“It is no exaggeration to say that the Restatement of the common law is the most difficult as well as the most important public work ever undertaken without the aid of government by the legal profession in this or any other country.” William Draper Lewis, “Present Status of the American Law Institute,” 11 NYU L Rev 337, 343 (1929).
This essay is about the importance and value of building shared “legal infrastructure,” which is a term coined by the eminent economist and law professor Gillian Hadfield in her book, Rules for a Flat World (2017).
Although legal infrastructure is likely a new term for many readers, I’m not going to spend even a sentence on defining it except to say that the most familiar and complete example—the kind of thing that enables so much else because of its elegant design, sturdy construction, and accessibility to all—is the Restatements of Law, which was the urgent project that compelled the creation of the American Law Institute nearly 100 years ago. Nonetheless, like a bridge that enables us to traverse a wide body of water as we sip our coffee and fiddle with the radio, we take its utility for granted in nearly direct proportion to our lack of knowledge regarding the circumstances that called for its creation and the sheer ingenuity, vision, and political skill of those who brought it to completion.
The purpose of this post is to tell a very interesting story about some of our forgotten shared history. Because the relevance of this story to the present time is likely to be obvious and compelling for regular Legal Evolution readers, I’ll save my editorial comments for the end. [PDF version of essay]
[Editor’s note: Law students are placed in the unenviable position of joining a complex professional dialogue with very little background or context; and within our insecure culture, to ask for an explanation is to invite an inference that the admissions office made a mistake. This is something I don’t want to perpetuate. Thus, for the benefit of the next generation of lawyers who are now seeking to gain their footing, I offer the following:
The all-important term “blackletter law” comes from the ALI’s Restatements of Law. The Restatements are authored by small groups of law professors and practitioners who are experts in a particular area of law. These groups carefully read and consider relevant cases and statutes from throughout the United States and concisely “restate” the law in a series of carefully organized and systematized legal principles. These principles, or what your law professor might refer to as “the rule” and thus form the basis of most law school exams, are numbered and expressed in bold blackletter type. Underneath the rule is a commentary that expresses the most cogent reasoning for the rule, how it’s typically applied, and in some cases, how it interacts with other related rules and bodies of law. See, e.g., Restatement of Torts, Second, § 652 (excerpt used in Harvard Law course on cybersecurity and privacy).
The ALI Restatements of Law are useful artifices for busy judges and practitioners. This sets in motion the secondary effect of causing the convergence of judicial reasoning and terminology that cuts across multiple jurisdictions. It also creates a stable doctrinal platform for law professors to debate “policy”—i.e., rationales for how the law should evolve, which is one of our favorite past times. Hence, you can attend law school in Maine and be comfortable that you can pass the bar exam in Oregon or Hawaii.
Indeed, this is the legal infrastructure upon which you are now building your career, albeit it has become like the bridge we cross to get to work—largely invisible and thus often taken for granted. wdh]
I. The “Big Bang” meeting in Washington, D.C.
Arguably, the most important event in this story took place in Washington, D.C. on February 23, 1923 in the auditorium of the Memorial Continental Hall, although the pre-history of what I’ll call the “Big Bang” meeting contains, by far, the most valuable and least obvious lessons. See Section III, infra. Thus, let’s start with the Big Bang before reviewing the intrigue of how it came to be.
Attendees at the February 23 meeting included three US Supreme Court justices, five justices of the US Circuit Court of Appeals, 27 state supreme court justices, the presidents or representatives of 17 state bar associations, the leaders and governing members of the American Bar Association and the National Conference of Commissioners on Uniform State Laws, 23 law school deans or professors representing the Association of American Law Schools, and nearly 200 “specially invited” practitioners and law professors from 28 states and the District of Columbia.
Of the Big Bang meeting, historian and law professor N.E.H. Hull writes:
Elihu Root [the former US Senator, US Attorney for the Southern District of New York, and Secretary of State, who presided over the event] commented at the close of the founding meeting that “I have been fifty-six years at the American bar, and that I have never seen so distinguished and competent meeting of the bench and bar as this.” The New York Times reported the next day that the meeting was “probably the most distinguished gathering of the legal profession in history of the country.”
N.E.H. Hull, “Restatement and Reform: The New Perspective on the Origins of the American Law Institute,” 8 L & Hist Rev 55, 85-86 (1990) [hereafter “Restatement and Reform”].
The occasion was for 300+ distinguished guests to receive the Report of the Committee Proposing the Establishment of an American Law Institute (1923) [hereafter “Report of the Committee”]. The official authors of the 105-page report were nearly four dozen prominent lawyers, judges, and law professors, albeit its principal drafter was the secretary of the Committee, William Draper Lewis, a popular and gregarious professor at University of Pennsylvania Law School who, from 1896 to 1914, served as its dean and was widely credited with transforming it into one of the few national law schools.
The gravamen of the Report was a growing complexity and uncertainty within the common law due primarily to the relentless growth in its sheer volume. The authors noted that, in 1917, the output of precedents of American and British reports totaled 17,000 and 7,000 volumes respectively, with another 180,000 pages published each year—a burden steadily increasing due to the rise of new administrative bodies. See Report of the Committee at 71.
“It is, of course, impossible,” the distinguished authors wrote, “for any individual lawyer or judge to read, still less by any device to carry in his mind, one one-thousandth part of this mass of case law.” Id at 72. Yet, it was the experience of the authors that study and research often made things worse, as the collected cases and statutes in the same or foreign jurisdictions seldom reflected common principles and terminology. Without some intervention, the authors reasoned, the doctrine of stare decisis (“to stand by things decided”) would eventually be swallowed whole, requiring either codification of the law, which created a different set of problems, such as injustice borne of inflexibility, or accepting outcomes increasingly driven by the discretion of overwhelmed judges.
