|Roberta Cooper Ramo|
The American Law Institute (ALI) was established in 1923 to promote the clarification and simplification of United States common law and its adaptation to changing social needs. Members of ALI include law professors, attorneys, judges and other professionals in the legal industry. ALI writes documents known as "treatises", which are summaries of state common law (legal principles that come out of state court decisions.) Many courts and legislatures look to ALI's treatises as authoritative reference material concerning many legal issues. However, some legal experts and the late Supreme Court Justice Antonin Scalia have voiced concern about ALI rewriting the law as they want it to be instead of as it is.
At any time, ALI is engaged in up to 20 projects examining the law. Some current projects have been watched closely by the media, particularly the revision of the Model Penal Code Sexual Assault provisions.
The American Law Institute was founded in 1923 on the initiative of William Draper Lewis, Dean of the University of Pennsylvania Law School, following a study by a group of prominent American judges, lawyers, and teachers who sought to address the uncertain and complex nature of early 20th century American law. According to the "Committee on the Establishment of a Permanent Organization for the Improvement of the Law," part of the law's uncertainty stemmed from the lack of agreement on fundamental principles of the common-law system, while the law's complexity was attributed to the numerous variations within different jurisdictions. The Committee recommended that a perpetual society be formed to improve the law and the administration of justice in a scholarly and scientific manner.
The organization was incorporated on February 23, 1923, at a meeting called by the Committee in the auditorium of Memorial Continental Hall in Washington, D.C. According to ALI's Certificate of Incorporation, its purpose is "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 legal work".
Membership in the American Law Institute is limited to 3,000 elected members who are judges, lawyers, and legal scholars from a wide range of practice areas, from all areas of the United States and from many foreign countries. The total membership of more than 4,200 includes ex officio members and life members who, after 25 years as an elected member, are no longer required to pay dues. New members must be proposed by an existing member, who writes a letter of recommendation, and seconded by two others. Proposals are evaluated by a Membership Committee that selects members based on several factors, including professional achievement, personal character, and demonstrated interest in improving the law.
ALI members actively support the work of the Institute, including attending Annual Meetings and other project conferences, joining Members Consultative Groups for Institute projects, and submitting comments on project drafts. Members are asked to write, speak, and vote on the basis of their own personal and professional convictions, without regard to client interests, so as to maintain ALI's respected reputation for thoughtful and impartial analysis.
The Institute is governed by its Council, a volunteer board of directors that oversees the management of ALI's business and projects. Having no fewer than 42 and no more than 65 members, the Council consists of lawyers, judges, and academics, and reflects a broad range of specialties and experiences.
Restatements are essentially codifications of case law, common law judge-made doctrines that develop gradually over time because of the principle of stare decisis. Although Restatements are not binding authority in and of themselves, they are highly persuasive because they are formulated over several years with extensive input from law professors, practicing attorneys, and judges. They are meant to reflect the consensus of the American legal community as to what the law is (and in some areas, what it should become). All told, the Restatement of the Law is one of the most respected and well-used sources of secondary authority, covering nearly every area of common law.
Restatements are primarily addressed to courts and aim at clear formulations of common law and its statutory elements, and reflect the law as it presently stands or might appropriately be stated by a court. Although Restatements aspire toward the precision of statutory language, they are also intended to reflect the flexibility and capacity for development and growth of the common law. That is why they are phrased in the descriptive terms of a judge announcing the law to be applied in a given case rather than in the mandatory terms of a statute.
Beginning with the Principles of Corporate Governance (issued in 1994), the American Law Institute has more recently undertaken intensive studies of areas of law thought to need reform. This type of analysis typically results in a publication that recommends changes in the law. Principles of the Law issued so far include volumes on Aggregate Litigation (2010), Family Dissolution (2002), Intellectual Property (2008), Software Contracts (2010), Transnational Civil Procedure (2006; cosponsored by UNIDROIT), and Transnational Insolvency: Cooperation Among the NAFTA Countries (2003). Work in the Principles of the Law series continues with projects covering Corporate Compliance, Data Privacy, Election Law, and Government Ethics.
Another important area of the Institute's work is model statutory codification. ALI code projects have included model acts dealing with air flight, criminal procedure, evidence, federal securities law, land development, pre-arraignment procedure, and property. Some of these projects were undertaken jointly with the National Conference of Commissioners on Uniform State Laws (NCCUSL).
The chief joint ALI-NCCUSL project is the Uniform Commercial Code (UCC), which the Institute has been developing and revising with the National Conference since the 1940s. First published in 1952, the UCC is one of a number of uniform acts that have been promulgated in conjunction with efforts to harmonize the law of sales and other commercial transactions in all 50 states within the United States of America. The Uniform Commercial Code is generally viewed as one of the most important developments in American law, having been enacted (with local adaptations) in almost every jurisdiction.
