Restatements of the Law in the United States

Restatements Defined

A presentation by the American Law Institute of the “best rules” of law applied in the United States. While the Restatements are not primary authority of the law, they have proved to be extremely persuasive. The Restatements are presumed by many to state the common law (in U.S. law) rule, and the party opposing them has the burden to prove the contrary. This does not make the Restatements mandatory on the court, but it does indicate that they are becoming accepted as the authoritative statement of the common law in the United States.

Most of the work of compiling the Restatements was done by reporters for each topic, men eminent in their respective fields, helped by staffs of advisers. After each group of specialists determined for itself the proper statement of the “best rule” of law in each case, the tentative draft or parts of it were submitted to the Council of the American Law Institute for debate and final approval. (Revised by Ann De Vries).

U.S. Common Law and the American Law Institute

Restatements are highly regarded distillations of common law. They are prepared by the American Law Institute (ALI), a prestigious organization comprising judges, professors, and lawyers. The ALI’s aim is to distill the “black letter law” from cases, to indicate a trend in common law, and, occasionally, to recommend what a rule of law should be. In essence, they restate existing common law into a series of principles or rules.

Restatements cover broad topics, such as Contracts or Property. They are organized into chapters, titles, and sections. Sections contain a concisely stated rule of law, comments to clarify the rule, hypothetical examples, explanation of purpose, as well as exceptions to the rule.

Restatements are not primary law. Due to the prestige of the ALI and its painstaking drafting process, however, they are considered persuasive authority by many courts. The most heavily cited are the Restatement of Torts and the Restatement of Contracts.

The ALI web site has information regarding Restatement projects, ALI membership, history and institutional processes. See Codifications, studies and other ALI projects and American Law Institute Bibliography.

The American Law Institute (made up of 4000 lawyers, judges, and law professors of the highest qualifications) drafts, discusses, revises, and publishes Restatements of the Law, model statutes, and principles of law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education.

By participating in the Institute’s work, its distinguished members have the opportunity to influence the development of the law in both existing and emerging areas, to work with other eminent lawyers, judges, and academics, to give back to a profession to which they are deeply dedicated, and to contribute to the public good.

The Institute’s mission, as set out in its charter, is to “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.”

Locating Restatements

“Restatements” are essentially model laws, designed to “clarify and synthesize” the common law in a particular field of law. Restatements are published by the American Law Institute (ALI). The ALI’s Web site posts a checklist of all the current Restatement volumes and pocket parts. See the Publications Catalog to look up drafts.

Pocket parts to the volumes are mailed out annually. A list of the latest pocket parts for all volumes is included in the annual mailing, but it is not posted on the Web site. To get a copy of this list, or for other questions, call ALI at 800-253-6379.

Restatments in print with Library of Congress (LC) call numbers:

Agency, 2d KF 1345.A764
Conflict of Laws, 2d KF 411.A453
Contracts, 2d KF 801.R47
Foreign Relations Law of the United States, 3d ILS KF 4651.A748x
Judgments, 2d KF 8990.R48
Law Governing Lawyers, 3d KF 300.R47
Property KF 570.A73
Property, Landlord and Tenant, 2d KF 590.A84
Property, Donative Transfers, 2d KF 613.R47
Property, Wills and Other Donative Transfers, 3d KF 613.R479x
Property, Mortgages, 3d KF 695.R49
Property, Servitudes, 3d KF 656.R475x
Restitution, Quasi Contracts & Constructive Trusts KF 1244.R46x
Security KF 1050.A745
Suretyship and Guaranty, 3d KF 1045.R463x
Torts, 2d KF 1249.A4 R47
Torts, Apportionment of Liability, 3d KF 1249.A4 R4774x
Torts, Products Liability, 3d KF 1296.R476x
Trusts, 2d KF 730.A8
Trusts, 3d KF 730 .R4763x
Trusts, Prudent Investor Rule, 3d KF 730.R4725
Unfair Competition, 3d KF 3195.R475x
Agency, 3d (tentative draft) KF 1345 .R473x
Employment Law, 3d (discussion draft-not yet owned by the library)
Restitution and Unjust Enrichment, 3d (tentative draft) KF 1244 .R463x
Torts, Liability for Physical Harm, 3d (proposed final draft) KF 1249.A4 R4775x

Electronic Access: Current restatements are available on Lexis (2NDARY;RESTAT), Westlaw (REST) and HeinOnline in the “American Law Institute Library.” The ALI posts a list of Lexis and Westlaw database names.

