In American jurisprudence, the Restatements of the Law are a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law. There have been three series of Restatements to date, all published by the American Law Institute, an organization of legal academics and practitioners founded in 1923.
Individual Restatement volumes are essentially codifications of case law, which are common law judge-made doctrines that develop gradually over time because of the principle of stare decisis. Although Restatements of the Law are not binding authority in and of themselves, they are highly persuasive because they are formulated over several years with extensive input from law professors, practicing attorneys, and judges. They are meant to reflect the consensus of the American legal community as to what the law is (and in some cases, what it should become). As Harvard Law School describes the Restatements of the Law:
Each Restatement section includes a Black Letter principle, Comments and Illustrations, and, in the form of Reporters' Notes, a detailed discussion of most all the cases that went into the principle summarized in that one section. By citing a Restatement section in a legal brief, a lawyer may bring to the attention of a judge a carefully studied summary of court action on almost any common law legal doctrine. The judge can then consider the Restatement section and make an informed decision as to how to apply it in the case at hand. While courts are under no formal obligation to adopt Restatement sections as the law, they often do because such sections accurately restate the already-established law in that jurisdiction, or on issues of first impression, are persuasive in terms of demonstrating the current trend that other jurisdictions are following.
All told, the Restatement of the Law is one of the most respected and well-used sources of secondary authority, covering nearly every area of common law. While considered secondary authority (compare to primary authority), the authoritativeness of the Restatements of the Law is evidenced by their acceptance by courts throughout the United States. The Restatements have been cited in over a 150,000 reported court decisions.
In December 1923, Benjamin N. Cardozo explained the prospective importance of the Restatements in a lecture at Yale Law School:
--Benjamin N. Cardozo, The Growth of the Law (New Haven: Yale University Press, 1924), 9.
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In the period from 1923 to 1944, the American Law Institute published Restatements of Agency, Conflict of Laws, Contracts, Judgments, Property, Restitution, Security, Torts, and Trusts.
In 1952, the Institute started the Restatement Second — updates of the original Restatements with new analyses and concepts with and expanded authorities. (A Restatement on Foreign Relations Law of the United States was also undertaken.) The Second Restatement of the Law was undertaken to reflect changes and developments in the law, as well as to implement a new format that provided more expansive commentary and more meaningful illustrative material, affording fuller statements of the reasons for the positions taken. For example, the volumes generally included a set of Reporter's Notes that detailed the reasons on which the principles and rules stated were based and the authorities that supported them. And for the convenience of legal researchers, the second series of volumes also provided cross-references to the key numbers of the West Publishing Company's Digest System and to the A.L.R. annotations of the Lawyers Cooperative Publishing Company. In addition, appendix volumes included digest paragraphs of decisions of state appellate courts and federal courts citing the Restatements on each subject.
The third series of Restatements was started in 1987 with a new Restatement of the Foreign Relations Law of the United States. The Restatement Third now includes volumes on Agency, the Law Governing Lawyers, Property (Mortgages, Servitudes, Wills and Other Donative Transfers), Restitution and Unjust Enrichment, Suretyship and Guaranty, Torts (Products Liability, Apportionment of Liability, and Physical and Emotional Harm), Trusts, and Unfair Competition. New Restatement projects on Employment Law, and the U.S. Law of International Commercial Arbitration are currently underway as part of the Restatement Third series.