American Law Institute
The American Law Institute (ALI) was established in 1923 to promote the clarification and simplification of United States common law and its adaptation to changing social needs. The ALI drafts, approves, and publishes Restatements of the Law, Principles of the Law, model codes, and other proposals for law reform. The ALI is headquartered in Philadelphia, Pennsylvania, near the University of Pennsylvania Law School and Drexel University Earle Mack School of Law.
The American Law Institute was founded in 1923 on the initiative of William Draper Lewis, Dean of the University of Pennsylvania Law School, following a study by a group of prominent American judges, lawyers, and teachers who sought to address the uncertain and complex nature of early 20th century American law. According to the "Committee on the Establishment of a Permanent Organization for the Improvement of the Law," part of the law's uncertainty stemmed from the lack of agreement on fundamental principles of the common-law system, while the law's complexity was attributed to the numerous variations within different jurisdictions. The Committee recommended that a perpetual society be formed to improve the law and the administration of justice in a scholarly and scientific manner.
The organization was incorporated on February 23, 1923, at a meeting called by the Committee in the auditorium of Memorial Continental Hall in Washington, D.C. According to ALI's Certificate of Incorporation, its purpose is "to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work".
Membership in the American Law Institute is limited to 3,000 elected members who are judges, lawyers, and legal scholars from a wide range of practice areas, from all areas of the United States and from many foreign countries. The total membership of more than 4,200 includes ex officio members and life members who, after 25 years as an elected member, are no longer required to pay dues. New members must be proposed by an existing member, who writes a letter of recommendation, and seconded by two others. Proposals are evaluated by a Membership Committee that selects members based on several factors, including professional achievement, personal character, and demonstrated interest in improving the law.
ALI members are obligated to actively support the work of the Institute, including attending Annual Meetings and other project conferences, joining Members Consultative Groups for Institute projects, and submitting comments on project drafts. Members are asked to write, speak, and vote on the basis of their own personal and professional convictions, without regard to client interests, so as to maintain ALI’s respected reputation for thoughtful and impartial analysis.
The Institute is governed by its Council, a volunteer board of directors that oversees the management of ALI’s business and projects. Having no fewer than 42 and no more than 65 members, the Council consists of lawyers, judges, and academics, and reflects a broad range of specialties and experiences. Council members are elected from the Institute membership for a term of five years, and can be renominated for an additional two terms. Under the current rules, a Council member can request emeritus status upon reaching 70 years of age; for having served on the council for at least ten consecutive years; or for having served for three terms in total. The ALI Council ordinarily meets in May, October, and January.
With the exception of its Director and Deputy Director, the Institute’s officers are volunteers. Elected by the Council, officers include President, Vice President, Treasurer, Secretary, Director and Deputy Director.
- George W. Wickersham (1923–1936)
- George Wharton Pepper (1936–1947)
- Harrison Tweed (1947–1961)
- Norris Darrell (1961–1976)
- R. Ammi Cutter (1976–1980)
- Roswell B. Perkins (1980–1993)
- Charles Alan Wright (1993–2000)
- Michael Traynor (2000–2008)
- Roberta Cooper Ramo (2008–present)
- William Draper Lewis (1923–1947)
- Herbert Funk Goodrich (1947–1962)
- Herbert Wechsler (1963–1984)
- Geoffrey C. Hazard, Jr. (1984–1999)
- Lance Liebman (1999–present)
Restatements of the Law
The Institute's first endeavor upon formation was a comprehensive restatement of basic legal subjects that would inform judges and lawyers what the law was. This effort produced what ALI is best known for: the Restatement of the Law. Between 1923 and 1944, Restatements of the Law were developed for Agency, Conflict of Laws, Contracts, Judgments, Property, Restitution, Security, Torts, and Trusts. In 1952, the Institute started Restatement Second — updates of the original Restatements with new analyses and concepts with and expanded authorities. A Restatement on Foreign Relations Law of the United States was also undertaken.
