1960s, the number of faculty positions in arts and sciences departments had expanded considerably. Then two developments occurred that suddenly diminished the job prospects for persons pursuing Ph.D. degrees in the arts and sciences. With the Vietnam War expanding and a greater emphasis on spending on scientific and technological projects triggered by the space race and the Cold War, the federal government’s budgetary priorities shifted, and federal funding for most departments in arts and sciences was cut. This meant that fewer scholarships and fellowships were available for graduate programs in the arts and sciences, making them more expensive to undertake. And at the other end of the process for graduate students, available positions in arts and sciences departments shrunk, partly because there was less funding for new positions and partly because a surge of faculty hiring in the 1950s and early 1960s had resulted in fewer vacancies.⁵¹

As a consequence of those developments, more undergraduate students began applying to law and medical schools rather than graduate programs. Law schools, whose size was less constrained by the costs of offering an educational experience than medical schools, particularly benefited from the trend, and both proliferated and expanded, including admitting roughly twice as many women in 1982 as had been admitted in 1970. In addition, the American economy experienced a period of general, if uneven, growth in the last decades of the twentieth century, and law firms expanded as well. There were more places in law schools, more law graduates entering the job market, and more places for junior associates in firms.

The economics of medium- and large-size law firms in the late twentieth century made it cost-efficient for their partners to have a large number of junior and senior associates, working on salaries but billing hours at higher rates than their pay scales, but less cost-efficient for them to have large numbers of partners who pooled their assets. Over time the expectations that associates at large- and medium-size firms would be promoted to partner dwindled. With the market for law jobs still flush, disappointed candidates for partnerships increasingly elected to leave their firms for one of two alternatives. One was to form smaller, specialized firms, concentrating on particular types of legal business, often along with associates from their existing firm or disappointed candidates in other firms.

The other option was to work for established corporate clients of their former firms as “in-house counsels.” As corporations grew in size along with the rest of the economy in the late twentieth century, they had an increasing amount of legal business that did not involve litigation: the ordinary legal dimensions of business transactions and consultations about prospective business ventures. Corporations found it efficient not to outsource routine legal matters to firms but to retain their own lawyers on a salaried basis. Law firms, faced with a glut of associates seeking partnerships, also found it desirable to recommend disappointed aspirants to corporations they regularly represented. The arrangement served to cement relations between firms and their corporate clients and to make it likely that the firms would be retained should corporations not be able to address legal matters in house.

When in-house counsel applicants for membership in the ALI came to be proposed in the late twentieth century, the initial reaction of the membership was skeptical on the ground that the ALI was designed to be a nonpartisan institution, dedicated to “improving” the law without regard to political goals or consequences. Eventually in-house counsel were deemed eligible for admission to the ALI under the proviso that in the course of the ALI’s deliberations, members should “check their clients at the door.”⁵² That caveat proved difficult to adhere to and to enforce,⁵³ and it pertained not only to in-house counsel but to members of “boutique” firms who regularly represented certain types of clients. By the late twentieth century the practitioner sector of the ALI, once composed almost exclusively of members in elite firms engaging in general practice, had come to include more persons who regularly represented, or worked for, firms with distinct economic and social agendas. Meetings of the ALI membership increasingly came to include debates among “interested” members, often reflecting the views of their regular clients or their corporate employers.

Two incidents involving William Prosser and the Second Restatement of Torts can serve to illustrate the atmospheric change that began to take place within the ALI in the late 1960s, as the first effects of the developments within the American legal profession previously sketched came to be felt by the ALI.

The first incident was from the interval between 1960 and 1965, when Prosser, as Reporter for the Second Restatement of Torts, was preparing its text. In the early 1960s, Prosser had published two articles on what he called the “assault” upon and “fall” of the “citadel” of privity in defective products cases.⁵⁴ As early as the 1941 edition of his Torts treatise, Prosser had been an advocate for extending the liability of manufacturers of defective products beyond those with whom they were in “privity”—contractual relations—to include users or consumers injured by defects.⁵⁵ He also believed that using a standard of strict liability, rather than employing negligence coupled with res ipsa loquitur, was a more desirable way of dealing with injuries caused by defective products.⁵⁶ Prosser’s approach had been endorsed by Justice Roger Traynor of the California Supreme Court in a 1944 concurring opinion in a case where the explosion from a soft drink bottle, caused by a defect not discoverable on inspection, had injured a waitress.⁵⁷ And by 1963 a majority of the California Supreme Court had endorsed strict liability for manufacturing defects in products.⁵⁸ But at that point most other courts continued to treat defective product injuries as governed by a negligence standard.

