By Shawn G. Nevers
Shawn G. Nevers teaches legal research and is head of reference services at the Howard W. Hunter Law Library at Brigham Young University.
Nobel laureate Niels Bohr once remarked, “It is difficult to predict, especially the future.” Such was the case with Proposition 8 and the Restatement of Agency at the end of the Supreme Court’s latest term. Few likely foresaw that a Restatement would feature prominently in the back and forth between the majority and the dissent in Hollingsworth v. Perry, but, sure enough, the Restatement (Third) of Agency was right in the mix.
In Hollingsworth, Chief Justice John Roberts used a portion of the Restatement to support the majority’s holding that an agency relationship did not exist between petitioners and the state of California and, therefore, petitioners lacked standing. Justice Anthony Kennedy was not impressed, to put it mildly, by the majority’s reliance on the Restatement in this case.
This high-profile case is just one example of the influence of Restatements in the courts. Compared to other secondary sources, Restatements get a lot of love from the courts—making them a resource you should be familiar with. Restatements are not the law, but they are influential and can become part of the law if a court adopts them in a case’s holding.
One of the main reasons that courts generally think highly of Restatements is the rigorous drafting process they undergo. This ordeal makes a Survivor-like month on a deserted island look like preschool. The process of drafting, discussion, and revision by members of the bench, bar, and academy can last for years. The Restatement (Third) of Agency, for example, took over a decade to complete! The final draft of a Restatement is something that courts know has been thoroughly vetted by intelligent, well-qualified people.
The work that goes into a Restatement is the product of members of the American Law Institute (ALI). The ALI was created in 1923 with the goal of managing the expanding amount of case law by producing an authoritative source that would “restate” the common law.
In order to lay out the common law clearly, Restatements often follow the form of statutes. For example, take §518 of the Restatement (Second) of Torts—“Liability for Harm Done by Domestic Animals that Are Not Abnormally Dangerous”:
Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if,
(a) he intentionally causes the animal to do the harm, or
(b) he is negligent in failing to prevent the harm.
Very statutesque, as you can see. The comments that follow this section give further explanation on such things as the “amount of care required,” “knowledge of normal characteristics,” and “animals permitted to run at large.” These comments, and others, help researchers and courts understand more fully what the drafters intended this particular section to mean and how it should apply.
In addition to comments, many Restatement sections also have illustrations—not the Calvin and Hobbes type, although that would be fun. These illustrations demonstrate how a Restatement section actually works in practice and can give helpful insight into understanding the section. For example, in a Restatement section about possession of wild animals, one of the illustrations describes a situation where a circus elephant escapes and tramples someone’s car. The circus owner is liable under the Restatement.
Each Restatement section also provides a section of annotations—citations to cases which have cited that Restatement section. This allows researchers to quickly find all cases that have cited the Restatement section at hand. Many of the cases referenced have adopted the Restatement section into its law. Some courts, however, simply reject the application of a particular Restatement section, while others only adopt portions of it. Courts may also discuss, quote, follow, or reject the different comments accompanying a section. Care should be taken to read the cases in full and gain an understanding of how the Restatement section is being treated.
As a legal researcher, there are several different reasons you might use Restatements in your research. First, you may not have a case or statute in your jurisdiction that directly addresses the topic you’re researching. Finding an applicable Restatement section will give you a highly persuasive source to cite to the court. Second, you may already have a Restatement section that is cited in a relevant case you’ve found or a court doucment filed by the other side. In that case, you will want to look up the section and study its comments, illustrations, and annotations to further understand its application to your case. Finally, you may simply want a clear, authoritative statement on a portion of the law that is covered by the Restatements. Finding an applicable section will give you a good, concise overview of what the prevailing law is likely to be in most jurisdictions.
Because the ALI was originally attempting to “restate” the common law as it existed, Restatements generally reflect the position of the majority of jurisdictions. However, beginning with the Restatement (Second), Restatement sections sometimes endorse a minority position. The ALI examines trends in the law and the Restatements sometimes reflect where the law is going rather than the current majority position.
The ALI originally published Restatements on the topics of agency, conflict of laws, contracts, judgments, property, restitution, security, torts, and trusts. Later, the Restatement (Second) and Restatement (Third) made revisions to the original topics and added new topics, including foreign relations law, the law governing lawyers, suretyship and guaranty, and unfair competition. The Restatements on property and torts have been significantly expanded since the originals, and the ALI is currently working on a number of new projects including Restatements (Third) on employment law, information privacy law, and American Indian law, as well as a Restatement (Fourth) on foreign relations law.
Researching Restatements can be somewhat of a challenge these days. While some research tasks have gotten easier with the advent of WestlawNext and Lexis Advance, researching Restatements has not. These systems encourage you as the researcher to search across all content. The problem is that these systems bury Restatements, making them difficult to find unless you’re specifically looking for them.
For example, if I search in WestlawNext for liability for harm by domestic animals, no Restatements appear on my original results list. Even when I look at the “Secondary Sources” content type, no Restatements show up on my first page of hits. Not until I narrow the publication type to “Restatements of the Law” can I see a number of Restatement sections.
The lesson is that Restatements won’t come looking for you; you’ll have to go looking for them. When researching, you’ll want to be familiar with what Restatements are, how they might help you, and how you can find them. Because, while you can’t always predict the future, you can certainly prepare for it. n
Vol. 42 No. 2