A recently disclosed judicial ethics committee “Exposure Draft” of an advisory opinion has fueled public debate over federal judges’ “extrajudicial activities.” The January 2020 draft from the Judicial Conference of the United States Committee on Codes of Conduct advises judges to refrain from membership in the Federalist Society and the American Constitution Society. The Wall Street Journal published editorials criticizing the draft, a group of U.S. Senators sent a letter to the chairman of the committee urging formal release of the opinion, and over 200 sitting federal judges wrote to the chairman in opposition.

If judges’ involvement with such organizations has become suspect (though we’re certainly not conceding that it is), then perhaps it’s a good time for the conduct committee to reconsider judges’ membership in another non-profit organization—the American Law Institute (ALI).

Under ALI rules, every Supreme Court justice, the Chief Judge of each U.S. Court of Appeals, and all judges who sit on state and territorial supreme courts are ex officio lifetime members of ALI. Approximately 21 of the 65 ALI officers and members of its governing Council and committees are judges.

Canon 4 of the Code of Conduct for United States Judges describes “the extrajudicial activities that are consistent with the obligations of judicial office.” The Committee on Codes of Conduct drafted Opinion 93 to further explain Canon 4. The opinion states that, “to qualify as an acceptable law-related [extra-judicial] activity, the activity must be directed toward the objective of improving the law, qua law, . . . and not merely utilizing the law or the legal system as a means to achieve an underlying social, political, or civic objective.” The opinion explicitly excepts from this broad prohibition against advocacy or activist organization activity the “activities of . . . the American Law Institute, whose purpose is to distill, rationalize[,] and restate the law.”

Recently, however, the purposes of ALI’s activities have seemingly changed. Rather than working merely “to distill, rationalize[,] and restate” the law, ALI has embraced its role as a legal-reform organization, working to “effect changes in the law, which it is proper for an organization of lawyers to promote and makes the law better adapted to the needs of life.”  ALI’s membership, however, as mentioned above, is not limited solely to lawyers.

ALI’s shift from descriptive to prescriptive, while gradual, has not been lost on practitioners or judges. As the late Justice Antonin Scalia wrote in his dissent in Kansas v. Nebraska, 135 S. Ct. 1042 (2015): “[M]odern Restatements . . . are of questionable value, and must be used with caution. . . . Over time, 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. . . .  [I]t cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.” And during a September 7, 2016 confirmation hearing for four of President Obama’s judicial nominees, each nominee echoed Justice Scalia’s skepticism about ALI’s Restatements when questioned by Chairman Chuck Grassley.

ALI is best known for its Restatements of the Law. As the name suggests, the purpose of a Restatement is to restate the law in a particular area. ALI has published 21 such treatises. As of January 2015, ALI described Restatements as being “primarily addressed to courts. They aim at clear formulations of common law and its statutory elements or variations and reflect the law as it presently stands or might appropriately be stated by a court.” In an analog, pre-Westlaw, pre-Internet world, ALI’s goal in part was to assist the “busy common-law judge” to do what a judge, “however distinguished, cannot [:] engage the best minds in the profession over an extended period of time, with access to extensive research, testing rules against disparate fact patterns in many jurisdictions,” and quickly locate a clear and correct rule of law for any case.

In parallel with, and perhaps partly because of, the vast technological advances in legal research—which have placed relevant precedents nationwide at the fingertips of even the busiest common law judge—the purpose of the Restatements has apparently changed. While the name suggests a non-controversial summary of black-letter law, as the late Justice Scalia highlighted, Restatements now often state what the law should be, and introduce major innovations into the law, some without majority or even minority support in existing jurisprudence.

Perhaps the most notable example of this prescriptive approach is Section 402(A) of the Restatement (Second) of the Law of Torts, which “restated” the law of products liability by adopting a rule of strict liability the California Supreme Court had adopted just one year earlier.¹  Courts across the United States subsequently adopted variations of this “restated,” but actually brand new, rule.  These decisions then prompted a revised and further evolved “restatement” of the rule in the Restatement (Third) of the Law of Torts.²

Section 51 of the Restatement (Third) of the Law of Torts:  Liability for Physical and Emotional Harm suggested, contrary to established common law, that a property owner owes a duty of care to everyone who enters his or her premises, even flagrant trespassers. In response to the Restatement’s call for judicially expanding premises liability, 22 states passed laws explicitly rejecting § 51.

