As I said in my initial post on this topic, my opinion on the merits of Restatements has been influenced by Professor Marcus Cole of Stanford. Marcus offers this response to my posts here (which I reproduce with his permission):
While I do not have time to fully engage the issue right now, I would like you to please point out to Mr. Sandefur that his arguments are compelling reasons why statutes are an important, perhaps necessary, compliment to common law processes. His arguments do not, however, make the case for restatements.
Indeed, statutes and common law decisions have long operated in tandem with each other, with statutes operating as the “concrete blocks” in the water around which the “coral reef” of common law develops. Common Law and statute law complement and correct each other. To paraphrase Holmes, the value of the common law is that it decides actual cases first. Not imagined cases, not hoped-for cases, not contemplated cases. It decides cases were real people experienced real facts and have real interests at stake. Statutes have meaning where common law develops around them.
Restatements, on the other hand, substitute another set of “statutes” in place of the spontaneous order of the common law. What is worse, these “statutes” are “enacted” by law professors. Now, I’ve heard all of the arguments in favor of “the Electorate of the Law,” but you and I both know that if the only votes counted in the Presidential election were those of law professors, we would have just witnessed the inauguration of President Ralph Nader (Kerry would have been a distant second). I’ve never understood why anyone who has any understanding of the makeup of the legal academy could trust the formation of actual law to people who bear so little resemblance to those who are to be governed by it.
While public choice theory has exposed the infirmities of legislation enacted by duly elected representatives, I don’t understand why anyone would believe that an unelected “legislature” comprised of law professors might be completely immune to these same infirmities. The beauty of the common law, operating in conjunction with real legislation, is that they are, as Hayek pointed out, different in nature, and therefore capable of complementing, correcting and adjusting each other.
Now, I know that there are many well-meaning members of the American Law Institute, and many of them are trying to do what they believe is right. This does not, however, justify the enterprise of crafting law for others to whom they are completely unaccountable. I find it hard to view restatements as more than attempts by a very unrepresentative and possibly disaffected minority to exercise power and influence in a society that has elected leaders that they, for the most part, dislike, and whose values they do not share.
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