In seven years, the American Law Institute (ALI) will be 100 years old. The members of the ALI, from the beginning, have included the elite of the legal elite. The ALI’s incorporators included Chief Justice and former President William Howard Taft, future Chief Justice Charles Evans Hughes, and former Secretary of State Elihu Root, Judge (later Justice) Benjamin N. Cardozo and Judge Learned Hand.
Few non-lawyers have ever heard of the ALI, but it is one of the most important nongovernmental legal institutions in the United States. The ALI is a private organization, but its members include all the justices of the U.S. Supreme Court, the chief judges of the U.S. Court of Appeals, and the chief judges of the highest state courts, deans of almost all law schools, and a limited number of law professors and distinguished private practitioners. Its elected membership is limited to 3,000.
All law students study the ALI’s “Restatements” of the law on many subjects, such as Torts (including Products Liability), Contracts, the Law Governing Lawyers, and so forth. These “Restatements” are an effort to codify (to restate) the common law. In many areas, statutes do not govern us but “case law” does. The ALI tells courts what the case law is, and courts routinely rely on the ALI Restatements as authority for their decisions.
This private body does much more than explain what the law is; it also it shifts the law in the direction that the ALI wants that law to go. Last year, the ALI revised its Handbook to ALI Reporters. The reporters write the drafts that the ALI membership approves or rejects. The Handbook now makes clear that the reporters should formulate the “ common law and its statutory elements or variations [to] reflect the law as it presently stands or might appropriately be stated by a court” (emphasis added). This strong effort to change the law is causing controversy, as many members think the ALI is pushing too much, too fast, and too far.
Consider, for example, what happened at the 2015 ALI Annual Meeting. The membership barely approved (after a very close vote) significant changes to its new section of the Restatement of Torts dealing with assault and battery. It defines “battery” as any contact that “offends a reasonable sense of personal dignity” or—this is the new addition—“contact that is highly offensive to the other’s unusually sensitive sense of personal dignity” if “the actor knows that the contact will be highly offensive to the other” (emphasis added).
The new ALI proposal “restates” the law to provide that there is a personal injury tort if the defendant knows that a minor touching or bump (e.g., tapping someone at the bus stop and asking for directions) will be offensive to the other person even if that other person’s sense of personal dignity is “unusually sensitive.”
Let’s say that a patient tells the hospital, “I don’t want to be touched by Jews. I don’t want any Jewish doctors, nurses, or janitors to touch me.” An earlier draft of this new Restatement said, “if the patient had demanded that she not be touched by a nurse or doctor of a particular race or religion, the hospital and medical staff have no obligation to respect that preference” because it violates “public policy.” The draft that the ALI approved on May 20, 2015, eliminates the italicized words. Now, if the hospital does not obey the religious bigot, the hospital is liable to pay damages if a court accepts the Restatement as law. Battery is an intentional tort, so the hospital’s insurance normally would not cover it.
State and federal courts have cited ALI Restatements and its similar law reform projects about 200,000 times. The Restatement of Torts has been particularly influential. In 1964, the ALI adopted §402A of its Restatement of Torts establishing liability of sellers to consumers for defective products regardless of fault. At the time, only 16 states had taken this position. Now, §402A is the law everywhere.
One wonders if the new Restatement will be (or should be) as influential, when it proposes that hospitals should be liable if they do not respect the anti-Semitic (or any other religiously discriminatory) views of their patients.
Let us consider another example. In addition to Restatements, the ALI also drafts Model Codes. The ALI approved a Model Penal Code in 1962, in an effort to encourage reform and change in the law. The ALI rightly brags that this “seminal work played an important part in the widespread revision and codification of the substantive criminal law of the United States. Respected and influential, it is still cited by courts.” At least 37 states have adopted modified or partial versions of the Model Penal Code, and several (New York, New Jersey, and Oregon), have enacted almost all of its provisions.
