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Winter 2014




Brooklyn Law School




Perhaps the most optimistic view of the American Law Institute's Restatement project was provided at its inception by Benjamin Cardozo:

When, finally, it goes out under the name and with the sanction of the Institute, after all this testing and retesting, it will be something less than a code and something more than a treatise. It will be invested with unique authority, not to command, but to persuade. It will embody a composite thought and speak a composite voice. Universities and bench and bar will have had a part in its creation. I have great faith in the power of such a restatement to unify our law.'

I will take a somewhat less optimistic view here. The incentives of actors in the common law process have been examined many times.2 Much less has been said about the incentives of actors in the Restatement process.

Incentives are always something to worry about, at least from the perspective of the non-optimist. Holmes referred to the law as reflecting a concern for the decisions of the "bad man."3 The Holmesian bad man was not necessarily bad in the sense of being evil. He was bad in the sense that he acted solely for his own advantage after calculating the private costs and benefits of his actions.4 Many lawyers have to consult with bad men of this type all of the time. As much as we would like to emphasize ethics and moral standards in the legal academy, lawyers in the real world have to provide advice to clients who do not have justice or social welfare at the top of their agendas.

t have justice or social welfare at the top of their agendas. The common law process itself could be distorted by the actions of Holmesian bad men. Judges might decide cases out of self-interest or with a disregard for a certain type of litigant. The common law process, if it is as good as the evidence suggests,5 must have built deep within it some shock absorbers to minimize the impact of bad men on its development. In other words, the common law process presumably has checks and balances that prevent the self-interest of a particular embedded actor (judge or lawyer) from having a substantial effect. This is a question, in any event, that I will consider here.

The question that immediately follows is whether the Restatement project is also immune-to the same extent as is the common law-from the self-interested incentives of actors involved in its creation. I will argue that it is far more vulnerable to distortion from self-interest than the common law process. Because of this, it is an open question whether the Restatements will, as Cardozo believed, unify and improve the common law.


Updated with published version: 9/20/20

Working paper available on SSRN

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