American Law Institute in the United States
Introduction to the American Law Institute
American Law Institute (ALI), organization that seeks “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.” Founded in 1923, with headquarters in Philadelphia, Pennsylvania, the institute is managed by a council of approximately 60 judges, lawyers, and legal scholars. Membership consists of leading members of the legal profession from the United States and other countries.
The institute completed its first series of Restatements of the Law, in 22 volumes, in 1944; work on a third generation of Restatements, to include updated versions of previous Restatements as well as new topics, was begun in 1987. In deciding cases, courts increasingly use the law reflected in the Restatements. The institute also has published a uniform commercial code, a model penal code, studies on federal income and on estate and gift taxation, and numerous other proposals for legal reform. (1)
American Law Institute History
In 1969, about halfway through the ALI’s life, then-Director Herbert Wechsler wrote
about Restatements, making clear that Institute work should not merely tally state
decisions but that “we should feel obliged in our deliberations to give weight to all of
the considerations that the courts, under a proper view of the judicial function, deem
it right to weigh in theirs.” A Restatement section “implies a normative assertion as to
what should now be held, if and when the question is presented.” This permits
Restatements “to attempt to be what they have been and are in fact—a modest but
essential aid in the improved analysis, clarification, unification, growth and adaptation
of the common law.”
Professor Wechsler quoted Judge Learned Hand, who had called on the ALI to
identify common-law doctrines that “are founded upon historical accident, misconception
of other cases and the like … [and] what rules are unsupportable in principle
and evil in action,” leading to “a demonstration of desirability of legislation … or …
such a pronounced adverse criticism in narrow situations that courts could feel free to
change previous rules without waiting for legislative authority.”
For Professor Wechsler, a conclusion was that the ALI should shift “to some legislative
form, be it a model act, a proposed code or the proposed revision of specific
legislation.” He quoted California Chief Justice Roger Traynor, who had said that legislators
are “freer than judges to write on a clean slate, in terms of policy transcending
case or controversy, and to erase and rewrite in response to community needs.”
Seen from 2006, Herbert Wechsler’s conclusion was partially correct. The Institute
has done legislative work in the last 37 years. Indeed, the Uniform Commercial Code
and Professor Wechsler’s own Model Penal Code are high on the list of the Institute’s
most influential work. Only last year we endorsed a proposed federal statute on recognition
and enforcement of foreign judgments. Protecting the Uniform Commercial Code
and adapting it to new technology is important work we continue in association with the
Commissioners on Uniform State Laws, especially through the Permanent Editorial
Board for the UCC.
But legislative drafting is not always the best use of our talents. Whether influenced
by special-interest groups, frozen by inertia, or unable to reach all items on a crowded
agenda, Congress and state legislatures do not rush to embrace ALI’s advice and enact
our formulations. Rather, justified intellectually by the Wechsler analysis, the Institute has evolved a third form of project: Principles of the Law. First with Corporate Governance,
then with Family Dissolution, and now with a half dozen major efforts, we analyze
all law on a subject—judicial, legislative, and administrative—as well as relevant
research and expert views, and attempt to contribute coherence as well as adaptation to
contemporary social needs. We then speak—to use the Corporate Governance example—to
Congress, state legislatures, Delaware and other state courts, and the Securities
and Exchange Commission. Indeed, we increasingly speak to policy makers and law students
in foreign countries, as our work is translated into foreign languages and distributed
beyond America’s borders.
This transition to projects that attempt to help both judges and legislators is dramatically
visible in the agenda for the 2006 Annual Meeting. At that meeting, Institute
members will have an opportunity to influence in a significant way four developing
Principles projects not yet ready for final approval. They can also influence two
Restatement projects, one that is mature and one that is at an early stage.
Projects
Returning to criminal law so many years after the Model Penal Code and the Model PreArraignment
Code, the Institute is doing important and challenging work to improve
the Model Penal Code’s provisions on Sentencing. Slowed by the need to respond to two
unexpected Supreme Court decisions, Reporter Kevin Reitz nonetheless has moved
ahead, aided by strong Advisers and Members. The draft now presented recommends to
states an institutional structure (a sentencing commission), procedures that conform to
the latest constitutional requirements, and principled objectives to guide judges assigned
the responsibility to constrain the liberty of convicted criminals.
Equally important and equally challenging is our attempt to define Principles for
Aggregate Litigation, understood by me—a nonexpert—to mean class actions. Only
in the United States does the justice system punish malefactors and compensate sufferers
in this way. This is the law of torts and contracts and civil procedure, constitutionally
constrained. Sam Issacharoff and his colleagues have made major progress in
a short time with work that already attracts controversy and stimulates debate.
Intellectual Property is vital to the economy of the United States and central to modern
life in every country. Technology allows it to be transferred worldwide—legally or illegally—with
clicks on a keyboard. International legal coordination is inevitable. Rochelle
Dreyfuss and Jane Ginsburg, aided by their Swiss colleague François Dessemontet, an
international group of Advisers, and interested ALI Members, have completed their crafting
of the needed Principles. After receiving constructive criticism at the 2006 meeting,
they will make further revisions and seek final approval in 2007.
Our work on the law of Nonprofit Organizations will also be discussed at the
meeting. Reporter Evelyn Brody now offers a substantial draft focusing on the legal
structure of institutions at the center of the American economy and the American society. Most ALI members are significantly involved with one or more nonprofits, and it
is stimulating to see the ways in which the Institute’s prior work on corporate governance
does and does not solve puzzles that confront nonprofits.
All four of the projects summarized above are called Principles. Although they are
not Restatements, our procedures are entirely in the ALI tradition: independent Reporters,
strong participation from highly qualified Advisers and Members who “leave
their clients at the door,” rigorous review by the Council, and a substantial opportunity
for reaction by Institute members both at the Annual Meeting and in written
comments before or after the meeting.
(Source: LANCE LIEBMAN, Director, April 2006)
The ALI in Legal Literature: Selective Bibliography
Compiled by Harry G. Kyriakodis, this ALI bibliography is a sampling of articles appearing in law reviews and other publications that deal substantially or in significant part with the American Law Institute and its projects.
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