Saggi, Conferenze e Seminari 14 Reproduced with permission of Centro di studi e ricerche di diritto comparator e straniero, diretto da M.J. Bonell
Geoffrey C. Hazard, Jr.
Roma (April 1994)
The American Law Institute is a private organization of the legal profession in the United States, dedicated to the reform and improvement of the law. The Institute has certain resemblances to a public Ministry of Justice. It also has resemblance to a fraternal association of the bench and bar and to a synod of legal scholars and scholarly lawyers. This paper describes the organization of the Institute, its objectives, its procedures, and the results and influence of its work.
I. THE ORGANIZATION OF THE INSTITUTE
The American Law Institute is a nonprofit corporation constituted of members selected from the legal profession. The Institute operates under the supervision of its Council and through management under its Director.
The membership consists of approximately 3,400 individuals, somewhat more than half of whom are lawyers and the rest of whom are judges and law professors. One class of members are ex officio, in virtue of their offices as presiding judges of appellate courts or deans of law schools throughout the country. Another class consists of those elected to membership. Elected members are chosen through nomination by persons who are already members, subject to review and approval of a membership committee. There is also a limited number of members from other countries.
A member is entitled to attend the Institute's annual deliberations and to vote on legal texts presented for discussion; to receive and to comment on drafts of those legal texts; and to participate in informal discussions of preliminary drafts during the drafting process. Many members faithfully attend all annual meetings, but most attend only occasionally. The Institute's support from many of its members thus is tacit, but this support gives additional weight to the Institute's work.
The Institute's governing body is the Council, consisting of approximately 60 members. Council members serve terms of nine years and customarily are re-elected until they retire. When a vacancy occurs the Council, acting through a nominating committee, nominates its own new members, subject to approval of the membership at the annual meeting. The Council is therefore substantially self-perpetuating. However, effort is made to achieve diversity in the Council's composition in terms of geographical origin, field of practice among lawyer members, sex and race, and balance among judges, practitioners and legal academics. Most lawyer members of the Council are from nationally recognized law firms and most of the judges are from the federal Courts of Appeal and state Supreme Courts. The political orientation of the Council, as well as that of the membership at large, is centrist.
The Institute officers include the President, the Chairman of the Council (being usually the immediate past-President), two Vice Presidents, Treasurer, and the Director and two Deputy Directors. The Council nominates the officers, with their election being by the membership at the Annual Meeting. Nomination is by consensus and election by acclamation. The President traditionally has been a lawyer, although the incumbent, Charles Alan Wright of Texas, is a professor with extensive practice experience. The business affairs of the Institute have traditionally been under supervision of the Treasurer.
The immediate management of the Institute's work is conducted by the Director and Deputy Directors, who are the only officers that are paid a compensation. By tradition, the Director is a law school professor who combines teaching responsibilities with duties at the Institute. Thus, I have been professor at Yale and in 1994 will become professor at the University of Pennsylvania in Philadelphia, the situs of the Institute's headquarters.
The terms of the officers, including the Director, are for one year, subject to reelection. By tradition, however, the officers including the Director have served for lengthy periods. Since the founding of the Institute in 1923 there have been seven Presidents and four Directors. For example, my predecessor as Director, Professor Herbert Wechsler of Columbia University, served from 1963 to 1984. The continuity of leadership in the Council and the officers has been a key factor in the strength of the Institute. By way of contrast, the presidency of the American Bar Association and of the Association of American Law Schools, for example, changes every year and the governing boards of those organizations change approximately every six years.
The membership meets once a year to deliberate upon legal texts produced in various projects that the Institute has undertaken.
II. THE WORK OF THE INSTITUTE
The stated purposes of the Institute are:
To promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific work.
This statement evidently describes a process rather than specific legal subject matter.
