WASHINGTON – According to one Washington observer, the Philadelphia-based American Law Institute needs to remain true to its mission of distilling and clarifying law, or else strongly consider whether it is appropriate to have judges as members of its ranks.
Is it proper for judges to participate in a powerful legal body that originally sought to clarify the law for jurists, but has lately been accused of advocating for changing it - going so far as to hire lobbyists and undertake a road show to build support? In a recent blog post from the Washington Legal Foundation, Glenn Lammi referred to a January 2020 exposure draft from the Judicial Conference of the United States Committee on Codes of Conduct, regarding the “extrajudicial activities” of judges.
The draft advised judges can participate in events hosted by such groups such as the Federalist Society and the American Constitution Society but can't belong to them, feeling it created the impression that judges would be seen as legal policy advocates – a move met with rebuke from the Wall Street Journal, a group of U.S. Senators and more than 200 sitting judges from the federal bench.
In response to the extrajudicial guidelines advised for judges, Lammi posed the question of whether members of the judiciary should or belong to the American Law Institute, an influential organization of law scholars, lawyers and judges that creates documents called “Restatements” meant to provide decision-making guidance to judges.
For years, critics have contended that recent Restatements issued (liability insurance) or currently being worked on by ALI (copyright law and consumer contracts), are more aspirational in nature and not based in legal precedent or common law. The liability insurance Restatement, called "litigation fuel" by an ALI member, has been the subject of various measures by state lawmakers who want to make sure judges in their states know that it is not a controlling precedent.
“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,” Victor Schwartz, of Shook Hardy Bacon and an ALI life member, previously 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.”
Lammi concurred with Schwartz.
Lammi cited Canon 4 of the Code of Conduct for United States Judges, which describes “the extrajudicial activities that are consistent with the obligations of judicial office” and specifically, a clarifying document on Canon 4 from that group titled Opinion 93. According to the opinion, “To qualify as an acceptable law-related [extra-judicial] activity, the activity must be directed toward the objective of improving the law, qua law...and not merely utilizing the law or the legal system as a means to achieve an underlying social, political, or civic objective.”
Opinion 93 provides a specific exception from this criteria for ALI, highlighting “the American Law Institute, whose purpose is to distill, rationalize and restate the law.”
But Lammi feels ALI has undergone a shift in its mission, evolving from a group who studies and summarizes the law to one seeking to change it, and points to some of its recent work products in copyright law and consumer contracts as proof of that shift.
"To resolve the challenge facing ALI’s judicial members, the organization must weigh two options. ALI can either return to drafting and approving Restatements that merely 'distill, rationalize, and restate' the law as it currently stands, consistent with Opinion 93, or it can rescind membership for sitting judges. Under the canons as currently interpreted, ALI cannot have it both ways," Lammi wrote.
"The impartiality and independence of the judiciary are integral to our system of justice, and even the perception that judges have a hand in making the laws they are charged with neutrally applying, undermines that system. ALI and its members, among others, should reexamine the venerable organization’s policies to protect its sitting judicial members from the charge that they lack impartiality and are making — not interpreting — the law."
These ongoing Restatements, according to Lammi, “introduce major innovations into the law, some without majority or even minority support in existing jurisprudence.”
Members of ALI who are judges are close at hand in the creation of Restatements. Though the Reporter (or author) of a Restatement won't be a judge, Restatements are open for feedback from, reviewed by and approved by the project's Advisers, the Council and organization's membership, which all include judges.
Lammi stated, “No matter whether judges participate in the drafting or even vote to accept the final version of a Restatement, as members of the ALI, their imprimatur in support of a Restatement is implicit,” and labeled ALI’s work to advocate for changes law and lobby to that effect on behalf of its full membership as “troubling.”
Past advisory opinions from the USCCC permitted judges to be members of the Federalist Society and American Constitution Society, but their most recent issuance in January shows a reversal of course on that train of thought, as to those two organizations.
According to Lammi, ALI can either return to its position of clarifying and restating the law, or exclude judges from its membership ranks – but not both.
“WLF shares the concerns many in the legal community, in academia, and from ALI members involved in those very Restatements over ‘restating’ law whose basis lies in written statutes,” Lammi said.
“Thus, we’re not even sure if copyright law and consumer contracts are even appropriate topics for ALI’s work. But if those projects are to continue, the organization would be wise to consider downgrading them to Principles Projects.”
A Principles Project is another type of work project published by ALI which allows for advocacy and discussion of where the organization feels a certain area of law should proceed in the future – as opposed to a Restatement, which is intended to distill, clarify and as it name indicates, restate existing law.
Debate over both in-progress Restatements of copyright law and consumer contracts has been contentious to this point.
The controversial Restatement of the Law of Liability Insurance, approved at ALI’s annual meeting in 2018, concerns when insurers can be found liable in civil lawsuits.
Notably, the Restatement says an insurer would need to cover punitive damages in some instances, rather than the insured who engaged in the reckless behavior – even if they’re not covered in the policy (a National Council of Insurance Legislators discussion provided a deep dive into other issues).
The ALI embarked on a “road show” of sorts – events like one in Texas that featured a federal judge that defended the Restatement of the Law of Liability Insurance.
“When I saw that federal judges were hosting the [event in Houston], I really felt that it was inappropriate for the American Law Institute to put a federal judge in that position, because one can then infer that maybe the judge is actually endorsing the Restatement,” Kim V. Marrkand of Mintz Levin in Boston, said.
ALI has also actively lobbied against legislation targeting the Restatement in several states. In opposing such legislation in Kentucky, ALI spent $19,601 in lobbying fees over a time period spanning last Sept. 1 to April 30, through utilizing the services of agents Julia B. Crigler, Katherine W. Hall, M. Patrick Jennings and Karen Thomas-Lentz.
“I am not generally concerned about an organization testifying before the General Assembly about legislation that concerns it or even lobbying on a paid basis. In this particular case, I am more troubled by the ALI departing from its traditional role of reporting what the state of the law is and moving into advocacy of what the law should be, especially in their targeting of the insurance industry," said Mark Treesh, Executive Director of the Insurance Institute of Kentucky.
"ALI's advocacy in lobbying against legislation related to the Restatement confirms the idea that they have moved from reporting to advocacy in their restatement of the law."
In April, the Kentucky state legislature successfully overrode Gov. Andy Beshear’s initial veto of a bill pertaining to the Restatement.
A number of states have already seen legislative actions and rulings on the liability insurance Restatement, including Texas, Kentucky, Tennessee, Ohio, Delaware Kansas and North Dakota.
In the Delaware and Kansas cases, the courts declined an invitation to follow a Restatement, because they did not want to predict how those other jurisdictions would address a particular Restatement section.
However, other states have already cited the Restatement in their court ruling, such as South Dakota in the action Sapienza v. Liberty Mutual Fire Insurance Co. In that case, the court rejected the argument made by some insurers that Sections of the Restatement are not based in case law.
ALI’s Deputy Director Stephanie Middleton labeled the WLF article which questioned the propriety of the organization’s judicial membership as “inaccurate.”
“The ALI was founded nearly 100 years ago by a group of visionaries that included the Chief Justice of the United States. Since that time, eminent federal judges including Learned Hand and Henry Friendly, have been among the leaders of the ALI,” Middleton said.
“Federal and state judges in no way impair their impartiality by participating in the work of the ALI. Rather, they serve the greater community and the legal system by making available their considerable wisdom and experience for the clarification and improvement of the law, and thus the rule of law.”
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com