Prosser’s articles nonetheless asserted that there was a “trend” in the direction of strict liability for product defects and that subsequently the citadel of privity had been breached, with the strict liability of manufacturers for product defects extending beyond retailers to users and consumers. Buoyed by that conviction, Prosser drafted a new section of the Second Restatement of Torts, 402A, which stated that where a product defect made it “unreasonably dangerous” to users or consumers, strict liability would govern. He secured the approval of his Advisers, the Council, and ultimately the membership of the ALI for 402A, even though comparatively few courts adopted it after its passage, some declining to accept the “unreasonably dangerous” limitation on liability and others choosing to maintain negligence as the governing standard for defective product injuries.

The ALI’s adoption of 402A, which took place in 1965, illustrated the weight afforded to Reporters in the process of drafting Restatements. By the time his articles on the citadel of privity appeared, Prosser was the leading Torts scholar in the nation, being the author not only of an authoritative treatise but the most widely adopted Torts casebook. He had also been the dean of the University of California at Berkeley’s law school since 1948, and in that capacity exercised considerable authority and brooked little opposition. In considering the largely aspirational change Prosser sought to initiate in Section 402A, the ALI was readily prepared to defer to his authority.⁵⁹

In the mid-1960s, the changes in the American legal profession and the membership of the ALI were only beginning to take shape. But by 1970, when Prosser introduced two other sections of the Second Restatement of Torts, on public and private nuisance, the composition of the ALI had begun to change, as had the ideological orientation of some of its academic members, and those changes had begun to reflect themselves in the membership’s reaction to Restatement drafts.

A prime example involved the material on nuisance. At the 1969 Annual Meeting Prosser had secured membership approval for Section 821B of the Second Restatement, on public nuisance. The section defined a public nuisance as an “unreasonable interference” with a “right common to the general public,” and included among considerations for whether the interference was “unreasonable” its “continuing nature” or whether it had been “proscribed by a statute, ordinance, or administrative regulation.” At the Annual Meeting the following year, he introduced Section 821D, on private nuisance, defining that tort as an intentional, and unreasonable, invasion of an interest in land. In doing so he set forth the previously approved Section 821B, on public nuisance, as a reference.

Prosser’s presentation to the ALI membership of the new Section 821D, along with the previously approved Section 821B, evoked two quite disparate proposals, from the floor, both directed at the public nuisance section.⁶⁰ One proposal was to withdraw tort law entirely from the treatment of public nuisances, replacing it with environmental regulation. The other was to greatly expand the role of tort law in policing public nuisances, specifically air and water pollution. The responses signaled that the ALI membership had become polarized on the issue of particulate emissions by corporate entities, possibly because members were reflecting the various interests of their clients or employers. A motion to recommit Section 821B to Prosser for revision was approved by the membership, without a clear indication of the direction such a revision should take.⁶¹

Meanwhile, at the same Annual Meeting, Prosser’s draft of Section 821D, which had distinguished between “intentional” and “unintentional” private nuisances, treating the latter as being governed by negligence law but requiring that the former be not just intentional but “unreasonable” to make out an action, was challenged by Professors Robert Keeton and Fleming James. These two torts scholars urged that “intentional” private nuisances be actionable whether they were “unreasonable” or not, in effect subjecting them to a form of strict liability. Prosser defended his treatment, but the membership ultimately voted to have him revise the section along the lines Keeton and James had suggested.

The episode represented a striking contrast to the ALI membership’s response to Section 402A five years earlier. In that episode the membership had deferred to Prosser, even when he produced a section with little case support that was largely based on his own views. In 1970 the membership not only rebuffed Prosser on Section 821D, but retrospectively adopted a motion to recommit Section 821B to Prosser for unspecified revisions, although this section had been approved a year earlier. We cannot be sure exactly what was driving the change: Keeton and James’s proposal to reconsider 821B would not have been understood as ideologically driven, but it nonetheless reflected an expanded theory of private nuisance liability which may have appealed to sectors of the membership. In any event, Prosser, who rarely took kindly to challenges to his authority—he resigned the deanship of Berkeley in the middle of the 1960–1961 academic year after the university sought to initiate a pro forma review of his position, even though he was sixty-two at the time and would have been required to retire at sixty-five—signaled after the nuisance episode that he was going to retire as Reporter of the Second Restatement, and did so over the summer of 1970.⁶² The institution to which Prosser had presented his sections on nuisance was not the quite the same as the one that had approved his draft of Section 402A.

