"When, finally, it goes out under the name and with the sanction of the Institute, after all this testing and retesting, it will be something less than a code and something more than a treatise. It will be invested with unique authority, not to command, but to persuade. It will embody a composite thought and speak a composite voice. Universities and bench and bar will have had a part in its creation. I have great faith in the power of such a restatement to unify our law." Benjamin N. Cardozo, The Growth of the Law 9 (1924).
1923-1944: Restatements (First)
1952-1986: Restatements (Second)
1987-Present: Restatements (Third)
Please note that each successive edition does not necessarily override an earlier edition. While updated coverage on a topic indicates the American Law Institute believes the old version is outdated, the Restatements are not sources of law and a jurisdiction is under no duty to adopt a newer edition (or any edition for that matter). As such, "old" version may be the best representation of the current law in some jurisdictions.
"Restatements of the law are produced by the American Law Institute (ALI), an organization comprised of prominent judges, law professors, and attorneys. The ALI was established when attorneys and judges became concerned that the growth and complexity of case law threatened to break down the common law system with too much law.* Because of the increasing amount and complexity of case law, the Restatements are an attempt to clarify and to restate the law that already exists. Originally the ALI set out to state the majority rule, even if there was a consensus among ALI members that the minority rule was wiser. In contrast ALI's current practice is to adopt the minority rule if the members think the minority rule is wiser than the majority."** Darla Jackson, Restatements of the Law Guide (2005).
"Restatements are currently in their 3rd series. As new subjects are covered they are named for the series in which they are released. For example the Restatement 3rd of Unfair Competition (1993) is actually the 1st restatement on the subject," Darla Jackson, Restatements of the Law Guide (2005), but is was published during the 3rd series. "Between 1923 and 1944, Restatements were adopted for the law of agency[,] conflict of laws, contracts, judgments, property, restitution, security, torts, and trusts. Most of these have been reissues in the Restatement (Second) series. Restatement (Third) covers foreign relations law of the United States, trust (prudent investor rule), and unfair competition. Although the ALI intends for promulgation of a new restatement to serve to supersede previous restatement[s], some courts may not adopt the newer version and may cite to the older version which the court may have previously adopted.**" Id.
THE RESTATEMENTS ARE NOT BINDING AUTHORITY. While the Restatements are full of tests, elements, factors, and - occasionally - statute-like design, the restatements are only a secondary resources. While courts across the country, both state and federal, have cited the restatements numerous times - over 160,000 times as of 2004*** - in court opinions, they remain a secondary source. The Restatements most often come into play, in court, when an issue is of first impression in that jurisdiction or when a party or the court is looking to change the way they address the issue, e.g., minority jurisdiction changing to a majority rule.
* Roy M. Mersky & Donald J. Dunn. Fundamentals of Legal Research 405 (8th ed. 2002).
** Chrisina L. Kunz, et al., The Legal process 103, 104, 112 (6th ed. 2004).
*** American Legal Institute, Published Case Citations to Restatements of the Law as of march 1, 2004, Appendix to the Director's Report.