Arguably, the bench and bar were in the advanced stage of a problem identified nearly a century earlier by Justice Joseph Story, who remarked in an 1821 address to a group of Massachusetts lawyers, “The mass of the law is, to be sure, accumulating with almost incredible rapidity. … It is impossible to look without some discouragement upon the ponderous volumes which the next half-century will add to the groaning shelves of our jurists.” Charles Warren, A History of the American Bar at 512 (1911) (quoting Story).
Likewise, in 1826, when James Kent published the first edition of his famous Commentaries on American Law, a complete set of American reports and statutes would have totaled 180 volumes, thus making it plausible that a single person of great intellect and industry could cover the entire field. Nonetheless, Kent himself lamented the “multiplicities of law books” as “an evil that has become intolerable.” Harlan F. Stone, “Some Aspects of the Problem of Law Simplification,” 23 Col L Rev 319, 320 (1923) (quoting Kent).
The proposed intervention to this sea of complexity, which the Big Bang meeting was designed to embrace and ratify, was the creation of a “Restatement of the Law,” Report of the Committee at 12, an idea that, at least in substance, traced back to the formation of “Digest of Law Commission” in England in 1866. George Wickersham, the Wall Street lawyer and former Attorney General who served as ALI’s first President, acknowledged the lineage, noting that the Commission used “[t]he word ‘digest’ … in the sense of what we term ‘restatement’ — a methodical compendium of what the law is, not merely a collection of abstracts of decisions arranged under various topics index for reference.” Wickersham, “The American Law Institute,” 72 Penn L Rev 1, 5 (1923).
The work of the Digest of Law Commission carried on for several years in England, producing work of considerable value. Yet, the work itself revealed the enormous cost and complexity of completing the task. One of the most significant challenges was navigating the impulse of wanting to improve the law without first doing the foundational work of stating what the law is. Thus, due to a mix of competing visions and insufficient resources, the Commission ultimately faltered and failed to complete the job. See Wickersham at 9-11.
Nonetheless, influential lawyers and judges in both England and the US continued to believe that such an endeavor would justify the enormous cost. Toward the end of the 19th century, US Circuit Judge John Forrest Dillon discussed the inevitability of “an authoritative and systematic recompilation and restatement” of the nation’s laws, thus reducing them to “cognoscible bulk, if not to those who are governed by them, at least to those whose business it is to advise concerning them, and at least to those whose duty it is to administer and apply them.” John F. Dillon, The Law and Jurisprudence of England and America at 269 (1894).
Even more prescient were the words of Justice Oliver Wendell Holmes in 1886 on the occasion of the 250th anniversary of Harvard University, who remarked, “The law has got to be stated over again; and I venture to say that in fifty years we shall have it in a form of which no man could have dreamed fifty years ago.” Herbert S. Hadley, “Legal Education and the American Law Institute,” 29 U Mo Bull L Ser 3, 13 (1924) (quoting Justice Holmes).
Four decades later, the nation’s leading judges, lawyers, and law professors were assembled in Washington to endorse such an effort. In his inaugural address, Elihu Root presented the vision:
Now, if you can have the law systematically, scientifically stated, the principles stated by competent men, giving their discussions of the theories upon which these statements are based, given a presentation and discussion of all the judicial decisions upon which their statements are based, and if such a statement can be revised and criticized and tested by a competent group of lawyers of eminence … you will have a statement of the common law of America … and any lawyer, whose interest in litigation requires him to say that a different view of law shall be taken, will have upon his shoulders the burden to overturn the statement.
Instead of going back to 10,000 cases, it will have been done for him; there will be not a conclusive presumption but a practical prima facie statement upon which, unless it is overturned, judgment may rest.
“Address of Elihu Root in Presenting Report of the Committee,” American Law Institute, Account of Proceedings at Organization at 51 (1923).
The resolution approving the formation of the American Law Institute was offered by George Wickersham and unanimously adopted by attendees. See “American Law Institute if Organized,” 9 ABA J 137 (Mar 1923). Thereafter, seven members acted as incorporators of the new entity, including Elihu Root, Walter I McCoy (Chief Justice of the DC Supreme Court), Charles Evan Hughes (then Secretary of State and future Supreme Court Justice), and William Howard Taft (former President and then Chief Justice of the Supreme Court). See The American Law Institute Seventy-fifth Anniversary 321 (ALI 1998).
II. The cost and skill necessary to build enduring legal infrastructure
The Big Bang meeting itself, including the production of the Report of the Committee, was funded by a $25,000 donation from the Carnegie Corporation, where Elihu Root served as a trustee. (Root had formerly served as Andrew Carnegie’s personal lawyer.) Shortly thereafter, the Carnegie Corporation agreed to fund the American Law Institute’s Restatements project through a $1,075,000 gift payable over ten years. See Wickersham at 16.
How much is $1.1 million worth in 2020 dollars? According to the Measuring Worth website, which compiles data to aid high-quality economic research, the nominal inflation-adjusted equivalent is $16.5 million, which is certainly a princely sum. Yet, if the funds are needed to purchase equivalent specialized production labor, which effectively adjusts for Baumol’s cost disease, see Post 042 (discussing cost disease in the legal industry); Post 184 (same), $1.1 million in 1923 is the equivalent of $74 million today. See Measuring Worth calculations.
