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Restatements are a different type of secondary resource. These resources are not primary authority even though they may look like it. Restatements seek to unify case law emanating from the courts throughout the United States. Although the Restatements are not treatises, their goal is to present a logical and organized restatement of the general common law of the United States. As the name of these resources clearly bears evidence to, these resources are restating the law as already determined in court opinions. Restatements' focus on the law as promulgated in judicial decisions. They are not codes, although they may look similar to codes and are written in rule form accompanied with explanations. They are rules of law which is assumed enlightened courts will apply. They are a unique resource and retain a special persuasive status. They cover broad topics only a few specific areas of law: agency, conflict of laws, contracts, foreign relations, judgments. law governing lawyers, property, (subdivided for more narrow subjects), trusts, and unfair competition. However, their standing as persuasive authority in the field of law is enormous and they are one of the most frequently cited authorities and widely respected.
In the mid-nineteenth century with the increased litigation in the United States and as a consequence thereof, there was more case law evolving from the various courts. Legal scholars were concerned about the inconsistencies in the deluge of decisions emanating from the courts throughout the United States. This onslaught of seemingly contradictory case law led some members of the legal field to come together with the goal of adding predictability and organization to this chaos of divergent legal opinions. In 1923, leading American thinkers organized the American Law Institute (ALI). The objective of ALI was to reduce the complexity of American common law by reformulating common law principles as they were rendered by the courts into one authoritative, rule-like source. The results of this endeavor are the current Restatements of the Law.
ALI in determining which rules are included considers all factors which a court would consider, such as the weight of precedent and the impact of the rule. The Restatements' attempt to achieve some degree of unity of the rules of the common law among the states. They try to give judges a statement of the common law rules which have more scholarship study behind them than are found in conventional treatises or legal encyclopedias. They provide to the lawyer a rule of law backed by the prestige of the ALI and a high degree of acceptance by the courts. To the student they give a statement of principles, backed by commentaries and numerous illustrative examples to clarify various rules of law.
Most of the work of compiling the Restatements is done by "Reporters" for each topic, persons eminent in their respective fields. These Reporters are assisted by staffs of "advisors." After each group of specialists determines for themselves the proper statement of the "best rule" of law in each instance, the tenative draft or parts of it are submitted to the Council of the ALI for debate and final approval. The Reporters have been law teachers of the highest caliber. The advisors are eminent teachers, practitioners and judges. No other study of comparable thoroughness and scholarship exists in American law.
Each Restatement begins with an introduction, describing the organization and the purpose of ALI, and an elaborate schematic table of contents. The Restatement is divided into a logical arrangement of numbered chapters; each chapter examines a major aspect of this subject area of this particular field of law. Chapters are further divided into topics and titles, and finally into numbered sections, each of the sections deals with a general principle of law. The section numbering is continuous throughout each Restatement, so only the section number is included in a citation: Restatement (Second) of Foreign Relations Section 702 (1987).
Each section begins with a statement of the priniciple of law, printed in boldface type (often referred to as the "black letter" rule). If there is a qualification of the rule it follows the rule. Explanatory comments and illustrations follow. The comments clarify the scope and meaning of the proposition. The illustrations use examples to further define the legal proposition, its scope, and the comments. Some of the examples are based on the facts of actual cases. These comments in most Restatements are followed by the Reporter's Notes. The First Series of the Restatements omit the Reporter's Notes. The three earliest Restatements (Second), for agency, torts and trusts, did not include the Reporter's Notes after each section. Instead these notes were printed in separate Appendix volumes, which also contain notes of court citations to the first series of Restatements and to ALR annotattions.
Each of the Restatements in the second and third series has its own index. In addition these
series have Tables which list citations of court cases, statutes and other authorities included
in the Restatement being used. There are also Conversion Tables which enable the conversion
of a section from a Tentative Draft to the final section in the current Restatement. Finally,
there are Cross-References to West's Key Number System and ALR Annotations.
There are three main ways to find a Restatement section on a topic:
The Table of Contents for Restatements are clear and easy to browse. However, for some Restatements you need to consult two or three volumes in order to ensure you browse the entire Table of Contents.
Restatement indexes are generally very detailed. The index usually appears at the end of the last volume of a particular Restatement. Again an exception, the index can be free-standing index volume or, for older Restatements, the index can be broken into volume specific index at the end of each volume.
ALI produced a comprehensive index in 1946 for all of the Restatements, Restatement of
the Law, Permanent General Index, Covering Agency, Conflict of Laws, Contracts, Judgments,
Property, Restitution, Security, Torts, Trusts (KF395.A56).
Restatement should be cited according to Bluebook rule 12.8.5 "Model Codes, Restatements,
Standards and Sentencing Guidelines." For example:
Restatement (Second) of Foreign Relations § 702 (1987).
Comments and illustrations of the Restatements should be cited according to Bluebook
rule 3.4 "Appended Material."
Restatement (Second) of Foreign Relations § 3 cmt. c, illus. 2 (1987).
The Restatements are available on WESTLAW and LEXIS.
WESTLAW: Treatises, CLEs, Practice Guides > Restatements
LEXIS: Secondary Legal > Restatements
Shepard's Restatements of the Law Citations is solely devoted to Restatements. It covers all federal courts, units of the National Reporter System, and all state courts. It also includes articles from the nineteen leading law reviews and the ABA Journal.
One must be aware in using the Restatements that differences among jurisdictions are not reflected in the Restatement rules. Remember the purpose of the Restatements is to promulgate a rule of unitary common law not the common law of any particular jurisdiction. It is always possible for example that California may not follow the Restatement view. Thus, one needs to check the acceptance of a Restatement rule in a particular jurisdiction. The Restatements ar not law in a particular jurisdiction until they are adopted by the courts of that jurisdiction. Additionally, a court may adopt only portions of a Restatement section.
Posted: 21 November 2005