The “American Law Institute Library” on HeinOnline has a historical collection of the Restatements in PDF format (subscription only). The Library includes the First, Second and Third series plus prior drafts.

Annotations: Each Restatement section is followed by extensive annotations. For even more, you can Shepardize Restatement sections on Lexis.

More information: See the Restatements page posted by the Loyola University Chicago School of Law Library.

Restatements on LexisNexis

Rules (along with comments, illustrations, and notes) are searchable in separate sources from case citations. This makes searching for relevant rules very efficient on LexisNexis. Case citations are linked from individual rules. Browse Tables of Contents or search by keyword. Restatement drafts are in separate sources from final versions of Restatements. The first series of Restatements is not available on LexisNexis.

Retreiving Restatement sections using Get a Document is not intuitive. Search for restatement in the Get a Document Citation Formats list to determine the proper Get format.

Restatements on Westlaw

All series of Restatements are available on Westlaw. Browse Tables of Contents or search by keyword. Searching the Restatements on Westlaw can be problematic because multiple series as well as selected drafts are combined into one database along with case citations to all of them, e.g. Torts first, second, and the topic-specialized torts third series with citations to all series are in one database. This can make keyword searching inefficient unless you use a fielded search or use the Table of Contents mode to search within a particular Restatement. Examine search results carefully to make sure you are looking at the current version of a rule. If a rule has been superceded, there is an indicating note above the rule text.

Retrieving Restatement sections using Find is somewhat intuitive. The format mimics the database ID. See the listed format for KeyCite below; they will also work for Find. For a complete list of Restatement retrieval formats, search the Find Publications List for restatement.

Citation Format for Restatements in Bluebook

Restatements should be cited according to Bluebook rule 12.8.5 “Model Codes, Restatements, Standards and Sentencing Guidelines.” For example, Restatement (Third) of Unfair Competition § 3 (1995). Comments and illustrations should be cited according to Bluebook rule 3.4 “Appended Material.” For example, Restatement (Second) of Property § 2.1 cmt. c, illus. 2 (1977).

Finding Cases Discussing Restatements

Annotations of cases citing a Restatement section can be found in Appendix volumes to the Restatement. There can be one or many Appendix volumes. They are organized by Restatement series, (i.e. citations to the first Restatement, then second, etc.), then by section number. Appendices are not cumulative. The spines indicate sections and years covered. They are updated with pocket parts, cumulative annual supplements, and semiannual pamphlets called Interim Case Citations. These same case annotations are available when using the Restatements on LexisNexis or Westlaw.

You can Shepardize a Restatement section on LexisNexis using the corresponding formats listed here. Note that Bluebook citation format for Restatements, or permutations thereof, will not work.

torts second sec. 46
property second (donative transfers) sec 25.9
conflict of laws second sec. 6
contracts second sec. 35 cmt. d illus. 7

You can also KeyCite a Restatement section on Westlaw using the following formats. Note that KeyCite finds significantly more citing material than Shepard’s for Restatements. (See the KeyCite Publications List for additional help with citation format.)

rest agen s 1
rest 2d contr s 3
rest 2d prop-lt s 1.1
rest 3d trusts-pir s 170

Determining the Current Status of Restatement Drafts

The ALI is constantly working on Restatements and other projects. Researchers are often interested in determining whether a Restatement has become final, or, if not final, what stage the drafting process has reached. The following tools help answer those questions.

