The Restatements as Law
American Law Institute Centennial History (Andrew S. Gold & Robert W. Gordon, eds., Oxford University Press, Forthcoming 2023)
Virginia Public Law and Legal Theory Research Paper No. 2022-59
30 Pages Posted: 26 Aug 2022 Last revised: 29 Aug 2022
Date Written: August 23, 2022
A widespread view understands the Restatements as summaries of existing legal principles, coupled with largely interstitial recommendations as to how the existing law could be improved. That view, however, understates both the jurisprudential and empirical significance of the Restatements. As H.L.A. Hart and scores of his jurisprudential followers have established, what counts as a legal authority – and thus what counts as law – is based on the empirical determination of what sources judges and other legal officials take as authoritative in reaching their decisions. For Hart and those properly influenced by his analysis, there is no substantive constraint on what can count as law. All that matters for some source being law is that legal officials internalize it as authoritative and thus take it as a not-necessarily-conclusive reason for a decision. From this perspective, there is no reason that the Restatements, or at least parts of some of the Restatements, cannot be law. And empirically, American courts do treat some parts of some of the Restatements as authoritative. When this is so, those parts of those Restatements are more than summaries of the law and more than prescriptions of what the law should be. They are the law.
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