Restatements of the Law are today ubiquitous and influential sources in the American legal system. Produced by the American Law Institute (ALI), a private organization dedicated to the clarification, modernization, and improvement of the law since 1923,
Restatements cover a wide range of legal subjects.
While they initially focused on state common law areas, the Restatements have since expanded their coverage and today deal with a wide range of federal, state, and hybrid subjects.
Every first-year law student is introduced to Restatements with the understanding that they are “highly persuasive” sources of law even if not binding as such.
The influence of the Restatements, however, extends well beyond their pedagogical value. Courts in every single U.S. jurisdiction—federal, state, and territorial—routinely rely on or cite to Restatements in their decisions. Ever since their origins, courts around the country have cited to them nearly 10,000 times, with a significant number of those opinions quoting extensively from the language of the Restatements.
Indeed, such is their influence that in a relatively recent U.S. Supreme Court case, Justice Antonin Scalia authored a separate opinion with the sole purpose of “caution[ing]” courts against using modern Restatements as part of their reasoning without closer examination.
Owing to their enormous influence on the development of judge-made law, much has been written about the substantive content of individual Restatements and the process through which they are each produced.
Similarly, the history of the ALI has also been the subject of extensive scholarly commentary and critique.
Despite the voluminous literature on the ALI and the Restatements, scholars have devoted surprisingly little attention to examining the manner in which Restatements are actually relied on and used by courts as part of their reasoning.
Beyond simple citation numbers, woefully little is known about the techniques and methods employed by courts in their use of Restatements, that is, the very process through which Restatements get incorporated into the law. What makes this oversight particularly consequential is the reality that in relying on Restatements, courts are required to engage in the task of interpretation, a process that has itself been the subject of rather significant methodological disagreement.
Even though they involve the synthesis of judge-made law, Restatements endeavor to function as quasi-statutes, attempting to emulate “the care and precision of a well-drawn statute.”
The founders of the ALI saw the drafters of the Restatements as “experts” in “legislative drafting” who were better suited to codification than were legislators.
In an effort to codify judge-made rules and principles, Restatements therefore embody very distinct structural similarities to statutes: Their primary directives are described as “black letter” and placed in bold text, their provisions are sequentially numbered and organized logically as a code, and, perhaps most importantly, their drafters pay acute attention to every single choice of word that is included in the text of a Restatement—all in the unstated hope that courts will engage them just as they do ordinary statutes, even if through the common law process.
Not surprisingly, innumerable courts do just this and treat Restatements as statutory directives, that is, as primary sources of law. As a prime example, consider the celebrated property law case of Intel Corp. v. Hamidi, decided by the Supreme Court of California.
The case involved the applicability of a common law property tort—trespass to chattels—to an internet server. The question before the court was whether the defendant’s spamming of a private computer server constituted a trespass.
In answering the question in the negative, the court placed extensive reliance on the Restatement (Second) of Torts, and specifically section 218 therein, which deals with trespass to chattels.
What is particularly noteworthy in the court’s engagement with the Restatement is not just its extensive quotation of the relevant provision or its parsing of the precise words contained therein but also the very framing of the Restatement’s role as a source of law that would guide its reasoning.
The majority opinion framed its reliance on the Restatement as follows: “Under section 218 of the Restatement Second of Torts, dispossession alone, without further damages, is actionable . . . but other forms of interference require some additional harm to the personal property or the possessor’s interest in it.”
At first glance, this observation may appear rather straightforward. Yet on closer scrutiny it perfectly illustrates the tendency of courts to equate Restatements with statutes. The court’s framing treats section 218 of the Restatement as the primary source of the cause of action; actionability was to be determined by that section since it was seen as arising “[u]nder” it.
The flaw in the court’s formulation lies in its treatment of section 218 as a free-standing source of the legal proposition it was considering, when the provision merely synthesizes and restates judge-made law on the point. That framing is, however, ordinarily reserved for statutes, which as independent sources of law, dictate whether something is “actionable under” their terms.
