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The dangers of the Restatement

The original idea behind the influential Restatement series produced by the American Law Institute was to gather prominent academics together to divine a consensus in the common law and create a sort of statute-like guide to those principles, "restating" what was already law. It is questionable whether the Restatement ever lived up to those ideals, in practice it has been used to ratchet the system to be ever more plaintiff-friendly; courts would view the Restatement as a floor of minimum plaintiffs' rights, while not hesitating to nullify any principles in the Restatement that protected the ability of defendants to defend themselves. (I covered one such example in California in last month's AEI Liability Outlook.) A new Restatement would come forward setting forth these new principles, and the Slinky would continue to march up the stairs.

In many cases, the Restatement is not a restatement at all, but an aspirational document hoping to persuade courts to change the law, and sometimes ALI goes even farther and propounds "Principles" openly seeking to do just that. Given the possibility and prevalence of judicial law-making, and the prestige and influence of ALI, it is important to pay attention to what the American Law Institute is doing.

Beck and Herrmann do just that in their must-read analysis of the draft of ALI's "Principles of the Law of Aggregate Litigation." The two document in great detail the efforts of the ALI in "Preliminary Draft No. 4 (Sep. 21, 2006) ($)" to undo precedent protecting defendants and expand the use of the class action, often at the expense of constitutional rights:

Right at the beginning, the Principles are �consciously breaking� with the terminology found in almost all applicable class action rules � dispensing with �predominance,� �superiority,� and the rest of the familiar analytical framework in favor of terms used in a 2005 law review article. However, those terms do not track any Rule enacted by any jurisdiction, state or federal. By jettisoning the legal requirements of the applicable rules, and the mature and well-developed body of case law that has grown up around those rules, the principles are profoundly destructive of existing law.

Read the whole thing.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.