THE FIRST RESTATEMENTS AND THE VISION OF
THE AMERICAN LAW INSTITUTE, THEN AND
NOW
Michael Traynor*
American Law Institute Director Lance Liebman and I appreciate the
organization of this AALS symposium by Professor Patrick Kelley and his
contribution on torts,1 and those of Professors Mark Movsesian on contracts,2
Symeon Symeonides on conflict of laws, 3 Deborah DeMott on agency, 4
Andrew Kull on restitution and unjust enrichment,5 and Natalie Hull6 and
Kristen Adams 7 on the Restatement process and history. I will address (1) the
status of the five Restatement subjects discussed, (2) selection of topics and
Reporters for Restatements, (3) the implications of the presentations in this
Symposium for the Institute’s Restatement and other projects, and (4) the
question whether the Institute can continue to match the vision of its founders.
When the Institute began the first Restatement series, it addressed
primarily common law in the pre-Erie 8 era when there was a larger sense than
*
1.
2.
3.
4.
5.
6.
7.
8.
President, The Am erican Law Institute, and Senior Counsel, Cooley Godward Kronish LLP.
Although I have tried to reflect the Institute’s history and current approaches accurately, the views
stated are personal and do not purport to state the Institute’s position on any m atter. The Institute
only takes positions after deliberation and approval by both its Council and its m em bers. I
acknowledge with appreciation the research assistance of H arry Kyriakodis, ALI Librarian, the
suggestions of D irector Em eritus Geoffrey C. H azard, Jr., and the tim e and care that D irector Lance
Liebm an took to review an earlier draft and the suggestions that he m ade.
Patrick J. Kelley, The First Restatem ent of Torts: Reform by D escriptive Theory, 32 S. ILL. U . L.J. __
(2007).
M ark L. M ovsesian, Williston as Conservative-Pragm atist, 32 S. ILL. U . L.J. __ (2007).–
Sym eon C. Sym eonides, The First Conflict Restatem ent Through the Eyes of O ld: As Bad as Its
Reputation?, 32 S. ILL. U . L.J. __ (2007).
D eborah A. D eM ott, The First Restatement of Agency: What Was the Agenda?, 32 S. ILL. U . L.J. __
(2007).
Andrew Kull, Restitution and Reform , 32 S. ILL. U . L.J. __ (2007).
N .E.H . H ull, Restatem ent and Reform Redux: Com m ents for the AALS O pen Source Program : ‘D id
the First Restatement Im plement a Reform Agenda?’, 32 S. ILL. U . L.J. __ (2007). See also N . E. H .
H ull, Restatem ent and Reform : A New Perspective on the O rigins of the Am erican Law Institute, 8
L AW & H IST . R EV. 55 (1990), also appearing in A MERICAN L AW INSTITUTE, T HE A MERICAN L AW
INSTITUTE S EVENTY-F IFTH A NNIVERSARY 49 (1998); N. E. H . H ull, Back to the 'Future of the
Institute': William D raper Lewis's Vision of the ALI's M ission during Its First Tw enty-Five Years and
the Implications for the Institute's Seventy-Fifth Anniversary, in T HE A MERICAN L AW INSTITUTE
S EVENTY-F IFTH A NNIVERSARY 105 (1998) (hereinafter “Back to the Future”).
Kristin D avid Adam s, The Am erican Law Institute: Justice Cardozo’s M inistry of Justice?, 32 S. ILL.
U . L.J. __ (2007). See also Kristen D avid Adam s, The Folly of U niformity? Lessons from the
Restatement M ovem ent, 33 H OFSTRA L. R EV. 423 (2004); Kristen D avid Adam s, The Restatem ents
and the Com m on Law : Blam ing the M irror, 40 IND . L. R EV. 205 (2007).
See Erie R.R. v. Tom pkins, 304 U .S. 64 (1938); Swift v. Tyson, 41 U .S. (16 Pet.) 1 (1842).
1
2
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[Vol. 32
there is now of a general common law 9 and a clearer slate on which to draw.
During this era and since, the Institute, beginning with its Restatements and
including other projects, has made significant contributions to unifying as well
as simplifying and clarifying the law, primarily (although not exclusively)
state law, as has the National Conference of Commissioners on Uniform State
Law (NCCUSL),10 through its preparation of uniform laws for consideration
by state legislatures. Today, we have a more complex and challenging
panorama of statutory as well as common law, sophisticated concepts of postErie federalism,11 an important residual area of federal common law, 12 and
developing national and international interests and a foreign relations law.13
The international implications of the law of the United States are growing,
whether that law is federal or state, common law or statute, or regulatory law
of the many administrative agencies, federal, state, and local, that have been
created since the Institute was founded in 1923. Different times produce
different challenges. Expecting the Institute to periodically produce a project
of such dimensions as the first Restatements would be about as fair or realistic
as asking the Supreme Court to periodically produce a case with the
institutional impact of Brown v. Board of Education 14 or Miranda v. Arizona.15
It is fair and realistic to ask, however, if the vision of the Institute continues to
be comparable to that of its founders.
1. THE PRESENT STATUS OF THE FIVE RESTATEMENTS UNDER
DISCUSSION
Torts: Having completed both the Restatement and the Restatement
Second of Torts, the Institute is well underway on the Restatement Third and
has completed the segments on products liability16 and apportionment of
liability17 and virtually completed the segment on torts involving physical
9.
10.
11.
12.
13.
14.
15.
16.
17.
See Caleb N elson, The Persistence of G eneral Law , 106 C OLUM . L. R EV. 503 (2006).
For m ore inform ation, see www.nccusl.org (last visited Sept. 25, 2007).
See, e.g., Gasperini v. Ctr. for H um anities, Inc., 518 U .S. 415 (1996); Sem tek Int’l, Inc. v. Lockheed
M artin Corp., 531 U .S. 497 (2001); Alden v. M aine, 527 U .S. 706 (1999); Sem inole Tribe of Fla. v.
Florida, 517 U .S. 44 (1996).
See N elson, supra note 9.
See R ESTATEMENT (T HIRD) OF THE L AW , F OREIGN R ELATIONS L AW OF THE U NITED S TATES (1987;
2 vols).
347 U .S. 483 (1954).
384 U .S. 436 (1966).
R ESTATEMENT (T HIRD) OF T ORTS: P RODUCTS L IABILITY (1998).
R ESTATEMENT (T HIRD) OF T ORTS: A PPORTIONMENT OF L IABILITY (2000).
2007]
The First Restatements
3
harm and property damage.18 It has commenced work on economic torts and
related wrongs. 19 It completed, in a separate Restatement Third of Unfair
Competition, 20 work on a subject that had been addressed in part in the first
Restatement but that was no longer deemed appropriate to include in the
Restatement Second.21
The first Restatement had Francis Bohlen as Chief Reporter, and the
Restatement Second had William Prosser and then, after Prosser’s death, John
Wade as Chief Reporter. One major difference in the Restatement Third is
that the subject of torts has expanded to the point where it is not feasible to
name one person with comparable range, depth of experience, and acuity of
vision to be the Chief Reporter for the entire subject. The Institute necessarily
has had to segment the subject and appoint Reporters for the various segments.
At the same time, it recognizes the need for coordination of the segments and
is therefore beginning the process of overview, liaison, and coordination.22
Contracts: After the first Restatement was published under the
leadership of Chief Reporter Samuel W illiston, two key developments
occurred: Enough progress in the common law occurred to justify a
Restatement Second,23 which had Robert Braucher and then, after his
appointment to the Supreme Judicial Court of Massachusetts, Allan
18.
19.
20.
21.
22.
23.
R ESTATEMENT (T HIRD) OF T ORTS: L IABILITY FOR P HYSICAL AND E MOTIONAL H ARM , Proposed Final
D raft N o. 1 (A pr. 6, 2005); R ESTATEMENT (T HIRD) OF T ORTS: L IABILITY FOR P HYSICAL AND
E MOTIONAL H ARM ' (Tentative D raft N o. 5, 2007).
R ESTATEMENT (T HIRD) OF E CONOMIC T ORTS AND R ELATED W RONGS '
(D iscussion D raft 2007).
This project began in 2005.
R ESTATEMENT (T HIRD) OF U NFAIR C OMPETITION (1995). AThe chapters (34, 35, 36 and 38) that were
concerned with trade practices and labor disputes have been om itted, in the view that these subjects
have becom e substantial specialties, in their own right, governed extensively by legislation and
largely divorced from their initial grounding in the principles of torts. See pp. 1–3, infra.@
R ESTATEMENT (S ECOND) OF T ORTS '___ (Y EAR). Vol. 4, at vii.
R ESTATEMENT (T HIRD) OF U NFAIR C OMPETITION foreword at xi (1995) (foreword by then D irector
Geoffrey C. Hazard, Jr., stating AThis Restatem ent is the Institute=s first independent work on the
subject. The subject of unfair com petition was to have been addressed in the Restatem ent, Second,
of Torts, as it had been in the original Restatem ent of Torts. H owever, it was eventually decided that
the law of unfair com petition had evolved to the point that it was no longer appropriate to treat it as
a subcategory of the law of Torts. See 4 Restatem ent, Second, Torts, Introduction and Introductory
N ote to Division Nine.@).
U nder the direction of Lance Liebm an, the Institute has begun the necessary coordination efforts.
R ESTATEMENT (S ECOND) OF C ONTRACTS (1981).
4
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[Vol. 32
Farnsworth,24 as Chief Reporters; and the Uniform Commercial Code (UCC)25
was adopted under the leadership of Chief Reporter Karl Llewellyn 26 and the
joint sponsorship of NCCUSL. As yet, the Institute has not seen a compelling
need to commence work on a Restatement Third. It has, however, worked
with NCCUSL to keep the UCC updated.27 Moreover, after the Institute
disengaged from a proposed Article 2B on software,28 and NCCUSL decided
not to pursue further efforts with its proposed Uniform Computer Information
Transactions Act (UCITA),29 the Institute began an independent project on
24.
25.
26.
27.
28.
29.
See E. A LLAN F ARNSWORTH, F ARNSWORTH ON C ONTRACTS (various editions); E. Allan Farnsworth,
Ingredients in the Redaction of the R ESTATEMENT (S ECOND) OF C ONTRACTS (Symposium on the
Restatem ent (Second) of Contracts), 81 C OLUM . L. R EV. 1 (1981); E. Allan Farnsworth, Som e
Prefatory Rem arks: From Rules to Standards (Symposium : The Restatem ent (Second) of Contracts),
67 C ORNELL L. R EV. 634 (1982).
A MERICAN L AW INSTITUTE AND N ATIONAL C ONFERENCE OF C OMMISSIONERS ON U NIFORM S TATE
L AWS, U NIFORM C OMMERCIAL C ODE (1952). The U CC initially included Articles 1 to 10: General
Provisions, Sales, Com m ercial Paper, Bank D eposits and Collections, Letters of Credit, Bulk
Transfers, W arehouse Receipts, Investm ent Securities, Secured Transactions, Effective Date and
Repealer. The code has been am ended m any tim es since 1952.
See Back to the Future, supra note 6, in A MERICAN L AW INSTITUTE, T HE A MERICAN L AW INSTITUTE
S EVENTY-F IFTH A NNIVERSARY at 142–44.
Recent revisions and am endm ents to the U niform Com m ercial Code include: Revised Article 5
(Letters of Credit) (1991–1995); Revised Article 2 (Sales) (1992–1999); Revised Article 8
(Investm ent Securities) (1992–1994); Revised Article 9 (Secured Transactions) (1993–1999);
Am endm ents to Article 7 (Docum ents of Title) (2000–2003). For a recent and im portant perspective,
see Am elia H . B oss, The Future of the U niform Com m erical Code Process in an Increasingly
International World, 68 O HIO S T . L. J. 349 (2007).
A Tentative Draft dated April 15, 1998, was the last form al draft that the Institute issued for proposed
U CC Article 2B. N um erous law review articles exam ined 2B, including: Bryan G. H andlos, D rafting
and N egotiating Com m ercial Software Licenses: A Review of Selected Issues Raised by Proposed
U niform Comm ercial C ode Article 2B, 30 C REIGHTON L. R EV. 1189 (1997); Garry L. Founds,
Shrinkwrap and Clickwrap Agreem ents: 2B or Not 2B?, 52 F ED . C OMM . L.J. 99 (1999); R obert W .
Gom ulkiewicz, H ow Copyleft U ses License Rights to Succeed in the Open Source Software
Revolution and the Implications for Article 2B (Symposium : Licensing in the D igital Age), 36 H OUS.
L. R EV. 179 (1999). At the 1998 ALI Annual M eeting, Professor Charles M cM anis of W ashington
U niversity of St. Louis subm itted a m otion that introduced intellectual property considerations in
relation to m ass-m arket licenses, which resulted in a divided vote against the m otion but ensuing
support for his idea. Charles R. M cM anis, D iscussion of the U niform Com m ercial Code, Article 2B
(Licenses), 75 A.L.I. P ROC. 472–85 (1999); Also in 1998, Professor Pam ela Sam uelson, Director of
the Berkeley Center for Law and Technology, organized an influential conference at Boalt H all
entitled “Intellectual Property and Contract Law in the Inform ation Age: The Im pact of Article 2B
of the U niform Com m ercial Code on the Future of Transactions in Inform ation and Electronic
Com m erce.”