The scope of the work of the American Law Institute thus has no formal limits, except that its efforts must aim at improving the law through scholarly research. Since virtually every field of the law can benefit from scholarly attention, a continuing task for the Institute has been to define the subprovinces of the law in which to devote its efforts. The task of selecting our projects confronted the Institute at its founding and remains a continual dilemma. It is a simple if unpleasant truth that the Institute can address only a few among many subjects that warrant its attention. Today, one can say that the Institute's choices of projects have become more selective than ever before.
Broadly speaking, the Institute's work has been of two types, proposed legislation and the Restatements. I will first describe the Institute's legislative work, because that subject will be more readily appreciated by an audience schooled in the civil law. I will then describe the Restatements.
A. Model Legislation
The Institute's legislative proposals may take the form of specific legislative texts or more general "principles" from which a legislative chamber could draft specific statutory language. No single political or social theory can embrace the various subjects on which the Institute has proposed legislation. In general, however, the subject matters that we have undertaken have had the following characteristics: (a) the subject historically has been governed by statute; (b) the topic is of general public interest; and (c) comprehending the legal aspects of the subject requires substantial technical knowledge. Correlative to these criteria are other criteria. The Institute follows rather than leads public concern with subjects for legislative initiative; the Institute seeks to address subjects that have long term legal significance, rather than short run political notoriety; and the Institute focuses on legal problems in which the professional knowledge of its members is relevant. In the words of Professor Wechsler, the Institute is primarily concerned with "lawyers' law" as distinct from general public policy.
The fields of legislation in which the Institute has engaged include the following:
|-|| The Uniform Commercial Code. This model legislation has been
developed in cooperation with our sister organization, the National
Conference of Commissioners on Uniform State Laws. The UCC,
as it is familiarly called, was promulgated over 30 years ago, has
been adopted in 49 states (excepting only Louisiana, which adheres
to its Civil Code heritage). In company with the Conference on
Uniform State Laws, we are now engaged in a comprehensive
revision of the UCC.
|-||The Model Penal Code. This model legislation has been a basis
for major legislative revisions in many states and in the draft Federal
Criminal Code. It has also be a resource in making revisions of the
penal law in other countries and is a basic text in teaching criminal
law in American law schools.
|-||The Model Federal Securities Code. This work is a proposed
integration of the various federal statutes regulating securities
trading. Although never adopted by Congress, the draft has
become recognized as an authoritative commentary on the structure
and meaning of the federal securities laws.
|-||Principles of Corporate Governance. This work, being
published in 1994, is a major study of the role of the board of
directors under American corporation law, with particular reference
to the remedy of the stockholders' derivative suit as an enforcement
|-||United States Income Tax Law. Over the last forty years the
Institute has published on various studies aspects of the federal
income tax law. A recent major publication is International Aspects
of United States Income Taxation II: Proposals on United States
Income Tax Treaties. By established custom, the Institute's work on
federal tax law has been coordinated with technical studies carried
out by the staffs of the Congressional Joint Committee on Taxation
and of the Treasury Department.
|-||Legal Aspects of Family Dissolution. In the modern era, divorce in the United States may be obtained on a "no fault" basis. While the elimination of fault as a ground for divorce has in general simplified the law, important problems remain concerning custody of children, division of property, and provision of support for children and a dependent spouse. This project, presently in progress, seeks to specify the rules governing these important consequences of divorce.|
Each of these projects has required much time, care, sound judgment and technical skill. The drafting, according to a process described below, takes years, requires several iterations of text, and involves participation of dozens of participants at various stages of discussion. The extensive intellectual labor required is at the same time an assurance of care and an important form of deliberation about the law. Interim drafts of the Institute's legislation proposals are used as references, for example, by courts in deciding cases, by practicing lawyers as sources of guidance, and by teachers in law schools as sources of instruction.
B. Restatements of the Law
The Institute is perhaps best known for its projects in the Restatement of the Law. These are comprehensive expositions of the law in specific subjects, such as contract law and property law.
