From the Second Restatements to the Present: The ALI’s Recent History and Current Challenges
IN A 1997 ARTICLE ON THE ORIGINS of the American Law Institute, I concluded with a brief description of the ALI’s orientation in the two decades following the Second World War. In those decades, I suggested, the ALI, “[p]erhaps stunned by the wave of critical reviews of the first generation of Restatements,”quickly commissioned a series of “Restatement Seconds,” ostensibly updating the previously published volumes but actually changing their format to include a much greater emphasis on commentary. It began a [set] of statutory projects, such as the Uniform Commercial Code and the Model Penal Code, which were openly designed to be didactic but reformist at the same time. It hired a generation of Realist scholars to work on ALI projects.1 The ALI’s new emphasis, I concluded, revealed that it had internalized the criticism of its inaugural projects, the First Restatements.
I would like to say some more about how that shift in the ALI’s orientation came about and whether the shift can still be said to capture the ALI’s current posture. But instead of relying on outside scholarly criticism of ALI projects to capture a phase in the Institute’s history, I am here making use of comments by “insiders” – members of the ALI involved in its governance. I am seeking to recover the assumptions that lay behind the policy decisions, explicit and implicit, that those members supported.