Here, I ask the reader to stop and think about what you’ve just read, which is more than a recitation of our shared history. Consider these three questions:
- What is the likelihood that the Restatements project would have succeeded without the immense pre-work of securing, in advance, the endorsement of the opinion leaders of the American bar? Cf Hull, Restatement and Reform at 76-77 (discussing founders’ heavy reliance on “opinion leaders”); see also Post 020 (discussing crucial role of “opinion leaders” in setting off innovation adoption within a social system).
- Likewise, what savvy political maneuvering was necessary to secure the massive financial support of the Carnegie Corporation?
- Even more crucially, what did the early leadership of the American Law Institute do to ensure that Restatements would be utilized and embraced by the legal profession’s many disparate stakeholders?
To grasp the most valuable lessons from this improbable story, we need a careful review of the pre-history of the Big Bang meeting. After that, we’ll review the first decade of work on the Restatements, including the skillfully planned roll out to the bench, bar, and law schools.
III. The pre-history of the Big Bang
The February 23, 1923, organizational meeting of the American Law Institute was no doubt designed to capture the attention of the practicing bar, hence the marquee role given to the nation’s most well-known and respected lawyers and jurists and the widespread coverage of the proceeding in the mainstream press and bar journals.
Because the above is a freestanding insight that, in hindsight, we might place in the category of common sense, some readers may be tempted to skip over a lengthy section that tells the event’s pre-history in minute detail. That would be an enormous mistake, as too many of us spend our careers in the pre-history of unsuccessful projects, albeit we do so unknowingly. Here is where we can see an example of what it takes to get it right.
A. Progressive law professors
As masterfully told by N.E.H. Hull, a group of progressive law professors was the original driving force behind the American Law Institute and the Restatements of Law.
The story begins in 1906 at the annual meeting of the American Bar Association in St. Paul, Minnesota. At an evening session of the meeting, thirty-eight-year-old Roscoe Pound, former commissioner (judge) of the Nebraska Supreme Court and current dean of the University of Nebraska Law School, gave an address that shocked the old guard, galvanized his own generation, and marked the emergence of the modern era of American legal and jurisprudential history.
Pound’s address focused on the imprecise nature of the administration of justice. He laid the woes of law at the door of over-eager and legally naïve legislators, the nature of society, and most heretically, the judges. He criticized the bar and judiciary for allowing treatable symptoms to go uncorrected. Pound’s implicit sociological jurisprudence emphasized the cultural origins of law and its responsiveness, or recent lack thereof, to that extralegal bugaboo, public opinion. …
Pound articulated what many of his generation had begun to recognize: that the classical-formalistic paradigm of how the law was applied in the courts — how judges discover the law — had lost its explanatory power under the accumulation of contradictory data. The explosion of published reports of cases by the West Law Book Publishing Company had graphically illustrated inconsistencies between, and even within, jurisdictions. Complaints about the confusion of law and the multiplicity of cases … was the manifestation of the cognitive dissonance of a generation groping with this increasing contradiction between data and paradigm.
Restatement and Reform at 56-57. A furor then erupted at the meeting when a resolution was put forward to have Pound’s talk reprinted and distributed to ABA members who were not in attendance. Id at 57. Conservative practitioners responded by condemning Pound’s remarks as a “drastic attack” on the established order. Id.
Although the old guard successfully defeated the resolution, a cadre of progressive law professors and deans convened the next day to lick their wounds. William Draper Lewis, then dean of the University of Pennsylvania, was part of this group, as well as Dean John Henry Wigmore of Northwestern Law. According to Wigmore, who recalled the incident more than 30 years later, these progressive academic allies “resolved to do something about it in our own limited spheres.” John H. Wigmore, “Roscoe Pound’s St. Paul Address of 1906: The Spark that Kindled the White Flame of Progress,” 20 J Am Jud Soc’y 176, 178 (1937).
B. Navigating politics and agendas at the AALS
Over the next fifteen years, the dialogue on progressive reforms continued at annual meetings of the Association of American Law Schools. In 1914, progressive ambitions began to crystalize when Wesley Newcomb Hohfeld of Yale Law, a young protégé of Pound, gave a talk that advocated the creation of national juristic centers to promote research and training on much-needed law reform. See Restatement and Reform at 59.
The following year, the incoming president of the AALS, Dean Harry Richards of Wisconsin, favorably referenced Holfeld’s talk and suggested, in an offhand way, that Hohfeld’s idea “may be realized by the establishment under the auspices of this Association of a center for such studies in Washington [DC], where students can come in contact from time to time with representative American and European scholars in these broad lines of jurisprudence.” [Note how the vision of the center is distinctly academic in orientation. Later in the story, this becomes a source of intrigue. wdh.]
At the end of the speech, George Boke of the University of California, who was part of the cadre of young professors inspired by Pound’s 1906 speech, jumped up and moved that a committee be formed “to take under consideration what steps can be taken” to create such a center, in Washington or elsewhere. Restatement and Reform at 60-61. After some discussion, Boke, William Draper Lewis, and Joseph Henry Beale of Harvard Law became part of a newly formed committee to consider the issue.
It is noteworthy that Hohfeld’s idea was almost immediately swallowed up by issues of institutional prestige, as each professor and dean suggested that such a center would be best located at their institution; and that if it were independent and operated under the auspices of the AALS, it would be handicapped by a likely rivalry with the most elite AALS member schools. Restatement and Reform at 61-62. Indeed, the only thing resolved was that the committee should continue its work, which in turn was interrupted for the next three years by the United States’ entry into the First World War. Id at 65.
