Restatements Revisited:

On his blog Freespace, Tim Sandefur raises a fundamental challenge to my skepticism of Restatements (which I recommend reading in full):

What I mean is this: my college economics professor, Gary Wolfram, explained to us that the concept of spontaneous order teaches us that we should wait to see the order that arises from people’s choices before we make policy, rather than trying to impose policy on people from the top down, on the basis of pure theory. He used to explain it by reference to sidewalks: suppose you want to lay out a college campus, and you want to put in sidewalks that the students will use to go from building to building. The best way, he said, is to wait a few years to see what pathways the students wear into the lawn, and put the sidewalks there, because those are the pathways the students use. Otherwise you’ll have sidewalks, and then you’ll have these pathways across the lawn where the students actually walk.



But you have to pour out the cement and make those sidewalks at some point. And at any time that you finally decide to pour the sidewalks, there’s Randy Barnett saying “wait a second, this is a dynamic process, and if you pour cement here, you’re freezing that dynamic process in place, and interfering with spontaneous order.” You see my point. Barnett’s complaint about the Restatement could be made, with equal validity, of any case that decides any issue in, say, contract law. The judge could say “I’m supposed to be `restating’ the law on this issue and applying it to the facts before me, but once I do so, a case tends to freeze the common law evolution in amber.”

There is much to be said about what remains fixed and what changes in a dynamic evolving common law system. The doctrine of precedent is an integral part of a common law process (unlike a process that interprets a written constitution), which is analogous to judges pouring the sidewalks. If the doctrine of precedent is considered too strong, however, then courts will not reverse their previous decisions–hence the traditional appeals by common law judges to their legislatures to modify the common law when experience has revealed their precedent to be defective. On this view, judges may pour the sidewalks, but only the legislature can tear them up.



But if precedents can be reversed then courts are able modify them when new circumstances reveal the limits of previous formulations of legal rules. The main point is that, while legal rules should be “fixed,” judges should consider it their responsibility to repair broken sidewalks they themselves poured, remove unused sidewalks, and lay new ones. The Restatement movement seems to have gotten judges out of this mind set. “That’s not my job, let the ALI decide” seems to be a judicial attitude inspired by the Restatements (though I may be wrong about the judicial psychology here). Responsibility for changing the judge-poured sidewalks has shifted from the legislatures to the ALI (which may be a good move) and away from judges themselves (which may be a bad move).



My original point was that the Restatements themselves were NOT based primarily on the wisdom of their drafters–though they do incorporate some “reforms” at the margin–but the wisdom of the common law process, a process that is subsequently curtailed by the existence of Restatements, making any new Restatement more a product of the knowledge of a handful of academics–often motivated by partisan pro- or anti-business concerns–than the diffused knowledge of numerous judges deciding countless cases. Or such is my concern. I remain open to being convinced otherwise, and I thank Tim for his thoughtful response.