A Restatement is based upon decisions pronounced by courts but is formulated like a statute. In important respects, the Restatements are a lineal descendant of the Justinian Code. That is, they are the product of collective deliberation by recognized authorities, endeavoring to synthesize the decisions of courts into clear, consistent and concise language.
The nature of a Restatement can perhaps better be illustrated than it can be defined. The following is a portion of a section of the recently published Tentative Draft No. 3 (March 10, 1994) Restatement of the Law: Property-Security (Mortgages), dealing with "waste," which is the destructive misuse of real property by a mortgager in possession of the property.
§ 4.6 Waste
A textual formulation such as that quoted above is accompanied by explanatory Comments that elaborates its meaning and rationale. Also accompanying the text are illustrations in the form of hypothetical applications of the rules and references to the decisions, statutes and treatises considered as supportive authority.
Historically the Restatements have constituted the Institute's principal projects. In the period from 1923 to the end of World War II the Institute published Restatements of Contracts, Torts, Property, Security, Judgments, Conflict of Laws and other subjects. Beginning in the 1940's, updated and enlarged versions of most of these works were published as the Restatement Second of the Law. For example, the Restatement Second of Torts was published in 1979 and the Restatement Second of Contracts in 1981. Another recent Restatement is the Foreign Relations Law of the United States, being an exposition of important aspects of public international law as expressed in American legal authorities.
The Institute is presently engaged in several Restatement projects, constituting the Restatement of the Law Third. Among the works presently in progress are Restatements of the law of Servitudes (i.e., usufructuary interests in land), Suretyship (obligations arising from guaranty), Mortgages (from which the quotation above is taken), the Law Governing Lawyers (being the rules of obligation and liability of advocates and legal counsellors), and Products Liability. The Institute will very soon publish the Restatement of the Law of Unfair Competition, which has just been completed. We have just begun a project addressing the apportionment of liability among joint and concurrent tortfeasors.
The Institute's work has received broad recognition and acceptance in the United States and elsewhere. The recognition is not always commendatory, for many of the Institute's formulations have been criticized, some of them very sharply so. However, even severe criticism constitutes recognition that the Institute's work product has authoritative force. Yet the Institute is not an agency of government. Its work product is strictly speaking merely private opinion. What is the dynamic by which legal formulations by a private organization of lawyers and judges assumes such positive legal significance?
The answer lies partly in the structure of the Institute, which has already been described: A selective membership drawn from members of the legal profession on the basis of their serious interest in improvement of the law, and an organization that is designed to focus on long-run objectives. However, the reception accorded the work of the Institute derives primarily from the procedures that the Institute employs in its drafting and deliberations. These procedures combine elements of intensive private discussion and open public debate, connected through meticulous drafting.
III. THE INSTITUTE'S DRAFTING PROCEDURES
An Institute project, whether proposed legislation or a Restatement, goes through a process involving four distinct but interrelated stages.
First, a prospectus is prepared for the project. The prospectus, as the name implies, outlines the scope of a proposed project and the central problems to be addressed. It is drafted by an expert in the field, chosen by the Director after consultation with the officers and the Council. The expert is selected with a view to becoming the project director, which we call Reporter. The prospectus is then critically reviewed by a committee of the Council. If that review is positive, the project, sometimes with modifications, is considered for approval by the Council. Ordinarily, the project will receive approval but the deliberations over the prospectus may result in changes in the project's scope and emphasis.
Second, a Reporter and Advisory Committee are appointed. The Reporter is selected on the basis of a combination of skills: Technical expertise in the field, skill in legal draftsmanship, and dialectical skill in discussing legal text with critical audiences. The members of the Advisory Committee, who need not be members of the Institute, are also experts. They include judges, practitioners, and legal scholars, and are selected to provide a range of informed opinion concerning the subject.
