Restating Restitution: The RestatementProcess and Its Critics

"I can see what the law is like. It's like a single-bed blanket on a double bed and three folks in the bed and a cold night. There ain't never enough blanket to cover the case, no matter how much pulling and hauling, and someone is going to nigh catch pneumonia. Hell the law is like the pants you bought last year for a growing boy, but it is always this year and the seams are popped and the shankbone's to the breeze. The law is always too short and too tight for growing humankind. The best you can do is do something and then make up some law to fit and by the time the law gets on the books you would have done something different."-Willie Stark, All The King's Men.1I. IntroductionThe American Law Institute's Restatements of the Law are ambitious attempts to articulate the common law in disparate areas like torts, contracts, and restitution. Critics of the American Law Institute (ALI) process question both its legitimacy and its accuracy in undertaking to "restate" common law. In this modest effort, I defend the Restatement process, focusing on the ALI's internal process for the ongoing third Restatement ofRestitution and Unjust Enrichment.What follows is somewhat ofan ALI insider's view. I am both an Adviser to the restitution project and a twenty-five-year ALI member. Restatement reporters, the ALI professional staff, and the governing Council comprise an inner circle, but, although I neither speak for the ALI nor express ALI policy, my vantage point is located inside the ALI's mainstream.Several testing stages comprise the ALI's formal process in developing a restatement. The restatement's reporter drafts sections, comments, and notes with citations. This becomes a published Preliminary Draft that the reporter presents to meetings with a Members' Consultative group of volunteers and to an appointed group of Advisers, selected by the Executive Director to secure pro and con balance. Spirited discussion often occurs at these meetings. The Preliminary Draft in turn becomes a published Council draft for discussion by ALI's governing body, the Council. Next, a published Tentative Draft, available online and bearing the notice that it is not ALI policy, is discussed and voted on at the members' annual May meeting. Earlier versions and efforts may be, in effect, remanded to the reporter at any stage of the process. Final approval comes after that membership vote, vetting by the ALI's professional staff, completion of the whole restatement to be circulated as a proposed final draft, and a final membership vote.In her article in the Indiana Law Review, Professor Kristin Adams examines the criticism of ALI's membership, mission, goals, and values; the critics describe the ALI as insular and a bulwark against greater reform.2 Moreover, many critics describe the ALI as a throwback to formalism rather than an approach that a legal realist and a progressive should follow.The criticism most applicable to me is that ALI membership is "attractive only to older and less intelligent scholars."3 The observers' point about age is well taken, for, although most do not need it, almost all ALI members are qualified for the protection of forty-plus age-discrimination legislation. An ALI member perforce has achieved a measure of professional success as a judge, practitioner, or professor. Moreover, although the ALI is undertaking assiduous recruitment efforts, it has fewer minority, female, and small-firm lawyers than it should. Professor Adams, herself a friend of the restatement process, concludes that criticism of the ALI is "disguised criticism of the American common law court system," and that these critics simply do not like the common-law technique.4 I will return to that point in my conclusion.II. RestitutionIncluding restitution in the ALI's Restatements of the Law is particularly appropriate because restitution is a court-made or common law subject like contracts and torts. In 1937, the first Restatement ofRestitution implemented part of the legal realists' reform agenda when it united previously disparate streams bearing the nonfunctional headings of law and equity into a unified functional body of doctrine under the single title of unjust enrichment. …