Pennsylvania Record

Monday, October 21, 2019

Federalist Society panel contends the ALI, a powerful legal group, has shifted its focus

Legislation

By Nicholas Malfitano | Jun 6, 2019


American Law Institute

WASHINGTON – Is the American Law Institute remaining true to its mission of restating law to produce accurate advisory guidelines for courts to decide cases in various aspects of law, or is it straying into territory apart from that mission?

The ALI is an influential organization of lawyers and law scholars that creates documents called “Restatements,” meant to provide decision-making guidance to judges. However, a number of critics contend that recent Restatements issued by ALI, including ones focused on liability insurance and consumer contracts, are more aspirational in nature and not based in legal precedent or common law.

This dissention comes as a number of states are both considering and passing laws that would remove the ALI Restatements from consideration by the courts of those same states.

Criticism became more prevalent during the group's process of drafting a Restatement that affects insurers and continued on a project dealing with consumer contracts that was recently rejected by its own members.

The Philadelphia-based ALI has hired lobbyists to fight Texas legislation that blocks judges from considering the insurance Restatement. Ohio has already passed such a law, and some judges have turned down the chance to give credence to the Restatement.

On Tuesday, the Federalist Society in Washington, D.C. explored this topic through its panel discussion: “ALI: Unbiased Analyzer or Agenda Driver?”

Members of the panel included the following individuals:

  • John Fund, National Affairs Columnist, National Review and Fox News Analyst
  • Victor E. Schwartz, Partner, Shook, Hardy & Bacon (ALI Member)
  • Seth P. Waxman, Partner, WilmerHale and former United States Solicitor General (ALI Member)
  • Edward Whelan, President, Ethics and Public Policy Center
  • Moderator: Hon. Susan G. Braden (Ret.), Chief Judge of the United States Court of Federal Claims
Schwartz termed ALI as the “most powerful legal organization in the United States” whose purpose was to “help clarify the law.”

“The way a rabbi looks at a Torah or a Methodist minister looks at the Bible, judges look to Restatements. They don’t question them, most of them. They look at it and they say it’s the law,” Schwartz stated. “[A Restatement] doesn’t have to be the majority view, but it’s got be existing case law somewhere. In recent years, some Restatements in some parts, some believe, do not restate existing law.”

Schwartz referenced the pending Restatement of Consumer Contract Law – saying there was no specific field for that subject or related ones that would serve as a foundational basis for a Restatement.

“Once you’re off on that path, you don’t know quite where you’re going to go,” Schwartz said.

Fund expressed his agreement with Schwartz that the ALI is “extremely important and almost completely unknown to the general public” and therefore generates media interest.

“That’s a natural subject for a journalist, because we like to delve into institutions that exercise influence that are not well-known. But, I will also echo Victor in saying that the ALI has done an awful lot of good: Whether it’s contract law, data privacy, consumer contracts, copyright law, its Restatements and its careful scholarship have been a blessing to the law,” Fund said.

However, Fund added that when he served as Deputy Op-Ed Editor at The Wall Street Journal, contributors would often tell the publication about the ALI’s “drift” as an organization.

“The majority of the people I’ve spoken with for my articles have made it very clear they don’t want to be quoted. They’ve made it very clear they don’t want to be viewed as dissidents within the club or people who are complainers,” Fund commented.

Fund explained his perspective is different in that he is not an attorney or ALI member and thus, views the situation differently than someone on the inside. 

“I look at this with the eyes of someone in the larger society. And while I’m not a student of the law, I recognize that there are problems that the ALI is bringing to the law that are unnecessary," he said.

"Of all institutions in the law, we have seen many, many come under buffeting, turbulence and pressure to change, to adapt. I’m not opposed to all of that. But the ALI should be the last to change, because it’s supposed to state what the law is. Period. End of statement. And I fear that has been challenged.”

Waxman explained the Restatement creation process is what first encouraged him to participate in the organization, calling it “unfailingly painstaking, deliberative” and “a model of civility.”

Waxman quoted former ALI Director Herbert Wexler, in that the group should feel “obliged in [its] deliberations to give weight to all of the considerations that courts, under a proper view of the judicial function, deem it right to weigh in theirs.”

Whelan expressed doubts as to the transparency of the ALI’s Restatement drafting and creation process, and suggested a way to resolve that issue would be to disseminate project drafts even in their earliest iterations.

Braden replied that the way to resolve the issue would be to join the ALI, but Whelan countered that the actual solution would be to make such drafts more widely available.

ALI Deputy Director Stephanie Middleton stated the Restatement of Consumer Contracts project draft was put online due to the “great interest” surrounding it, but added that copyright issues and inherent flaws in the early incarnations of drafts prevent them from being distributed online.

“We’re not trying to be secretive, but we also don’t want people to have their hair on fire about some of the early drafts, which clearly have lots of problems and that’s why it takes 10 years [to complete a Restatement],” Middleton said.

Fund offered that the nation’s billionaires and philanthropic foundations should be solicited by the ALI to “create a new business model so [it] doesn’t have to pinch pennies and sell these drafts online.”

Whelan added that in the specific example he was referring to, the document in question was a project draft which was about one month away from a final vote by the ALI membership.

“It sure seems to me that at that point, robust public debate might help inform your membership,” Whelan stated.

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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Organizations in this Story

Shook, Hardy & Bacon L.L.P. The American Law Institute Wilmerhale Llp

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