The Folly of Uniformity? Lessons from the Restatement Movement

Abstract:     
This article examines the unique application of the Restatements as de facto common law in the Virgin Islands. Applying an evolutionary biology metaphor, the article examines the way in which this decision by the Virgin Islands Senate may have made a substantive difference in the common law as it developed in the Virgin Islands. Part of the point of this article is that the Senate's decision may have implications that reach beyond the Virgin Islands. The purpose of this article is to provide some guidance to judges so that they may act more purposefully in choosing to follow the Restatements, ensuring that the resultant body of law reflects the dynamism, concerns of fit and fairness, and deliberate decision-making that are ultimately so important to the authority of law.

The article concludes by recommending that courts take seriously the way in which the Restatements have changed since their inception, and not simply apply them automatically, as many have done. The article also recommends that courts take seriously the way in which Restatement created common law like that in the Virgin Islands may be substantively different from that which is developed in a more traditional fashion. Looking at some of the excellent judicial approaches that have been crafted in the Virgin Islands both clearly illustrates the potential problem with the automatic application of any Restatement and provides valuable guidance in creating a meaningful solution.

Number of Pages in PDF File: 52

Keywords: Restatement, common law, evolutionary biology, Virgin Islands, authority of law

Accepted Paper Series