Document Type
Book Chapter
Publication Date
2023
Editor(s)
Andrew S. Gold and Robert W. Gordon
ISBN
9780197685372
Publisher
Oxford University Press
Language
en-US
Abstract
Restatements of the common law, the chief achievements of the American Law Institute (ALI), fulfilled a need that had long been expressed by lawyers and judges in England and America. Supreme Court Justice Joseph Story, responding in 1837 to the Massachusetts state legislature’s inquiry whether common law should and could be codified, reported that there could be tremendous saving of effort and time by lawyers and judges if a group of experts set out in written form the agreed principles and doctrines of common law. Story did not advise that the legislature should enact this written text of common law, but rather that it be adopted by judges as a source of common law decision-making. Many centuries before Story’s report, lawyers in England had described their common law as “unwritten,” viewing this sometimes as a defect, sometimes as an advantage compared to Roman and canon law’s fixed texts. Complexity, uncertainty, inconsistency, and the ever-increasing volume of judicial case reports presented problems that were addressed in many ways over the centuries. One proposal, codification, provoked defenses of the common law as something that should not and could not be reduced to written form because that would eliminate the essence of the common law process. In the early twentieth century, American bar leaders and legal academics, weary of fighting about codification, coalesced around the ALI as a solution to the need for restatement of the common law.
Recommended Citation
David J. Seipp,
Chapter 2: The Need for Restatement of the Common Law: A Long Look Back
,
in
The American Law Institute: A Centennial History
27
(Andrew S. Gold and Robert W. Gordon ed.,
2023).
Available at:
https://doi.org/10.1093/oso/9780197685341.003.0003
Comments
This is an open access publication, available online and distributed under the terms of a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 International licence (CC BY-NC-ND 4.0), a copy of which is available at https://creativecommons.org/licenses/by-nc-nd/4.0/. Subject to this license, all rights are reserved.