The ALI Catalog of Publications contains information about draft content and authorship. It mentions which portions of Restatements are superceded or in development.

The Catalog of Publications is updated by New and Recent ALI Publications. This list mentions if the official text is published yet, which volumes have been published, and also which projects are underway. (Not available in print.)

The Annual Report of the ALI Director summarizes work contemplated, underway, and completed during the year on various Restatements. See ALI Annual Reports KF 294.A5 A14. They are also available on the web from 1999 forward.

The ALI Annual Reports contain information on the work of the Institute and include the current Reports of the Institute’s Director and Treasurer. Annexes to the Reports provide information on published case citations to ALI Restatements of the Law and to ALI codifications and studies. In addition to other materials, the ALI Annual Reports provide information about the Institute’s organization, its leadership, and its current projects.

The Proceedings of ALI Annual Meetings contains the text of proposed amendments submitted at the annual meeting, an index of sections discussed, and transcript-like records of discussions on those sections by the membership. The meeting takes place in May and the Proceedings are usually available by March or April of the following year.

Information found in the Proceedings and Annual Reports can be updated with The ALI Reporter, a quarterly newsletter that covers developments in Restatement projects. See ALI Reporter KF 200.A455. It is also available on the web from 1999 forward.

The Drafting Process

For an overview of the drafting process for a Restatement, see http://www.ali.org/ali/thisali.htm

Parties Involved

ALI Officers: Group of approximately ten. Includes the Chair of the Council, President, Vice Presidents, Treasurer, Director, and Deputy Directors.
ALI Council: An elected, standing group of approximately sixty judges, professors, and lawyers.
Reporter: Head of the Restatement project appointed by the ALI Officers and Council. Responsible for drafting the language of the Restatement.
Advisers: Group of professors and lawyers with subject expertise appointed to advise the Reporter. Generally number from 12 to 30 for a Restatement.
Members Consultative Group: Groups of ALI members interested in the topic of the Restatement who wish to offer input. Generally number from 50 to 75 for a Restatement.
ALI Membership: Group of approximately 3000. During the annual meeting, discuss and occasionally vote on Restatement language. The Membership gives input only near the end stages of the drafting process.

Drafting Process

The following process has typically taken between nine to twenty-one years.

A Reporter is appointed by the Council.
The Reporter divides the project into parts which go through the following process separately.
The Reporter writes a preliminary draft.
The Preliminary draft is sent to the Advisers and the Members Consultative Group.
The Advisers and Members Consultative Group recommend revisions.
The Reporter, at his discretion, makes these revisions.
The draft goes back and forth between the Advisers and the Reporter. A series of revised preliminary drafts are made.
The Reporter and Advisers send a council draft to the Council of the Institute.
The Council suggests revisions.
The Reporter is somewhat obliged to make the suggested revisions.
The draft goes back and forth between the Advisors and the Council. A series of council drafts are made.
The Council presents a tentative draft to the ALI membership.
The draft goes back and forth between the Council and the membership. A series of tentative drafts are made.
Issues surrounding the draft settle. A proposed final draft is usually created.
The proposed final draft (or last tentative draft) is submitted to the membership of ALI at the annual meeting.
The membership and the Council approve the proposed final draft.
The Restatement is adopted and promulgated and the official text of the Restatement is published.
Other ALI-authored works, such as UCC articles, are created in a similar way. For assistance locating materials relating to non-Restatement ALI projects, please see a reference librarian.

Tracing the History and Development of Restatement Sections

Legal researchers sometimes need to trace the historical development of a Restatement section, i.e. the impetus for its inclusion, which section of a prior Restatement it derived from, or how it came to be worded a certain way.

For many sections, Reporter’s notes explain the development of a section, often explaining earlier versions and citations to cases which were used as the basis for the rule. Reporters notes can be found in the Appendix volumes of individual Restatements.

