The Restatements of the Law are a series of treatises, published by the American Law Institute since the 1930s, that organize American judge-made law into clear, numbered rules. They cover subjects like contracts, torts, property, and trusts, distilling thousands of court decisions into concise principles that lawyers cite and judges rely on. They are not statutes and carry no binding force on their own, but courts across the country routinely adopt their rules, and once a court does, that rule becomes binding precedent in that jurisdiction.
What’s Inside a Restatement
Each Restatement covers one area of common law — the body of rules developed by courts rather than enacted by a legislature. The goal is not to invent new law but to examine how courts nationwide have handled a given question and then state the prevailing principle in precise language.
Every section follows the same four-part structure:
- The black letter rule states the governing principle as concisely as possible. It reads like a statute but describes the law as courts have developed it.
- The comments explain the rule’s rationale, scope, and limits, and flag situations where exceptions arise.
- The illustrations are short hypothetical fact patterns showing how the rule would apply to specific circumstances.
- The Reporter’s Notes cite the case law, statutes, and scholarship behind the rule. These notes reflect the Reporter’s own analysis and do not represent the official position of the Institute.1Legal Information Institute. Restatement of the Law
The first three — black letter, comments, and illustrations — are the Institute’s official position after years of deliberation and formal approval. The Reporter’s Notes are the work of the lead drafting scholar alone. That distinction matters: when a court cites a Restatement, it is adopting the official rule, not necessarily the Reporter’s individual read of the underlying cases.
Who Writes Them
The American Law Institute was founded in 1923 by a committee of prominent judges, lawyers, and law professors who concluded that American law suffered from two linked defects: uncertainty and complexity. Those defects, they argued, produced needless litigation and made it hard to advise people of their rights.2The American Law Institute. Frequently Asked Questions The first volume, on Contracts, was published in 1932. Volumes on Torts, Property, Agency, and other subjects followed through the 1930s and 1940s.
The Institute is a private, independent, nonprofit organization with no ties to any branch of government. Its membership runs to more than 4,500 judges, law professors, and practicing lawyers chosen on the basis of professional achievement.2The American Law Institute. Frequently Asked Questions A new Restatement typically takes a decade or more to produce. The Restatement of Consumer Contracts, for instance, took eleven years from inception to final approval in 2022. A Reporter — usually a law professor with deep expertise in the subject — drafts the text, advisers critique it, and the Council and full membership debate it line by line. Only after both bodies formally approve does the text become the Institute’s official position.3The ALI Adviser. How ALI Works That layered process is the main reason Restatements carry the weight they do.
How Much Weight They Carry in Court
Restatements are secondary authority. They do not have the force of law the way a statute or a binding appellate decision does. The Institute itself describes its publications as “persuasive authorities, not controlling law” that “do not displace controlling statutes and precedents.”2The American Law Institute. Frequently Asked Questions In practice, though, they sit near the top of the persuasive-authority hierarchy, well above law review articles or practice treatises.
Judges most often reach for a Restatement when their jurisdiction has no controlling precedent on an issue. If a court finds the Restatement’s reasoning persuasive, it may adopt the rule as part of its holding. Once that happens, the rule becomes binding precedent in that jurisdiction and future cases must follow it. Section 402A of the Restatement (Second) of Torts, on strict liability for defective products, is the most dramatic example: after the Institute published it in 1965, courts across the country adopted it, reshaping American products liability law.
Judges are never obligated to follow a Restatement. Some courts reject particular provisions as too aggressive or too conservative for their jurisdiction’s traditions. Others adopt a rule in principle but modify it. That variability is built into the system.
Federal courts rely on Restatements extensively, particularly where Congress has not legislated. Several federal circuits follow the Restatement (Second) of Conflict of Laws when conducting choice-of-law analysis. Courts handling environmental cleanup cases under CERCLA have treated the Restatement (Second) of Torts as reflecting “correct and uniform federal rules.” Federal circuits routinely look to the Restatement (Second) of Contracts for general principles of contract interpretation.4The American Law Institute. Restatements and the Federal Common Law The U.S. Supreme Court cites them too, invoking provisions from the Restatements of Judgments, Torts, and Conflict of Laws in recent terms.5The American Law Institute. U.S. Supreme Court Cites Restatement of Judgments
Not the Same as a Model Code
The American Law Institute publishes other projects that are easy to confuse with Restatements. The differences matter when you are figuring out what any given ALI document actually does.
