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May 16, 2016

Recent Actions by the American Law Institute Should Raise Judges’ Eyebrows

Should outside groups influence the rule of law?

Conventional wisdom, not to mention the U.S. Constitution, says that only an independent court system guarantees an impartial rule of law.

The American Law Institute (ALI), a venerable institution that holds tremendous influence with the American judiciary on how laws are interpreted by judges, seems to be shifting from impartial presenter of the current state of the law to a partisan influencer of the courts.

Founded in 1923, ALI’s mission is to promote uniformity in the development of American law. The group educates judges about a legal topic through different products, the most important of which are called Restatements of the Law.

Restatements have traditionally been regarded as impartial and accurate reflections of existing state common law. They clarify and summarize the law and direct courts as to how the law should be appropriately stated.

But while ALI has aided the American judiciary in the past as a mirror reflecting how most courts interpret laws, their tone has recently shifted to one that reflects how a few ideologues think the law should be viewed – going increasingly beyond the prevailing view of existing law.

This alarming shift is complicated by the fact that ALI is considered an old friend by the American judiciary—leaving those on the bench unlikely to question ALI’s true intentions.

The Shift from ‘Restating’ to ‘Creating’

In January 2015, ALI changed its Style Manual, dramatically altering the intention and spirit behind Restatements – empowering them to go well beyond their traditional roll of simply “restating” current law. The changes give Reporters (leaders of a Restatement project) more latitude to “determine the best rule” and “make the law better adapted to the needs of life.”

The updated Style Manual is both the result of—and the catalyst for—a shift in how ALI conducted several Restatement projects over the past few years: seeking to influence areas outside its scope, ignoring credible input, and recreating rather than restating the law.

Some recent restatements include:

2012: Third Restatement of Torts – Violated tort law by establishing the “flagrant trespasser” as a new premises liability category. ALI recommended that courts impose a duty of care on property owners for all entrants on their property, including unwanted trespassers. As a direct result, legislatures in sixteen states had to codify their trespasser law to ensure that courts did not follow ALI’s lead.

2013: Restatement of Copyright Law – Removed issue from its traditional place in federal statutory law and forced it into the realm of state common law. 

2014: Restatement of Employment Law – Written in spite of concerns from a majority of ALI members that establishing a Restatement amid a diverse field of state employment laws could expand liability for employers.

2015: Restatement of Torts – Significantly expanded battery to mean any contact with another person that “offends a reasonable sense of personal dignity” or contact that is highly offensive to another person’s “unusually sensitive sense of personal dignity, and the actor knows that the contact will be highly offensive to the other.”

This week, ALI will host its 93rd Annual Meeting, where discussion on yet another controversial Restatement—the Restatement of Liability Insurance—will take place. If this Restatement follows a similar path, interpretation of the law of insurance liability is sure to be affected.

‘Abandoned the mission of describing the law’

Considering the weight and influence that Restatements carry within the judicial community, these and future projects pose a threat to legal precedent and must be challenged.

If left unchecked, Restatements will provide cover to jurists who seek to expand liability despite tensions with the letter of the law – something critics of ALI’s recent practices say is the intended effect of the activist Reporters.

The late Justice Scalia, in his dissent in Kansas v. Nebraska et al., said it well of ALI’s recent work: “[the] modern Restatements…are of questionable value, and must be used with caution… Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be.”

Today’s judges should no longer take ALI’s current Restatement with the same historical weight as they have in the past. No longer should these works be assumed to be simply a reflection of judicial interpretation. 

And it is time ALI itself reevaluates its current practices to ensure the maintenance of its long-standing good name. In order to preserve the integrity and intent of Restatements, ALI’s members should begin by recognizing and fixing this disconcerting shift.

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