The American Law Institute (ALI) has devoted a great deal of time and energy to restating the law of property. To date, the ALI has produced 17 volumes that bear the name First, Second, or Third Restatement of Property. There is unquestionably much that is valuable in these materials. On the whole, however, the effort has been a disappointment. Some volumes seek faithfully to restate the consensus view of the law; others are transparently devoted to law reform. The ratio of reform to restatement has increased over time, to the point where significant portions of the Third Restatement consist of repudiating what was done in the First and Second Restatements, which can hardly inspire confidence. Most damning of all, the effort to restate the law of property remains seriously incomplete. Even after 17 volumes produced over 75 years, the Restatement of Property offers no treatment of adverse possession, ignores most of the law of personal property, says nothing about real estate transfers, recording acts, groundwater and mineral rights, or eminent domain, and does not touch intellectual property. The incompleteness reduces the utility of these Restatements as a research tool, and diminishes the incentive of lawyers to draw upon them.
Recent data on the usage of different Restatements confirm the relative weakness of the Restatement of Property. The ALI receives royalty payments for downloads of its Restatements by users of Westlaw. The Restatement of Property generates only one-quarter the royalties generated by the Restatement of Contracts, and merely 15% of the royalties of the Restatement of Torts. Of course, it is possible that the law of property is contested less frequently than contracts or torts. But the Restatement of Property is downloaded even less than the Restatement of Trusts, which could be regarded as a subfield of property. The data on usage tend to confirm, in our opinion, that lawyers and scholars find the Restatement of Property unhelpful compared to many of the other restatement efforts undertaken by the ALI.
The failure of the Restatement of Property, at least relative to Contracts, Torts, Trusts, and a number of other subjects, raises important questions for the ALI and property scholars alike. In this essay we explore the possible causes of that failure. To a certain extent, it can be explained by accidents of history. As we describe in Part I, the Restatement of Property was conceived in extremely broad terms, so broad that it was probably unrealistic to expect that it could be completed. The property project has also been dominated by Reporters whose interests have been focused narrowly on particular subsets of the law of property, at the expense of the general law of property. Perhaps most critically, the Second and Third Restatements of Property have been given over to campaigns for legal reform, often entailing the repudiation of earlier volumes of the Restatement, which has very likely undermined the utility and the credibility of the ALI's effort.
We nevertheless argue that the roots of the failure of the Restatement of Property run deeper. As detailed in Part II, the Restatement of Property was launched as a deliberate effort to inject greater rigor and clarity into legal analysis by adopting the "scientific" terminology of Wesley Newcomb Hohfeld. Chapter 1 of the First Restatement of Property could be described as a Restatement of Hohfeld. This effort failed, as other Reporters were either hostile or indifferent to the program of adopting the Hohfeldian vocabulary.
Intellectual Property Law | Law | Law and Philosophy | Legal History | Property Law and Real Estate
Thomas W. Merrill & Henry E. Smith,
Why Restate the Bundle? The Disintegration of the Restatement of Property,
Brook. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/376