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Are 'Restatements' from prominent group reshaping law?

By W.J. Kennedy | May 26, 2016

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WASHINGTON (Legal Newsline) - A series of memos that energized a core opposition of more than 100 lawyers won the day at a packed Ritz-Carlton ballroom.

The annual meeting of the American Law Institute (ALI) ended in Washington, D.C., last week - not in the utopia hoped for by the social engineers, but in a show-of-hands victory for those concerned about what they feel is an ideological shift in the ALI.

“What’s going on there (at ALI) needs to be exposed and then rolled back,” said longtime journalist and lawyer Stuart Taylor, Jr.

It was Taylor and others who helped organize the opposition to a proposed expansion of what constitutes sexual assault under the law. It was the latest issue that drew attention from detractors of the group, which is tasked with clarifying, or “restating,” current law.

ALI’s restatements and model codes are used as guidelines by judges in deciding cases. The group consists of approximately 4,500 lawyers and judges, but the research and writing, which can take several years, are done by a few “reporters” selected by ALI leadership.

The influence is not limited to the crimes code project but the entire breadth of the law, including how America does business. Other projects on which ALI is working, for instance, include copyright law, consumer contracts, intentional torts and liability insurance.

But its recent “Restatements” miss the meaning of that word, some, like late U.S. Supreme Court Justice Antonin Scalia, say. He wrote in a 2015 opinion that modern Restatements are “of questionable value.”

“Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be,” he wrote.

Scalia wrote that a restatement regarding restitution and unjust enrichment issued in 2010 was a “novel extension” of the law that had little, if any, support in case law.

ALI member Chris Sprigman, a professor at New York University School of Law, has been appointed as a “reporter” to work on a possible Restatement regarding copyright law. He defends the direction of the group.

“The idea that ALI would do something radical is nonsense,” he said.

“That’s not the role of the institution.”

Another member doesn’t agree. Ronald Rotunda, professor of law at Chapman University School of Law and a member of ALI since the late 1970s, says the ALI has a focus on becoming more politically correct.

“It’s more about driving an agenda and representing clients than clarity and fairness in the law,” he said.

In response to a May 2015 Restatement that dealt with assault and battery, Rotunda was frustrated enough to put his thoughts in a commentary that was published by the Wall Street Journal.

The Restatement defined the tort of battery as any contact with another person that “offends a reasonable sense of personal dignity” or is highly offensive to another person’s “unusually sensitive sense of personal dignity, and the actor knows that the contact will be highly offensive to the other.”

Rotunda wrote that the law requires that a battery must include offensive contact or touching in order to exclude the occasional bumps we experience walking through a crowd.

“And the law always measured what constituted an offense based on the views of a reasonable person,” he wrote.

“That way a judge can dismiss a frivolous claim. However, the American Law Institute now proposes that personal contact is a tort if the defendant knows that it will be offensive to someone who is ‘unusually sensitive.’”

Add Ohio lawmakers to the list of ALI’s critics. They preemptively rejected a Restatement regarding premises liability that opened homeowners and businesses to tort claims by trespassers injured on their property.

Ohio’s legislature in 2012 codified the existing common law before state courts could adopt ALI’s new standard.

In 2015, ALI issued its first Restatement of Employment Law. According to Simone R.D. Francis of Ogletree Deakins, it helps whistleblowers and employees who refused to abide by management's directives make public-policy claims in wrongful discharge lawsuits.

Another issue concerns a request for ALI to restate copyright law, traditionally based in the federal Copyright Act. The responsibility of "reporter" has fallen on Sprigman.

Sprigman said the ALI is not subject to lobbying efforts, like Congress and the U.S. Copyright Office. He said restatements aren't developed through backroom dealings - the process is "very open" and collaborative.

"(The) reporter has to go through (the draft restatement) line-by-line in front of hundreds and take questions," he said.

Meanwhile, those who opposed the sexual assault restatement at last week’s meeting said it would not deter the guilty but only punish the innocent.

The change would have required communicating willingness verbally (“Yes, I want you.”), or indicate willingness through gestures (“She pulled me onto the bed.”).

Without proof of a “yes” or gesture, a prosecutor has only to convince a jury that sex took place, the opposition said.

Taylor, who is not a member of ALI, said the change would shift the burden of proof, requiring the one accused to prove consent rather than requiring the accuser to prove unwillingness.

“Opponents of the distortion of consent deleted ‘communicates,’ which essentially gutted it,” Taylor said. “But it will be back. It would be too embarrassing after four years of work to walk away with nothing.”

Taylor notes that the reporter, Stephen Schulhofer (whom Taylor called “brilliant” but driven by ideology) and associate reporter Erin Murphy, explained in an introductory note to an early draft of the restatement that they wanted to criminalize “commonplace or seemingly innocuous” behavior in order to change “existing social expectations” and reshape social norms.

“The gender warriors will keep trying to get their sex crime agenda through the front door, the back door, the windows or any opening,” Taylor said.

After amending and approving the consent section, another section “Sexual Penetration Without Consent,” never came up for a vote. It would have created a sex crime felony that would criminalize even the behavior of giving someone a wedgie.

Taylor said as little as a month before the May 17 meeting, leading critics of the proposal feared the drafts might be accepted by the full body for lack of participation - ALI members can only vote in person.

But the series of memos led to more than 100 lawyers showing up on the day of the vote to successfully oppose the proposal.

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Organizations in this Story

Wall Street JournalThe American Law Institute