The third series of Restatements was started in 1987 with a new Restatement of the Foreign Relations Law of the United States. The Restatement Third now includes volumes on Agency, the Law Governing Lawyers, Property (Mortgages, Servitudes, Wills and Other Donative Transfers), Restitution and Unjust Enrichment, Suretyship and Guaranty, Torts (Products Liability, Apportionment of Liability, and Physical and Emotional Harm), and Unfair Competition. New Restatement projects on Economic Torts, Employment Law, Trusts, and the U.S. Law of International Commercial Arbitration are currently underway as part of the Restatement Third series.
Restatements are essentially codifications of case law, common law judge-made doctrines that develop gradually over time because of the principle of stare decisis. Although Restatements are not binding authority in and of themselves, they are highly persuasive because they are formulated over several years with extensive input from law professors, practicing attorneys, and judges. They are meant to reflect the consensus of the American legal community as to what the law is (and in some areas, what it should become). All told, the Restatement of the Law is one of the most respected and well-used sources of secondary authority, covering nearly every area of common law.
Principles of the Law
Beginning with the Principles of Corporate Governance (issued in 1994), the American Law Institute has more recently undertaken intensive studies of areas of law thought to need reform. This type of analysis typically results in a publication that recommends changes in the law. Principles of the Law issued so far include volumes on Aggregate Litigation (2010), Family Dissolution (2002), Intellectual Property (2008), Software Contracts (2010), Transnational Civil Procedure (2006; cosponsored by UNIDROIT), and Transnational Insolvency: Cooperation Among the NAFTA Countries (2003). Work in the Principles of the Law series continues with projects covering Nonprofit Organizations, Government Ethics, and other topics.
Another important area of the Institute's work is model statutory codification. ALI code projects have included model acts dealing with air flight, criminal procedure, evidence, federal securities law, land development, pre-arraignment procedure, and property. Some of these projects were undertaken jointly with the National Conference of Commissioners on Uniform State Laws (NCCUSL).
The chief joint ALI-NCCUSL project is the Uniform Commercial Code (UCC), which the Institute has been developing and revising with the National Conference since the 1940s. First published in 1952, the UCC is one of a number of uniform acts that have been promulgated in conjunction with efforts to harmonize the law of sales and other commercial transactions in all 50 states within the United States of America. The Uniform Commercial Code is generally viewed as one of the most important developments in American law, having been enacted (with local adaptations) in almost every jurisdiction.
The Model Penal Code (MPC) is another ALI statutory formulation that has been widely accepted throughout the United States. Adopted by the Institute membership in 1962 after twelve years of drafting and development, the Code's purpose was to stimulate and assist legislatures in making an effort to update and standardize the penal law of the United States. Primary responsibility for criminal law lies with the individual states, and such national efforts work to produce similar laws in different jurisdictions. The standard they used to make a determination of what the penal code should be was one of "contemporary reasoned judgment" — meaning what a reasoned person at the time of the development of the MPC would judge the penal law to do. The Chief Reporter for this undertaking was Herbert Wechsler, who later became a Director of the Institute.
Two current ALI projects will revise portions of the Model Penal Code. One focuses on sentencing provisions in light of the many changes in sentencing philosophy and practice that have taken place since the Code was developed in the 1950s and 1960s. The second focuses on sexual assault and related offenses and will re-examine Article 213 of the Model Penal Code, which was ahead of its time when approved by the ALI in 1962, but is now outdated and no longer a reliable guide for legislatures and courts.
The American Law Institute has also worked over the years on studies and other proposals dealing with complex litigation, criminal law, enterprise responsibility, federal estate and gift taxation, federal income taxation, federal judicial code revision, and the division of jurisdiction between federal and state courts.
One particularly interesting ALI project was the Statement of Essential Human Rights. In response to reports of human rights atrocities during World War II, the Institute in 1942 appointed a committee of lawyers and political scientists, supposedly representing the principle cultures of the world, to compile a list of agreed-upon individual rights: an international bill of rights. The committee reported to the ALI Council in February 1944. Although the project was never presented for a vote by the ALI membership, the Statement of Essential Human Rights was published in 1945 by the Americans United for World Organizations, Inc., independently of the Institute. Along with other sources, the Statement was then used to prepare the United Nations’ Universal Declaration of Human Rights, which the General Assembly adopted on December 10, 1948.
