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Restatements, of course, are well known to law students and lawyers because of the popularity of the Restatement of Contracts and the Restatement of Torts, both of which are frequently cited in judicial opinions and are often reprinted (at least in part) in materials assigned for law school classes. A Restatement is designed to collect and synthesize the law of a given area. The format for a Restatement, familiar to most lawyers, is that of “black letter” sections setting forth a Rule, followed by Comments and Illustrations concerning the Rule, followed by the Reporter’s Note, which is something of a mini-treatise collecting caselaw regarding the black letter law and commentary.

However, a Restatement need not adopt as a rule only positions embraced by the majority of courts. Rather, as discussed quite eloquently in the ALI’s Revised Style Manual (Jan. 2015), excerpted at the beginning of the RLLI, the Institute notes that “Restatements are primarily addressed to courts. They aim at clear formulations of common law and its statutory elements or variations and reflect the law as it presently stands or might appropriately be stated24”. A Restatement rule should have at least some support in caselaw but need not be the majority rule. Rather, in examining the legal landscape, the ALI may embrace the judicial approach viewed as superior even if it is the minority rule, and even a distinct minority rule25.

Where a Restatement adopts a minority rule or modified or hybrid rule or expresses some creativity in attempting to improve law as well as to synthesize it, this is not disregarding the law but simply a recognition that “what a Restatement can do that a busy common-law judge, however distinguished, cannot is engage the best minds in the profession over an extended period of time, with access to extensive research, testing rules against disparate fact patterns in many jurisdictions26”.

As the name implies, a Restatement summarizes existing law. Consequently, Restatements read to a degree like very thorough, well-organized treatises. The Restatements not only summarize the law but also identify divisions in the law and typically endorse a “better” rule of law in cases where courts are divided. They are also distinguished from treatises in that Restatements represent the collaborative work of an organization rather than that of a single author or group of co-authors.

Related to this is the extensive process by which Restatements are promulgated. The project is led by “Reporters” who do the primary drafting of the Restatement (and revisions in response to commentary or objection), aided by a group of roughly 40 Advisors who are experts in the field as well as a Members Consultative Group (MCG) that includes any ALI member sufficiently interested in the project to participate. Draft provisions are reviewed by the ALI “Council,” a leadership group of another 50 distinguished attorneys, judges and professors. Over the course of four to six years (or more), portions of a proposed Restatement are considered by the ALI Membership in attendance at the group’s Annual Meeting before there is a final vote to adopt a Restatement. Whether one likes or dislikes the provisions of a Restatement, the thorough rigor of the process seems indisputable. Then comes publication and use of the Restatements by the courts in making decisions. Often, draft provisions of Restatements are found authoritative by courts. The RLLI began in 2010 as a Principles Project but was converted to a Restatement in 2014.