The Model Penal Code (MPC) is another ALI statutory formulation that has been widely accepted throughout the United States. Adopted by the Institute membership in 1962 after twelve years of drafting and development, the Code's purpose was to stimulate and assist legislatures in making an effort to update and standardize the penal law of the United States. Primary responsibility for criminal law lies with the individual states, and such national efforts work to produce similar laws in different jurisdictions. The standard they used to make a determination of what the penal code should be was one of "contemporary reasoned judgment" — meaning what a reasoned person at the time of the development of the MPC would judge the penal law to do. The Chief Reporter for this undertaking was Herbert Wechsler, who later became a Director of the Institute.
Every other year, ALI awards the Young Scholars Medal to one or two outstanding early-career law professors whose work is relevant to the real world and has the potential to influence improvements in the law. The purpose of the award is to encourage practical scholarly work and to publicize the work of the honorees by sponsoring conferences on issues related to their work. Honorees are also asked to speak at an ALI Annual Meeting.
Elizabeth Chamblee Burch, University of Georgia School of Law Professor Burch's research focuses on class actions and large-scale, non-class aggregation, often drawing from fields beyond law including social psychology, behavioral law, and economics.
Michael Simkovic, Seton Hall University School of Law Professor Simkovic was recognized for scholarship that centers on bankruptcy, corporate finance, secured transactions, and taxation. Professor Simkovic was subsequently elected to the American Law Institute.
Amy B. Monahan, University of Minnesota Law School Professor Monahan was recognized for scholarship that centers on the intersection of health care reform and public-sector pensions.
Oren Bar-Gill, Harvard Law School Professor Bar-Gill's medal recognizes his insights into consumer psychology, which are the basis for his proposal of specific legal solutions to match specific problems in the markets for cell phones, subprime mortgages, and credit cards. Professor Bar-Gill subsequently became a reporter on the Restatement of Consumer Contracts.
Jeanne C. Fromer, New York University School of Law Professor Fromer was honored for her work exploring the claiming systems of patent and copyright law, as well as forum shopping in patent litigation.
The American Law Institute has also worked over the years on studies and other proposals dealing with complex litigation, criminal law, enterprise responsibility, federal estate and gift taxation, federal income taxation, federal judicial code revision, and the division of jurisdiction between federal and state courts.
One particularly interesting ALI project was the Statement of Essential Human Rights. In response to reports of human rights atrocities during World War II, the Institute in 1942 appointed a committee of lawyers and political scientists, supposedly representing the principal cultures of the world, to compile a list of agreed-upon individual rights: an international bill of rights. The committee reported to the ALI Council in February 1944. Although the project was never presented for a vote by the ALI membership, the Statement of Essential Human Rights was published in 1945 by the Americans United for World Organizations, Inc., independently of the Institute. Along with other sources, the Statement was then used to prepare the United Nations’ Universal Declaration of Human Rights, which the General Assembly adopted on December 10, 1948.
The basic approach and format of all American Law Institute publications is similar.
The final product thus reflects the review and criticism of experienced members of the bench, bar, and academia. The process may take many years, and it is not unusual for a single Restatement of the law project to take over twenty years to complete.
The need to establish a permanent entity devoted to the continuing training of lawyers became apparent after the end of World War II, as young lawyers returning from years of military service overseas found that they needed refresher courses in the law. Furthermore, the huge complex of government regulations that had begun with the New Deal and had greatly expanded during the war years provided another impetus for the post-admission education of all lawyers, whether or not they were veterans. Therefore, in 1947, the American Bar Association (ABA) asked the American Law Institute to undertake the first national program of post-admission continuing legal education (CLE) for practicing attorneys.
The governing bodies of ALI and ABA approved a Memorandum of Understanding in 1947 that created a "Committee on Continuing Education of the Bar of the American Law Institute Collaborating with the American Bar Association", comprising representatives from both organizations. Initial work focused on producing a series of CLE publications for a national audience and on encouraging and assisting state and local bar groups to establish and conduct their own programs of continuing legal education.
On April 30, 2012, by mutual agreement, the American Bar Association and the American Law Institute chose to move forward separately in their CLE efforts, with the abundant intellectual content and cutting-edge technology of ALI-ABA being absorbed into the CLE group of ALI, now known as The American Law Institute Continuing Legal Education Group (ALI CLE.)
Today, the thousands of prominent lawyers, judges, and legal academics in the United States and abroad who taught and wrote for ALI-ABA continue to do so for ALI CLE.
I write separately to note that modern Restatements—such as the Restatement (Third) of Restitution and Unjust Enrichment (2010), which both opinions address in their discussions of the disgorgement remedy—are of questionable value, and must be used with caution. The object of the original Restatements was "to present an orderly statement of the general common law." Restatement of Conflict of Laws, Introduction, p. viii (1934). 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 . . . Restatement sections such as that should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar. — Justice Antonin Scalia, dissenting opinion, Kansas v. Nebraska, February 25, 2015
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