How the Institute Works
The basic approach and format of all American Law Institute publications is similar. ALI undertakes a project only upon the careful consideration and approval of its Officers and Council. A methodical process then follows:
- An expert in the field of law, usually a legal scholar, is designated as Reporter. With the help of assistants, the Reporter does the basic research and prepares material.
- An initial draft is submitted for suggestions and revisions to a small group of Advisers—judges, lawyers, and law teachers—with special knowledge of the subject. In most projects, the draft is also reviewed by a group of ALI members with a particular interest in the topic.
- The revised draft is next submitted for additional analysis and consideration to the ALI Council, a body of some 70 prominent judges, practicing lawyers, and law teachers. The draft can then be referred either to the Reporter and Advisers for further review or to the general ALI membership.
- When approved by the Council, the draft is presented as a Tentative Draft to an Annual Meeting of the entire membership for debate and discussion. The membership may approve the draft, subject to revisions, or refer it back to the Reporter and Advisers. A series of Tentative Drafts is produced in this way over a number of years.
- A Proposed Final Draft consisting of all prior Tentative Drafts as modified by membership action may then be submitted to the Council and the membership. When the project has been approved by both, an official text is published.
The final product thus reflects the review and criticism of experienced members of the bench, bar, and academia. The process many take many years, and it is not unusual for a single Restatement of the law project to take over twenty years to complete.
Continuing Legal Education with ALI CLE (formerly ALI-ABA)
The need to establish a permanent entity devoted to the continuing training of lawyers became apparent after the end of World War II, as young lawyers returning from years of military service overseas found that they needed refresher courses in the law. Furthermore, the huge complex of government regulations that had begun with the New Deal and had greatly expanded during the war years provided another impetus for the post-admission education of all lawyers, whether or not they were veterans. Therefore, in 1947, the American Bar Association (ABA) asked the American Law Institute to undertake the first national program of post-admission continuing legal education (CLE) for practicing attorneys.
The governing bodies of ALI and ABA approved a Memorandum of Understanding in 1947 that created a "Committee on Continuing Education of the Bar of the American Law Institute Collaborating with the American Bar Association", comprising representatives from both organizations. Initial work focused on producing a series of CLE publications for a national audience and on encouraging and assisting state and local bar groups to establish and conduct their own programs of continuing legal education.
In the early years, ALI-ABA produced hundreds of live programs, and by 1958 brought CLE to communities in 44 states. ALI-ABA’s publications continued to flourish during this time and included the creation of handbooks spanning a range of subject areas. Ultimately, ALI-ABA became renowned for its extensive programming in practice areas including business/corporate, employee benefits, employment, environmental, estate planning, and real estate/land use law, as well as in ethics, skills, and law practice.
Over the years, ALI-ABA embraced new technologies and pioneered the delivery of CLE via satellite TV to a network of sites throughout the country hosted by state and local bar associations, law schools, and law firms. More recently, ALI-ABA added MP3 downloads to its delivery media that included live webcasts, online courses, on-demand electronic publications, DVDs, and telephone seminars. In addition to its national curriculum, ALI-ABA offered consulting, training, and accreditation assistance to law firms, corporate law departments, and government agencies for their in-house professional development programs. In 2010, ALI-ABA introduced the Knowledge Portal, a subscription-based, online legal content, research, and education resource designed to help attorneys balance their professional careers and become more efficient in their everyday practice.
On April 30, 2012, by mutual agreement, the American Bar Association and the American Law Institute chose to move forward separately in their CLE efforts, with the abundant intellectual content and cutting-edge technology of ALI-ABA being absorbed into the CLE group of ALI, now known as The American Law Institute Continuing Legal Education Group (ALI CLE.)
Today, the thousands of prominent lawyers, judges, and legal academics in the United States and abroad who taught and wrote for ALI-ABA continue to do so for ALI CLE.