In the aftermath of WWI, the legal profession, like the rest of the nation, was grappling with the implications of toppled European governments and the rise of the Bolsheviks. The inherent conservativism of most members of the establishment bar meant that the American Bar Association tended to support aggressive measures to suppress political dissent. That, in turn, produced the opposite reaction among law professors, who were appalled by encroachments on civil liberties. See Restatement and Reform at 66-67.
Thus, in 1920, when the AALS met for the first time in four years, the new president, Eugene Gilmore of Wisconsin Law, evoked Roscoe Pound, telling his fellow professors that “[t]he conflict between our law and those who are working for social progress has its roots ultimately in our teaching of the law … it is too true that the legal scholar is busied chiefly with threshing over old straw.” Restatement and Reform at 67. The real threat, however, was the potential influence of activist practitioners, as an ABA Commission just had resumed efforts to advance its Corpus Juris restatement project, albeit with no input from the academy. Indeed, neither the law professors nor practitioners trusted each other as competent collaborators.
To carry forward the law professors’ vision, Gilmore reconstituted the committee on a juristic center, appointing Lewis, Beale, and Wigmore as members along with Edmund M. Morgan of Yale, James Parker Hall of Chicago, and Dean Henry M. Bates of Michigan. The report prepared for the 1921 AALS Annual Meeting, which in all likelihood was authored by William Draper Lewis, claimed that the law is “antiquated” with “[i]ts administration almost everywhere in need of improvement. … If the legal profession does not effectively organize an agency to carry out this duty,” the report continued, “individual lawyers and layman will rashly and ignorantly propose, and in many cases secure, the adoption of crude and superficial remedies.” Restatement and Reform at 70 & n 57 (quoting draft copy circulated in advance of AALS Meeting but subsequently omitted from the official published proceedings).
The report, in partial reaction to the restatement movement gathering momentum at the ABA, took the additional step of recommending the creation of a new committee with authority “to invite … similar committees representing the courts, the legal professional bodies, and other scientific and learning bodies engaged in the study of … law and its administration, for the purpose of creating an American Law Institute and an Academy of Law.” Further, such a committee would have “power to name the time and place for the meeting of a conference of these committees.” Restatement and Reform at 70-71 & n 61.
In fact, the report only spoke for the majority of the Committee. The sole holdout was Dean Hall of Chicago, who claimed that his colleagues were putting forward an “exaggerated impression of the extent to which our law can fairly be said to be out of touch with present conditions of life,” and that a full restatement of law would detract from more targeted law reform efforts. Restatement and Reform at 71 & n 61. Ordinarily, the minority position would lose. Yet, that very year, Hall was also the newly elected President of the AALS, creating an extraordinarily difficult political situation for the majority.
How was it resolved? The outgoing president, Arthur Corbin of Yale Law, called on Beale, the Chairman of the Committee, to make an oral report instead of its official report, which the committee majority was “scrapping.” (In fact, the majority report was pulled from the AALS Official Proceeding, with one of the few extant copies being found in the papers of Karl Llewellyn.) In turn, Beale soft-pedaled the alleged differences between the majority and Hall, using charm and humor to advance the desirability of an American Law Institute built in collaboration with judges and practicing members of the bar, and that such an effort would result in a “great public work.” Restatement and Reform at 72.
Beale’s convivial softening of the majority’s view put president-elect Hale in the awkward position of having to oppose something that sounded eminently reasonable to the assembled AALS membership. Yet, Corbin was taking no chances. After a motion to adopt the majority’s recommendation was made and seconded, Corbin took the liberty of “postponing Dean Hall’s opportunity for dissent, if he still has one,” to hear supportive remarks from Benjamin Cardozo, who was then serving as a judge on the New York Court of Appeals. Restatement and Reform at 72 (quoting AALS Handbook 117 (1921)).
Cardozo, who according to historian N.E.H. Hull, was “well primed” by Corbin the nature of the assignment, presented himself as someone with “no message to deliver, no counsel to offer” except his own “sympathy and interest” in a project that was sure to aid working judges like himself. Restatement and Reform at 72 (quoting AALS Handbook 117 (1921)). Cardozo then “defused the potential controversy by observing that ‘[e]ven before the revision [of the majority report] I found no insuperable conflict between the main report and the dissenting one. Since a revision there is even less.” Id at 73. Yet, even more masterfully, Cardozo proceeded to analogize the work of the proposed institute to “the work of the Commonwealth Fund,” which, for the last several years, had been guided by Dean Hall. Id.
Having carefully reviewed the historical record, N.E.H. Hall remarks, “It is probable that Cardozo put his finger on the source of Hall’s opposition. Dean Hall may have felt he had already been accomplishing the reform needed through his own work with the Commonwealth Fund and wanted to protect his sphere of influence from a rival organization.” Restatement and Reform at 74. Alas, even in academia, it is all-too-easy to meld our own personal agenda into our perceived obligations to the profession.
Cardozo ended his speech with words that should give every reader pause, as he is talking about the immense utility of shared legal infrastructure and, likewise, our natural tendency to use it without being conscious of its presence:
Do not underrate, I beg you, the power that such an Academy will exert with the passage of the years. Those who begin by scoffing will end by playing the tribute of adherence and applause. Little by little, if such an Academy arises, it will establish a background, an atmosphere more pervasive than you think. And it will be true, perhaps, of this atmosphere, as it is of the air we breathe, that many who are not conscious of its presence will nonetheless inhale it and gain its vital force.