Three themes dominate our account of the ALI’s second half-century. First, the projects and subject matter of the ALI’s work diversified, to include not only new Restatements but also other types of projects and the consideration of subjects outside the common law. Second, some projects and some of the ALI’s work became controversial, with interests from both inside and outside the ALI reflecting a polarization of views. Third, toward the end of the period, there was increased involvement not only by the practicing bar but also by faculty at elite law schools, replicating in many ways the involvement of prestigious law professors at the time of the ALI’s founding.

For roughly its first fifty years, most of the ALI’s work had been Restatements, although it also produced the Uniform Commercial Code, the Model Penal Code, and a number of studies and special publications that were neither restatements nor codes.⁶³ In the late 1970s, however, it began a project in a different form that would produce the most heated controversy it had ever experienced: Corporate Governance.⁶⁴

Beginning in the late 1960s, a number of controversies implicating corporate governance and corporate social responsibility erupted. Incidents such as Dow Chemical’s manufacture of napalm gas used for defoliation during the Vietnam war and the secret corporate contributions to President Richard Nixon’s re-election campaign that became connected to the Watergate scandal stimulated broad concern about the weak supervisory role played by corporate boards of directors in the governance of public corporations. By the late 1970s, legislation addressing the issue had been introduced in the U.S. Congress.

It was in this context that the ALI decided to undertake a project on Corporate Governance. From the outset there was recognition that the project would not be a pure Restatement, because it would not only be restating some corporate law, but also expressly considering reforming the law where necessary. The first draft of the project reflected this approach. It was called the project “Principles of Corporate Governance and Structure: Restatement and Recommendations.”⁶⁵ Clearly this was to be more than a mere Restatement, although exactly how was yet to be determined.

The first draft, produced in 1981, proposed changes to rules that, among other things, would have increased the responsibilities and potential civil liabilities of corporate directors.⁶⁶ For example, the draft proposed what came very close to being a simple negligence standard for directors’ liability for breach of their duty of care—breach of which could be the subject of derivative suits by shareholders against a director. This would have supplanted the “business judgment” rule, which eventually was understood to subject directors to liability only for gross negligence (or worse).

The draft produced considerable public criticism. Walter Wriston, CEO of Citicorp, was quoted in the New York Times as saying, “[w]e don’t require four law professors to tell us how to run our business.”⁶⁷ The Business Roundtable argued that “the proposed Restatement” was an “attempt to impose an additional and unnecessary layer of regulation on United States corporations,” ignoring “the realities of competition and the marketplace. …”⁶⁸ Partly in response to such criticism, the Corporate Governance project evolved. In a subsequent draft it was renamed “Principles of Corporate Governance: Analysis and Recommendations.”⁶⁹ Removal of the name “Restatement” from the title took away some of the significance that Restatements carried, but several years of controversy followed nonetheless, with many of the corporate lawyers who were members leveling strong criticism at successive drafts. Eventually the project was approved, but not without leaving scars from the polarization that had accompanied it.

A lesson was apparently learned. The name “Principles” would come to designate ALI projects that attempted not only to state the law but also to express judgments about the wisdom of existing law and make proposals for reforming it. Several important projects over the next three decades would be designated “Principles,” and finally in 2015, under Director Richard Revesz, the distinction between Restatements and Principles was formalized and broadened. Restatements now speak primarily to courts; Principles projects do not.⁷⁰

Tort liability, a traditional subject of the ALI’s work, took a new turn in the late 1970s. A “crisis” in the availability and affordability of medical malpractice liability insurance was followed by the rise of “mass” torts involving defective products and drugs, such as asbestos, the Dalkon Shield, and breast implants. A second “crisis” involving a broader range of defendants and purchasers of liability insurance arose in the mid-1980s. Whether the traditional tort system, designed primarily to handle sporadic accidents, was an adequate and sensible mechanism for handling these new forms of tort liability was a question at the forefront of public policy debates.

It was in this context that the Council approved a project that was initially termed “Compensation and Liability for Product and Process Injuries.”⁷¹ The project was never expected to be in the form of a Restatement or Principles. It had five Reporters and no Advisers, but there were two “Council Liaisons” often present at meetings of the Reporters, apparently to ensure that work of the project did not get into the kind of trouble that had recently befallen Corporate Governance. The purpose of the project was to address and assess the fundamental features of the tort system that had produced the recent and ongoing controversy.

