Go to the U of M home page.

THE AMERICAN LAW INSTITUTE AND ITS PROJECTS

Background

 

Significant portions of this document are reproduced from the Overview portion of the American Law Institute web site: http://ali.org/index.cfm?fuseaction=about.overview, as of May 6, 2011.  Reprinted with permission.

Creation

The American Law Institute (ALI) was founded in 1923 following a study conducted by a group of prominent American judges, lawyers, and teachers known as "The Committee on the Establishment of a Permanent Organization for the Improvement of the Law."

The Committee had reported that the two chief defects in American law, its uncertainty and its complexity, had produced a "general dissatisfaction with the administration of justice." According to the Committee, part of the law's uncertainty stemmed from the lack of agreement on fundamental principles of the common law, while the law's complexity was attributed to the numerous variations within different jurisdictions of the United States.

The Committee's recommendation that a lawyers' organization be formed to improve the law and its administration led to the creation of ALI. The Institute's mission, as set out in its charter, is to "to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work."

ALI's incorporators included Chief Justice and former President William Howard Taft, future Chief Justice Charles Evans Hughes, and former Secretary of State Elihu Root. Judges Benjamin N. Cardozo and Learned Hand were among its early leaders.

Since 1947 the Institute has collaborated with the American Bar Association in a national program of continuing legal education, American Law Institute-American Bar Association Continuing Professional Education (ALI-ABA). ALI-ABA's multimedia approach to continuing legal education comprises a comprehensive range of educational materials and services.

Projects

The American Law Institute, through a careful and deliberative process, drafts and then publishes various restatements of the law and proposals for legal reform. Its projects generally are assigned to one of three broad categories: Restatements, Model or proposed legislation, or Principles.

The Restatements. Between 1923 and 1944, Restatements of the Law were developed for Agency, Conflict of Laws, Contracts, Judgments, Property, Restitution, Security, Torts, and Trusts. In 1952, the Institute started the Restatement Second - works that covered subjects not included in the first Restatement, as well as new editions of the original Restatements that updated them and reflected new analyses and concepts.

A third series of Restatements was inaugurated in 1986 and continues today. In addition to the initial subjects, the series now includes Foreign Relations Law of the United States, The Law Governing Lawyers, Suretyship and Guaranty, and Unfair Competition.

Court cases discussing or citing any of the Restatements are found in the title Restatement in the Courts that covers 1934 to 1976 and in the appendices to the corresponding hardbound Restatement volumes. These case annotations are updated by supplements, pocket parts, and paper pamphlets. The latest updates are provided by the title Interim case citations to the Restatements and Principles of the law.

Restatements are addressed to courts and others applying existing law. They aim at clear formulations of common law and its statutory elements or variations and reflect the law as it presently stands or might plausibly be stated by a court. Restatement black-letter formulations assume the stance of describing the law as it is.

Model Codes. For more than half a century ALI has collaborated with the National Conference of Commissioners on Uniform State Laws in developing and monitoring the Uniform Commercial Code, a comprehensive code addressing most aspects of commercial law. Other Institute projects have resulted in the development of model statutory formulations including the Model Code of Evidence and the Model Penal Code.

Model codes or statutes and other statutory proposals are addressed mainly to legislatures, with a view toward legislative enactment. Statutory formulations assume the stance of prescribing the law as it shall be.

Principles of the Law. The Institute also engages in intensive examination and analysis of legal areas thought to need reform. This type of study generally culminates in extensive recommendations for change in the law and usually is published as Principles of the Law. These projects have dealt with topics such as Aggregate Litigation, Corporate Governance, Family Dissolution, Software Contracts, Transnational Civil Procedure, Transnational Insolvency, and Transnational Intellectual Property, as well as a proposed revision of selected portions of the Federal Judicial Code.

Principles may be addressed to courts, legislatures, or governmental agencies. They assume the stance of expressing the law as it should be, which may or may not reflect the law as it is.

Project Development and Drafting Cycle

The nature, content, and scope of each project are initially developed by its Reporter in consultation with the Institute's Director. The Director's recommendations that particular projects be undertaken and designations of specific Reporters are subject to the approval of the Council or Executive Committee.

A project is developed in a series of drafts prepared by the Reporter and reviewed by the project's Advisers and Members Consultative Group, the Council, and the ALI membership. Preliminary Drafts and Council Drafts are available only to project participants and to the Council. Tentative Drafts, Discussion Drafts, and Proposed Final Drafts are publicly available.

The project's Reporter initially prepares a Preliminary Draft of one or more substantial segments of the project for review by the Advisers. Preliminary Drafts are normally also reviewed by the Members Consultative Group for the project.

When the Director determines that the subject matter of a Preliminary Draft is ready for consideration by the Council, the Reporter prepares a Council Draft, which incorporates revisions made in light of the previous review by the Advisers and Members Consultative Group. Upon completion of its review, the Council may decide that all or part of the draft should be revised and resubmitted. Most often it will conclude that all or part, subject to revisions agreed to, should be submitted to the ALI membership at an Annual Meeting.

A Tentative Draft, incorporating any revisions directed or agreed to by the Council, is submitted to the Annual Meeting for action by the membership. It is distributed in advance to the membership as a whole, which is invited to submit written comments and suggestions, and it is also made available to the entire legal community. At the close of the discussion, the Tentative Draft, subject to any changes resulting from the Annual Meeting, may be approved in whole or part or remanded in whole or part to the Reporter for further revision and eventual resubmission to the membership.

The Council may conclude that a draft is not yet ready for action by the membership but would nevertheless benefit from discussion at the Annual Meeting. It may therefore direct that the draft, as revised following the Council Meeting, be submitted to the membership for discussion only. Such a draft is denominated a Discussion Draft.

The drafting cycle continues until each segment of the project has been accorded final approval by both the Council and the membership. When extensive changes are required, the Reporter may be asked to prepare a Proposed Final Draft of the entire work, or appropriate portions thereof, for review by the Council and membership. Review of such a draft is not de novo, and it will ordinarily be limited to consideration of whether the changes previously decided upon have been accurately and adequately carried out. Upon final approval of the project, the Reporter, subject to oversight by the Director, prepares the Institute's official text for publication.

The final product, the work of highly competent group scholarship, thus reflects the searching review and criticism of learned and experienced members of the bench and bar. Many Institute publications have been accorded an authority greater than that imparted to any legal treatise, an authority more nearly comparable to that accorded to judicial decisions.

Project Participants

A project's Advisers are designated by the Institute's Director, in consultation with the Reporter and subject to approval of the Council or Executive Committee. They are selected for their particular knowledge and experience of the subject or the special perspective they are able to provide. They constitute an intellectually and geographically diverse group of practitioners, judges, and scholars and normally include one or more members of the Council.

Members Consultative Groups consist of Institute members who have a special interest in the project's subject. Each group meets no more than annually to review a Preliminary Draft. Members may join a group at any time.