The State Bar Association of North Dakota Winter 2013 Gavel Magazine | Page 37

Yet, everyone has a point of view, even judges and academics. xxix And concerning practicing attorneys, it should come as no surprise that a member’s personal point-of-view often matches that of his or her clients. Lawyers, after all, tend to gravitate toward work that they find satisfying. The entire process of preparing an ALI work can take a decade or more. For example, the recent Restatement Third of Torts: Liability for Physical and Emotional Harm, took thirteen years from start to finish. xxx Here is how the process works: The director of the ALI, who has active charge of the ALI’s work, and the ALI council, the equivalent of a board of directors, select a reporter (or reporters) for the project. xxxi The reporter is usually a legal scholar who is an expert in the area of law being addressed, and who agrees to devote the substantial time required to prepare the work. xxxii The reporter prepares a preliminary draft of a part of the project, and then circulates it to the project’s advisers, and a members consultative group. xxxiii The advisers are a group of about ten to thirty ALI members, chosen by the council, who have expertise or practical experience in the subject matter. xxxiv The members consultative group is a group of ALI members who volunteer to review the work and express their opinions. xxxv After receiving input from the advisers and the members consultative group, the reporter prepares a council draft, and submits it to the council. The council has the power to direct changes in the draft. xxxvi Next, the reporter prepares a tentative draft that the ALI submits to all its members before the annual meeting. At the annual meeting, members can vote to amend the draft, recommit all or a portion of it, or approve it. xxxvii The process repeats itself until the project is complete. xxxviii When the ALI membership has approved all the parts of the project as tentative drafts, the ALI submits the entire package to the membership as a proposed final draft. The proposed final draft allows the membership one last chance to make changes. xxxix In preparing the Restatements, tension has always existed between restating the law and recasting it. For example, if a legal principle is brand new, how many courts have to adopt it before the ALI’s stating it can be called restating the law? Does it matter if the courts that have adopted the principle are trial courts or appellate courts? If there is a split in authority, can the ALI’s stating the current majority view be called restating the law when the minority view still has a chance of becoming the majority view? What if the ALI has a great idea but no court has yet embraced it? Part two of this article will address the forces at work when the Restatements go beyond restating the law, and recast it. i The American Law Institute, About ALI, ALI Overview, http://www.ali.org/indes. cfm?fuseaction=about.overview (last visited Dec. 10, 2012). ii The Am. Law Inst. Certificate of Incorporation (1923). iii The American Law Institute, ALI Overview, Creation, http://www.ali.org/index. cfm?fuseaction=about.creation (last visited Dec. 10, 2012). iv Lance Liebman, The American Law Institute: A Model for the The New Europe? v Benjamin Cardozo, The Growth of the Law 4 (1924). vi The Am. Law Inst., Annual Report 2011-2012 10 (2011-12). vii Liebman, supra note iv, at 13. viii V.I. Code Ann. Tit. 1, § 4; 7 N. Mar. I. Code § 3401. ix David G. Owen, The Puzzle of Comment j, 55 Hastings L.J. 1377, 1384 n.39 (2004); David Owen, Products Liability Law Restated, 49 S.C. L. Rev. 273, 277 (1998). x William E. Westerbeke, The Source of Controversy in the New Restatement of Products Liability: Strict Liability Versus Products Liability, 8 Kan. J.L. & Pub. Pol’y 1, 5 (1998). xi The American Law Institute, ALI Overview, InstituteProjects, http://www.ali.org./index. cfm?fuseaction=about.instituteprojects (last visited Dec. 10, 2012). xii Kristen David Adams, The Folly of Uniformity? Lessons from the Restatement Movement, 33 Hofstra L. Rev. 423, 432 (2004). xiii Robert C. Berring, Legal Research and Legal Concepts: Where Form Melds Substance, 75 Cal. L. Rev. 15, 23 (1987). xiv Liebman, supra note iv, at 8. xv Adams, supra note 12, at 433 n.44. xvi Id. xvii The American Law Institute, Publications, Publications Catalog, http://www.ali. org/index.cfm?fuseaction=publications. publicationscatalog(last visited Dec. 10, 2012). xviii Id., Projects, Current Projects, http:// www.ali.org/index.cfm?fuseaction=projects. currentprojects(last visited Dec. 10, 2012). xix Henry Gabriel, The Revision of the Uniform Commercial Code – How Successful has it Been?, 52 Hastings L.J. 653, 656-57 (2001). xx Sam Stonefield, Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment, 2011 Fed. Cts. L. Rev. 1, 6 (2011). xxi Paul H. Robinson & Markus D. Dubber, The American Model Penal Code: A Brief Overview, 10 New Crim. L. Rev. 319, 319 (2007). xxii The Am. Law Inst., Annual Report 2011-2012 12 (2011-12). xxiii The American Law Institute, Projects, Publications Catalog, http://www.ali.org/index. cfm?fuseaction=projects.main(last visited Dec. 10, 2012). xxiv Bennett Boskey, The American Law Institute: A Glimpse at its Future, 12 Green Bag 2d 255, 260-61 (2009). xxv The American Law Institute, Publications, Publications Catalog, http://www.ali.org/index. cfm?fuseaction=publications. categories&parent_ node=999(last visited Dec. 10, 2012). xxvi Id., Membershi p Overview, http://www.ali. org/index.cfm?fuseaction=membership.membership (last visited Dec. 10, 2012). xxvii The Am. Law Inst., Rules of the Council 2.05 (2007). xxviii Id. 2.03. xxix Id. 4.03. xxx Michael D. Green & Larry S. Stewart, The New Restatement’s Top Ten Tort Tools, Trial, April 2010, at 44. xxxi The Am. Law Inst., Rules of the Council 10.01 (2007). xxxii The American Law Institute, About ALI, ALI Overview, How the Institute Works, http://www. ali.org/index.cfm?fuseaction=about.instituteworks (last visited Dec. 10, 2012). xxxiii Id. xxxiv Adams, supra note 12, at 433 n.44. xxxv Id. xxxvi William T. Barker, Lobbying and the American Law Institute: The Example of Insurance Defense, 26 Hofstra L. Rev. 573, 576-77 (1998). xxxvii Id. at 577. xxxviii Id. at 577-78. xxxix Adams, supra, note 12, at 433 n.44. The Gavel February 2013 35