LECTURE NOTES FOR
RESTATEMENTS OF THE LAW
© Copyright 1999 by Suzanne Ehrenberg and Susan Valentine
10th Floor Reserve Room and 9th Floor Stacks
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What are Restatements of the Law and How are They Useful in Legal Research?
Restatements are secondary sources that seek to "restate" the legal rules that constitute the common law in a particular area. They are written by the American Law Institute (ALI), a prestigious legal organization composed of noted professors, judges and lawyers. The ALI has completed Restatements in 15 areas of law including Torts, Contracts, Property, Conflict of Laws, Foreign Relations Law, and Products Liability.
In drafting a Restatement, the ALI divides the law analytically into hundreds of key legal issues or situations and then writes a rule of law governing that issue or situation, based on the rule preferred by the majority of states (or in some instances, the rule preferred by the drafting committee). Each rule is given a section number and is follow by "Comments" which explain the rule and the reasons for its adoption. Sometimes the Comments are followed by "Illustrations," which show how the rule would apply in specific fact situations. Finally, most Restatement provisions conclude with "Reporters Notes," which give the history of the provision and cite to the authority from which the rule is derived.
Restatements are one of the most highly regarded types of secondary authority and have exerted considerable influence on the judicial process. Many courts have adopted Restatement sections verbatim as the law of their jurisdiction. Moreover, many law professors rely on Restatements in their courses as the definitive source of "black letter" law.
Restatements can be very useful in situations where the law in the jurisdiction you are researching is unclear or non-existent. In such a situation, you can rely on the Restatement to provide a clearly articulated rule that is most likely the one adopted by a majority of jurisdictions. Alternatively, where the jurisdiction whose law you are researching has adopted a Restatement section (or cited it with approval), you can use the comments and illustrations to that section to interpret and apply the legal rule. In addition, because Restatements are heavily annotated with case citations, they can be an excellent case-finding tool.
Most of the Restatements are published in both a first and a second series. And several Restatement topics, such as Product Liability and Foreign Relations Law, are now published in a third series. The later series of a Restatement does not technically repeal the earlier series because some states have adopted a variety of Restatement sections from different series. Thus, you may still need to consult an earlier series of a Restatement in order to interpret a case that has adopted a section from that Restatement. On the other hand, if you are using the Restatement to fill a gap in the law of the jurisdiction whose law you are researching, it makes sense to consult the most recent series.
Each Restatement consists of a set of topical volumes, which contain the actual legal rules and drafters' commentary, and a set of Appendix volumes, which contain summaries of cases which have adopted or interpreted the Restatement rules.
Let's look more closely at one of the topical volumes of a Restatement - the Restatement Second of Torts. Notice that the legal rule is printed in bold-face and is structured very much like a provision in a statute. Like a statute, it is broken down into tabulated sections.
Following the Restatement provision you will see a section labeled "Comments." The Comments are written by the drafters of the Restatement to explain the provision and identify its limitations. If the provision addresses an area of law about which there is disagreement among jurisdictions, the comment will explain why the Restatement adopts one position as opposed to the other.
The "Illustrations" sections of the Restatement provide examples of how a particular Restatement provision would apply in specific factual situations. Many of these Illustrations are based on actual cases.
In most Restatements of the Second Series, each Restatement section in a topical volume concludes with a Reporter's Note. The only exception is the Restatement Second of Torts, where the Reporter's Note appears in the first volume of the Appendix. The Reporter's Note explains the relationship between that provision in the second Restatement and related provisions in the first Restatement . For example, provisions from the old Restatement may have been merged, rewritten or eliminated in the new Restatement. The Reporter's Note also identifies the names of the cases on which the Illustration hypotheticals are based. Finally, they may explain Restatement comments more fully and cite to relevant secondary authority.
If you are interested in finding cases that have cited a particular Restatement rule, comment or illustration, you must consult the Appendix volumes, which are generally shelved at the end of the topical volumes of the Restatement. The Appendix volumes occupy a lot of shelf space. For example, there are 17 Appendix volumes for the Second Restatement of Torts alone.
In the Appendix you will find digests of cases that have cited the provision of the Second Restatement which you are researching. You may also find digests of cases that have cited to any predecessor provision in the First Restatement. And you will find cross-references to related West key numbers and A.L.R. Annotations.