The Reporters at first produced working papers on aspects of the tort system, such as workplace, medical, and product-related injury and liability insurance.⁷² They also considered the fundamental purposes of the tort system—compensation, deterrence, and redress of social grievances. In due course, the project prepared drafts that included possible reforms to the system, some of them fundamental, such as no-fault in the area of medical injuries, proportional liability for injuries whose causes were uncertain, and reform of the law of damages.

As the project neared completion, it adopted a new name—“Enterprise Responsibility for Personal Injury”—and its Reporters began participating in meetings with Advisers that functioned much like the meetings of Restatement and Principles projects.⁷³ The ALI found that the project was controversial. The tort law world is divided into plaintiffs’ and defense counsel, and drafts of the Enterprise Responsibility project were criticized from both sides. Plaintiffs’ counsel objected to such proposed restrictions on liability as the abolition of the collateral source rule and the potential move to enterprise-based medical liability or medical no-fault. Defense counsel objected, among other things, to the consideration of proportional liability.

Periodic reports to the Council on the status and progress of the project had revealed not only that it was controversial but also that it was unclear how it could be put into a form susceptible to approval by the membership at the Annual Meeting. Director Geoffrey Hazard noted the possibility that Enterprise Responsibility project would simply be denominated a report “to” the ALI rather than “by” the ALI and could be serve as the intellectual basis for turning to a Third Restatement of Torts, beginning with products liability; he also suggested that it could be termed a “reporters study” that required no vote.⁷⁴

The project’s two-volume study was presented to the Annual Meeting in May 1991, with prior indication that it was for discussion only and would not be voted upon.⁷⁵ The same kind of heated debate that the project had undergone in smaller, prior meetings ensued on the floor. It appears that over the following summer, perhaps after receiving further criticism of the project, and perhaps even as some form of political compromise, the Director decided that the work of the project should not continue in some new or additional form. At its October 1991 meeting, the Council approved his recommendation that the ALI turn to a Restatement (Third) of Torts focusing initially on products liability.⁷⁶

An additional consideration helps fill out the context in which the extended controversies over Corporate Governance and Enterprise Responsibility occurred. Opposition to the Corporate Governance project at the Annual Meetings, where projects are discussed and must be adopted by vote, was sometimes voiced by members who represented publicly traded corporations whose interests could have been affected by the project’s recommendations. The ALI has no conflict-of-interest rules for members voting on project proposals. We have seen that there is an express rule, more in the form of a strong admonition that is not accompanied by an enforcement mechanism, that members are to “check their clients at the door.” Undoubtedly some of the members were urged by their clients to oppose proposals made by the project. But it is also the case that in a career of representing a particular point of view, lawyers come to internalize that point of view and believe in it. Separating the two influences may be impossible.⁷⁷

In the ensuing years, intermittent division along partisan lines became even more evident. The Enterprise Responsibility project was subjected to considerable partisan criticism, which may well have influenced the termination of the project at an earlier point than would otherwise have been the case. Partisan division of this sort has become fairly routine in the last few decades. This has been the case predominantly in fields of law in which the bar itself is divided by reference to the set of interests that a lawyer typically represents. In torts, lawyers tend to represent plaintiffs or defendants exclusively; in employment law, the division is between those who represent labor and those who represent management; in insurance law, between those who represent policyholders and those who represent insurers. Projects in which the bar is divided in this manner—whether Restatements or Principles—tend to be more polarized than when there are no evident “sides” divided by particular interests. For example, lawyers who practice Family, Property, and Agency law tend not to represent particular interests in these fields exclusively, and projects in those areas have been less controversial.

The ALI has come to recognize that projects in which partisan divisions can be anticipated require that the Reporters not be strongly identified with a particular point of view, and that the lawyers who serve as Advisers be representative of each side of the division within that field. Partly for this reason, the size of Advisers’ groups has increased, and “Members Consultative Groups” were added, often with participation by both groups at in-person meetings. This approach may sometimes have diluted the depth of deliberation that takes place at meetings. But the approach not only helps to ensure that there is a full airing of differing points of view as drafts are prepared but also reduces the risk that particular interests will feel that those whose views they share have not been involved in the process. In the experience of one of the authors (Abraham), the expression of different points of view frequently and properly influences the choices the Reporters make.

