The Restatements are a secondary resource which seeks to explain (or restate) the principles of U.S. common law, on a variety of subjects. They are written by the American Law Institute.
There are three series of Restatements, but not every topic has three series, see list on the right.
Use the index for each particular Restatement to find which section your're looking for. Restatement sections themselves don't change, but the update process finds new cases which have interpreted them.
The Restatements are a secondary source published by the American Law Institute (A.L.I.) which aims to survey existing cases from every jurisdiction in the U.S. and find out the common rules in varous topics. See the list to the right for a sampling of the various topics the Restatements cover.
The A.L.I. was established in 1923 as a result of a study showing two chief defects in American law:
- Uncertainty
- Complexity
Lawyers, judges, scholars and professors who are members of the A.L.I. are assigned membership on committees and deal with individual topics. They survey the case law in these topics across the United States and hammer out, over many years, something which looks somewhat like statutes. The Restatements consists of chapters and sections, and each section is a separate rule which looks a bit like a statute; but remember they are only persuasive authority.
The standard these committees use is to adopt a rule that a court, faced with the issue for the first time, would find most persuasive.
Restatements are an authority unique to the law because:
Restatement sections are followed by an explanation of the rules called "Comments and illustrations", as well as citations to cases.
You will probably use the Restatements of Contracts Second and Torts Third heavily in your first year courses.
The various series (First, Second, and Third) of the Restatements can appear confusing at first. Unlike with cases, "3rd" does not mean, "we hit 999 and started over".
Instead, the first, second and third Restatements are divided by time. The first series was published from about 1923-1944, the second began in 1952, and the third in 1987. Notice in the list on your right that there are some topics, like Contracts, which have a first series and a second but no third (yet!) ; while "Foreign Relations Law of the United States" only appears in the third series.
Why is there a second series of any particular topic? Because the common law changes. The A.L.I. published the Restatement of Contracts (first) in the 1920s. Remember, the Restatements are supposed to be a general synthesis of the law across all U.S. jurisdictions- between the 1920's and the 1950s, Contract law changed and the A.L.I. began work on the Restatement of Contracts Second in 1962 and published it in 1979. They almost immediately began work on the Restatement Third, which is still being worked on.
So are the first or second series no longer worth using if there's a third on the same topic?
It depends.
While the Restatements are secondary authority, remember they are also persuasive authority. Courts often adopt certain sections as a statement of the rule in their jurisdiction, but newer series of Restatement don't affect that precedent.
For example, let's use The Restatement of Torts Second, §402A, which deals with product liability. A court, sometime in the 1980's might have said, "While we've never ruled on this issue in the past, we're persuaded by the rule in §402A of the Restatement of Torts, Second, and are going to use it." Courts from that jurisdiction will continue to use §402A as stated in that case, and any subsequent case from another jurisdiction which interprets §402A is also going to be very persuasive in this jurisdiction.
But, in the meantime, the law regarding products liability has exploded, and the A.L.I. has released an entirely new restatement which deals only with products liability, The Restatement of Torts, Third: Products Liability, which goes into much greater detail. Until the jurisdiction above explicitly says something about this new Restatement, you're still going to want to be talking about §402A of the Restatement of Torts, Second. The court will follow their own precedent, not the new rules in the Restatement of Torts, Third: Products Liability.
Change in Philosophy: Is v. Ought
There's a perception amongst some legal scholars that believes that while the first series and part of the second dealt with what the law "is", that somewhere during the second series and continuing into the third, that the A.L.I. has changed philosophy slightly and have begun issuing Restatements which say more what the law ought to be. For this reason, some courts don't give as much credence to newer Restatements, and in some cases have explicitly continued to use the Second series even when there's a Third series published.
If you want to find a particular section in the Restatements you can either use an index in the back or the table of contents in the front. Each topic in the Restatements has its own index- there is no one place to search both the Restatements of Contracts and Torts for example (you probably would never need to). Instead, each set has its own index. Some series have the index in the back of every volume, some only at the end of the basic set.
Basic Set?
The first time you have to consult the Restatements you might get lost looking at the shiny, newer volumes at the end of the set instead of the older, well-used earlier volumes in the set; but the first few volumes are where the Restatements themselves appear. They are the 'base' set, where the rules which make up the Restatements appear, followed by many appendix volumes. Everything else after those first few volumes are cases which have interpreted the Restatements.
For example, if you look at the Restatements of Torts, Second, you will see:
For example, if you were interested in the Restatements of Torts Second, § 39, you would first consult volume 1 to read the Restatement section itself, then the comments and illustrations which follow the section. Then, you would consult appendix 5 for cases up till 1977 which have interpreted it, then appendix 9, 10, etc.
Note - in the MLIC we have double copies of several of the Restatements which can confuse you further if you try to start looking things up in the second copy of volume one, instead of volume two.
While the Restatements are organized somewhat like statutes, with chapters and sections, they are not updated in the same way. Restatement sections are static. That is, the Restatement of Contracts Second §23 will always read exactly as it did when it was published in 1979, it will never change. At some point in the future the A.L.I. will probably publish a Restatement of Contracts Third which has a section very similar to §23 of the Restatements Second, but that section will not affect §23.
However, there will always be newer cases which interpret §23, and finding those newer cases makes up the updating process for the Restatements.
Cases which have interpreted sections of the Restatements can be found in the Appendix volumes (see box above), as well as in pocket parts. Each set of the Restatements has a different method of updating- some have pocket parts in individual volumes, some have them in only the last volume, and some use softcover supplements.
An incomplete list of Restatements just to give you a sense, see the ALI website for more:
Restatements 1st:
Restatements 2nd:
Restatments 3rd: