Restatements of Statutory Law: The Curious Case of the Restatement of Copyright

77 Pages Posted: 10 Feb 2021 Last revised: 17 Feb 2021

See all articles by Shyamkrishna Balganesh

Shyamkrishna Balganesh

Columbia University - Law School

Peter S. Menell

University of California, Berkeley - School of Law

Date Written: January 15, 2021

Abstract

For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role as sources of law in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes. Then in 2015, without much deliberation, the ALI embarked on the task of restating U.S. copyright law, an area dominated by a detailed federal statute. In so doing, the ALI ignored not just calls to revisit the form and method of its traditional Restatements but also the extensive history of the deep mismatch between the Restatements and statutory domains that has informed the working of the enterprise over the course of the last century.

This Article explores the analytical and historical foundations of that mismatch and shows how the Restatement of Copyright reinforces the need to tailor a methodological template and perspective that is sensitive to the nature of statutory interpretation. It explains why perfunctory extension of the common law Restatement model to copyright law produces incoherent, misleading, and seemingly biased results that risks undermining the legitimacy of the eventual product. Finally, the Article explains how the mismatch between the two is capable of being remedied by a series of modest—yet significant—changes, which could allow the project to serve as a template for future statutory Restatements. These include: emphasizing the centrality of the statutory text and relevant interpretive sources, adopting crucial perspectival differences between incremental lawmaking and statutory interpretation, and highlighting the unique legislative process through which the statute was developed.

Keywords: American Law Institute, Restatement of Law, Copyright, Statutory Interpretation

JEL Classification: K10

Suggested Citation

Balganesh, Shyamkrishna and Menell, Peter S., Restatements of Statutory Law: The Curious Case of the Restatement of Copyright (January 15, 2021). Columbia Journal of Law & the Arts, Vol. 45, Forthcoming 2021, Columbia Public Law Research Paper No. 14-687, Available at SSRN: https://ssrn.com/abstract=3769553

Shyamkrishna Balganesh (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

HOME PAGE: http://www.law.columbia.edu/faculty/shyamkrishna-balganesh

Peter S. Menell

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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