In addition, interest groups sometimes lobby the Council, through the submission of memoranda or letters commenting on a draft that the Council is considering. And there is still heated debate at Annual Meetings, because no amount of attention to process can dissolve intense substantive disagreement. But debate tends to be more focused on substance, and less on process, than might be the case if the approach of ensuring the representation of different points of view at earlier stages were not taken. Nonetheless, on occasion partisanship definitely affects the flavor of the process, and sometimes continues after a Restatement or Principles project is complete.

The last two decades have witnessed a number of important changes in the profile of the ALI and its work. First, membership has diversified. The increase in the number of women in the legal profession that began in the 1970s eventually led to an increase in the number of women who were elected to membership in the ALI. An emphasis on identifying qualified people of color for membership also bore fruit. Second, the sheer volume of work has increased. Since 1990, roughly thirty-five major projects have been initiated, involving Restatements, Principles, and Codifications and Studies. The majority have been completed. That is a bit more than one new project per year. Since each project takes an average of about eight to ten years from beginning to end, this means that at any given time there is a considerable amount of work taking place. In recent years, the number of ongoing projects has increased to between fifteen and twenty at any one time. That is a practical limit, given the number of meetings of Advisers and Members Consultative Groups that are required during the course of the year, as well as the amount of time that can be devoted to any given project’s work at Council Meetings and at the Annual Meeting.

This increase in activity and productivity has certainly been influenced by the leadership and energy of Directors Geoffrey Hazard, Lance Liebman, and Richard Revesz, along with the Presidents who have been in charge during this period, Roswell Perkins, Charles Alan Wright, Michael Traynor, Roberta Ramo, and David Levi. But it is also a result of the second important factor influencing the ALI’s profile: the accelerating pace of legal change and of the rise of new legal issues and new areas of law to which the ALI has sought to make a contribution. The center of gravity of the ALI’s work, until the last few decades, were the First and Second Restatements of traditional common law subjects. That work has continued to this day, in the Third Restatements of Torts, Agency, Property, and Trusts.

A considerable portion of the ALI’s work over the last two decades, however, has focused on new subjects or subjects previously considered of secondary importance. Successive Directors (with the advice of the Council’s program committee and the Council itself) have been the principal influence on what projects are undertaken and the form that a project takes. An increasing portion of the projects has been normative, addressed to institutions other than the courts in the form of Principles, or both. Thus, there have been or are in process Restatements of the Law of Charitable Non-Profit Organizations; Children and the Law; the U.S. Law of International Commercial and Investor-State Arbitration; the Law of American Indians; and Liability Insurance Law. There have been projects on the Principles of Aggregate Litigation; Compliance, Risk Management, and Enforcement for Corporations, Non-Profits, and Other Organizations; Data Privacy; Election Law; Government Ethics; Policing; Student Sexual Misconduct: Procedural Frameworks for Colleges and Universities; Transnational Civil Procedure. And there have been other projects revising the Model Penal Code provisions on Sentencing, and on Sexual Assault and Related Offenses; and a project on World Trade Law: The World Trade Organization. As recently as thirty years ago, few of those subjects would even have been on the legal horizon as subject matters suitable for an ALI project. And even for those that were on the horizon, many involved in the ALI would not have considered them appropriate subjects of attention by the ALI. That has all changed. The changing nature of law has necessitated a change in the nature of the ALI’s work.

A third factor contributing to a change in the ALI’s profile over the past several decades has been the increased involvement of practicing lawyers and academics, as compared to the situation between roughly 1980 and 2000. The revolution in the size and competitiveness of law firms between 1980 and 2000, with its accompanying pressure on bringing in and maintaining business, meant that the typical law firm partner often could not afford the time necessary to be involved in the work of such organizations as the ALI. The ALI recognized this phenomenon, creating regional advisory groups to identify promising potential ALI members and then recommend and recruit them. In addition, over a period of years after 2000, President Roberta Ramo visited many of the managing partners of the Big Law 200 firms to encourage them to support greater involvement of their partners in the ALI. These efforts bore fruit in the form of increased membership and more geographical, gender, and racial diversity in membership. In addition, greater attention to those forms of diversity has meant that the membership of the Council—subject to term limits beginning after about 2010—is also much more diverse than it had been.