AALS Handbook at120 (1921). Not surprisingly, Cardozo’s speech was met with “[t]umultuous applause.” Id at 121. Hall then withdrew his opposition and concurred with the revised majority report. With no further discussion, the proposal and resolution to appoint the committee to establish the American Law Institute were carried unanimously.
C. The consummate skill and cunning of William Draper Lewis
There is one more crucial piece of pre-history to the February 23, 1923, Big Bang meeting that must not be forgotten. Empowered by the unanimous vote of his peers, the newly appointed committee secretary, William Draper Lewis, “on his own responsibility,” arranged a meeting with Elihu Root to explain his ambitions for the American Law Institute and the Restatements project. Restatement and Reform at 74.
Although initially skeptical of getting entangled with a group of law professors, Root found Lewis’ vision both compelling and pragmatic. Thus, over the course of the next two hours, Lewis recalls:
[Root and I went] over and planned out each step in the organization of the Institute; the meeting of the group to promote the establishment of an association for the permanent improvement of law; the general nature of its report; and the arrangements for the meeting in Washington the following February, and the source of necessary financial support.
Restatement and Reform at 75 & n 60 (quoting Lewis’ “Off-The-Record Remarks” at the 1944 ALI annual dinner, copies of which can be found in the ALI Archives and the library at Harvard Law). Of course, the source of the funding would be the Carnegie Corporation, where Root served as a trustee.
Here, it is worth making explicit the connection to legal infrastructure: If we view the plans for the American Law Institute and Restatements of Law as detailed architectural and engineering drawings for something akin to the Lincoln Tunnel or the Triborough Bridge, without which New York City as we know it would not exist, we begin to appreciate that without immense political skill, including the ability to locate sources of capital, the drawings themselves mean nothing.
Fortunately, Lewis and Root—and perhaps Lewis in particular—were up to this task. With $25,000 from the Carnegie Corporation to stage the eventual Big Bang meeting, the next intermediate step was a meeting in New York City in May 1922. Here, the key item to be accomplished was to assemble the nation’s leading lawyers and put them in charge of the effort—at least nominally.
Thus, at the May 10, 1922 meeting, which was strategically convened at the Association of the Bar of the City of New York and where the practitioners (purposefully) significantly outnumbered the law professors, a vote was taken that handed leadership of the Committee Proposing the Establishment of the American Law Institute to Elihu Root as chairman and George Wickersham as vice-chair, thus effectively deposing Howard Beale of Harvard, who served as chairman throughout the proceeding at the AALS. Lewis, on the other hand, returned to his familiar role as secretary. Restatement and Reform at 77-80.
From far away, perhaps, it appeared that the practitioners had taken over. Yet, Lewis used his ample podium time during the May 10 meeting to suggest that the only practical way forward was for the Permanent Organization Committee to “make a report which would show an appreciation of the importance and difficulties of the subject and deservedly command the attention of the profession and the public.” Furthermore, his AALS peers in attendance suggested that the Committee “employ a group of advisors who would as a professional matter devote the coming summer to a consideration of the problems indicated, and also give some consideration to the best form of the permanent organization.” The result would be an advisory report containing both a rationale and a detailed plan for the Institute, which could be presented to the bar for approval. See Restatement and Reform at 79 (quoting American Law Institute, Minutes of the First Meeting of the Committee on the Establishment of a Permanent Organization, May 10, 1922).
This maneuvering by Lewis effectively put law professors in charge of the substance of the Committee’s work. To carry out the plan, additional meetings were held to select advisors (who were all paid through the donation from Carnegie) to do the work. According to N.E.H. Hull, the final report prepared for the February 23, 1923, Big Bang meeting “was largely the work of Lewis, who took the suggestions and comments of the reporters and critics and combined them with his own sense of the needs and aims of the proposed Institute.” Restatement and Reform at 82-83 & n 108 (citing Lewis’ “Off-The-Record Remarks” at the 1944 ALI annual dinner, supra).
N.E.H. Hull concludes, “The lawyers dominated the body, but not the soul of the permanent organization committee.” Id at 80.
Ironically, in 1945, at the end of his career, as he was preparing to step down from more than two decades of leadership of the American Law Institute, William Draper Lewis confided that he had not, in fact, carried the water of the law professors during the founding of the ALI. Rather, working with Root, he developed a plan that would save the law professors from their natural impulses, which is to discuss and study law, usually over the summer, in a congenial place.
“It is not true that the American Law Institute is a Juristic Center,” Lewis told his peers at the AALS Annual Meeting. “It is what Mr. Root and I intended it to be: an organization to carry out specific legal projects for the constructive improvement of the law and its administration.” Restatement and Reform at 55-56 & n 2 (quoting Lewis’ AALS remarks from a carbon typescript found in the papers of Karl Llewellyn). In fact, this decision by Lewis, apparently made alone by him, put the ALI on the path to create a shared legal infrastructure that would soon be widely adopted by an overwhelmed bench and bar. Likewise, over the next several decades, it would also standardize much of the law school curriculum.
IV. The shrewd operations and governance that followed the Big Bang
To my faithful readers, let me acknowledge that I’ve expended 5,000 words to tell the story of the Restatements of Law as a familiar and complete example of important, shared legal infrastructure—and only now am I getting to the part where the lawyers, judges, and law professors are pouring the foundation.
Yet, for better or worse, this is entirely necessary, as the point I’m trying to drive home is the profoundly delicate and tenuous nature of an enterprise that can change the course of a profession for the good.
