Restating the Law in the Shadow of Codes: The ALI in Its Formative Era, in The American Law Institute at 100: A Centennial History (Andrew S. Gold & Robert W. Gordon eds) forthcoming 2023, Oxford University Press
42 Pages Posted: 14 Sep 2022
Date Written: August 28, 2022
Written for a forthcoming book occasioned by the centennial anniversary of the American Law Institute, this chapter recounts the ALI’s history in its formative era (1923-1945), drawing from archival sources to deepen existing accounts of the ALI’s self-definition as an ongoing institution. The history is more complex than it appears in prior accounts because institutional necessities—including funding—as well as multiple contingencies shaped both the ALI and its work. Likewise, the ALI’s signal work in this period, the Restatement, departed in significant ways from its original plan. Generating the revenues requisite to its ongoing existence required that the ALI partner with commercial publishers and, at their urging, separately publish Annotations for each Restatement volume linked to pre-Restatement cases in many states. Grants from the Carnegie Corporation of New York (overall totaling around $43 million in today’s dollars) funded the work requisite to the Restatement itself; funding the separate Annotations required support from more varied sources, by the 1930’s including New Deal relief programs that could support indigent lawyers. Substantively, if the Restatement represented a rejection of comprehensive legislative codification as a strategy to rationalize and clarify private law, the end of this era is paradoxical because the ALI emerged as a prominent champion of codification via the Uniform Commercial Code. Going forward, in addition to a solid financial footing, the ALI’s work required “matters of first importance” to sustain its members’ engagement and justify itself as an ongoing institution, exemplified by the UCC project.
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