The Reporter plans the work on the basis of the prospectus. The typical plan calls for an annual cycle of drafting and deliberations, with various subtopics being addressed serially. The annual drafting cycle in a Restatement consists of a Preliminary Draft presented by the Reporter to the Advisory Committee for critical review; a revision called a Council Draft which, as its name implies, is reviewed by the Council; and a further revision published in printed form as a Tentative Draft for submission to the membership's Annual Meeting. At each stage this text is meticulously reviewed and critically discussed. A typical Advisory Committee meeting is two and a half days. The Council typically gives most of a day to a Council Draft. A Tentative Draft receives comparable attention at the Annual Meeting.
In the meantime, the Reporter and Advisory Committee will be considering the Preliminary Draft of the next set of topics. Completion of a project usually requires five or six annual cycles.
Finally, the Reporter integrates the work as a whole into a Final Draft. The Final Draft incorporates revisions suggested by the discussions held at various stages; reconciles inconsistencies; and updates references to authoritative sources. The final product is a printed volume, for example, the Restatement Third of the Law: Foreign Relations Law of the United States, published in 1987; and the Restatement Third of the Law: Unfair Competition, to be published this year.
IV. THE INSTITUTE AS A VEHICLE FOR CONSERVATIVE REFORM
Yet the mechanics of Institute procedure do not fully capture the ethos of its process, and thus incompletely explain why its work has enjoyed positive repute. What also must be taken into account is the conservative reformist outlook that animates its undertakings. On the one hand, an Institute project proceeds within the framework of existing law, looking to the past; on the other hand, it seeks to reshape the framework of the law, looking to the future. The essence of its collective viewpoint has been well expressed by Professor Wechsler:
We should feel obliged in our deliberations to give weight to all of the considerations that the courts, under a proper view of the judicial function, deem it right to weight in theirs.
In judging what was right, a preponderating balance of authority would normally be given weight, as it no doubt would generally weigh with courts, but it would not be thought to be conclusive.
The Institute's drafting procedures are intelligent and methodical. Participants find the work intellectually stimulating and professionally reinvigorating, which is why they give their time to the Institute. The subjects we select for our work are important from a legal viewpoint, although of secondary interest in political terms. The Institute's texts often generate controversy within the profession and occasionally at the level of public debate. While our statutory proposals and the Restatements are of great interest to the courts, to practicing lawyers and to the legal academic community, only occasionally do they become of expedient interest in the larger political arena. As "lawyer's law" it plays an important but inconspicuous place in the scheme of social ordering.
What, then, may be said to be the significance of the Restatements and the model legislation produced by the American Law Institute? Perhaps the following:
|-|| An Institute project represents a reformulation of the law.
"Reformulation" implies both that law must be changed through
conscious purpose and that it should have continuity.
|-|| An Institute project represents a cooperative intellectual endeavor.
The Institute's procedures integrate individual creativity, in the
Reporter's initial text and subsequent revisions, and group consensus, in the deliberations and criticisms addressed to the text.
|-||The Institute's work is an exercise in civic responsibility by legal professionals who offer the product of their combined effort as a contribution to the public interest.|
The authoritative influence of the Institute's Restatements and model legislation derives from these "private" or intrinsic characteristics, not from the force of legal or political authority. The American Law Institute has no legal or political authority, but only such authority as others accord it. Yet fellow citizens accord authority to the Institute's work. In an era of cynical realpolitik perhaps there is a lesson to be learned from this experience.
1. Report of the Committee on the Establishment of a Permanent Organization for Improvement of the Law Proposing the Establishment of an American Law Institute, to be held February 23, 1923, in Washington, D.C., at p. 41.
2. For an historical analysis, see N.E.H. Hull, Restatement and Reform: A New Perspective on the Origins of the American Law Institute, 8 Law and History Review 55 (1990).
3. Report of the Director, 1967 ALI, Annual Report 5.
4. Herbert Wechsler, Restatements and Legal Change: Problems of Policy, in the Restatement Work of The American Law Institute, 13 St. Louis Univ. L.J. 185, 190 (1968).