And even more to the point, if we ever hope to replicate it, we should not be so foolish as to believe that good ideas will get funded and that institutional self-interest will, in the long-run, simply give way to the public good. For better or worse, good outcomes, if they’re to happen at all, depend upon the actions of people—specifically, people with a realistic view of the way organizations and their peers actually think, behave, and make decisions. If 5,000 words of our history are put into the category of TLDR [“Too long, didn’t read,” one of the scourges of our new attention economy, see Post 160], we can safely conclude that our profession doesn’t have much of a future.
Having reduced the risk of being too oblique, I’m relieved to write that the rest of the Restatement story falls within the header of shrewd operations and governance, primarily by William Draper Lewis, who went on to become ALI’s first executive director.
A. Getting the legal profession to “adopt” the Restatements
In discussing the creation of the shared legal infrastructure—i.e., the Restatements of Law—it is important to emphasize that what Lewis and Root hoped to create were tools that would aid the work of lawyers, judges, and teachers. Indeed, if the Restatements worked as planned, not only would members of the profession be spared immense time and expense, but the substance of law would rapidly converge on general principles, terminology, and outcomes that were worthy of the phrase “rule of law,” thus making it more likely that lawyers could help clients achieve their lawful objectives.
Thus, returning to the roots of Legal Evolution (see About Page), if the Restatements represented an “innovation” in the practice of law, and the objective of the American Law Institute was to accelerate its “adoption” with the “social system” of the American legal profession, it would be useful to analyze Restatements innovation through the lens of diffusion theory. See, e.g., Post 004 (explaining Rogers Diffusion Curve); Post 007 (explaining adopter types and units of analysis); Post 008 (presenting core Rogers’ rate of adoption model).
The key storyline here is that if we are to use diffusion theory to evaluate the adoption of the new Restatements infrastructure that was being constructed for the benefit of the profession, Wiliam Draper Lewis and the rest of the ALI leadership did everything right.
B. Developing communication channels
As originally presented in Post 008, the Rogers’ rate of adoption model has five major levers that meaningfully influence whether an innovation gets adopted, and if so, its relative pace. See graphic to the right [click on to enlarge].
In the case of the Restatements, the first lever pulled was Communication Channels (Lever III).
What is remarkable about Lewis’ and Root’s political instincts is that, before the Restatements were even created, they were developing remarkably wide and numerous channels for communicating with future stakeholders and supplying them with content likely to capture their attention. The most obvious example was the staging of the February 23, 1923 conclave (described above as the Big Bang), which created something newsworthy for virtually every bar journal in the country.
As evidence of the careful and methodical plan to roll out the American Law Institute and its inaugural Restatements project, the February 1923 issue of the American Bar Association Journal published an extensive preview of the grand meeting written by Lewis that elegantly stated the problem the new organization was trying to solve, but, perhaps more persuasively, engaged in a massive amount of name dropping of the numerous elites and dignitaries from across the nation who had accepted invitations to attend. See William Draper Lewis, “Plan to Establish American Law Institute,” 9 ABA J 77 (Feb. 1923).
Indeed, in 1923 alone, the American Bar Association Journal published five detailed progress reports on the American Law Institute’s Restatements project (February, March, June, August, and October). In the last article of that year, which was also authored by Lewis, the appeal to the profession was direct, candid, and inspiring:
There is one question … which is on all our minds: Can the restatement, no matter how well done, without being adopted by the legislature as a code, secure sufficient authority to accomplish that simplification and clarification of the law which will alone justify the time, labor and money expended. The answer to this question will depend on the attitude towards the work taken by our judges, our leading lawyers, and the faculties of our principal law schools. …
If the restatement is to be a success, there must be developed among the members of our profession a feeling towards the work of the Institute which will lead us to give to the statements of law set forth in the restatement an authority comparable to that now accorded the decisions of our highest courts. To do this it will not be sufficient that the restatement be well done, though this, of course, is essential. There must be a feeling on the part of the members of the bench and bar that the restatement is necessary for the preservation and proper development of the Common Law; that the Institute represents in the best sense of that word the American Legal Profession, and that its work is our profession’s most important contribution to the improvement of the law. To create, maintain and develop this feeling, it is essential to have the intelligent co-operation of the American Bar Association.
The American Bar Association and the American Law Institute have no organic connection. Such connection would be unwise. … But we need your co-operation; the friendly but searching and helpful suggestions of your committees on our work and the various drafts of the restatement of different topics. We also need what we may call the machinery of your organization, especially that most useful of all legal periodicals, the American Bar Association Journal, to carry to the profession in all parts of the country a correct understanding of the nature of our work.
William Draper Lewis, “Work of the American Law Institute,” 9 ABA J 636, 637 (Oct. 1923). Although five detailed articles in the ABA Journal may seem like a publication relations coup for the nascent American Law Institute, it was but a small fraction of overall publication and promotion efforts.
Indeed, to their credit, ALI leadership understood at a very deep level that the practice of law was—and to a large extent, remains—something that is geographically and jurisdictionally bounded. During the first three years of ALI’s existence (and before drafts were being circulated to practicing lawyers or law professors) numerous articles on the Restatements project appear in state and local bar journals and law reviews, typically detailing the local lawyers involved, and often written by ALI leadership. See, e.g., Illinois Law Quarterly (1923); University of Detroit Bi-Monthly Law Review (1923); West Virginia Law Quarterly (1923) (written by law school dean); American Law School Review (1923) (West publication for law professors that was a precursor to AALS Journal of Legal Education); Pennsylvania Law Review (1923) (authored by Wickersham); Columbia Law Review (1924) (authored by Lewis); University of Missouri Bulletin Law Service (1924) (authored by ALI Council member Herbert Hadley); Denver Bar Association Record (1925).