See U CC 2B C onference H om epage, www.law.berkeley.edu/institutes/bclt/
events/ucc2b (last visited June 20, 2007); M ark A. Lem ley, Beyond Preemption: The Law and Policy
of Intellectual Property Licensing, (Sym posium : Intellectual Property and Contract Law for the
Inform ation Age: The Im pact of Article 2B of the U CC on the Future of Inform ation and Com m erce),
87 C AL. L. R EV. 111 (1999) (num erous IP academ ics and practitioners participated in this
sym posium ). The contributions of Professors Sam uelson and M cM anis and other intellectual
property scholars were im portant steps in developing the broader fram ework of understanding that
helped lead to the ultim ate rejection of U CITA. See, e.g., Pam ela Sam uelson, Intellectual Property
and Contract Law for the Information Age: Foreword to a Symposium , 87 C AL. L. R EV. 1 (1999).
C harles R . M cM anis, The Privatization (or “Shrink-Wrapping”) of Am erican Copyright Law , 87
C AL. L. R EV. 173 (1999).
The N ational Conference of Com m issioners on U niform State Laws prom ulgated the U niform
Com puter Inform ation Transactions Act in 1999, but also m ade m inor revisions to it in 2000 and
2002. See http://www.nccusl.org/U pdate/ActSearchResults.aspx (supplying the Act's current status).
At this tim e, M aryland and Virginia are the only states that have adopted U CITA, and in a qualified
m anner at that. Several states have enacted anti-U CITA provisions, including Iowa, N orth C arolina,
W est Virginia and Verm ont. See also Am elia H . Boss, Taking U C ITA on the Road: What Lessons
H ave We Learned?, 7 R OGER W ILLIAMS U . L. R EV. 167 (2001).
2007]
The First Restatements
5
Principles of the Law of Software Contracts,30 with liaison contributions from
a NCCUSL representative.31
Conflict of Laws: Unlike the other Restatements, the first Restatement
of Conflict of Laws, prepared by and under the direction of Chief Reporter
Joseph Beale, sought to freeze the law in notions of territoriality and vested
rights, pursued the bureaucratization and depersonalization of the law with a
vengeance, impeded the development of the law, and further provoked the
conflicts revolution 32 that had already begun and was led and advanced by
noted scholars, including W alter Wheeler Cook,33 David Cavers, 34 Brainerd
Currie, 35 and Robert Leflar, 36 to name just a few. The Restatement Second,
under the leadership of Professor Willis Reese as Reporter, began as the
revolution occurred, was finished in 1971, 37 and, while the revolution
continued its extended and still uncompleted course, was updated in certain
respects in 1988. 38 It enjoys growing acceptance by courts 39 but continues to
receive significant criticism by scholars. 40 Although thoughtful scholars
recommend a Restatement Third,41 the subject is still much debatable, and the
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
The Institute's P RINCIPLES OF THE L AW OF S OFTWARE C ONTRACTS project began in 2004. See
w w w .ali.org/index.cfm ?fuseaction=projects.proj_ip& projec tid=9 (supplying m ore detailed
inform ation).
That representative is currently Professor Boris Auerbach. O ther liaison representatives are Jesse
F e d e r ,
R i c h a r d
L .
F i e l d
a n d
E m e r y
S i m o n .
S e e
www.ali.org/index.cfm ?fuseaction=projects.proj_ip& projectid=9#LIA.
See S YMEON C. S YMEONIDES, T HE A MERICAN C HOICE-OF-L AW R EVOLUTION : P AST , P RESENT AND
F UTURE (2006), reviewed by Louise W einberg, Theory Wars in the Conflict of Laws, 103 M ICH. L.
R EV. 1631 (2005). See also Patrick J. Borchers, The Choice-of-Law Revolution: An Em pirical Study,
49 W ASH. & L EE L. R EV. 357 (1992).
See W ALTER W HEELER C OOK, T HE L OGICAL AND L EGAL B ASES OF THE C ONFLICT OF L AWS (1942);
W alter W heeler C ook, “Substance” and “Procedure” in the Conflict of Laws, 42 Y ALE L. J. 333
(1933); W alter W heeler Cook, The Federal Courts and the Conflict of Laws, 36 U . ILL. L. R EV. 493
(1942).
See D avid F. Cavers, A Critique of the Choice-of-Law Problem , 47 H ARV. L. R EV. 173 (1933); D AVID
F. C AVERS, T HE C HOICE-OF-L AW P ROCESS (1965).
See B RAINERD C URRIE, S ELECTED E SSAYS ON THE C ONFLICT OF L AWS (1963) [hereinafter C URRIE,
E SSAYS]; Brainerd Currie, Notes on M ethods and Objectives in the Conflict of Laws, 1959 D UKE L.J.
171 (1959) [hereinafter Currie, Notes].
See R OBERT A LLEN L EFLAR, L UTHER L. M CD OUGAL, AND R OBERT L. F ELIX , A MERICAN C ONFLICTS
L AW (various editions).
R ESTATEMENT (S ECOND) OF C ONFLICT OF L AWS (1971).
R ESTATEMENT (S ECOND) OF C ONFLICT OF L AWS, 1988 R EVISIONS (1988), issued as perm anent pocket
parts for the two m ain C onflict of Laws volum es.
See, e.g., N edlloyd Lines B.V. v. Superior Court, 834 P.2d 1148 (Cal. 1992); Ingersoll v. Klein, 262
N .E.2d 593 (Ill. 1970); Sym eon C. Sym eonides, The Judicial Acceptance of the Second Conflicts
Restatement: A M ixed Blesssing, 56 M D . L. R EV. 1248 (1997).
See, e.g., W einberg, supra note 32, at 1644–45; Louise W einberg, A Structural Revision of the
Conflicts Restatement, 75 IND . L. J. 475 (2000); Albert A. Ehrenzw eig, The Second Conflicts
Restatem ent: A Last Appeal for Its Withdrawal, 113 U . P A. L. R EV. 1230 (1965); H erm a H ill Kay,
Chief Justice Traynor and C hoice of Law Theory, 35 H ASTINGS L.J. 747 (1984); D avid E. Seidelson,
Interest Analysis or the Restatement Second of Conflicts: Which Is the Preferable Approach to
Resolving Choice-of-Law Problem s?, 27 D UQ . L. R EV. 73 (1988); Larry Kram er, Rethinking Choice
of Law , 90 C OLUM . L. R EV. 277 (1990); Larry K ram er, O n the Need for a Uniform Choice of Law
Code (Sym posium : O ne H undred Years of the U niform State Law s), 89 M ICH. L. R EV. 2134 (1991);
Friedrich K. Juenger, A Third Conflicts Restatem ent?, 75 IND . L.J. 403 (2000) [hereinafter Juenger,
Third Conflicts]; F RIEDRICH K. J UENGER, C HOICE OF L AW AND M ULTISTATE J USTICE (Spec. Ed. 2005)
[hereinafter J UENGER, M ULTISTATE J USTICE]. See also W illiam F. Baxter, Choice of Law and the
Federal System , 16 S TAN . L. R EV. 1 (1963); W illis L. M . Reese, Conflict of Law s and the Restatement
Second, 28 L AW & C ONTEMP . P ROBS. 679 (1963); W illis L. M . Reese, Contracts and the Restatement
of Conflict of Law s, Second, 9 INT 'L & C OMP . L.Q . 531 (1960).
See Gene Shreve, Sym posium , Preparing for the Next Century-A New Restatem ent of Conflicts, 75
IND . L. J. 399 (2000); Sym eon C. Sym eonides, The Need for a Third Conflicts Restatement (And a
Proposal for Tort Conflicts), 75 IND . L. J. 437 (2000); Sym eon C. Sym eonides, Sym posium , Am erican
6
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[Vol. 32
law in key areas has not sufficiently settled in the view of many to justify
beginning a Restatement Third.42 Three critical building blocks exist in this
area:
(1) Personal jurisdiction is still immersed in fact-intensive concepts of
due process,43 entailing costly and substantial collateral litigation, 44 most
recently in efforts to apply Supreme Court Cases from another era to the
Internet.45
(2) Choice of law is still embroiled in constant debate. 46 Moreover, it is
still limited by the pervasive notion that it is necessary to select the law of a
particular jurisdiction for an issue or a case rather than develop the idea that
choice-of-law cases (at least true conflict cases) are different because by
definition they involve the laws of two or more jurisdictions. The conflict of
laws, especially choice of law, needs more than a tune up; it needs a systematic
overhaul. Although it would be ambitious, I venture to suggest that such an
overhaul of the law of conflict of laws and choice-of-law methodology could,
for example:
42.
43.
44.
45.
46.
Choice of Law at the D aw n of the 21 st Century, 37 W ILLAMETTE L. R EV. 1 (2001).
See, e.g., Russell J. W eintraub, The Restatement Third of Conflict of Law s: An Idea Whose Tim e Has
Not Com e, 75 IND . L. J. 679 (2000); Juenger, Third Conflicts, supra note 40.
E.g., International Shoe Co. v. State of W ash., O ffice of Unem ploym ent, 326 U .S. 310, 66 S.Ct. 154
(1945); Shaffer v. H eitner, 433 U .S. 186 (1977); W orldwide Volkswagen Corp. v. W oodson, 444 U .S.
286 (1980); H elicopteros N acionales de Colum ., S.A. v. H all, 466 U .S. 408 (1984); Burger King v.
Rudzewicz, 471 U .S. 462 (1985); Asahi M etal Industry Co. v. Superior Court, 480 U .S. 102 (1987);
Burnham v. Superior Court, 495 U .S. 604 (1990).
U nder the European approach, w hich is m ore rule-oriented, there is less collateral litigation. See
Brussels Regulation on Jurisdiction and Enforcem ent of Judgm ents in Civil and Com m ercial M atters,
EC Regulation N o. 44/2001. See also the predecessor Brussels Convention, officially the
"Convention of 27 Septem ber 1968 on Jurisdiction and the Enforcem ent of Judgm ents in Civil and
Com m ercial M atters" (O fficial Journal L 299, 31/12/1972 pp. 32–42) and the Lugano Convention,
officially the "Convention of 16 Septem ber 1988 on jurisdiction and the enforcem ent of judgm ents
in civil and com m ercial m atters" (O fficial Journal 1988 L 319, p. 9); Linda J. Silberm an,
D evelopm ents in Jurisdiction and Forum Non Conveniens in International Litigation: Thoughts on
Reform and a Proposal for a U niform Standard, 28 T EX. INT. L.J. 501 (1993); See Friedrich K .
Juenger, Am erican Jurisdiction: A Story of Com parative Neglect, 65 U . C OLO . L. R EV. 1 (1993);
Juenger, Third Conflicts, supra note 40; Russell J. W eintraub, D ue Process Lim itations on the
Personal Jurisdiction of State Courts, 63 O R. L. R EV. 485 (1984).
See, e.g., Zippo M anufacturing Com pany v. Zippo D ot Com , Inc., 952 F. Supp. 1119 (W .D .Pa.,
1997); Blum enthal v. D rudge, 992 F. Supp. 44 (D .D .C. 1998). See also Bensusan Restaurant Corp.
v. King, 126 F.3d 25 (CA2 1997); Com puServe, Inc. v. Patterson, 89 F.3d 1257 (6th C ir. 1996);
Cybersell, Inc. v. Cybersell, Inc. et al., 130 F.3d 414 (9th Cir. 1997) Panavision Int'l, L.P. v. Toeppen,
141 F.3d 1316, 1321 (9th Cir. 1998); M ichael Traynor & Laura Pirri, Personal Jurisdiction and the
Internet: Em erging Trends and Future D irections, Practising Law Institute, Sixth Annual Internet
Law Institute, at 93 (2002).
See, e.g., C URRIE, E SSAYS, supra note 35; Currie, Notes, supra note 35; Brainerd Currie, The
D isinterested Third State, 28 L AW & C ONTEMP . P ROBS. 754 (1963); Herm a H ill Kay, A D efense of
Currie=s G overnm ental Interest Analysis, 215 R ECUEIL D ES C OURS 9 (1989); Larry Kram er,
Rethinking Choice of Law , 90 C OLUM . L. R EV. 277 (1990); Louise W einberg, Against Com ity, 80
G EO . L.J. 53 (1991); Joseph W illiam Singer, Real Conflicts, 69 B.U . L. R EV. 3 (1989); Robert Allen
Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N .Y .U . L. R EV. 267 (1966); W illiam
F. Baxter, Choice of Law and the Federal System , 16 S TAN . L. R EV. 1 (1963); H erm a H ill Kay, Kay,
The U se of Com parative Im pairm ent To Resolve True Conflicts: An Evaluation of the California
Experience, 68 C ALIF. L. R EV. 577 (1980); A NDREAS F. L OWENFELD , C ONFLICT OF L AWS: F EDERAL,
S TATE, AND INTERNATIONAL P ERSPECTIVES (2d ed. 1998); Friedrich K. Juenger, H ow D o You Rate
a C entury?, 37 W ILLAMETTE L. R EV. 89 (2001); W illiam L. Reynolds, Legal Process and Choice of
Law , 56 M D . L. R EV. 1371, 1388–89 (1997) (sum m arizing criticism s of Restatem ent Second);
M ichael Traynor, Conflict of Laws, C om parative Law, and the Am erican Law Institute, 49 A M . J.
C OMP . L. 391, 397 (2001). For two key California cases, see Kearney v. Salom on Sm ith Barney, Inc.,
137 P.3d 914 (Cal. 2006); Offshore Rental Co. v. Continental Oil Co., 583 P.2d 721 (Cal. 1978).
2007]
The First Restatements
7
(a) Address and build on the reality that true conflict cases necessarily
involve the laws of two or more jurisdictions and that, as in life, the
appropriate resolution of a conflict is not necessarily limited to one of the
competing choices but may involve an accommodation that takes both choices
into account.47 It is likewise realistic to also recognize that the long effort
during the conflicts revolution and now to perfect a means of choosing a
particular law of a particular jurisdiction is not an attainable quest in true
conflict cases, which by definition are multi-jurisdictional.
(b) Develop the principle, of which Professor Currie was a premier
advocate, of identifying and eliminating “false conflicts” in significant part
through the forum’s restrained and enlightened view of forum law.48
(c) Synthesize and articulate a principle of rational party autonomy for
selecting and interpreting choice-of-law clauses and choice-of-forum clauses
47.
48.
See J UENGER, M ULTISTATE J USTICE, supra note 40, at 9–10:
For our purposes it is im portant to note that the Greeks and the Rom ans approached
the legal issues posed by the cross-frontier m ovem ent of persons, things and
transactions in a sim ilar fashion. Instead of elaborating a system of choice-of-law
rules, they created special tribunals with com petence to decide m ultistate disputes
and accorded them a fair m easure of freedom to find appropriate solutions. Perhaps
in Greece, and certainly in Rom e, these tribunals developed rules of decision that,
although local in origin, had a supranational purport. W hether the reliance on
substantive rules rather than choice-of-law principles to resolve m ultistate problem s
shows a lack of legal acum en or good com m on sense is another question. But if the
experience gathered in antiquity is any indication, choice of law rules in the m odern
sense are clearly not the only possible response to m ultistate problem s.
See also Friedrich K. Juenger, M ass Disasters and the Conflict of Laws, 1989 U . ILL. L. R EV. 105, 126
(Am ost suitable rule of decision”); M ichael Traynor, A H eavenly Inquiry from Professor Juenger, in
F RIEDRICH K. J UENGER, C HOICE OF L AW AND M ULTISTATE J USTICE x1 (Spec. Ed. 2005); additional
references cited at note 61, infra. Cf. Chief Judge Jack W einstein=s creative choice of law
m em orandum in In re “Agent O range” Product Liability Litigation, 580 F. Supp. 690, 711 (E.D .N .Y .
1984) (“no acceptable test can point to any single state”); Id. at 713 (Ait is likely that each of the states
w ould look to a federal or a national consensus law of m anufacturer=s liability, governm ent contract
defense and punitive dam ages. W hat is the nature of the national consensus or federal law is a subject
for another m em orandum ”). Although the case later settled without resolution of the choice-of-law
issues and Chief Judge W einstein=s m em orandum was not an appealable order, on both m andam us
and a later appeal it did not receive the approval of the U .S. C ourt of A ppeals for the Second Circuit.
In re Diam ond Sham rock Chem icals C o., 725 F.2d 858, 861 (2d Cir. 1984); In re “Agent O range”
Product Liability Litigation, 818 F.2d 145, 165 (2d Cir. 1987) (“the intellectual power of Chief Judge
W einstein=s analysis alone w ould not be enough to prevent widespread disagreem ent”). See also Jack
B. W einstein, M ass Tort Jurisdiction and Choice of Law in a M ulti-National World Com m unicating
by Extraterrestrial Satellites, 37 W illam ette L. Rev. 145 (2000).
H ad the first Restatem ent not im peded the developm ent of the law, perhaps a com m on law of conflict
of laws m ight have been developed that decades ago would have begun to yield enough cases
involving relevant elem ents from two or m ore jurisdictions that could then have been synthesized.
It bears noting that the Institute and The International Institute for the U nification of Private Law
(U NIDROIT ) recently published Principles of Transnational Civil Procedure (Cam bridge U . Press,
2006) which synthesizes fundam ental principles of civil procedure from the com m on law system and
the civil law system , in som e respects a far m ore daunting challenge than resolving a conflict between
the laws of two states.
See Currie, supra note 46; Brainerd Currie, M arried W om en=s Contracts: A Study in Conflict-of-Laws
M ethod, 25 U . C HI. L. R EV. 227 (1958). For exam ples of restrained and enlightened decisions, see,
e.g., Lauritzen v. Larsen, 345 U .S. 571 (1953); F. H offm an-La Roche Ltd. v. Em pagran S.A., 542
U .S. 155 (2004); Bernkrant v. Fowler, 55 Cal. 2d 588 (1961). See also W einberg, supra note 32, at
1642; W illiam M . Richm an, D iagram m ing Conflicts: A G raphic U nderstanding on Interest Analysis,
41 O HIO S T . L.J. 317, 318–20 (1982); M ichael Traynor, Professor Currie=s Restrained and
Enlightened Forum , 49 C AL. L. R EV. 845 (1961).
8
Southern Illinois University Law Journal
[Vol. 32
for contract and related disputes, particularly between parties with comparable
bargaining power. 49
(d) Develop additional tools for conflict avoidance, including pretrial
settlement of conflicts issues and alternative dispute resolution.50
(e) Assure a coherent constitutional grounding for a fresh methodology
and make better judicial use of the tools our Constitution provides for our
nation of states in Article IV’s Full Faith and Credit Clause 51 and Privileges
and Immunities Clause;52 Article I’s Commerce Clause;53 and the Fourteenth
49.
50.
51.
52.
53.
U .C .C . §§ 1–101 – 1–108 General Provisions (2001 Revisions); See, e.g., N edlloyd Lines B .V. v.
Superior Court, 834 P.2d 1148 (Cal. 1992).
See Jam es A. R. N afziger, Avoidance of Choice-of-Law Conflicts: An Introduction, 12 W ILLAMETTE
J. INT =L L. & D IS. R ESOL. 179 (2004).
U .S. C ONST . art. IV, ' 1. At present, in a true conflict of law s, Athere is no obligation of full faith and
credit to a sister state=s lawsC as opposed to a sister state=s judgm ents.” W einberg, supra note 32, at
1635; see Alaska Packers v. Indus. Accident Com m =n, 294 U.S. 532 (1935); Pac. Em ployers Ins. Co.
v. Indus. Accident Com m =n, 306 U .S. 493 (1939). Com pare H ughes v. Fetter, 341 U .S. 609 (1951);
Carroll v. Lanza, 349 U .S. 408, 411 (AA statute is a >public act= within the m eaning of the Full Faith
and C redit Clause.@). See also W ells v. Sim onds Abrasive Co., 345 U .S. 514, 521 (1953) (Jackson,
J., dissenting) (“The whole purpose and the only need for requiring full faith and credit to foreign law
is that it does differ from that of the forum .”); Kerm it Roosevelt, III, The M yth of Choice of Law:
Rethinking Conflicts, 97 M ICH L. R EV. 2448, 2503–18 (1999); Gene R . Shreve, Choice of Law and
the Forgiving Constitution, 71 IND . L. J. 271 (1996); Robert H. Jackson, Full Faith and CreditC The
Law yers= Clause of the Constitution, 45 C OLUM . L. R EV. 1 (1945).
U .S. C ONST . art. IV, ' 2, cl. 1. See Suprem e Court of N ew Ham pshire v. Piper, 470 U .S. 274 (1985);
H icklin v. O rbeck, 437 U .S. 518 (1978); A ustin v. N ew H am pshire, 420 U .S. 656 (1975); Toom er
v. W itsell, 334 U .S. 385, 395 (1948) (“The prim ary purpose of [the Privileges and Im m unities Clause]
. . . was to help fuse into one N ation a collection of independent, sovereign States.”). Com pare Case
186/187, Cowan v. Tresor Public, 1989 E.C.R. 195 (English resident m ugged on the Paris M etro
entitled to crim e victim com pensation under French law despite its lim itation of coverage to residents
of France; right to travel unencum bered by such residency restrictions was a fundam ental part of
European citizenship) with O strager v. State Bd. of Control, 99 C al. App. 3d 1, 160 Cal. Rptr. 317
(1979), appeal dism issed for want of a substantial federal question, 449 U .S. 807 (1980) (New Y ork
resident shot while on vacation in San Francisco not entitled to crim e victim com pensation under
California law, which, like the French law, was lim ited to residents, because right was not
“fundam ental”). Justice Stevens would have noted probable jurisdiction and set the O strager case for
oral argum ent. Id. See also Q uong H am W ah Co. v. Indus. Accident Com m =n., 192 P.2d 1021
(1920), writ of error dism issed, 255 U.S. 445 (1921) (residency lim itation under California workers=
com pensation law was invalid under Privileges and Im m unities Clause); C URRIE, E SSAYS, supra note
35, at 445–525; Roosevelt, III, supra note 51, at 2471.
U .S. C ONST . art I, '1 Com pare D onald H . Regan, The Suprem e Court and State Protectionism :
M aking Sense of the D orm ant Com m erce Clause, 84 M ICH. L. R EV. 1091 (1986) and Donal H . Regan,
Siam ese Essays: (I) CTS C orp. v. D ynam ics Corp. of Am erican and D orm ant Com m erce Clause
D octrine; (II) Extraterritorial State Legislation, 85 M ICH. L. R EV. 1865 (1987), w ith M ark Gergen,
The Selfish State and the M arket, 66 T EX . L. R EV. 1097 (1988) and M ark Gergen, Territoriality and
the Perils of Form alism , 86 M ICH. L. R EV. 1735 (1988).
2007]
The First Restatements
9
Amendment’s Due Process Clause,54 Equal Protection Clause,55 and Privileges
or Immunities Clause 56 as well as, when appropriate, good legislative use of
Congress’ power to legislate in the area ,57 constitutional tools that are still
relatively unused in the conflict of laws. Reexamination of the constitutional
framework should also lead to an analysis that in addition to interests of
federalism and state autonomy, which the Supreme Court has largely deferred
to, national interests exist and that a national solution may be preferable in
some cases than one that attempts to address a national problem by choosing
the law of one state.58
(f) In considering a national solution to the problem of mass torts,
consider also the recommendations of the American Law Institute in its
Complex Litigation Project.59
(g) Subject to applicable and reexamined constitutional constraints; build
on existing examples of relevant blending techniques, including the principle
of dépeçage,60 which allows a court to apply the law of one state to govern one
54.
55.
56.
57.
58.
59.
60.
U .S. C ONST . am end. XIV, ' 2. See Allstate Ins. Co. v. H ague, 449 U .S. 302, 312–13 (1981); Phillips
Petroleum Co. v. S hutts, 472 U .S. 797, 818 (1985); see also H om e Ins. Co. v. D ick, 281 U .S. 397
(1930); Arthur T. von M ehren & D onald Trautm an, Constitutional Control of Choice of Law: Som e
Reflections on H ague, 10 H OFSTRA L. R EV. 35 (1981); Roosevelt, III, supra note 51, at 2507 (AApart
from the fact that D ue Process governs relations between states and individuals, while Full Faith and
Credit governs interstate relations, there is an im portant conceptual difference. D ue process analysis
sets a m inim um threshold; beyond that threshold there are no restrictions. Consequently, a due
process analysis often leads to the conclusion that a num ber of different states= law s m ay apply. . . .
Full Faith and Credit, by contrast, dem ands that each state accord the greatest degree of respectC full
faith and creditC to the laws of sister states. This m ay be a baseline requirem ent in som e sense, but
the baseline is set as high as it possibly could be. To suppose that such a forceful com m and results
in the sam e threshold test as D ue Process–Cin particular the toothless Allstate testC is to suppose that
the Constitution cares very little about the resolution of conflicts between laws. That supposition is
of course false. . . .”). See also Paul Freund, Chief Justice Stone and the Conflict of Laws, 59 H ARV.
L. R EV. 1210 (1946).
U .S. C ONST . am end. XIV, ' 2. See C URRIE, E SSAYS, supra note 35, at 526–83; D ouglas Laycock,
Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law ,
92 C OLUM . L. R EV. 249 (1992), discussed in W einberg, supra note 32, at 1654, note 55 (an im portant
article addressing the problem s of territoriality and intrastate discrim ination and interest analysis and
interstate discrim ination). See also Gergen, Equality and the Conflict of Laws, 73 IOWA L. R EV. 893
(1988).
U .S. C ONST . am end. XIV, ' 2; see Edwards v. California, 314 U .S. 160 (1941).
