Keith Mack
In American jurisprudence, the Restatements of the Law are a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law. They are published by the American Law Institute (ALI), a group of prominent judges, lawyers, and professors. The Restatements are not primary law but are instead legal commentary, and they are not binding authority in and of themselves. However, they are considered persuasive authority and are frequently cited in case opinions. Each Restatement section includes a black-letter principle, comments, illustrations, and, in the form of reporters' notes, a detailed discussion of all the cases that went into the principle summarized in that section, including case summaries and case law references. While Restatements do not reprint excerpts of cases, they do provide summaries and references to the cases that inform their principles.
| Characteristics | Values |
|---|---|
| Nature | Restatements are a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law. They are not primary law but legal commentary. |
| Publisher | The Restatements are published by the American Law Institute (ALI), a group of prominent judges, lawyers, and professors. |
| Format | Each section of a Restatement includes a black-letter principle, comments, illustrations, and reporters' notes, which discuss all the cases that went into the principle. |
| Use | Restatements are used to distill the "black letter law" from cases, to indicate a trend in common law, and occasionally to recommend what a rule of law should be. |
| Authority | Restatements are considered secondary authority and are not binding. However, they are highly persuasive and are frequently cited in case opinions. |
| Process | The drafting process is painstaking and can take between 9-21 years. Several versions are drafted before a final version is adopted. |
| Availability | Restatements are available in print and online on platforms like HeinOnline, Lexis, and Westlaw. |
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What You'll Learn
Restatements are secondary sources
In American jurisprudence, Restatements of the Law are a set of treatises on legal subjects that seek to inform judges and lawyers about the general principles of common law. They are considered secondary sources and are not binding authority in and of themselves. However, they are potentially persuasive and can become binding law if adopted by a jurisdiction.
Each Restatement section includes a black-letter principle, comments, illustrations, and, in the form of reporters' notes, a detailed discussion of all the cases that went into the principle summarized in that section. By citing a Restatement section in a legal brief, a lawyer may bring to the attention of a judge a carefully studied summary of court action on almost any common law legal doctrine. The judge can then consider the Restatement section and make an informed decision as to how to apply it in the case at hand.
While courts are under no formal obligation to adopt Restatement sections as the law, they often do so because such sections accurately restate already established common law principles. Restatements are drafted by well-known scholars and jurists and are published by the American Law Institute (ALI), whose members include scholars, judges, and practitioners. They are considered one of the most respected and well-used sources of secondary authority, covering nearly every area of common law.
As secondary sources, Restatements can be a great place to begin legal research. They provide analysis, explanation, and leads to key primary sources, often explaining legal principles more thoroughly than a single case or statute. This can save time and help researchers avoid unnecessary work by tapping into existing scholarship on an issue.
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Restatements are not binding
Restatements of the Law are a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law. They are drafted by well-known scholars and jurists and are published by the American Law Institute (ALI), an organisation of judges, legal academics, and practitioners. Restatements are not binding authority in and of themselves, but they are considered secondary authority and are often cited in court opinions.
While Restatements are not binding, they are meant to reflect the consensus of the American legal community and can be persuasive in certain situations. They are formulated over several years with input from law professors, practicing attorneys, and judges. By citing a Restatement section in a legal brief, a lawyer can bring to the attention of a judge a carefully studied summary of court action on a particular common law legal doctrine. The judge can then consider the Restatement section and make an informed decision about how to apply it in the specific case.
Courts are under no formal obligation to adopt Restatement sections as the law, but they often do so when the sections accurately restate the already-established law in that jurisdiction or on issues of first impression. Restatements are also persuasive in demonstrating the current trend that other jurisdictions are following. However, Restatements do not replace precedents and controlling statutes, and a jurisdiction is under no duty to adopt any edition of a Restatement.
While Restatements are not binding, they are one of the most respected and well-used sources of secondary authority in American jurisprudence. They cover a wide range of common law areas and have been cited in a significant number of reported court decisions. Despite this, some legal scholars have criticised Restatements, characterising them as flawed and conservative.
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Restatements are persuasive
Restatements of the Law are a set of treatises on legal subjects that seek to inform judges and lawyers about the general principles of common law. They are not primary law but are considered secondary authority. They are not binding authority and do not replace precedents and controlling statutes. However, they are persuasive authority and are meant to reflect the consensus of the American legal community.