Restatements are addressed to courts. They describe the law as it stands, phrased in the descriptive voice of a judge announcing a rule. Model Codes, by contrast, are addressed to legislatures. The most famous is the Model Penal Code, offered to state legislatures as a template for criminal law reform. Model Codes use prescriptive statutory language because they are designed to be enacted. Principles of the Law fall in between, directed at legislatures, agencies, or private actors, often as best-practice recommendations in areas where the case law is still too thin to “restate.”2The American Law Institute. Frequently Asked Questions None of the three are controlling law. All are persuasive only.
Subjects Covered and Which Edition Applies
The series now covers more than twenty subjects. Major topics include Contracts, Torts, Property, Trusts, Agency, Restitution and Unjust Enrichment, Conflict of Laws, and the Law Governing Lawyers. More recent additions address Employment Law, Liability Insurance, Consumer Contracts, and Charitable Nonprofit Organizations.6The American Law Institute. Restatement and Principles Checklist
Because the law evolves, the Institute revises its Restatements over time. The original volumes from the 1930s and 1940s are the First Restatements. Beginning in the 1950s, the Second Restatements incorporated developments in case law and shifts in legal thinking. Third Restatements followed, often splitting broad subjects into narrower volumes. The Restatement (Third) of Torts, for example, is divided into separate volumes on Products Liability, Apportionment of Liability, Liability for Physical and Emotional Harm, and Liability for Economic Harm.6The American Law Institute. Restatement and Principles Checklist A Fourth series is now underway. The first Fourth Restatement covers the Foreign Relations Law of the United States, addressing treaties, jurisdiction, and sovereign immunity, with additional volumes in development.7The American Law Institute. Restatement of the Law Fourth, The Foreign Relations Law of the United States
When you encounter a citation, the edition matters. A rule in the First Restatement of Contracts may have been superseded by the Second, and courts generally rely on the most recent edition unless their own precedent has adopted an earlier version.
The Criticism That They Shape Law Rather Than Restate It
The original mission was simple: examine existing case law and state the rules courts actually follow. In practice that line has always been blurry. When courts in different states have reached conflicting conclusions, the Reporter has to choose which approach to endorse, and that choice involves judgment about which rule is better, not just which is more common.
Critics, including the late Supreme Court Justice Antonin Scalia, have argued that modern Restatements have drifted from describing the law toward advocating for what it ought to be. In Kansas v. Nebraska (2015), Justice Scalia wrote that “modern Restatements . . . are of questionable value, and must be used with caution.” Legal scholars have raised similar objections to specific volumes, arguing that some provisions reflect law-reform efforts rather than honest summaries of existing precedent.
Defenders counter that the common law has never been purely descriptive. Judges have always shaped law through their rulings, and articulating a “prevailing” rule necessarily means picking among competing lines of authority. The Institute itself describes Restatements as reflecting “the law as it presently stands or might appropriately be stated by a court,” a formulation that leaves deliberate room for forward-looking judgment.2The American Law Institute. Frequently Asked Questions The practical takeaway for anyone relying on a Restatement is this: the further a provision strays from existing case law, the weaker its claim to persuasive authority in court.
Where to Read Them
Restatement texts are not freely available online. The primary digital access points are Westlaw and LexisNexis, which carry the full text and are available to most law students and attorneys through their firms or schools. HeinOnline also maintains an American Law Institute Library with a searchable Restatement Section Locator. Most law school libraries and many county law libraries provide free on-site access to one or more of these databases, so members of the public can usually read Restatements without a personal subscription.
Print volumes are published by the Institute and sit in the reference collections of virtually every law library in the country. For serious research, print remains useful because it includes the full apparatus of comments, illustrations, and Reporter’s Notes alongside the black letter rules, along with appendix volumes that track how courts in each jurisdiction have cited specific sections.