U .S. C ONST . art. I, ' 1; art. IV, ' 1; am end. XIV, ' 1.
See, e.g., Sam uel Issacharoff, Settled Expectations in a World of U nsettled Law : Choice of Law after
the Class Action Fairness Act, 106 C OLUM . L. R EV. 1839 (2006). Professor Issacharoff is also the
Chief Reporter for the Institute=s current project on Principles of the Law of Aggregate Litigation,
which includes class actions, a subject of crucial relevance to choice-of-law. Professor Issacharoff
identifies the Aneed to facilitate com m on legal oversight of undifferentiated national m arket activity.@
Id.. at 1839. See also Stanley E. Cox, Substantive, M ultilateral, and U nilateral Choice-of-Law
Approaches, 37 W ILLAMETTE L. R EV. 171, 179 (2001) (AThe substantive approach to choice of law
works best in situations where no particular jurisdictions have predom inant sovereignty-based claim s
to adjudicate an underlying dispute, but where m ost parties desire a com prehensive and consistent
result on the m erits . . . . [It] w orks best in m ass disaster and consolidated or class litigation
situations@); Friedrich K. Juenger, M ass Disasters and the Conflict of Laws, 1989 U . ILL. L. R EV. 105,
126 (1989); M ichael H . Gottesm an, D raining the Dismal Swam p: The Case for Federal Choice of
Law Statutes, 80 G EO . L.J. 1 (1991).
A MERICAN L AW INSTITUTE, C OMPLEX L ITIGATION : S TATUTORY R ECOMMENDATIONS AND A NALYSIS
(1994).
See RESTATEMENT ( SECOND) OF C ONFLICT OF LAWS ' 145, cm t. d (1971); D AVID F. C AVERS, T HE
C HOICE-OF-L AW -P ROCESS 19, 34–43 (1965); Courtland H . Peterson, Private International Law at the
End of the Tw entieth C entury: Progress or Regress?, 46 A M . J. C OMP . L. 197, 224–25 (1998); W illis
L.M . Reese, D épeçage: A C om m on Phenom enon in Choice of Law , 73 C OLUM . L. R EV. 58 (1973);
Christopher G. Stevenson, D épeçage: Em bracing Com plexity to Solve Choice-of-Law Issues, 37 IND .
L. R EV. 303 (2003); Louise W einberg, Theory Wars in the Conflict of Laws, 103 M ICH. L. R EV. 1631
(2005). For an international copyright law exam ple, see Itar-Tass Russian N ews Agency v. Russian
10
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[Vol. 32
issue and the law of another state to govern a separate issue; the developing
theory that substantive principles to resolve conflicts are permissible even if
they are not identical to the law of any competing jurisdiction; 61 the law of
defamation, where the Supreme Court has required and facilitated the blending
of constitutional considerations (such as the First Amendment) with state tort
law;62 and the law of comparative responsibility and apportionment in tort
cases.63
(h) Examine and explain the unique role of judges in conflict of laws
cases, recognizing that judges, whose responsibilities include deciding cases
according to principles that include justice, should not be precluded in
appropriate cases from blending the most fitting or appropriate elements of
competing laws even though the result is not identical to either. Although
legislators constantly blend policies and make compromises, it would be farfetched to contend that judges within applicable constitutional constraints can
never do, even occasionally, what legislators do routinely, particularly when
judges seek to enable sister states to act as sisters and foster an
accommodating, moderate, and not one-sided solution.64
61.
62.
63.
64.
K urier, Inc., 153 F.3d 82, 89–92 (2d Cir. 1998) (ownership question governed by Russian law ,
infringem ent question by U .S. law).
See Paul Schiff Berm an, Judges as Cosm opolitan Transnational Actors, 12 T ULSA J. C OMP . & INT =L.
L. 109, 114 (2004) (Awhereas m ost traditional choice-of-law regim es require a choice of one national
norm , a cosm opolitan approach perm its judges to develop a hybrid rule that m ay not correspond to
any particular regim e@); Hannah L. Buxbaum , Conflict of Econom ic Laws: From Sovereignty to
Substance, 42 V A. J. INT =L. L. 931, 956–63 (2002); Stanley E. Cox, Substantive, M ultilateral, and
U nilateral C hoice-of-Law Approaches, 37 W ILLAMETTE L. R EV. 171, 172–83 (2001); Graem e B.
D inwoodie, A New Copyright O rder: W hy National Courts Should Create G lobal Norm s, 149 U . P A.
L. R EV. 469, 542–79 (2000); Juenger, supra note 46, at 106–07; Friedrich K. Juenger, The Need for
a Com parative Approach to Choice-of-Law Problem s, 73 T UL. L. R EV. 1309, 1317–19 (1999); Luther
L. M cD ougal III, APrivate@ International Law : Just G entium Versus Choice of Law Rules or
Approaches, 38 A M . J. C OMP . L. 521, 536–37 (1990); Peterson, supra note 60, at 214; Traynor, supra
note 48; Arthur T. von M ehren, Special Substantive Rules for M ultistate Problem s: Their Role and
Significance in Contemporary Choice of Law M ethodology, 88 H ARV. L. R EV. 347 (1974); Arthur T.
von M ehren, Choice of Law and the Problem of Justice, L AW & C ONTEMP . P ROBS., Spring 1997, at
27, 38–40. See also John E. Coons, Approaches to Court Imposed Com prom iseC The U ses of D oubt
and Reason, 58 N W . U . L. R EV. 750 (1964); John E. Coons, Com prom ise as Precise Justice, 68 Cal.
L., Rev. 250 (1980).
See, e.g., N .Y . Tim es v. Sullivan, 376 U .S. 254 (1964).
R ESTATEMENT (T HIRD) OF T ORTS: A PPORTIONMENT OF L IABILITY (2000).
See, e.g., Kearney, 137 P.3d 914 ( in which the Suprem e Court of C alifornia held that a California
law prohibiting eavesdropping on telephone conversations justified injunctive relief against future
transgressions: but that the defendant=s reliance on G eorgia law, which did not prohibit the
eavesdropping, precluded m onetary relief for past transgressions. Although phrased in jurisdictionselecting and com parative im pairm ent term s, the result is an exam ple of m ultistate justice worth
building on). See also Berm an, supra note 61, at 110 (Athe best way to avoid legal im perialism is for
judges to think of them selves as cosm opolitan transnational actors@); Traynor, supra note 48.
Judges m ay be required by the Suprem acy Clause to apply a higher law such as a provision of the
Constitution or a federal statute notwithstanding a conflicting state law of the jurisdiction in which
they sit; and they m ay be required by other constitutional clauses or principles of the conflict of laws
that govern in their jurisdiction to apply the law of another state or country. Taking into account and
applying the law s of jurisdictions other than their own, whether vertically or horizontally, is not
m erely an exercise of com ity or discretion but of the responsibilities inherent in judicial office. And
as the Kearney case dem onstrates, judges can select in appropriate cases from provisions of the laws
both of their own jurisdiction and another jurisdiction.
It bears noting that in M atter of Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th C ir. 1995) (Posner, J.),
a divided panel granted a writ of m andam us to require decertification of a class of hemophiliacs who
sought class certification in an action against m anufacturers of anti-hem ophiliac factor concentrate.
The m ajority opinion states that Athe district judge proposes to substitute a single trial before a single
jury instructed in accordance with no actual law of any jurisdictionC a jury that will receive a kind
of E speranto instruction, m erging the negligence standards of the 50 states and the District of
2007]
The First Restatements
11
(i) Reexamine the principle of Klaxon v. Stentor, 65 which constrains the
federal courts from exercising a potentially significant and constructive role
in advancing the rational development of the conflict of laws and suitable
national solutions rather than parochial state solutions for national issues.66
(k) Take into appropriate account the growing and relevant international
efforts such as those to achieve harmonization of the law;67 international
65.
66.
67.
Colum bia.@ Id. at 1300. The m ajority also referred to Athe questionable constitutionality of trying
a diversity case under a legal standard in force in no state,@ although the court noted that a sim ilar
approach Ahas been approved for asbestos litigation.@ Id. at 1304. The panel m ajority recognized that
Aat som e level of generality the law of negligence is one, not only nationwide but worldwide,@ but also
stated that negligence law can differ am ong the states on such issues, for exam ple, as duty of care,
forseeability, proxim ate cause, and judicial form ulations of pattern jury instructions. Id. Although
Judge Posner=s rem arks about AEsperanto@ and possible unconstitutionality m ight be read m ore
broadly, it is crucial to note that they arose in the specific context of a class action involving the
possible blending in a jury instruction of the law of 51 jurisdictions. By contrast, in typical choice-oflaw cases, there are both historical roots and theoretical justifications for blending the laws of two or
m ore jurisdictions. See, e.g., supra notes 46 and 59. Indeed, it seem s doubtful that the disparaging
term s, Ano actual law,@ or AEsperanto,@ or Aquestionable constitutionality,@ could be applied rationally,
for exam ple, to the law of defam ation, or determ inations of com parative responsibility, or various
and num erous statutes, which often blend and com prom ise various com peting interests, or to cases
such as the recent Suprem e Court of C alifornia=s decision, which invoked California law to justify
injunctive relief but Georgia law to deny m onetary relief. Kearney, 137 P.3d 914.
M oreover, in m any, if not m ost, true conflict cases, there will be som e plausible rationale that will
allow the court to choose the law of either State A or State B to resolve the case or question. If, for
exam ple, the forum is State A, and it could perm issibly choose the law of either A or B, what is the
problem with the court=s choosing to apply State A=s law to a part of the case and State B=s law to the
rest? Instead of disregarding entirely the law of one interested state, the court seeks to balance the
interests of each state. See D inwoodie, supra note 61, at 546 (AB ut the critique is som ewhat less
withering when the state in question freely decides that it wishes Esperanto to be the vernacular of
choice@); id. at 576: A[T]he approach that I propose can be no m ore offensive to national sovereignty
than the wholesale application of foreign law. If it is consistent with our existing notions of judicial
duty either to apply the forum law or the law of another state, the application of a law falling between
that of the forum and the other state cannot be m ore offensive to notions of dem ocratic legitim acy or
state sovereignty@). See also Alfred H ill, The Judicial Function in Choice of Law , 85 C OLUM . L. R EV.
1585 (1985) (providing an earlier and thoughtful view, although a m ore conservative one).
13 U .S. 487 (1941).
See H enry M . H art, Jr., The Relations Between State and Federal Law , 54 C OLUM . L. R EV. 489, 513
(1954); Issacharoff, supra note 58, at 1841–42, 1851–57, 1865; Roosevelt, III, supra note 51, at 2510
n. 264 (AI do not believe that federal conflicts rules are necessary, provided that we pay attention to
constitutional restrictions on state conflicts rules. It is troubling that under K laxon the federal courts
act as ventriloquists= dum m ies, reproducing the very parochialism and bias their diversity jurisdiction
exists to counter@).
See, e.g., H annah Buxbaum , Conflict of Econom ic Law s: From Sovereignty to Substance, 42 V A. J.
INT =L L. 931, 947–50 (2002); Dinwoodie, supra note 61, at 570 n. 318.
Traditionally, choice of law and harm onization are cast as alternative m eans of
accom m odating international differences. Choice of law analysis involves difficult
decisions w here harm onization has failed to eradicate differences in national laws;
harm onization of national laws reduces the im portance of choice of law determ inations
where those determ inations have becom e too troublesom e or uncertain. The latter
observation explains in part the recent explosion in copyright harm onization efforts. But
the substantive law m ethod would enlist one strategy in the cause of the other, by
facilitating the convergence of different national rules applicable to international disputes.
See also A MERICAN L AW INSTITUTE, INTELLECTUAL P ROPERTY : P RINCIPLES G OVERNING
J URISDICTION , C HOICE OF L AW , AND J UDGMENTS IN T RANSNATIONAL D ISPUTES, Tentative
D raft N o. 1 (2007); Paul Schiff Berm an, Tow ards a Cosmopolitan Vision of Conflict of
Law s: Redefining G overnm ental Interests in a G lobal Era, 153 U . P A. L. R EV. 1819
(2005); Paul Schiff Berm an, The G lobalization of Jurisdiction, 151 U . P A. L. R EV. 311
(2002); Christian Joerges, The Challenges of Europeanization in the Realm of Private
Law : A Plea for a New Legal D iscipline, 14 D UKE J. C OMP . & INT =L L. 149 (2004).