The American Law Institute (ALI), a group of prominent judges, lawyers, and professors, publishes the Restatements. The drafting process is painstaking and can take between 9 to 21 years. The authoritativeness of the Restatements of the Law is evidenced by their acceptance by courts throughout the United States. They have been cited in over 150,000 reported court decisions.
Each Restatement section includes a black-letter principle, comments, illustrations, and a detailed discussion of the cases that contributed to the principle. By citing a Restatement section, a lawyer can bring to the judge's attention a carefully studied summary of court action on a common law legal doctrine. The judge can then make an informed decision about how to apply it in the current case. While courts are not obligated to adopt Restatement sections, they often do because they accurately restate the already-established law in that jurisdiction.
The Restatements are also persuasive because they are drafted by well-known scholars and jurists. They are formulated over several years with extensive input from law professors, practicing attorneys, and judges. However, some legal scholars have criticized the Restatements, characterizing them as flawed and conservative. Despite this, the Restatements remain a respected and widely used source of authority in American jurisprudence.
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Restatements are not primary law
In American jurisprudence, the Restatements of the Law are a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law. They are not primary law but are considered secondary authority. They are essentially compilations of case law, which are common law judge-made doctrines that develop gradually over time because of the principle of stare decisis (precedent).
Restatements are drafted by the American Law Institute (ALI), a group of prominent judges, lawyers, and professors. The drafting process is painstaking and can take between 9-21 years. Various ALI committees examine cases and identify trends in the common law, which are then translated into legal principles or rules. Several versions of the Restatements are drafted before a final version is adopted.
While Restatements are not binding authority in and of themselves, they are potentially persuasive when formulated over several years with extensive input from law professors, practising attorneys, and judges. They are meant to reflect the consensus of the American legal community as to what the law is and, in some cases, what it should become.
Harvard Law School describes the Restatements of the Law as follows: "The ALI's aim is to distill the 'black letter law' from cases, to indicate a trend in common law, and, occasionally, to recommend what a rule of law should be." Each Restatement section includes a black-letter principle, comments, illustrations, and, in the form of reporters' notes, a detailed discussion of all the cases that went into the principle summarized in that one section. By citing a Restatement section in a legal brief, a lawyer may bring to the attention of a judge a carefully studied summary of court action on almost any common law legal doctrine.
While courts are under no formal obligation to adopt Restatement sections as the law, they often do so because such sections accurately restate the already-established law in that jurisdiction. The Restatements have been cited in over 150,000 reported court decisions.
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Restatements are legal commentary
In American jurisprudence, Restatements of the Law are a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law. They are written by the American Law Institute (ALI), a legal organization composed of noted professors, judges, and lawyers. The ALI's aim is to distil the "black letter law" from cases, indicating a trend in common law and, at times, recommending what a rule of law should be.
Restatements are not primary law, they are legal commentary. They are not binding authority in and of themselves, but they are potentially persuasive when formulated with extensive input from law professors, practising attorneys, and judges. They reflect the consensus of the American legal community as to what the law is and, in some cases, what it should become. The Restatement drafting process is painstaking and can take between 9 and 21 years. Several versions are drafted before a final version is adopted.
Each Restatement section includes a black-letter principle, comments, and illustrations, and, in the form of reporters' notes, a detailed discussion of all the cases that went into the principle summarized in that one section. By citing a Restatement section in a legal brief, a lawyer may bring to the attention of a judge a carefully studied summary of court action on almost any common law legal doctrine. While courts are under no formal obligation to adopt Restatement sections as the law, they often do because such sections accurately restate the already-established law in that jurisdiction.
Some of the most renowned legal scholars in the United States, including Judge Richard Posner and law professor Lawrence M. Friedman, have criticized the Restatements, characterizing them as flawed.
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Frequently asked questions
Restatements of law are a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law. They are published by the American Law Institute (ALI), a group of prominent judges, lawyers, and professors.
Restatements are considered secondary authority and are not binding. However, they are highly persuasive due to the prestige of the ALI and the careful drafting process. Courts may choose to adopt Restatement sections as the law of their jurisdiction.
Each section of a Restatement typically includes a co: 1,6,8,12"black letter" statement of the law, followed by a comment section with illustrations or hypothetical examples. There is also a case citator section that provides summaries of relevant cases and how they apply to the principle being discussed.
Restatements of law can be found in print at law libraries, such as the Law Library at Loyola University Chicago Law School. They are also available online through platforms such as HeinOnline's American Law Institute Library, Lexis, and Westlaw.
