Document Type

Article

Publication Date

2022

Abstract

Restatements of the Law occupy a unique place in the Americanlegal system. For nearly a century, they have played a prominent and influential role as legal texts that courts routinely rely on in a wide variety of fields. Despite their ubiquitous and pervasive use by courts, Restatements are not formal sources of law. While they resemble statutes in their form and structure, Restatements are produced entirely by a private organization of experts set up to clarify and simplify the law and thus lack the force of law on their own. And yet, courts treat them as formal and authoritative sources of law, a reality that has thus far received hardly any systematic scrutiny. As this Article argues, courts’ anomalous treatment of Restatements routinely distorts the process of common law development by introducing a plethora of institutional problems into the fray and has in recent years produced needless controversy about the utility of the Restatements themselves.

This Article unravels the complexity and pitfalls of the unique legal authority embodied in Restatements, which elides the traditional categories of authority that courts are familiar with. It argues that the working of this unique legal authority is masked by the manner in which Restatements seek to emulate the language, form, and structure of ordinary statutes, despite crucial differences between the two. Courts have in turn been taken by the Restatements’ combination of substantive content and statute-like formulation and resorted to a variety of different techniques of reliance in their use of Restatements, many of which unwittingly limit their own lawmaking power in the common law over time. The Article then proposes a set of Restatement-specific canons of construction for courts to use in their reliance on the text of Restatements, each of which is tailored to the unique nature of authority invested in them.

Disciplines

Common Law | Law | Legal Remedies

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