12
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[Vol. 32
cooperation and coordination mechanisms as in international insolvency law,68
and international intellectual property law; 69the articulation of international
principles as in UNIDROIT’s Principles of International Commercial
Contracts,70 which are akin to the Restatements;71 and the emergence of a lex
mercatoria.72 It is not a coincidence that in contrast to our aggressive term,
“the conflict of laws,” other countries use the more peaceful term, “private
international law.” 73
(3) Only the third building block of judgments is relatively coherent, as
it is governed by a principle of finality. 74 Even with judgments, however,
emerging issues exist about whether and to what extent to recognize and
enforce non-monetary judgments.75
The Institute is not ignoring conflict of laws. So far, it has addressed it
in discrete ways, especially through its now-completed project on recognition
and enforcement of foreign country judgments;76 its almost-completed project
on international intellectual property;77 and its work with NCCUSL on
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
See A MERICAN L AW INSTITUTE, T RANSNATIONAL INSOLVENCY P ROJECT : C OOPERATION A MONG THE
N AFTA C OUNTRIES (2003) (the pioneering work); see also A NNE-M ARIE S LAUGHTER , A N EW W ORLD
O RDER (2004); Buxbaum , supra note 67, at 950–53; Hannah Buxbaum , Forum Selection in
International Contract Litigation: The Role of Judicial D iscretion, 12 W ILLAMETTE J. INT =L L. &
D ISP . R ESOL. 185 (2004); E. Bruce Leonard, Breakthroughs in Court-to-C ourt Com m unications in
Cross-Border C ases, 20 A M . B ANKR. INST . J. 18 (Sept. 2001); E. Bruce Leonard, The Way Ahead:
Protocols in International Insolvency Cases, 17 A M . B ANKR. INST . J. 12 (Jan. 1999); N afziger, supra
note 50, at 181–82; Anne-M arie Slaughter, Focus: Em erging Fora for International Litigation (Part
2): A G lobal Com m unity of Courts, 44 H ARV. INT =L L. J. 191 (2003); Jay Lawrence W estbrook, The
Transnational Insolvency Project of the Am erican Law Institute, 17 C ONN. J. INT =L L. 99 (2001); Jay
Law rence W estbrook & Jacob S. Ziegel, The Am erican Law Institute NAFTA Insolvency Project, 23
B ROOK. J. INT = L 7 (1997); Jay Lawrence W estbrook, Theory and Pragm atism in G lobal Insolvencies:
Choice of Law and Choice of Forum , 65 A M . B ANKR. L.J. 457 (1991). In cooperation with the
International Insolvency Institute, the ALI has recently begun a new transnational insolvency project
on Principles of C ooperation (2006–).
A MERICAN L AW INSTITUTE, INTELLECTUAL P ROPERTY , supra note 67.
U N ID RO IT, Principles of International Com m ercial Contracts, 34 L.L.M . 1067 (1995); see M ICHAEL
J OACHIM B ONELL , A N INTERNATIONAL R ESTATEMENT OF C ONTRACT L AW (2d ed. 1997).
See Bonell, supra note 70; Juenger, supra note 61.
See Juenger, supra note 61, at 1318–19, 1330; Friedrich K. Juenger, Am erican Conflicts Scholarship
and the New Law M erchant, 28 V AND . J. T RANSNAT =L L. 487, 490–92 (1995). But see Keith H ighet,
The Enigm a of the Lex M ercatoria, 63 T UL. L. R EV. 613 (1989).
See C HESHIRE & N ORTH, PRIVATE INTERNATIONAL LAW (13th ed. 1999). See also Friedrich K.
Juenger, supra note 61; Sir Basil M arkesinis & Jorg Fedtke, The Judge as C om paratist, 80 T UL. L.
R EV. 11 (2005); M ilena Sterio, The G lobalization Era and the Conflict of Laws: What Europe Could
Learn from the U nited States and Vice Versa, 13 C ARDOZO J. INT =L & C OMP . L. 161 (2005); M ichael
Traynor, Conflict of Laws, C om parative Law, and the Am erican Law Institute, 49 A M . J. C OMP . L.
391, 395–97, 400–02 (2001). Although developing international principles are im portant and
relevant, international conflicts and dom estic conflicts are different under the Constitution of the
U nited States. See Albert A. Ehrenzw eig, Interstate and International Conflicts Law: A Plea for
Segregation, 41 M INN . L. R EV. 717 (1957).
See, e.g., Baker v. Gen. M otors Corp., 522 U .S. 222 (1998); Fauntleroy v. Lum , 210 U .S. 230 (1908).
Baker, 522 U .S. 222. See also A MERICAN L AW INSTITUTE , R ECOGNITION AND E NFORCEMENT OF
F OREIGN J UDGMENTS: A NALYSIS AND P ROPOSED F EDERAL S TATUTE 3 (2006).
A MERICAN L AW INSTITUTE, R ECOGNITION AND E NFORCEMENT OF F OREIGN J UDGMENTS: A NALYSIS
AND P ROPOSED F EDERAL S TATUTE (2006); Linda Silberm an, Com parative Jurisdiction in the
International Context: Will the Proposed H ague Judgm ents Convention Be Stalled?, 52 D EP AUL L.
R EV. 319 (2002); Linda Silberm an, Can the H ague Judgments Project Be Saved?: A Perspective from
the U nited States, in A G LOBAL L AW OF J URISDICTION AND J UDGMENTS: L ESSONS F ROM THE H AGUE
158, 158–89 (2002); Linda J. Silberm an & Andreas F. Lowenfeld, A D ifferent Challenge for the ALI:
H erein of Foreign Country Judgm ents, an International Treaty and an Am erican Statute, 75 IND . L.J.
635, 635–38 (2000).
A MERICAN L AW INSTITUTE, INTELLECTUAL P ROPERTY : P RINCIPLES G OVERNING J URISDICTION ,
C HOICE OF L AW , AND J UDGMENTS IN T RANSNATIONAL D ISPUTES (Proposed Final D raft 2007).
2007]
The First Restatements
13
amendments to the choice of law provisions of Article 1 of the UCC,78 an
effort that unfortunately has not met with enactments by state legislatures. Its
work on world trade 79 is also relevant because trade disputes often involve
conflicting laws and policies that may need both harmonization as well as a
means for resolving conflicts.
Agency: The first Restatement was succeeded by a Restatement
Second,80 which has just recently been succeeded by the Restatement Third,
under the leadership of Chief Reporter Deborah DeMott.81 It addresses central
and modern problems of liability and attribution of responsibility in
challenging situations such as those presented by the Enron disaster. 82 It should
prove to be of great help to courts and lawyers who must wrestle with these
ubiquitous problems and to scholars who write about them.
Restitution and Unjust Enrichment: The first Restatement,83 which did
not include Unjust Enrichment in its title although it addressed that principle
throughout, was a pioneering work. It was followed by an effort, eventually
terminated, to begin a Restatement Second 84 and then by the current project,
the Restatement Third of Restitution and Unjust Enrichment, 85 under the
leadership of Chief Reporter Andrew Kull.86 In an elegantly stated and deeply
78.
79.
80.
81.
82.
83.
84.
85.
86.
U .C.C. Art. 1 (General Provisions) (2001 Revisions). The A rticle 1 am endm ents addressed only
choice of law clauses, not choice of forum clauses because the D rafting Com m ittee wanted to avoid
situations in which one party of an entirely dom estic transaction would choose, due to its superior
bargaining power, not a fellow state, but instead a foreign state with such fundam entally different
policies that such forum selection would be overreaching.
The Institute began a project entitled “Principles of W orld Trade Law: The W orld Trade
O rganization” in 2001. See infra text accom panying notes 122–27.
R ESTATEMENT (S ECOND) OF A GENCY (1958).
R ESTATEMENT (T HIRD) OF A GENCY (2006). See also D eborah A. D eM ott, When Is a Principal
Charged with an Agent's Know ledge? (Com parisons and Connections: A Symposium in M emory of
H erbert Bernstein), 13 D UKE J. C OMP . & INT 'L L. 291 (2003); D eborah A. D eM ott, A Revised
Prospectus for a Third Restatem ent of Agency, 31 U.C. D AVIS L. R EV. 1035 (1998).
In the winter of 2001–02, W illiam Powers, Jr., then D ean of The U niversity of Texas School of Law
(and now President of the University of Texas), chaired the Internal Com m ittee of Investigation for
Enron. Com m issioned by the Enron Board of D irectors, this com m ittee investigated the transactions
between Enron and several partnerships headed by Enron=s form er chief financial officer Andrew
Fastow. That investigation led to the APowers Report,@ which was highly critical of these transactions.
R ESTATEMENT OF R ESTITUTION (1933).
Two Tentative drafts were produced in the early 1980s for the Restatem ent of the Law Second,
Restitution, before the project was discontinued. In Tentative D raft N o. 1 (1983), a proposed section
6, entitled “Benefit in Relation to an Agreem ent,” provided in subdivision (2) that “A person whose
conduct in negotiating for a gain or advantage results in a benefit to him and a loss or expense to
another m ay be unjustly enriched by the benefit, if, in the absence of com pensation to the other, the
conduct appears unconscionable in purpose or effect. N o account is taken of uncom pensated loss or
expense in this connection if it results from a risk fairly chargeable, as between the parties, to the
person who bears it. Such loss or expense is taken into account only if it w as foreseeable by the
person receiving the benefit” provided. H ad such a principle, which was controversial, been adopted,
it m ight have led to the developm ent of the law of restitution and unjust enrichm ent in this troubled
area akin to that under section 90 of the first Restatement and Restatem ent Second of Contracts. The
Restatem ent Third does not adopt this proposal but addresses the problem s in other ways. For
exam ple, it discusses anticipated contracts that fail to m aterialize in Section 23, com m ent c, and
“opportunistic” behavior in Section 39.
The Third Restatement of Restitution and U njust Enrichm ent project has been underway since 1997
and has thus far produced five Tentative Drafts and num erous Prelim inary and C ouncil D rafts.
See Andrew Kull, Rescission and Restitution, 61 B US . L AW . 569 (2006); Andrew Kull, Jam es Barr
Am es and the Early M odern H istory of U njust Enrichment, 25 O XFORD J. L EGAL S TUD . 297 (2005);
Andrew Kull, Sym posium , The Source of Liability in Indemnity and Contribution, 36 L OY . L.A. L.
R EV. 927 (2003); Andrew Kull, Sym posium , Restitution's Outlaws, 78 C HI.-K ENT L. R EV. 17 (2003);
Andrew Kull, D efenses to Restitution: The Bona Fide Creditor, 81 B.U . L. R EV. 919 (2001); Andrew
Kull, Sym posium , D isgorgement for Breach, The “Restitution Interest,” and The Restatement of
Contracts, 79 T EX . L. R EV. 2021 (2001); Andrew Kull, Restitution in Bankruptcy: Reclam ation and
14
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[Vol. 32
researched project, and in various tentative drafts that have been discussed and
largely approved by the Institute’s Council and members, Professor Kull
articulated substantive principles of liability, some such as mistakes that
constitute a basis for liability independent of tort and contract,87 and some that
provide alternative grounds for liability. 88 He now begins the challenging task
of articulating the various remedies, including not only monetary relief and the
constructive trust but others such as the equitable lien and subrogation. When
completed, this project will not only clarify and simplify a major area of the
common law; it also will provide another important way of looking at cases
that involve an element of unjust enrichment.
II. SELECTION OF TOPICS AND REPORTERS FOR
RESTATEMENTS
In contrast to the first Restatement era, the Institute now exercises more
choices about the form and approach that a project takes. The main choices
are a Restatement, model legislation, or a set of Principles. It also may
sponsor studies “for” the Institute rather than by it, as in the enterprise liability
project that preceded the Restatement Third of Torts: Products Liability.89
Under the leadership of Conrad Harper, Chair of the Institute's Special
Committee on Institute Style, and Michael Greenwald, Reporter (and then also
a Deputy Director), in 2005 the Institute issued a handbook for Institute
Reporters and those who review their work, which is entitled Capturing the
Voice of The American Law Institute.90 The Handbook describes the various
forms and articulates the differences among Restatements,91 Legislative
Recommendations,92 Principles, 93 and Studies. 94 Those distinctions are
pertinent to the decision about what form a project should take.
87.
88.
89.
90.
91.
92.
93.
94.
Constructive Trust, 72 A M . B ANKR. L.J. 265 (1998); Andrew Kull, Rationalizing Restitution, 83 C AL.
L. R EV. 1191 (1995); Andrew Kull, Restitution as a Rem edy for B reach of Contract, 67 S. C AL. L.
R EV. 1465 (1994).
See R ESTATEMENT OF R ESTITUTION AND U NJUST E NRICHMENT §§ 5–12 (Tentative D raft N o. 1, 2001).
Tentative D raft N o. 4 outlines the scope of the project and includes sections on defective consent or
authority ('' 13–17); transfers under legal com pulsion ('' 18–19); intentional transactions (''
20–30); restitution and contract ('' 31–39); restitution for wrongs ('' 40–46); and indirect
enrichm ent ('' 47–48). R ESTATEMENT OF R ESTITUTION AND U NJUST E NRICHMENT §§ 13–49
(Tentative D raft N o. 4, 2001).
A MERICAN L AW INSTITUTE, E NTERPRISE R ESPONSIBILITY FOR P ERSONAL INJURY (1991).
A MERICAN L AW INSTITUTE, C APTURING THE V OICE OF T HE A MERICAN L AW INSTITUTE: A H ANDBOOK
FOR ALI R EPORTERS AND T HOSE W HO R EVIEW T HEIR W ORK (2005).
