Blaming the Mirror: The Restatements and the Common Law

Abstract:     
This article examines the common criticism that the Institute and the Restatements are a throwback to Formalism that has failed to incorporate the wisdom that the last century of jurisprudence has generated. In doing so, it examines the critiques of the Restatement movement from the points of view of Realism, Critical Theory, and Law & Economics. The article identifies a number of common threads among the criticisms of the three groups: criticism of (1) the membership; (2) the mission and goals of the Institute; (3) the apparent insularity of the Institute and its perceived failure to engage in interdisciplinary study; (4) the Institute's conservatism and perceived opposition to more than technical reform; (5) the Restatement movement's apparent philosophy of law; and (6) the Restatements' utility as a practical resource. The article concludes that many of these criticisms are ultimately more constructively directed at the court system than the Institute, in part because, while many of these criticisms call into question the utility of the endeavor, none (with the notable exception of Law & Economics) has provided a coherent, constructive program for making the Restatement project better. The article also concludes that it is inappropriate and less than constructive to critique the Restatements and the American Law Institute for those ways in which the Restatements mirror the characteristics of the common law that inspires the Institute's work.

Number of Pages in PDF File: 67

Keywords: Restatement, common law, Law & Economics, Critical Legal Studies, Legal Realism, American Law Institute

Accepted Paper Series