C. Engaging end-users in the creation of the tool
An issue familiar to most Legal Evolution readers is the LegalTech challenge of gaining sufficient access to busy and impatient lawyers so that the tool ultimately brought to the market can deliver an intuitive, high-quality user experience. See, e.g., Post 063 (Jae Um noting that “[a]ccess to users is necessary to validate and iterate new offerings toward a complete ‘whole product’ solution”); Post 197 (
In terms of diffusion theory, access to end-users is crucial to successfully pulling Lever I, Perceived Attributes of Innovation. And this is important because Lever I is indisputably the most influential category, typically accounting for 49% to 87% of the variance in the rate of adoption. See Post 008; Post 098. Simply stated, this is about product design — (1) Does your product deliver a significant benefit? (2) Is it culturally compatible with how things are currently getting done? (3) Is it simple to use, enabling the user to avoid a learning curve? (4) Can the user try it before buying it? (5) Can the promised benefits be easily observed, ideally by risklessly watching the experience of peers?
It is very difficult to build a product that has all of these Lever I attributes. Thus, when the innovation is a complex technical product, such as the Restatements of Law, that requires ongoing adaptions and substantial end-user education, it’s ideal to simultaneously employ a Change Agent strategy (Lever V) that effectively puts in place an ongoing feedback loop of user experience. Indeed, this approach was used in the original hybrid corn seed example, which formed the basis of Everett Rogers’ general theory of innovation diffusion. See Post 008. Remarkably, the roll-out of the Restatements effectively used the same Lever I/Lever V approach.
The Report from the Committee Proposing the Establishment of an American Law Institute, which was presented for approval at the February 23, 1923 meeting, included a detailed preliminary methodology for how to construct the Restatements. Elihu Root, in his speech to the Big Bang conclave, summarized it as a four-step process:
- Select topics of law. “In the report we have suggested that we be wise to select at least three topics, but probably not more than three topics at the start.”
- Select a Reporter for each topic (the first three were Agency, Conflicts of Law, and Torts) who must be “an eminent person” with “profound knowledge of that subject” and thus can be responsible for initial and subsequent drafts based upon the input of the experts.
- Select a committee or expert Advisors to criticize and improve each Reporter’s drafts. When sufficiently confident in its quality, the Reporter-Advisor committee circulates tentative drafts “among [the 750] members of the Institute and among the members of the profession generally.” This iterative process continues until “the Expert Committee has got to the point where they are willing to stand by that restatement of the law in the general form.”
- Submit the restatement to members of the Institute “and let them go over it time and time again.” The goal here is to “get ideas that come not from the experts … [but] from an intelligent legally trained audience.” If this fourth step is completed, the members are in a position to decide whether the restatement “should be put out as the publication of the Institute.”
See “American Law Institute is Organized,” 9 ABA J 137, 139-40 (Mar 1923) (quoting speech by Elihu Root, which acknowledges how the experience of the Conference of Uniform State Law influenced the Institute’s methodology). It is hard to imagine a more intensive process for reducing errors, raising awareness, and increasing broad-based buy-in.
Step 3 contains the feedback loop between the committees of ALI experts and members of the practicing bar. In many cases, the Change Agents were the ALI members who were organizing bar association and law school events around tentative drafts of the Restatements. Indeed, as if to anticipate the need for comprehensive outreach strategy, the Institute by-laws made leaders of state bar associations, along with the Chief Justice of the highest court of each state, ex officio members of the Institute. See Wickersham, supra, at 21.
Reports in the legal press suggested that the drafts of the restatements were met with widespread engagement and enthusiasm. As a matter of policy, ALI distributed draft copies at cost to any bar associations expressing an interest. Almost immediately, orders for hundreds of copies per bar association rolled in. See, e.g., “American Law Institute Council meets,” 12 ABA J 19 (Jan. 1926) (reporting 400 copies of draft restatements going to the Illinois State Bar Association); “American Law Institute Holds Fourth Annual Meeting,” 12 ABA J 299 (May 1926) (“The secretaries of a number of State Bar associations, following a plan suggested by the secretary of the Illinois organization, distributed [at cost] over 3000 copies of the tentative drafts of restatements already printed to members applying for them.”).
One of the most common responses was for local committees to build state-specific annotations, which began as an effort by Michigan State Bar Association (the “Michigan plan”) but rapidly spread to Pennsylvania, New York, Wisconsin, and other jurisdictions. See Herbert F. Goodrich, “American Law Institute Adopts Its First Official Draft,” 14 ABA J 245, 246-47 (May 1928) (reporting that “thirty states have appointed cooperating committees” connected to restatements). William Lewis Draper praised these efforts, expressing the likelihood that “it will result in a growth of a spirit of cooperation between bar associations in the Institute, which is vital to the success of the restatement or any other work undertaken by the Institute.” Id at 246.
Although this local activity may have looked organic, it was in fact part of ALI’s larger strategic plan, with much of it coordinated by Herbert F. Goodrich, a professor at the University of Michigan, who assumed the post of Advisor on Professional and Public Relations. See id at 247. In this capacity, Goodrich was doing the work of a pure Change Agent, see Post 020 (explaining this role in detail), writing numerous articles for law review and bar journal explaining and advancing the Restatement project. Goodrich, who was often viewed as Lewis’ “right hand” man, see 138-142 N.E.H. Hull, “Back to the ‘Future of the Institute,'” in The American Law Institute Seventy-fifth Anniversary 138-42 (ALI 1998), was one of Lewis’ most trusted advisors, and would later go on to become Dean of University of Pennsylvania Law School, a Judge on the U.S. Court of Appeals for the Third Circuit, and the successor to Lewis as ALI’s second Executive Director (from 1947 to 1962), see ALI Timeline.
At the same time that practitioners were being invited to evaluate and give feedback on the draft Restatements, copies were also being distributed to law schools. By 1927, drafts of the Restatements were being used in the classroom, as the number of copies sold to law students had climbed to 6,751, which was a volume significantly above what was being distributed to bar associations. See “American Law Institute Holds Fifth Annual Meeting,” 13 ABA J 243, 244 (May 1927). Reporting on the 1926 ALI Annual Meetings, the editors of the ABA Journal noted how the ALI leadership was pleased with the adoption of the draft Restatements in the classroom and commented:
Such use obviously offers a valuable opportunity to familiarize the Bar of the future with the undertaking. There should also come from the teachers using the drafts in this fashion many valuable suggestions, springing from the doubts and questions of bright pupils. … Thus at the outset is removed the danger of having the Restatement presented as an unfamiliar and academic thing to the profession. … [E]ach lawyer who takes the trouble to furnish comment or criticism of the tentative draft as they are issued may properly feel he has had some part.
“American Law Institute Holds Fourth Annual Meeting,” 12 ABA J 299, 299 (May 1926).
In hindsight, ALI leadership did everything right to ensure the widespread acceptance and use of the Restatements of Law among lawyers, judges, and law professors. Yet, returning to Lever I of diffusion theory (the most important for driving adoption), there is one critical threshold decision that enabled the Restatements to become enduring legal infrastructure: to restate the law rather than reform it. Cf. Wickersham, supra, at 10-11 (quoting Lord Halsbury, “Mr. Gladstone once said in the House of Commons that you should first get a comprehensive account of what the law is before you commence amending it; and a great many law reformers have failed because they have not observed the necessity of this preliminary inquiry”).
By limiting the purpose of the Restatements in this way, the Restatements achieve near-perfect scores on the Lever I adoption factors.
- High “relative advantage” to the daily work of practicing lawyers and judges, saving them time and sparing them confusion.
- High “culturally compatible” because the Restatements were entirely centered on the common law, which is the bedrock of lawyers’ training.
- Low “complexity“— as easy to use as navigating a table of contents and made even less complex with the addition of local annotations.
- High “trialability,” particularly through ALI’s extensive outreach strategy run through state and local bar association and law schools.
- High “observability,” as the Restatements were being cited as authority in judicial decisions and briefs.
The ALI founders, and in particular William Draper Lewis, were, in fact, legal reformers, or what N.E.H. Hull referred to as “progressive pragmatists.” Restatement and Reform at 83. Nowhere is this pragmatism more evident than in building an enterprise that sought to make the common law more orderly, tractable, and intelligible for members of the bench and bar. In turn, this had the enormous second-order effect of improving the administration of justice and enabling lawyers to offer higher quality counsel to their clients.
For those of us in the legal profession and broader legal industry seeking to advance various reforms in the year 2020, we would do well to study the example of ALI’s Restatements of Law, which is the enduring and successful non-government legal infrastructure ever built.
Epilogue: When innovation and infrastructure become invisible
In an essay prepared for the 75th anniversary of the American Law Institute, N.E.H. Hull tells the story of a panel of law professors and judges assembled at the January 1998 AALS annual meeting to discuss the topic, “Can/Should/Does Legal Scholarship Influence the Legal System?” See N.E.H. Hull, “Back to the ‘Future of the Institute,'” supra, at 107-108.
According to N.E.H. Hull, the discussion went well into the second hour before an exasperated audience member stood up and asked why nothing had been said about the work of the American Law Institute.
Surely, its scholarship has had a demonstrable and dramatic impact on the legal system and the common law. Its unique alliance of law professors, working lawyers, and judges and its reporter-advisor method of drafting had provided the most dramatic and effective outlet for law professors’ scholarly analysis of law. … [ALI’s output, through the Restatements, Model Penal Code, the UCC, and other work] were unquestionably the most influential legal scholarship of the twentieth century.
After a “palpable hush” fell over the ballroom, one of the panelists conceded the obvious—that “the ALI’s legal scholarship was an influential source second to none.” Id at 107.
N.E.H. Hull suggests that the lesson of the story is two-fold. First, members of the legal profession have come to take the work of the American Law Institute for granted, which is remarkable because it undergirds so much of the daily work of lawyers and law teachers. Second, “We tend to overlook the fact that ALI’s work is scholarship.” Id at 108.
On this second point, I’ll share my own early-career confusion when so many colleagues in the academy would diminish doctrinal scholarship as a career dead-end. If you wanted to get ahead, my more established peers advised, you needed to focus on theory or empirical work. This careerist approach is bad advice if the goal is to solve real-world problems. Nonetheless, as a matter of strategy for building shared legal infrastructure, do you spend time attempting to change people’s minds, or do you instead look for ways to navigate around the bottlenecks?
I researched and wrote this essay on the forgotten story of Restatements to better understand the challenges of building the Institute for the Future of Law Practice, which is also attempting to create shared legal infrastructure to improve the functioning of our legal system. The explicit lessons I’ll leave for another day, though I hope the history itself makes them fairly obvious. In the meantime, I hope the forgotten story of the Restatements is useful to others seeking to make long-term contributions to the collective and public good.