Restatements are not independent sources of law despite their superficial resemblance to statutes. The black-letter text of Restatements is drawn directly from the language and content of actual judicial opinions, which it synthesizes into succinct directives. While the black-letter text of a Restatement may thus resemble statutory text in form, in substance its source is the judicial opinions that it digests into a directive, a distinction of significance. A longstanding rule—now reiterated multiple times by the Supreme Court—warns against treating the expository language of a judicial opinion as equivalent to the concise text of a statute, since judicial reasoning emerges contextually from the circumstances of the dispute before a court.
Consequently, a strong interpretive canon cautions courts against parsing and dissecting the language of judicial opinions in ways commonly done for statutes. Courts relying on Restatements, however, routinely fail to realize that they are in substance interpreting and relying on judicial—as opposed to legislative—language.
Further, unlike statutes, Restatements contain more than just black-letter text. They contain additional components that are meant to aid judges in their reliance on the document. These components commonly include a “Comments” section, which explains the background and rationale for a black-letter provision, and the “Reporter’s Notes,” which are authored by the drafters to convey their own individual views about the provision (and topic) independently.
Implicit in their structure and arrangement within a Restatement is a presumptive hierarchy of authoritativeness that the Restatements’ drafters advance: The black letter is meant to embody binding law while the Comments and Reporter’s Notes elaborate on the law and its rationale, with the latter treated as the product of the individual drafter rather than the organization’s membership.
Comments and Reporter’s Notes are therefore meant to function as interpretive guides to the black letter, but from inside the official text of a Restatement—like the oddity of interpretive guidance contained within the enacted language of a statute. Owing to their presence as intrinsic guides, courts all too commonly treat Comments and Reporter’s Notes in the way that they do the black letter of Restatements and scrutinize their language very closely.
Perhaps most importantly, in stark contrast to formal legislation, Restatements are produced through a decidedly nontransparent process. Early drafts of a Restatement—and the debates around its provisions—are never publicly revealed nor recorded.
Further, the full drafting history of a Restatement is never made public.
The reasons behind a Restatement’s choice of particular language, the inclusions and omissions made to and from its text owing to consultations and suggestions, and the myriad compromises—political, ideological, and otherwise—that such text represents all remain hidden from courts unless chosen to be revealed by a Restatement’s drafters in the Comments or Reporter’s Notes, or by a participant in the process.
Unlike with statutes, for which the legislative history routinely informs the understanding of the text,
courts are meant to rely on the language of Restatements without any recourse to its drafting history and intellectual lineage. Courts are thus implicitly directed to accept the text of a Restatement on its own: as neutral, apolitical, and thus capable of being understood without looking behind the curtain, except when a drafter thinks it wise to do otherwise.
This Article examines the nature and status of Restatements as sources of law in the modern American legal landscape by focusing on the manner in which courts interpret and rely on their substantive content. Despite their formal status as secondary sources, Restatements are today regularly treated as authoritative sources of law by courts, a transformation that the ALI has consciously facilitated and encouraged.
Regardless of the wisdom of this transformation, it has unfortunately not been accompanied by a recognition of the rather important ways in which Restatements differ from statutes and other codes and regulations, which should influence the manner in which they are relied on by courts.
As legal texts that are developed through a collective institutional process involving experts in a field, Restatements undoubtedly remain invaluable legal sources for courts and lawyers. All the same, despite the Restatements’ fairly standardized form and substance today, courts rely on Restatements in very different ways. In one of the most common versions of reliance seen today, courts treat Restatement language as authoritative statements of law on their own or formally “adopt” Restatement sections as the law of their jurisdiction in their reasoning.
The anomalous nature of such judicial adoption and the constraining effect that it has on future courts’ discretion under the common law are factors that are altogether ignored during such reliance. In this form of reliance, courts effectively outsource their lawmaking role under the common law to Restatement text, analogous to what they would do with an actual statutory text.
A second (and more benign) form involves courts relying on Restatements as secondary sources and thus according them no more than persuasive value. Here, courts use Restatements to support their descriptive statements of the law that are independently derived from elsewhere.