You should be aware that the Appendix volumes may be organized and formatted differently in different Restatements of the Law. For example, as noted earlier, the first volume of the Appendix to the Restatement Second of Torts contains Reporter's Notes, and is the only volume in which you will find cross-references to West key numbers and ALR's. So be prepared for some inconsistency among Restatements or even within different volumes of the same Restatement.
How Do I Find a Restatement and a Relevant Section Within It?
Suppose your assigning partner asks you to research an issue involving the tort of malicious prosecution. Your client instigated the arrest of his ex-wife for child neglect, knowing she was innocent of the crime. She was released shortly after her arrest and was never prosecuted. You have been asked whether merely instigating the arrest of another who is not ultimately prosecuted constitutes malicious prosecution. Your state recognizes the tort of malicious prosecution, but has never decided a case addressing this specific issue. This is an ideal case in which to consult the Restatement of Torts, but how do you find the Restatement in the library and how do you find the section in it which deals with your issue?
Remember from our discussion of treatises that you may use CLARK, the on-line catalogue, to search for the call number and location of a book by title, author or subject. A search on CLARK for the Restatement Second of Torts reveals that its call number is KF 1250 and that it is located both in the stacks and in the 10th floor reserve room.
The 10th floor reserve room contains the most complete collection of Restatements in the library, so that is the best place to go. A word of warning: even on the 10th floor the Restatements are often disorganized and volumes may be misshelved, so proceed carefully and with patience whenever you do Restatement research in the library. And please reshelve your books properly so that you do not aggravate the problem.
Once you have located the relevant Restatement, you need to use the Index or Table of Contents to identify the section in the Restatement that pertains to your legal issue. The cumulative index to each Restatement is located at the end of the last topical volume in the series.
If we look up the phrase "malicious prosecution" in the cumulative index to the Restatement Second of Torts, it refers us to Volume 3 of the Restatement. We must then go to Volume 3 and look at its index for a more complete breakdown of sections pertaining to malicious prosecution. That index identifies Section 654(2)(c) as dealing with the issue of arrest. And, if we look up Section 654(2)(c) in the Restatement and read its interpretive comments we find the answer to our question. In fact, there is an Illustration case that precisely mirrors our fact situation. Our client can be found liable for malicious prosecution if he initiated or procured the lawful arrest of his ex-wife on a criminal charge even though she was released without being prosecuted.
Although you may occasionally have a research project like this one which requires you to identify a Restatement section from scratch, in many instances you will have already found a initial reference to a Restatement section in a court opinion, law review article or treatise. In that case, you can go straight to the relevant section in the Restatement. Even when you know the relevant Restatement section number, however, it always makes sense to peruse the Table of Contents for that volume to see if there are any related sections.
How Do I Update My Restatement Research?
Restatements of the Law are not amended on a regular basis, like statutes are. Indeed, it may take 40 years or more before a new series of a Restatement is published. Some Restatements, like the Restatement of Restitution, have only been published once and have no second or third series. Others, like the Restatement of Foreign Relations Law, are now published in a third series. As noted earlier, if your state has adopted a specific provision and series of a Restatement, then you should do your research in that series of the Restatement, even though it may not be the most recent one published. On the other hand, if you are using the Restatement to fill a gap in the law, you should work with the most recent series. To make sure you are working with the most recent series of the Restatement available, consult CLARK.
In order to do a complete, up-to-date survey of cases that have cited a particular Restatement section you must consult multiple volumes of the Appendix. The Appendix volumes each cover a specific span of Restatement sections (e.g. Secs. 588 - 707A) and a specific span of time (e.g. 1978-1987). You must therefore begin with the first volume of the Appendix covering your section and work forward, making sure you have examined volumes and pocket parts covering all the years from the date of the Restatement until the present.
To find cases citing Section 653 of the Restatement Second of Torts, for example, you should consult the first volume of the Appendix for that section, which digests cases from the date of the Restatement until 1977. You should consult the second volume of the Appendix for that section, which digests cases from 1978 to 1987. Finally, you should consult the pocket part to the second volume, which digests cases from 1987 through 1997.
Not every Restatement is updated in precisely the same way. Some provide a pocket part at the back of each volume of the Appendix, while others provide one large pocket part in the back of the last volume of the Appendix. Some Restatements have softbound supplements and others do not. In short, you must be very careful to consult every book necessary to bring your research up to date.
The most thorough and reliable method of obtaining citations to cases citing a particular Restatement section is to use Shepard's Restatement of the Law Citations (which will be discussed in a subsequent research tutorial).
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