Restatements
FSU Research Center
Fall 2008
Laura Fargo
Research Center Intern
• Restatements
• Highly regarded distillations of common law
• Restate what the law is, not what it should be
• Why are the Restatements good
secondary sources?
• The “black letter law” covered by
Restatements are highly influential in courts
• They are a great way to find cases
associated with particular topics
Restatements: Origins & Goals
• American Law Institute (ALI), http://www.ali.org/
• 1922: Two defects in American law -- uncertainty and
complexity
• 1923: ALI founded by prominent American judges,
lawyers and law professors. Their goals:
• To produce a clear/concise statement of existing common law
from cases.
• To distill the “black letter” rules of common law, to indicate a trend
in common law, and to allow researchers to use Restatements to
argue what a rule of law should be.
• Highly persuasive in courts
ALI Annual Report: April 2004
• State/federal courts cited the Restatements
161,486 times
• By the end of 2007, approximately 175,000 citations
• 60% of citations to Restatements on torts and
contracts.
• Torts citations almost double contracts cites.
• Many fewer cites to other topical areas.
• Some states have established the
Restatements as default principles of law:
• Arizona courts "follow the principles set forth in the
American Law Institute's Restatement of the Law
except in cases where a different rule has been laid
down by this Court" or where a statute is controlling.
Odekirk v. Austin, 366 P.2d 80, 81 (1961)
Restatements
Current Series
Restatement, 1st
(1923-1951)
Restatement, 2d
(1952-1986)
Restatement, 3d
(1987-present)
Property 1st
Conflicts of Law 2d
Agency 3d
Restitution
Contracts 2d
Foreign Relations Law of the
United States
Judgments 2d
Property 3d – Mortgages
Property 2d – Donative Transfers
Property 3d – Servitudes
Property 2d – Landlord and
Tenant
Property 3d – Wills and Other
Donative Transfers
Torts 2d
Suretyship and Guaranty
Trusts 2d
The Law Governing Lawyers
Torts 3d – Apportionment of
Liability
Torts 3d – Products Liability
Trusts 3d
Unfair Competition
Restatements
• Now publishing Restatements, 3d series
• Updated by pocket parts and/or supplementary pamphlets
• To check for completeness, see the ALI Checklist
• Must be formally adopted by ALI members
• Publication pattern:
• Annual Meeting Discussion Drafts
• Tentative Draft(s) (T.D. #1; #2; etc.)
• Preliminary Final Draft
• Official Text (approved final draft)
• FSU Research Center: KF395 A2
• Restatement Structure:
• Chapters
• Narrower titles
• Numbered sections.
Comments
• Each section begins with a “black letter”
statement of a broad legal issue
• Sub-issues are discussed in the author’s
Comments and Illustrations that follow each
statement.
• Comments and Illustrations are often cited by courts
to explain the law.
Main Volume
Appendix Volume
• Reporter’s Notes are at the end of each section or in the
Appendix volumes of the Agency, Torts, and Trust
Restatements.
• Recent volumes have cross-references to the West
Key Number System® and ALR annotations.
• Updating Restatements
• Drafts of new series are published in soft-cover
format
• Cumulative annual supplements
• Interim case citation pamphlet
• Pocket parts
Research Aids in the Restatements
• Research aids include:
• Tables of Cases and Statutes
• Conversion Tables for Drafts
• Cross References to ALR and West’s Key Number
System
• Indexes
• Appendix volumes
• Contain summaries of cases that have cited each
section of the Restatement.
• Indexes
• Restatement, 1st series, has a one-volume
index to all Restatements.
• Restatements, 2d and 3d Series, do not have
a comprehensive index.
• Some have subject index for each volume.
• Recent Restatements have an index in the
last volume or in a separate volume.
• Features vary by series and by volume.
Research methods for Restatements
• 3 ways to find a relevant Restatement section:
• 1. Search an online version using keyword searching
• 2. Use the Table of Contents online or in print
• 3. Use the Index in print.
• Table of Contents are clear and easy to browse
but are usually volume specific.
• For Restatements two or three volumes long, you
must search each volume to browse the entire Table
of Contents.
• Note: As a research technique, this is effective only in
limited circumstances.
Restatements Online
• Lexis: Secondary Legal library, Restatements file
• Westlaw: REST Westlaw database
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REST – all Restatements of the Law
REST-AGEN – Agency
REST-CONFL – Conflict of Laws
REST-CONTR – Contract Restatement
REST-FOREL – The Foreign Relations Law of the United States
REST-JUDG – Judgments
REST-LGOVL – Law Governing Lawyers
PL-REST – Product Liability
REST-PROP – Property
REST-RESTI – Restitution
REST-SEC – Security and Suretyship and Guaranty
REST-TORT – Torts
REST-TRUST–Trusts
REST-UNCOM – Unfair Competition
Restatements Online
Lexis
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Rules (along with comments, illustrations, and notes) are
searchable in separate sources from case citations.
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This makes searching for relevant rules very efficient on
LexisNexis.
Case citations are linked from individual rules.
Browse Tables of Contents or search by keyword.
Restatement drafts are in separate sources from final versions
of Restatements.
The first series of Restatements is not available on LexisNexis.
Retrieving Restatement sections using Get a Document is not
intuitive. Search for restatement in the Get a Document
Citation Formats list to determine the proper Get format.
Restatements Online
Lexis
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You can Shepardize a Restatement section on
LexisNexis using the following formats:
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torts second sec. 46
property second (donative transfers) sec 25.9
conflict of laws second sec. 6
contracts second sec. 35 cmt. d illus. 7
Bluebook citations do not work
Restatements Online
Westlaw
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All series of Restatements are available on Westlaw.
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Browse Tables of Contents or search by keyword.
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Searching the Restatements on Westlaw can be problematic
because multiple series, selected drafts, and case citations to
all of them are combined into one database
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This can make keyword searching inefficient unless you use a
fielded search or use the Table of Contents mode to search
within a particular Restatement.
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Examine search results carefully to make sure you are looking at
the current version of a rule. If a rule has been superceded, there
is an indicating note above the rule text.
Restatements Online
Westlaw
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You can KeyCite a Restatement section on Westlaw
using the following formats:
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rest agen s 1
rest 2d contr s 3
rest 2d prop-lt s 1.1
rest 3d trusts-pir s 170
KeyCite on Westlaw finds much more citing material
than Shepardizing on Lexis.
Restatements Online
• If you wanted to know how to determine
the standard of conduct in a negligence
case, how would you search for this?
• First, we’ll look at the Restatements on
Lexis, then we will look at Westlaw…
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Restatements Online
• Lexis
• Westlaw
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Table of Contents, but no index
Table of Contents easy to find for
rule sections
Drafts, archives, and case
citations in separate database
from current rule sections
Does not have Restatement 1st
Series
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Table of Contents, but no index
Table of Contents somewhat
hard to find
All versions of rule sections
(drafts, current, and archives) as
well as case citations are in the
same database
Browsing through the rule
sections easier than in Lexis
Has all series of Restatements
Will get more results when
searching because Westlaw
publishes the Restatements and
has more cross references
available
Any Questions?