ARestatem ents are addressed to courts and others applying existing law. Restatem ents aim at clear
form ulations of com m on law and its statutory elem ents or variations and reflect the law as it presently
stands or as it m ight plausibly be stated by a court. Restatem ent black letter form ulations assum e the
stance of describing the law as it is.@ H ANDBOOK , supra note 90, at 4.
AM odel or uniform codes or statutes and other statutory proposals are addressed m ainly to
legislatures, with a view toward legislative enactm ent. Statutory form ulations assum e the stance of
prescribing the law as it shall be.@ Id. at 10.
A Principles m ay be addressed to courts, legislatures, or governm ental agencies. They assum e the
stance of expressing the law as it should be, which m ay or m ay not reflect the law as it is.@ Id. at 12.
“The Institute som etim es produces studies that analyze in depth particular areas of the law. . . . [These
studies m ay lay] the practical and theoretical groundwork for subsequent black-letter propositions.@
Id. at 14.
2007]
The First Restatements
15
The Institute is not precluded from other approaches. For example, in
1945, it published a draft Statement of Essential Human Rights,95 not as an
official work of the Institute itself that carries with it the imprimatur of
approval by both the Council and the members, but as a contribution to the
debate, one that was drafted by a Committee representing principal cultures of
the world appointed by the Institute and that played a major role in what
became the Universal Declaration of Human Rights, which was adopted by the
General Assembly of the United Nations in 1947.96 This might be a good time
for the Institute to consider other areas of law where our work would seek to
contribute to enlightenment and debate rather than to articulating definitive
legal principles. Such areas might include questions concerning the challenges
of wealth transfer across generations; issues at the intersection of science and
law; new thinking about the imperfectly restated subject of conflict of laws,
discussed supra; or proposing a model cross-national license for intellectual
property.97
A major criterion is whether a project will contribute to the general law,
including both common law and statutory law. Two recent examples of
projects that synthesize common law and statutory law are the Restatement
Third of Property: Wills and Other Donative Transfers,98 which synthesizes
various state statutes such as the Uniform Probate Code 99 and the common law,
and the Restatement Third of Unfair Competition, which synthesizes federal
statutory law, such as the Lanham Act on trademarks, 100 and state statutory
law, such as the Uniform Trade Secrets Act,101 and the common law.102
95.
S TATEMENT OF E SSENTIAL H UMAN R IGHTS (1945). The Statem ent was form ally published by
Am ericans U nited for W orld O rganization, Inc. The com plete text of the Statem ent of Essential
H um an Rights appears in A MERICAN L AW INSTITUTE, T HE A MERICAN L AW INSTITUTE S EVENTYF IFTH A NNIVERSARY (1998), at 261. See also H ull, supra note 6, at 105, 141–42; M ichael Traynor,
The President’s Letter “That’s Debatable”: The ALI as a Public Policy Forum : Ninth in an
O ccasional Series: The Statem ent of Essential H um an Rights— A G roundbreaking Venture (pts. 1 &
2), T HE ALI R EPORTER (ALI Phila., Pa.), W inter 2007, at 1, T HE ALI R EPORTER (ALI Phila., Pa.),
Spring 2007, at 1.
96. U niversal D eclaration of H um an Rights, G.A. res. 217A, at 71, U .N . GAO R, 3d Sess., 1st plen. m tg.,
U .N. Doc A/810 (D ec. 12, 1948).
97. At an early m eeting that helped fram e what becam e the Institute=s project on International Intellectual
Property, a suggestion was m ade, to m y recollection by then D irector Geoffrey C. H azard, Jr., that
am ong the array of alternatives, a possible project m ight be the articulation of a m odel license of
intellectual property, with principal negotiating alternatives and com m ents. There m ay be other
negotiating situations in which it could be useful to identify the m ajor alternative solutions.
98. R ESTATEMENT (T HIRD) OF P ROP .: D ONATIVE T RANSFERS (2003).
99. U NIFORM P ROBATE C ODE (am ended 2006).
100. 15 U .S.C. '' 1051–29 (2000).
101. The N ational Conference of Com m issioners on U niform State Laws prom ulgated the Uniform Trade
S e c r e t s A c t i n 1 9 7 9 , w i th a n a m e n d e d v e r s i o n i s s u e d i n 1 9 8 5 .
See
www.nccusl.org/Update/uniform act_factsheets/uniform acts-fs-utsa.asp (last visited Sept. 25, 2007)
(the Act's current status).
102. Chapter fourteen states the principles governing liability for the appropriation of intangible trade
values. Topic 1 states a general rule rejecting the recognition of exclusive rights in intangible trade
values, subject to a series of specified exceptions. R ESTATEMENT (T HIRD) OF U NFAIR C OMPETITION
§ 38 (1995). Topic 2 states the rules com prising the law of trade secrets. A m ajority of the states
have adopted the U niform Trade Secrets Act, which codifies the com m on law doctrines relating to
the protection of trade secrets. The rules stated in Topic 2 are applicable to both statutory and
com m on law trade secret cases. Id. at §§ 39–45. Rules governing the right of publicity, which
protects against certain appropriations of the com m ercial value of a person's identity, are treated in
Topic 3. Id. at §§ 46–49.
16
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[Vol. 32
The Institute takes into account the “rules v. standards” debate.103 A
subject matter that is quite developed in case law and statutes may be ready for
Restatement treatment and the articulation of black letter “rules.” One that is
not yet so developed may be appropriate for Principles treatment and the
articulation of principles, sometimes accompanied by “standards” and tests
that include several factors. The difference is only suggestive, not operative.
For example, a Restatement provision may be stated in terms of various
general factors as is the test of a “most significant relationship” in section 6 of
the Restatement Second of Conflict of Laws.104
In addition to the distinctions in the form of a project, other criteria that
are relevant to the decision whether the Institute will undertake a project in any
form can be articulated in the form of questions: Can the Institute contribute
to bringing reason and order to a particular area of law? Will the project be
useful to judges, practitioners, and teachers? Can it identify an able Reporter?
Criteria for the selection of an able Reporter include mastery of the
subject matter; leadership qualities; standing among peers, although not
necessarily eminence (Beale after all was eminent but wrong); writing ability;
being able to take and commit the time necessary to prepare drafts and to see
the project through to publication; and the ability to listen to and respect the
views of others, while not necessarily agreeing with them.
It may be useful to provide potential examples without extended
discussion: Examples of projects that are eligible presently for Restatement
treatment in my view include employment law (which the Institute has begun
to address in Restatement form),105 although controversial;106 the law of expert
evidence; medical malpractice; and the law of remedies, particularly in torts.
Examples of projects that are not eligible presently for Restatement treatment
103. See Louis K aplow, Rules Versus Standards: An Econom ic Analysis, 42 D UKE L. J. 557 (1992);
Antonin Scalia, The Rule of Law as Law of Rules, 56 U . C HI. L. R EV. 1175 (1989); Cass R. Sunstein,
Problem s with Rules, 83 C AL. L. R EV. 953 (1995); M ichael Traynor, Public Sanctions, Private
Liability, and Judicial Responsibility, 36 W ILLAMETTE L. R EV. 787, 803–04 (2000):
C ourts face a fam iliar dilem m a when fashioning judicial rules: W hether cases and
statutes have developed sufficiently to support a court=s articulation of a rule, or
whether the law rem ains sufficiently uncertain that a court is m ore com fortable
continuing to apply m ultiple standards or factors to particular situations. . . . The
choice between rules, standards, m ultiple factors, principles, or other approaches
presents a constant challenge to courts and legislatures as well as to the ALI, whose
founding purpose is to contribute to >the clarification and sim plification of the law.=
U nlike a trial or appellate court, confronted with one case to decide, the ALI has the
opportunity to consider a variety of decided cases and enacted statutes, as well as the
challenge and responsibility to synthesize them .
104. R ESTATEMENT (S ECOND) OF C ONFLICT OF L AWS § 6 (1971). See, e.g., Traynor, supra note 103, at
803 n. 89 (2000) (A[t]he conflict of law s provides one of the best exam ples of courts struggling to
reach the proper balance between factors and rules@); id. at 804 (Restatem ent Second of Conflict of
Law s, section 6, Alists seven factors >relevant to the choice of the applicable rule of law,= which
include >the needs of the interstate and international system s.= H ow is a trial court going to apply that
test? Is it susceptible of proof by evidence? Should the court seek learned am icus briefs on the
point?)@.
105. The Em ploym ent Law project so far has produced num erous confidential Prelim inary and Council
D rafts, as well as one D iscussion D raft, dated April 27, 2006. R ESTATEMENT OF EMPLOYMENT
(D iscussion D raft N o. 1, 2006).
106. See, e.g., M atthew W . Finkin, Shoring up the C itadel (At-Will Em ploym ent), 24 H OFSTRA L AB . &
E MP . L. J. 1 (2006); M atthew W . Finkin, Second Thoughts on a Restatement of Em ployment Law , 7
U . P A. J. L AB . & E MP . L. 279 (2005).
2007]
The First Restatements
17
in my view include information liability, which is too undeveloped; 107 personal
jurisdiction and choice of law, which are still too unsettled and need a fresh
look;108 and environmental law, which entails an intertwining of complex
statutory laws and administrative regulations, federal and state, and local land
use laws.109
III. IMPLICATIONS FOR THE FUTURE, AND THE VISION OF THE
INSTITUTE
The Institute’s strengths are its members and its deliberative processes,
stature, independence, and dedication to quality. Its resources are limited. It
must decide carefully what projects are fitting. It will want to undertake
projects that meet the needs of the profession and the public. It can find a
medium ground for solid work between stultifying description of the “is” and
unduly venturesome pursuit of the “ought.” Its work need not be pigeonholed
as either “descriptive”or “normative.” It can identify and pursue work that has
a reasonable shelf life and that will be useful for a generation or more.
In reflecting on the presentations to this Symposium and the
contributions of the first Restatement series as a whole, it is evident that the
founders of the Institute and the leaders who saw the first Restatements
through to publication had an important and useful, although not flawless,
vision, one of restating the law of the United States in the areas that covered
the critical subjects of the common law and therefore touched the lives of
many people. 110 As the Restatement Second series and the Restatement Third
107. See M ichael Traynor, Inform ation Liability and the Challenges of Law Reform : Introductory Note
appearing in J ANE K. W INN , C ONSUMER P ROTECTION IN THE A GE OF THE 'INFORMATION E CONOMY',
at 81 (2006).
108. See text, supra, accom panying notes 32–73.
109. W ith sufficient funding and careful attention, perhaps som eday an organization such as the
Environm ental Law Institute, on whose board I served for twelve years, m ight undertake a project to
synthesize environm ental law. If such a project were undertaken, it would also be necessary to
m itigate if not neutralize lobbying and the influence of the num erous special interests in this area.
Recognition of a fundam ental hum an right to a healthful environm ent is also im portant. See M ichael
Traynor, O n Environmental Law , D AEDALUS 116 (Sum m er 2003). Apart from a broad environm ental
law project, the Am erican Law Institute m ight continue to attend to certain specific areas as it has in
the tort law governing public nuisance. See D enise E. Antolini, M odernizing Public Nuisance:
Solving the Paradox of the Special Injury Rule, 28 E COL. L. Q . 755 (2001).
110. For m ore on the early and later history of the A m erican Law Institute, see George W . W ickersham ,
The Am erican Law Institute, 43 L. Q . R EV. 449 (1927); W illiam D raper Lew is, Report on Work of
Am erican Law Institute, 15 A.B.A. J. 741 (1929); W illiam D raper Lew is, Am erican Law Institute
Reaches Advanced Stage of Its G reat Work, 16 A.B.A. J. 673 (1930); The Am erican Law Institute,
in B ENJAMIN N . C ARDOZO , L AW AND L ITERATURE AND OTHER E SSAYS AND A DDRESSES 121 (1931);
H erbert F. Goodrich, New Bottles for Old Wine, 14 O R. L. R EV. 26 (1934); M itchell Franklin, The
H istoric Function of The American Law Institute: Restatem ent as Transitional to C odification, 47
H ARV. L. R EV. 1367 (1934); Hessel E. Y ntem a, The Am erican Law Institute, 12 C AN . B. R EV. 319
(1934); H essel E. Y ntem a, W hat Should The Am erican Law Institute Do?, 34 M ICH. L. R EV. 461
(1936); Herbert F. Goodrich, Institute Bards and Yale Reviewers, 84 U . P A. L. R EV. 449 (1936);
H erbert F. Goodrich, Am erican Law Institute, 26 A.B.A. J. 858 (1940); W ILLIAM D RAPER L EWIS,
H ISTORY OF T HE A MERICAN L AW INSTITUTE AND THE F IRST R ESTATEMENT OF THE L AW , AH ow We
D id It@ (1945); also appearing in A MERICAN L AW INSTITUTE, R ESTATEMENT IN THE C OURTS,
P ERMANENT E DITION 1932–1944 (1945); H erbert F. G oodrich, The Story of The Am erican Law
Institute, 1951 W ASH. U . L.Q . 283 (1951); H ERBERT F. G OODRICH AND P AUL A. W OLKIN , T HE S TORY
OF THE A MERICAN L AW INSTITUTE 1923–1961 (1961); A GNES L YNCH S TARRETT , The Am erican Law
Institute, in T HE M AURICE AND L AURA F ALK F OUNDATION : A P RIVATE F ORTUNE!A P UBLIC T RUST
(1966); M ax Rheinstein, Leader G roups in Am erican Law, 38 U . C HI. L. R EV. 687 (1971); A MERICAN
L AW INSTITUTE, T HE A MERICAN L AW INSTITUTE 50 TH A NNIVERSARY (1973); G RANT G ILMORE, T HE
A GES OF A MERICAN L AW (1977); John G. Flem ing, The Restatements and Codification, 2 J EWISH L.