To trace how the text changed during the drafting process, you can compare various drafts, e.g. tentative drafts, council drafts, preliminary drafts and proposed final drafts. They have individual library catalog records(Search by keywords in title, e.g. restatement torts, to locate them.) Drafts are also available in the microform set Archive Publications described below.

Some Restatement volumes have conversion tables. These indicate where sections of drafts, or sections from an earlier series were included in the final, adopted version of a Restatement

Although some Restatements are designated 2d or 3d, there are not always antecedents. For instance, the Restatement of the Law The Law Governing Lawyers is a Restatement of the Law Third, but there has never been a first or second.

The proceedings of the annual meeting of the American Law Institute are an excellent research tool for those tracing the development of a Restatement section. Since 1923, with the exception of 1945-1955, ALI has published the Proceedings of their Annual Meetings KF 294.A5 A3. The Proceedings contain reports to ALI members, Reporter presentations, transcripts of discussions of drafts, and the text of proposed amendments. It has an index of sections discussed. For the years 1945-1955, the Proceedings are only available in the Archive Publications set described below.

There is also a quarterly publication, ALI Reporter KF 200.A455, available on the web from 1999 forward, which reports actions taken on drafts and the full text of chapters approved for discussion at the annual meeting with revisions explained.

Archive Publications Mic KF 294.A5 A43, Drawers 963-965 is a microfiche set containing the text of of Restatements, all drafts, and ALI Proceedings from annual meetings for years which were not officially published, 1945-55. It also contains drafts of the four Restatement projects which were terminated before completion. The set is arranged by Restatement, by section, chronologically. Coverage starts with the beginning of the ALI in 1923. All drafts produced for ALI projects are added to this set a few years after the project is completed or terminated. There is a print guide to this microfiche collection in Microforms at KF 294. A5 A43.

Finally, there is a well-indexed, comprehensive collection of the American Law Institute’s archives at the Biddle Law Library of the University of Pennsylvania. The archive contains drafts, comments, and correspondence related to ALI projects.

Restatements Projects

The founding Committee had recommended that the first undertaking of the Institute should address uncertainty in the law through a restatement of basic legal subjects that would tell judges and lawyers what the law was. The formulation of such a restatement thus became ALI’s first endeavor.

Between 1923 and 1944, Restatements of the Law were developed for Agency, Conflict of Laws, Contracts, Judgments, Property, Restitution, Security, Torts, and Trusts. In 1952, the Institute started the Restatement Second – works that covered subjects not included in the first Restatement, as well as new editions of the original Restatements that updated them and reflected new analyses and concepts.

A third series of Restatements was inaugurated in 1987; work on that series continues today. In addition to the initial subjects, the Restatements now include Foreign Relations Law of the United States, The Law Governing Lawyers, Suretyship and Guaranty, and Unfair Competition.

Restatements of the law include

Agency

Agency

Concise Restatements

Concise Restatements

Conflict of Laws

Conflict of Laws

Contracts

Contracts

Employment Law

Employment Law

Foreign Relations Law of the United States

Foreign Relations Law of the United States

International Commercial Arbitration

International Commercial Arbitration

Judgments

Judgments

Pocket Part Sets / Interim Citation Pamphlets

Pocket Parts / Interim Citations

Property

Property (Landlord & Tenant)
Property (Mortgages)
Property (Servitudes)
Property (Wills and Other Donative Transfers)

Restatements

Complete Restatement Sets

Restitution and Unjust Enrichment

Restitution and Unjust Enrichment

Security

Security

Suretyship and Guaranty

Suretyship and Guaranty

The Law Governing Lawyers

The Law Governing Lawyers

Torts

Torts
Torts: Apportionment of Liability
Torts: Liability for Economic Harm
Torts: Liability for Physical and Emotional Harm
Torts: Products Liability

Trusts

Trusts

Unfair Competition

Unfair Competition

Bibliograpy about Restatements of the Law

For information about bibliograpy in relation to Restatements of the Law, see here.

Restatements of the Law