Restatements and Non-State Codifications of Private Law

This paper offers a vantage point through which to assess the phenomenon of projects codifying private law that are undertaken by private persons or institutions, distinct from legislatures and state-sponsored codification and law-revision projects. The private institution on which this paper focuses is the American Law Institute (ALI). ALI works in statutory form—most notably the Uniform Commercial Code and the Model Penal Code—as well as through projects that generate “Principles” to guide legal development within their specific fields and “Restatements” that authoritatively cover the law in a field. The history of the Restatements sketched in this essay fits within the prototype of Searching for Utopia with which the paper begins. Although the Restatements do not control their subsequent reception by courts, at times Restatements succeed in anticipating legal development. This paper also demonstrates that ambiguity accompanies the underlying terminology of authority and, for that matter, private law. Finally, and for many reasons, contemporary Restatements speak to an audience of disbelief in the existence of one common law that exists autonomously of invading influences, including statutes. How to assess authority, influence, and success for a Restatement are more interesting question