18
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[Vol. 32
series have demonstrated, there will be a constant need for updating. At an
appropriate point, the Institute will need to start considering a Restatement
Fourth series. 111 In addition to its Restatement work and to the various specific
projects it has undertaken recently, 112 it may be timely to ask whether the
Institute should explore other areas that might either evoke, given present day
challenges and circumstances, or go well beyond the vision of its founders as
well as the post-first Restatement vision of former Director Herbert Wechsler
under whose leadership the Model Penal Code was prepared.113
In recent years, although the Institute has undertaken many important and
timely projects, including continuing Restatement work, at least four nonRestatement projects in my view reflect a vision and ambition that compares
quite favorably with that of the original Restatements.
The first is the Institute's Principles of Corporate Governance. 114 Initiated
during Herbert Wechsler's final years as Director and completed during the
term of his successor, Director Geoffrey C. Hazard, Jr., and with the additional
and remarkable leadership of Reporter Melvin Eisenberg and then President
111.
112.
113.
114.
A NN . 108 (1979); Nathan M . Crystal, Codification and the Rise of the Restatem ent M ovem ent, 54
W ASH. L. R EV. 239 (1979); Norris D arrell and Paul A. W olkin, The Am erican Law Institute, 52 N .Y .
S T . B.J. 99 (1980); W illiam P. LaPiana, “A Task of No Com m on M agnitude”: The Founding of The
Am erican Law Institute, 11 N OVA L. R EV. 1085 (1987); E LLEN C ONDLIFFE L AGEMANN ,
Conceptualists vs. Realists: An Institute to Restate the Law, in T HE P OLITICS OF K NOWLEDGE: T HE
C ARNEGIE C ORPORATION, P HILANTHROPY , AND P UBLIC P OLICY (1989); N. E. H . H ull, Restatement
and Reform : A New Perspective on the O rigins of the Am erican Law Institute, 8 L AW & H IST . R EV.
55 (1990), also appearing in A MERICAN L AW INSTITUTE, T HE A MERICAN L AW INSTITUTE S EVENTYF IFTH A NNIVERSARY (1998), at 49; W ILLIAM P. L AP IANA, L OGIC AND E XPERIENCE: T HE O RIGIN OF
M ODERN A MERICAN L EGAL E DUCATION (1994); Shirley S. Abraham son, Refreshing Institutional
m em ories: W isconsin and the Am erican Law Institute the Fairchild Lecture, 1995 W IS . L. R EV. 1
(1995); G. Edward W hite, The Am erican Law Institute and the Trium ph of M odernist Jurisprudence,
15 L. & H IST . R EV . 1 (1997); H erbert P. W ilkins, Sym posium on The Am erican Law Institute:
Process, Partisanship, and the Restatem ents of the Law, 26 H OFSTRA L. R EV. 567 (1998); John P .
Frank, The Am erican Law Institute, 1923–1988, 26 H OFSTRA L. R EV. 628 (1998); Back to the Future,
supra note 6, at 105, 141–42; Gary E. O 'Connor, Restatement (First) of Statutory Interpretation, 7
N .Y .U . J. L EGIS. & P UB . P OL'Y 333 (2003–2004); Kristen D avid Adam s, The Folly of U niform ity?
Lessons from the Restatement M ovem ent, 33 H OFSTRA L. R EV. 423 (2004); Kristen D avid Adam s,
The Restatements and the Com m on Law : Blam ing the M irror, 40 IND . L. R EV. 205 (2007).
See Stephen D . Sugarm an, Rethinking Tort D octrine: Visions of A Restatem ent (Fourth) of Torts, 50
U CLA L. R EV. 585 (2002). Another candidate for Fourth R estatem ent treatm ent, perhaps after an
intervening study, is the foreign relations law of the U nited States.
In brief, the Institute=s current projects are as follows:
Intellectual Property: Principles Governing Jurisdiction, C hoice of Law, and Judgm ents in
Transnational D isputes (2001– )
M odel Penal Code: Sentencing (1999– )
Principles of the Law of Aggregate Litigation (2003– )
Principles of the Law of G overnm ent Access to and U se of Personal D igital Inform ation
(2006–___ )
Principles of the Law of N onprofit O rganizations (2000– )
Principles of the Law of Software Contracts (2004– )
Principles of W orld Trade Law: The W orld Trade Organization (2001– )
Restatem ent of the Law Third: Em ploym ent Law (2000– )
Restatem ent of the Law Third: Property (W ills and O ther D onative Transfers) (1991– )
Restatem ent of the Law Third: Restitution and U njust Enrichm ent (1997– )
Restatem ent of the Law Third: Torts: Liability for Physical and Em otional H arm (1996– )
Restatem ent of the Law Third: Trusts (1992– )
Transnational Insolvency Project: Principles of Cooperation (2006– ) [with the International
Insolvency Institute]
M ODEL P ENAL C ODE (1962).
A MERICAN L AW INSTITUTE, P RINCIPLES OF C ORPORATE G OVERNANCE: A NALYSIS AND
R ECOMMENDATIONS (1994).
2007]
The First Restatements
19
Roswell B. Perkins, these principles have been invoked by courts,115 addressed
challenging corporate issues, including derivative litigation and takeovers,116
and significantly enhanced corporate behavior.117 For a project of such scope,
difficulty, and intensity, it is understandable that it would not please everyone
and some thoughtful critics have suggested the Principles might have reached
even farther or criticized both the process by which it was approved and its
correctness.118
The second example is Principles of Transnational Procedure, recently
approved and published jointly by the Institute and UNIDROIT. 119 Under the
masterful leadership of Director Emeritus Geoffrey C. Hazard, Jr. and his
colleagues, the best elements of procedural law from the common law system
and the civil law system were synthesized in principles that promise to bring
reason and order to international commercial litigation. Tested in many drafts
and presented in many locations around the world, the principles unified
international procedural law. Although the end product is a single volume and
does not compare in mass to the first Restatements, its vision, promise,
boldness, and potential influence are of corresponding importance.120
115. See, e.g., W arden v. M cLelland, 288 F.3d 105 (3d Cir. 2002); Boland v. Engle, 113 F.3d 706 (7th C ir.
1997); Powell v. First Republic Bank, 274 F. Supp. 2d 660 (E.D . Pa. 2003); Barth v. Barth, 659
N .E.2d 559 (Ind. 1995); D rain v. Covenant Life Ins. Co., 712 A.2d 273 (Pa. 1998); Cuker v.
M ikalauskas, 692 A.2d 1042 (Pa. 1997); cf. O strowski v. Avery, 703 A.2d 117 (Conn. 1997).
116. See Principles of Corporate Governance: Analysis and R ecom m endations '' 7.01 through 7.17.
117. See, e.g.,M artin Lipton, Corporate G overnance in the Age of Finance Corporatism , 136 U . P A. L.
R EV. 1 (1987); M artin Lipton & Steven Rosenblum , A N ew System of Corporate Governance: The
Q uinquennial Election of D irectors, 58 U . C HI. L. R EV. 187 (1991); M artin Lipton & Jay W . Lorsch,
A M odest Proposal for Improved Corporate G overnance, 48 B US. L AW . 59 (1992); M artin Lipton &
Theodore N . M irvis, Enhanced Scrutiny and Corporate Perform ance: The New Frontier for
Corporate D irectors, 20 D EL. J. C ORP . L. 123 (1995); Roswell B. Perkins, The G enesis and G oals
of the ALI Corporate G overnance Project, 8 C ARDOZO L. R EV. 661 (1987); Roswell B. Perkins, The
ALI Corporate Governance Project in M idstream , 41 B US. L AW . 1195 (1986).
118. See, e.g., Alex Elson & M ichael L. Shakm an, The ALI Principles of Corporate G overnance: A
Tainted Process and a Flaw ed Product, 49 B US. L AW . 176 (1994); Law rence E. M itchell, Private
Law , Public Interest?: The ALI Principles of Corporate G overnance, 61 G EO . W ASH. L. R EV. 871,
895 (1993) (Acorporate law has becom e too im portant to be left to private interests@). See also,
Sym posium on Corporate G overnance, 48 B US. L AW . 1267 (1993); Lawrence E. M itchell,
Sym posium , The Am erican Law Institute=s Principles of Corporate G overnance, 61 G EO . W ASH. L.
R EV. 871 (1993).
119. See www.unidroit.org (last visited Sept. 25, 2007).
120. Am erican Law Institute/U N ID RO IT, Principles of Transnational Civil Procedure (Cam bridge U .
Press, 2006). O f the m any articles and books that discuss the project, here is a selected list:
Frederic M . Bloom , Geoffrey H azard & M ichele Taruffo, H arm onization of Civil Procedure,
4 W ASH. U . G LOBAL S TUD . L. R EV. 639 (2005) (transcript of session four of conference
“Lawyers and Jurists in the 21st Century: C elebrating the C entennial of C om parative Law in
the U nited States and the U niversal Congress of Lawyers and Jurists, St. Louis, 1904,”
cosponsored by Am erican Society of Com parative Law , Saint Louis U niversity School of
Law's Center for International and Com parative Law, and W ashington U niversity School of
Law's W hitney H arris Institute for Global Legal Studies, held N ovem ber 12–13, 2004, at the
H arris Institute for Global Legal Studies, St. Louis, M issouri.)
Jorge Sánchez Cordero and Antonio Gidi, Las reglas y Procedim ientos del D erecho Procesal Civil
Transnacional. El Proyecto Am erican Law Institute-U N ID RO IT (2003).
F RÉDERIQUE F ERRAND , L A P ROCÉDURE C IVILE M ONDIALE M ODÉLISÉE: L E PROJET D 'A MERICAN L AW
INSTITUTE ET D 'U NIDROIT DE P RINCIPES ET R ÈGLES DE P ROCÉDURE C IVILE T RANSNATIONALE: A CTES
DU C OLLOQUE DE L YON DU 12 JUIN 20, Collection D roit et Procédures (2004). Guy Lavorel,
Allocution d=ouverture, 9; O livier M oréteau, Allocution, 11; H erbert Kronke, Présentation du PALIU NID RO IT, 17; Geoffrey C. H azard, Jr., O bjectif du Projet, 23; Frédérique Ferrand, Rapport Entre
Principes et Règles D ans le Projet, 27; Jacques Junillon, L=ensem ble du P rojet, V ue C ritique d=un
Praticien, 35; Tony M oussa, L=ensem ble du Projet, Vue Critique d=un M agistrat, 47; H élène
Gaudem et-Tallon, Les Aspects de D roit International Privé, 71; H ervé Croze, L=introduction de
l=instance, 93; Jacques Norm and, Le Rôle Respectif des Parties et du Juge D ans les Principes de
20
Southern Illinois University Law Journal
[Vol. 32
The third example is Principles of the Law of Family Dissolution. 121 In
this important area, the Institute departed from the customary subjects of
private law addressed in the Restatements. In an innovative and far-reaching
project, Professor Ira Ellman, Reporter, and his colleagues addressed and
provided workable solutions and pragmatic approaches to perplexing problems
of separation and relationship-termination, child custody, and support,
including those that arise in relationships between persons of the same sex.
Fourth, Institute Director and Columbia Law School Professor Lance
Liebman initiated another grand project, entitled Principles of Trade Law: The
W orld Trade Organization. Beginning with case studies of the WTO
Appellate Body decisions year by year since 2001, 122 the Institute is poised to
undertake the drafting of principles, both of substance and procedure.
Procédure C ivile Transnationale, 103; Loïc Cadiet, La Preuve, 119; Gabriele M ecarelli, Sanction,
Frais et D épens. Les Aspects Financiers de la Procédure, 139; Serge Guinchard, Rapport de
Synthèse, 155; Geoffrey C. H azard, Jr., Postface, 345.
T HE F UTURE OF T RANSNATIONAL C IVIL L ITIGATION : E NGLISH R ESPONSES TO THE ALI/U NID RO IT
D RAFT P RINCIPLES AND R ULES OF T RANSNATIONAL C IVIL P ROCEDURE (M ads Andenas, Neil Andrews
& Renato Nazzini eds., 2004). Geoffrey H azard, Jr., The ALI/U NIDRO IT Project, 3; Rolf Stürner,
Anglo-Am erican and Continental Civil Procedure: The English Reform as a M odel for Further
H armonization? 9; Cyril Glasser, D o We Need a Transnational Civil Procedure Code? A Critical
Com m ent, 13; Jerem y Lever, Com parative Reflections, 17; N eil Andrews, Em bracing the Noble Q uest
for Transnational Procedural Principles, 21 Anthony M ay, The ALI/U NID RO IT Rules of
Transnational Civil Procedure in the Perspective of the New English and Welsh Rules, 43; Louise
Ellen Teitz, Both Sides of the Coin: A D ecade of Parallel Proceedings and Enforcement of Foreign
Judgments in Transnational Litigation, 10 R OGER W ILLIAMS U . L. R EV. 1 (2004).
