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When the ALI was formed in 1923, its leadership was a “Who’s Who” of American Law. Membership is by election and is limited to 3,000 persons15. In addition to producing the Restatements and Principles projects16, the ALI promulgates model statutes17 and conducts continuing legal education programs. Restatements were among the first projects undertaken by the ALI, and were well-received by courts and the practicing bar. Principles projects are distinguished from Restatements in that Principles are more inclined to examine an area of law thought to be in need of change and to propose changes or revisions in prevailing law. But Restatements are not restricted to merely summarizing prevailing existing law but make legal determinations that may not enjoy majority support in the courts but are viewed as the substantively superior rule of law.

ALI Restatements function as soft law in that a Restatement position on a legal matter is not authoritative unless adopted by a court or legislature. But the Restatements –even though arguably not as influential as model codes18– are what might be termed “Super Soft Law” in that they have had substantial influence far larger than treatises or industry standards or most model laws (the exception perhaps being the more successful proposed Uniform State Laws promulgated by the National Conference of Uniform State Law Commissioners (NCCUSL) such as the Uniform Commercial Code (UCC) or the Model Rules promulgated by the American Bar Association (ABA).

Courts and legal scholars have frequently cited ALI Restatements. Growth in such citation appears to be consistent with both the increasing number of Restatements and the increasing number of court cases. Legal literature reflects an ongoing interest in the Restatements that increased substantially during the early 1980s. Since then, Restatements have been frequently cited in the legal literature at a pace that equals or exceeds citation in Reported cases. Restatements are almost always cited favorably or with neutrality19.

Criticisms like those of Justice Scalia in Kansas v. Nebraska appear only infrequently. And apart from the sheer number of citations, the Restatements found favor with influential courts and judges. For example, in a leading opinion on accountant liability, Justice Benjamin Cardozo, writing for the New York Court of Appeals, favorably cited the Restatements of Torts, Contracts, and Agency20. While Scalia-like criticism in judicial opinions is comparatively rare and Restatements continue to exert considerable influence, they have been subject to more criticism and resistance –as has the ALI– during the past 30-40 years21 in spite of the ALI’s efforts to both portray itself as and in fact be a nonpartisan organization rather than an interest group for client interests. The shorthand expression of this sentiment frequently used by ALI members is that they “Leave Clients at the Door” when conducting Institute business22.

Although the ALI is very much an “establishment” group drawing much economic support from corporate America, it has attempted not to serve as a vessel for the interests of commercial actors such as clients and contributors. While decidedly “insider,” and friendly to the status quo, the ALI historically has differed from organizations such as the U.S. Chamber of Commerce or the National Association of Manufacturers who have an avowed purpose of promoting members interests. By contrast, ALI’s orientation has been the greater interest of the justice system and society, which has tended to make it more of a “liberal establishment” rather than a group rigidly defending the status quo23.