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Abstract
The American Law Institute ("ALI") set out to restate the general common law in the United States in order to promote clarity and certainty in the common law, which were threatened by "the ever increasing volume of the decisions of the [different state] courts, establishing new rules or precedents, and the numerous in- stances in which the decisions are irreconcilable." Clarity and certainty in the common law across the United States, of course, re- quires uniformity. Naturally enough, then, the Institute recognized that a Restatement would promote clarity and certainty in the law only insofar as "the legal profession accepts the Restatement as prima facie a correct statement of the general law of the United States."
The Second and Third Restatements recognized additional objects: to correct errors in earlier restatements, to reflect changes in the common law since earlier restatements, and, in limited circumstances, to promote clearly desirable reform. None of these additional objects can be secured without first achieving uniformity, certainty, and clarity. The original object, therefore, remains of primary importance.
This primary object seems to have clear implications for the form of a restatement. Uniformity, clarity, and certainty in the law would be enhanced by a "black-letter" restatement of the law. The black-letter law could be in the form of specific rules applicable directly to a set of facts, or in the form of standards, with enough specificity to give understandable guidance to the decision-maker called upon to apply the standard to a specific set of facts. The American Law Institute has taken these implications to heart; each restatement is in the form of a set of black-letter rules or standards, with commentary. When there are conflicting specific rules in different states, each restatement adopts one of the rules rather than formulating a legal directive at a higher level of generality that could plausibly describe both of the conflicting rules.
In an important sense, then, the primary object of the Restatement project limits the form that any restatement can take, because the goals of uniformity, clarity, and certainty can be achieved only if the law is restated with clarity in a form that can be applied uniformly to yield predictable, certain results.
Recommended Citation
Patrick J. Kelley,
Restating Duty, Breach, and Proximate Cause in Negligence Law: Descriptive Theory and the Rule of Law,
54 Vanderbilt Law Review
1039
(2001)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol54/iss3/13