In between the two forms is a third mode of reliance wherein courts look to Restatements for their reporters’ efforts to choose between conflicting lines of decisional law. In such reliance, courts either unpack a Restatement’s choice to focus on its rationale or instead accept the choice as worthy of reliance on its own without any additional scrutiny.
While the former treats Restatements as secondary sources, the latter outsources the normative nature of the choice back to the Restatement reporters.
Rarely if ever, though, do courts specify the form of reliance that they are placing on Restatements, often equivocating instead on the issue. Later courts then routinely misconstrue the nature and scope of a prior court’s reliance on a Restatement in its reasoning, compounding the effect of the initial equivocation. When a court’s form of reliance on a source and its accompanying process interpreting that source lack sufficient transparency, it risks undermining the legitimacy and credibility not just of the source at issue but also of the very court engaged in the reliance and interpretation. Indeed, much of the controversy surrounding courts’ modern use of Restatements stems from their failure to develop a coherent approach for their reliance. At the root of Justice Scalia’s observation that modern Restatements “are of questionable value and must be used with caution”
was the implicit concern that courts were inconsistent and unclear about how and when to interpret and rely on Restatement provisions as part of their reasoning.
For Restatements to continue serving a meaningful purpose in the American legal system without undermining their own legitimacy, it is critical for courts to develop a methodology of reliance that is tailored to Restatements’ unique structure, purpose, and status as legal sources. This Article takes the first steps in that direction and offers a set of Restatement-specific canons of construction that alleviate the main problems underlying courts’ extant use of Restatements in their judicial reasoning. These include: the canon of secondarity, which would presume that a court’s reliance on a Restatement is in its use as a secondary legal source, absent an affirmative statement to the contrary; the canon of faux codification, which would require courts to look behind the statute-like framing of Restatements to actually scrutinize the relationship between the text of the black letter and the actual law that it purports to restate; the canon of common law preservation, which would have courts interpret Restatements’ black letter in a way that preserves—rather than narrows—their own lawmaking function in the common law; and lastly, the canon of statutory primacy, which would caution courts against relying on the black letter of Restatements over the language and text of any competing statutory provisions that it seeks to summarize or paraphrase.
The argument of the Article is developed in four parts. Part I unpacks the form of legal authority that Restatements embody, focusing on the manner in which they consciously tread a thin line between competing visions of legal authority. This unique positioning has allowed them to play an outsized role in the development of the law and accorded them significant influence among courts. Part II shows how, despite superficial similarities in form and structure, Restatements remain fundamentally different from statutes. These differences have important consequences for the ways in which Restatements are used and relied on by courts. Part III then examines the principal ways in which courts rely on Restatements in their judicial reasoning: as actual codified law (analogous to a statute), as a choice among competing lines of case law, and as the opinion of a treatise-writer, albeit an institutional one. Part IV shifts to the normative and argues for the development of a new methodology for courts’ reliance on Restatements, one that is transparent both about the nature of their authority and the purpose for courts’ reliance on them. It then offers a set of four new interpretive canons for courts to use in their reliance on Restatements as part of their judicial reasoning. A brief conclusion follows.
Before proceeding further, an important methodological caveat is in order. Much of the argument about judicial reliance that follows focuses on courts’ use of Restatements in their reasoning as articulated in their opinions. A concern might therefore be raised that such reasoning is little more than an ex post rationalization of an outcome that is developed—either consciously or subconsciously—by judges to mask their real motivations for their decisions.
In other words, an opinion might well state that it is relying on a provision of a Restatement, when in reality it is motivated by other considerations, many of which are for varying reasons incapable of articulation.
While this concern may well hold true as an evaluation of the psychology of judges (and judging), it fails to account for the independent generativity of legal precedent.
Even if an opinion at the time does not adequately reflect a judge’s real reasons, to later courts it is only ever the professed (i.e., written) reasons and reliance as seen in the opinion that matter, thus according them principal influence as a structural matter.
The argument that follows is therefore built around this reality.