This is not the place to pat the ALI on the back for those efforts, for it is still an elite organization, with both the strengths and weaknesses of that sort of group. Change in the makeup in the membership and Council, however, has influenced the legal subjects that each entity found important, interesting, and in need of attention. That changed not only the subjects that were selected as projects but also the level of involvement by the members in those projects. If debates at the Annual Meeting sometimes now look a bit more like debates in a legislature than they once did, at least part of the reason is not merely increased partisanship but also increased intellectual involvement on the part of those attending.

The increased involvement of academics in the work of the ALI has taken a different form. We referred earlier to the increasing disconnect between the work of practicing lawyers and the preoccupations of law professors, beginning in the late 1960s, when professors at elite, and eventually many other law schools, began to shift their attention away from traditional doctrinal scholarship. The pool of qualified law professors who would be interested in serving as Reporters or Advisers to ALI projects probably shrunk accordingly. Exactly when this trend bottomed out is not entirely clear. In the 1980s and 90s, involvement of academics was still substantial, but interest in the ALI at the elite law schools was probably at an all-time low.

On the initiative of Director Lance Liebman and Deputy Director Stephanie Middleton, in 2007, the ALI held an informal conference of selected law school junior faculty to get feedback about their interest in the ALI and what could be done to encourage it. One of the new programs that grew out of this conference were the junior faculty scholarship awards now made annually. Law school deans make nominations, and the two winners are each invited to make presentations at the Annual Meeting. Each winner also holds a one-day conference at the ALI’s expense on a subject of their choice. The awards have raised the profile of the ALI among junior faculty at American law schools.

But more importantly, in the last decade there clearly has been increased involvement by senior law school faculty in the work of the ALI, including some of the leading legal scholars in the country. Part of the reason is that the subjects chosen for ALI projects—many of them not involving traditional legal subjects, as we noted earlier—are of greater interest than the common law subjects that were once the core of the ALI’s focus. Part of the reason is the sheer persuasiveness of the last two Directors, Lance Liebman and Richard Revesz. An additional part may come from the increased interest on the part of law school faculty in taking legal doctrine seriously, as evidenced by the advent of programs and publications addressing what has sometimes been called “the new private law.”⁷⁸ And a final part may be the level of energy and productivity of many prominent law professors, who now commonly publish several law review articles each year and find it feasible not only to be legal scholars but also to be involved simultaneously as ALI Reporters and Advisers. Whatever the explanations, faculty from Harvard, Yale, Chicago, Columbia, Michigan, Penn, Virginia, NYU, Duke, Berkeley, and UCLA, among others, have recently been or are now serving as Reporters. And faculty from those and many other law schools commonly serve as project Advisers. The result is that the work products of the ALI are informed by the scholarship of these individuals. Conversely, it seems likely that these scholars’ publications are at least sometimes informed by their work on ALI projects. The gap between what goes on in law schools and what goes on in the work of the ALI is therefore probably narrowing.

The intellectual evolution of the American Law Institute has paralleled the evolution of American law in the century of its existence. The First Restatements reflected the idea that certainty could be obtained by the exercise of intelligent deliberation and articulation of black-letter rules by sophisticated legal thinkers. That idea was met with skepticism by the legal Realists, even while the Restatements themselves were proving useful in the world of practice and adjudication. The Second Restatements took account of the Realist critique, adding commentary and reflecting a recognition of uncertainty where it existed, while maintaining the black-letter approach that had proved attractive to the bar and the bench.

Changes in the legal profession and in society at large have led over time to changes in the composition of the ALI, and in retrospect inevitably to polarization over the substance of some ALI projects, notably Corporate Governance and Enterprise Responsibility for Personal Injury, and certain of the Third Restatements as well. The ALI has learned to deal with such polarization, at times even taking advantage of it, both in the selection of projects and in the evolution of their substance as they move toward completion.

At the same time, the ALI’s membership and leadership have become more diverse, while involvement of elite lawyers and professors from top-tier law schools, which had declined late in the twentieth century, has increased in recent decades. This increased diversity and involvement is the product of both active recruiting by ALI leadership and the rebirth of interest in legal doctrine on the part of an important segment of legal scholars.

It is no surprise that the ALI’s intellectual evolution has followed this course, for otherwise it would have either withered away or become an outlier in American law. Instead, the ALI has changed with the times, both intellectually and organizationally, encountering pitfalls, obstacles, and criticism, but adhering to its original mission of improving the law through the production of work that is the result of intellectual efforts by a combination of lawyers, judges, and legal scholars. If this form of sustained intellectual interaction is not completely unique in American law, it is certainly highly distinctive.