John Fund warns National Review Online readers about the questionable actions of the American Law Institute.
For nearly 100 years, the 3,000- member American Law Institute has exercised enormous influence through what it calls “Restatements” of the common law. Many judges, lawyers, and scholars rely on it for an objective, readable description of what the law is. …
… The Supreme Court cites the ALI every few weeks, on average, in its decisions.
But there must be a clear line between describing what the law is and seeking to establish new law and policy. More and more lawyers think that the ALI has departed from its core mission and is becoming an engine driving novel legal rules. At its annual convention two years ago, ALI leaders proposed adopting a model penal code that would make “affirmative consent,” regarding sexual relations, its official policy. The move was stymied when influential members noted that such a definition would shift the burden of proof on to the accused, something not currently part of our judicial system. …
… Undaunted, the ALI has spread its legal wings to copyright law, consumer contracts, intentional torts, and insurance. At next week’s ALI annual meeting, a battle royal is expected over a draft Restatement on the law of liability insurance. A group of ALI members say the draft seeks to reshape the law in such a way that will further clog court dockets and raise costs for business and consumers.