The ALI is now in the process of updating and revising this Model Penal Code. The proposed revisions on sexual assault have proven unusually controversial. At the May 2016 annual meeting, the ALI members overwhelmingly rejected a proposal advanced by the ALI Reporters (Stephen J. Schulhofer and Erin E. Murphy, both professors at New York University School of Law) to impose an affirmative consent requirement in defining sexual assault. The membership concluded that to impose the burden of proof on the accused to prove consent was given at each stage of a sexual encounter is a “clear denial of due process rights for the accused.” Instead, the membership approved a straightforward provision that no means no, and consent is a person’s willingness to engage in sexual contact. Courts have already rejected the affirmative consent standard when universities have tried to impose it.
We should expect to see more controversy as the ALI leadership proposes other controversial provisions. For example, opponents object to another provision of the proposed new Penal Code that makes it felony to give a wedgie! Let us say that Alpha and Beta are walking in a park when Beta bends at the waist to look at a flower and exposes the waistband of his underwear. Alpha, as a prank, executes a “wedgie” on Beta. That makes him a felon facing 5 years’ imprisonment. That is because proposed §213.0(7) defines “penetration” as any penetration “however slight” of the anus or vulva “by any object,” which is what happens when the underwear touches the buttocks. An infantile child prank becomes a felony charge for the perpetrator.
Last year, Justice Scalia noted in in his partial concurrence in Kansas v. Nebraska that the “modern Restatements” are “of questionable value, and must be used with caution” because “the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be.” Scalia argued that such novel views of the law should have “no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar.” No longer can one assume that “a Restatement provision describes rather than revises current law.”
As the ALI members registered for the annual meeting last May, the ALI passed out ballpoint pens that said of the ALI, “Clarifying the Law since 1923.” I heard one member refer to the pen and joke that the ALI is not clarifying the law. During the debate on the sexual consent provisions, members complained that the reporters for this consent section of the Model Penal Code did not objectively summarize or describe the existing law of consent. Others openly expressed concern that the ALI leadership has become politically correct. If that is true, many of its members will not follow the ALI leadership.
And the cancer spreads…. Normally, I would post this on LinkedIn (where Professor Rotunda and I are mutual contacts), but I have been temporarily banished from LI because of “suspicious behavior” that “violates their code of conduct.” That’s code for “your comments are too conservative and offensive to our PC police.” Judge Brooks Smith, for whom I clerked, once offered to sponsor me for the ALI, but, like the ABA, I’m not even sure I’d want to be on it after reading this article.
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I know some members of this pseudo self arrogated Congressional caucus [for laying down laws of the land]–Courts must altogether banish this. Congress makes laws and courts interpret them–not sure where this–See Me Please–comes about. I must admit, members that I met are a very far cry from a Learned Hand..they are there for prestige sake. Intellectual coteries must remain intellectual and not a lobbyist.
I never thought I would say this… but I agree with the late lamented Justice Scalia.
So what prosecutor is going after a wedgie conviction? The examples in the article are rather extreme extrapolations of the Restatement. For the new”Right” decrying anything disagreeable as “political correctness ” is the latest tyranny
Affirmative consent legislation in California was created by deeply misandric liberals, feminists and conservative ideologues who wish to make sex illegal outside of marriage. Its purpose is to stop hookup culture by making men terrified of sex with women – by using the ominous, life-destroying possibility of at-will false accusations with zero repercussions for the false accuser and guaranteed guilty verdicts for the accused. Affirmative consent legislation is designed to give women the power to destroy men’s lives through a mere false accusation – something feminist groups are fighting to have included as the de facto standard in the US penal code as well – which has already become the de facto standard in college kangaroo courts.
Teach yous sons well. Do all you can to fight this man-hating legislation and perversion of law. ALI stopped affirmative consent from becoming US law in the courts – for now – but only for now. Affirmative consent makes all sex de facto rape by forcing the accused to prove consent – which is impossible unless you record the entire sex act – which is illegal. Only a misandrist sociopath would think this a plausible legal standard – and there are plenty of such sociopaths to go around.