Adrian Zuckerm an, Conference on “The ALI-U NID RO IT Principles and Rules of Transnational Civil
Procedure” (hosted by the British Institute of International and Com parative Law , London M ay 24,
2002), 21 Civ. Just. Q . 322 (2002).
El Proyecto de las “Normas de Proceso Civil Transnacional,” 11 T RIBUNALES DE J USTICIA 19
(2002). W inter, El Proyecto de las “Normas de Proceso Civil Trasnacional,” 19; Gidi, Iniciativas
para la Form ulación de Normas U niformes en el Ám bito del D erecho Procesal Civil Internacional,
21 [also published in 26 Rev. D ir. Proc. Civ. (2002; Brazil) and 54 Derecho PU C 245 (2001; Peru)];
H azard, Litigio Civil sin Fronteras: Arm onización y Unificación del D erecho Procesal, 24; H azard,
Stürner, Taruffo and Gidi, Principios Fundam entales del Proceso Civil Transacional, 27 [also
published in 26 R EV. D IR. P ROC. C IV. (2002) and 54 D erecho PU C 253 (2001)]; H azard, Taruffo,
Stürner and Gidi, Normas del Proceso Civil Trasnacional, 31 [also published in 26 R ev. D ir. Proc.
Civ. (2002) and 54 Derecho PU C 263 (2001)].
Special Issue, H armonising Transnational Civil Procedure: The ALI / U NID RO IT Principles and
Rules [Vers U ne Procédure C ivile Transnationale H arm onisée: Les Principes et Règles ALI /
U NID ROIT], 6 U NIFORM L. R EV. [R EVUE DE D ROIT U NIFORME] 739 (2001).
V ERS UN P ROCÈS C IVIL U NIVERSEL? L ES R ÈGLES T RANSNATIONALES DE LA P ROCÉDURE C IVILE DE
L=A MERCIAIN L AW INSTITUTE (Philippe Fouchard ed. 2001).
Koh, The G lobalization of Freedom , 26 Y ale J. Int'l L. 305 (2001).
Geoffery H azard, et. al., Introduction to the Principles and Rules of Transnational Civil Procedure,
33 N .Y .U . J. Int'l L. & Pol. 769 (2001). H azard, Jr., et al., Introduction to the Principles and Rules
of Transnational Civil Procedure, 769; Hazard, Jr., et al., Fundam ental Principles of Transnational
Civil Procedure, 785; Hazard, Jr., et al., Rules of Transnational Civil Procedure, 793.
Rolf Sturner, Som e European Rem arks on a New Joint Project of The American Law Institute and
U NID RO IT (Foreign Law Year in Review: 1999), 34 Int'l Law 1071 (2000)
121. T HE A MERICAN L AW INSTITUTE: P RINCIPLES OF THE L AW OF F AMILY D ISSOLUTION : A NALYSIS AND
R ECOMMENDATIONS (2003).
122. See T HE W TO C ASE L AW OF 2001: T HE A MERICAN L AW INSTITUTE R EPORTERS= S TUDIES (Henrick
H orn & Petros M avroiois, eds.) Cam bridge U .P . (2003); T HE W TO C ASE L AW OF 2002: T HE
A MERICAN L AW INSTITUTE R EPORTERS= S TUDIES (H enrik H orn & Petros C. M avroidis eds., 2005);
T HE W TO C ASE L AW OF 2003: T HE A MERICAN L AW INSTITUTE R EPORTERS= S TUDIES (2006). See
also
The
American
Law
Institute=s
Publication
C atalog,
www.ali.org/index.cfm ?fuseaction=publications.ppage&node_id=84 (last visited June 20, 2007)
(providing m ore inform ation about these studies). The above studies are published and distributed
by Cam bridge U niversity Press and are available in N orth Am erica atwww.cam bridge.org/us, Europe
at www.cam bridge.org/uk, and A ustralia atwww.cam bridge.org/aus.
2007]
The First Restatements
21
Although the Institute consulted with economists in its tax work 123 and has a
political scientist as an adviser on its Aggregate Litigation Project124 and an
economist as an adviser on its economic torts project, 125 world trade law is the
first Institute project in which the Chief Reporters and their team of Reporters
are equally divided between lawyers and economists. 126 Their work, if done
properly, will attend not only to economic and trade interests but also to the
project=s implications for intellectual property, the environment, labor,
international law, human rights, and other important interests.127 International
by definition in its scope, the world trade law project reflects the new
directions of the Institute in undertaking projects with international dimensions
and in considering the international implications of its primarily domestic
projects.128
The world trade law project is a pioneering one, inviting comparison in
the modern era with another pioneering project initiated over a century ago,
well before the Institute was founded, by another Columbia scholar in the days
before research could be conducted from electronic databases as well as texts
and when national and international materials were less readily accessible and
senior lawyers and judges did much of their own research. John F. Dillon,
who, during his lifetime, was a Professor of Law in Columbia University,
Chief Justice of the Supreme Court of Iowa, Circuit Judge of the United States
123. See, e.g., F EDERAL INCOME T AX P ROJECT : S UBCHAPTER C: P ROPOSALS OF T HE A MERICAN L AW
INSTITUTE ON C ORPORATE A CQUISITIONS AND D ISPOSITIONS AND R EPORTER'S S TUDY ON C ORPORATE
D ISTRIBUTIONS (1982); F EDERAL INCOME T AX P ROJECT : S UBCHAPTER K: P ROPOSALS OF T HE
A MERICAN L AW INSTITUTE ON THE T AXATION OF P ARTNERS (1984); F EDERAL INCOME T AX P ROJECT :
S UBCHAPTER J: P ROPOSALS OF T HE A MERICAN L AW INSTITUTE ON THE T AXATION OF T RUST AND
E STATE INCOME AND INCOME IN R ESPECT OF D ECEDENTS (1985); F EDERAL INCOME T AX P ROJECT :
INTERNATIONAL A SPECTS OF U NITED S TATES INCOME T AXATION : V OLUME I: P ROPOSALS OF T HE
A MERICAN L AW INSTITUTE ON U NITED S TATES T AXATION OF F OREIGN P ERSONS AND OF THE F OREIGN
INCOME OF U NITED S TATES P ERSONS (1987); V OLUME II: P ROPOSALS OF T HE A MERICAN L AW
INSTITUTE ON U NITED S TATES INCOME T AX T REATIES (1992); F EDERAL INCOME T AX P ROJECT :
T AXATION OF P RIVATE B USINESS E NTERPRISES (Reporter's Study issued in 1999.
124. Professor D eborah H ensler, Judge John W . Ford Professor of D ispute Resolution and Associate D ean
for G raduate Studies at Stanford U niversity, and form er D irector of the RAN D Institute for C ivil
Justice.
125. Professor Victor P. Goldberg, Colum bia University School of Law.
126. Addressing the m em bership at the Annual D inner during the 1995 ALI Annual M eeting, Chief Judge
Richard A. Posner of the Seventh Circuit Court of Appeals questioned whether the Institute's structure
was as well adapted then as when the Institute was founded in 1923. H e criticized the Institute's
com position as consisting only of lawyers and noted that “the m ost exciting legal scholarship and
thinking of the past 30 years has been interdisciplinary.” R ichard A. Posner, Address by the
H onorable Richard A. Posner, C hief Judge of the U nited States Court of Appeals for the Seventh
Circuit, 72 A.L.I. P ROC. 321–27 (1996).
127. See Inform ation on TRIPS (the Agreem ent on Trade Related Aspects of Intellectual Property Rights),
available at http://docsonline.wto.org/gen_hom e.asp?language=1& _=1 (last visited Sept. 25, 2007)
(for various docum ents). See also The W orld Trade O rganization, Agreem ent on Trade-Related
Aspects
of
Intellectual
P rop erty
R ights,
ava ilable
at
w w w . w to . o r g /e n g lis h /tr a to p _ e /trip s _ e/t_ a g m 0 _ e . h t m ( la s t v is i te d S e p t. 2 5 , 2 0 0 7 ) ;
w w w .uspto.gov/w eb/offices/com /doc/uruguay/finalact.htm l (last visited Sept. 25, 2007);
http://en.wikipedia.org/wiki/Agreem ent_on_Trade-Related_Aspects_of_Intellectual_Property_Rights
(last visited Sept. 25, 2007) (offering the text of the agreem ent and states that “The TR IPS Agreem ent
is Annex 1C of the M arrakesh Agreem ent Establishing the W orld Trade O rganization, signed in
M arrakesh, M orocco, on 15 April 1994”).
128. For exam ple, Principles of the Law of Software Contracts, although intended prim arily for dom estic
use, will refer to the European Software D irective and other international sources; and m ay help foster
discussions with international groups with a view to harm onizing, unifying, and sim plifying an
international approach to software contracts. See generally Am elia H . Boss, The Future of the
U niform Com m ercial Code Process in an Increasingly International World, 68 O HIO S T . L.J. 349
(2007).
22
Southern Illinois University Law Journal
[Vol. 32
for the Eighth Judicial Circuit, and President of the American Bar Association,
described the origin, history, and preparation of his famous Commentaries on
the Law of Municipal Corporations as follows:
I selected my subject)’Municipal Corporations’)and entered upon the work
of thorough and systematic preparation. W ithout the aid of stenographer or
typewriter, and with no previous American treatise to guide me, I began an
examination, one by one, of some thousands of the law reports, commencing
with Vol. I of the State of M aine, and continuing through successive reports
in that State to date. In like manner the reports of every one of the States and
of the Federal and English courts were examined, occupying all of my
available time for about six years. The result of this research I have never
had occasion to regret. The book was successful, and it has profoundly
affected my whole professional career.129
As a contemporary reviewer noted, Dillon “created a law of municipal
corporations out of the then comparatively few cases dealing with the
subject.” 130
We welcome suggestions of projects that are capable of accomplishment
and will remind us of the grand vision of the Institute=s founders, of former
Director Wechsler’s path-breaking Model Penal Code, of the pioneering
projects undertaken recently by the Institute, and of the creative and rigorous
accomplishment of John Dillon in organizing a new body of law, as well as of
projects that address discrete, concrete, and narrower but nonetheless
important subjects.131
129.
John F. D illon, 1 C OMMENTARIES ON THE L AW OF M UNICIPAL C ORPORATIONS ix–x (Preface to the
5th Edition) (1911).
130. Book Reviews, 25 H ARV. L. R EV. 300, 301 (1911).
131. Subject to the views of the Director, the Program Com m ittee, and the Council of the Institute, and
to the challenge of enlisting able reporters, I can envision at least four projects with w hich the
Institute could m ake a strong and tim ely contribution in addition to the suggestions m ade in text
above, including fostering som eday a scholarly rethinking of and fresh m ethodology for the conflict
of law s.
(1) The first m ight be Principles of N ational Security Law, a subject that im plicates the
Constitution of the United States in various ways, including separation of powers and
individual liberties; federal statutes; international law; science and technology; and the
challenge of assuring both liberty and security. The Institute has com m enced work on one
portion of the overall area, nam ely, governm ent access to private inform ation, in a project
initiated in 2006 entitled “Principles of the Law of Governm ent Access to and U se of
Personal D igital Inform ation.” A broader project m ight also encom pass proposed
statutory revisions of the National Security Act, 50 U.S.C. §§ 401–442a, taking into
account the work of inform ed groups such as the ABA Standing Com m ittee on Law and
N ational Security.
(2) The second m ight be a R estatem ent of Federal Com m on Law. Professor Caleb
N elson=s recent article suggests num erous areas susceptible of clarification and
sim plification. See N elson, supra note 9. Such a work could be an im portant and useful
com plem ent to the current Restatem ents.
(3) W ith regard to wealth transfer, the third area m ight be the system atic analysis of law,
econom ics, and policies relevant to the transm ission of enorm ous wealth, in the trillions
of dollars, from one generation to the other, which will have m ajor public policy
im plications for taxation, estate planning, nonprofit organizations, and societal institutions
and values. Such transm ission of wealth is occurring at a tim e when both the federal
estate tax and state rules against perpetuities are being loosened as well as challenged,
changes that m ay foster the creation of Adynasty trusts.@ The Institute can address and is
addressing certain parts of the puzzle through its projects on trusts, wills, tax, and
nonprofit organizations but it has not yet taken a system atic overarching analysis.
(4) The fourth would be a study of developm ents in the foreign relations law of the
U nited States over the two decades since the publication of the Third Restatem ent. Such
a study not only would foster scholarly debate and analysis but also lay the groundw ork
2007]
The First Restatements
for a possible R estatem ent Fourth.
I am confident that there will be m any worthy exam ples of potential projects.
23