Several other Restatement projects, two of which are ongoing and one that ALI’s membership has approved, offer further evidence of the organization’s ambition to put its own imprint on the law. Seven years ago, ALI initiated a Restatement of the Law of Copyright project. A WLF commentary cautioned that the project could easily drift from restating to rewriting copyright law. The drafters’ paraphrasing sections of the federal Copyright Act drew criticism from several of the project’s academic advisers. Even the Register of Copyrights weighed in, urging ALI to end the project. Several Members of Congress expressed their concerns to ALI late last year, and the group’s director responded earlier this year with several letters defending the project.

Another project mired in controversy is the Restatement of the Law of Consumer Contracts. Businesses and consumer advocates alike have criticized the project drafts for departing radically from either the state consumer-protection laws or the common-law principles that the Restatement project is supposed to restate. In May 2019, before the ALI membership debated the draft, 23 state attorneys general expressed their concerns in a letter, noting that the draft abandoned the contract-law doctrine of mutual assent. A business coalition argued in a letter that courts have not created “consumer contract” rules distinct from the general law of contract, so ALI’s project is inherently a “major innovation” in the law contrary to ALI’s mission.

Debate over the Consumer Contracts draft at ALI’s 2019 annual meeting was so contentious that the membership only acted on the Restatement’s first section, approving it. The coronavirus pandemic forced cancellation of the 2020 annual meeting, so ALI has taken no further action on its Consumer Contracts or Copyright projects.

Which brings us to a third misguided Restatement, one that ALI has formally adopted—the Restatement of the Law of Liability Insurance (“RLLI”). WLF documented RLLI’s rough ride in numerous blog posts, criticizing the project as one engaged more in rewriting than restating.

The RLLI contains many substantive rules lacking majority support—and indeed, some lacking any support in any jurisdiction. Section 12 of the RLLI, for example, creates a new tort theory under which an insurer could be liable for alleged harm caused by its defense counsel in an action against a policyholder. The insurer would be liable if it fails to take “reasonable care” in selecting defense counsel or if it directed the conduct of defense counsel in a manner that overrides the attorney’s independent professional judgment. The RLLI’s Reporters (i.e. its authors) cite no case law to support this novel new rule and, in fact, admit that “the majority of jurisdictions … have rejected insurer vicarious liability for the torts of defense counsel … the clear trend is in that direction [and there is a] dearth of cases [supporting this new rule.]”³

Another example is Section 27, which relies exclusively on dissenting judicial opinions to justify the creation of an innovative new rule. Under this rule, an insurer would be liable for the punitive damages assessed against an insured, contrary to policy language or public policy that precludes such coverage.⁴ Thus, rather than a restatement of existing law, the RLLI includes provisions that lack legal authority and contain changes to public policy and existing law that have been rejected by the courts.⁵

The Restatement’s departure from existing state law did not go over well with state legislators. One month after the RLLI’s final approval, an organization of state legislators whose members sit on insurance committees adopted a Model Act directing that RLLI provisions in conflict with state statutory or common law do “not constitute the law or public policy of this state.” Several states followed suit, adopting either resolutions or laws that curtail or limit the RLLI’s influence on insurance litigation. Most recently, in April 2020, the Kentucky legislature overrode the governor’s veto of an RLLI-related bill. Other state legislatures were considering similar bills before the coronavirus forced suspension of their legislative sessions.

Such unflattering state legislative activity provoked ALI’s leadership to directly defend the RLLI through lobbying. In Texas, ALI submitted written testimony in support of the RLLI bill that eventually became law. That testimony name-checked approximately sixty sitting federal and state court judges in Texas that held ALI membership.⁶ ALI also hired a lobbyist who registered to represent the group’s interests on the bill.⁷ The group similarly contracted with lobbyists to advocate ALI’s perspective on RLLI bills in Arizona,⁸ Utah,⁹ and Kentucky.¹⁰

ALI’s legislative advocacy  included two activities in which its judicial members could not engage themselves: testifying and lobbying against legislation. Committee on Codes of Conduct Advisory Opinion No. 50—Appearance Before a Legislative or Executive Body or Official—states in part, “Advocacy for or against legislation aimed at vital political issues or policy may well raise questions of propriety despite the fact that the judge, too, is a citizen and may be affected by the legislation.”

The ALI’s mission drift from restatement to law-reform advocacy and outright legislative lobbying places ALI’s judicial members in an untenable position per Opinion 93. By design, ALI’s judicial members are intimately involved in the creation of Restatements. Even though the Reporter of any given Restatement will not be a judge, each Restatement is to be reviewed by the Restatement’s Advisers, the Council, and the general membership, all of which include sitting members of the judiciary.¹¹ Moreover, no matter whether judges participate in the drafting or even vote to accept the final version of a Restatement, as members of the ALI, their imprimatur in support of a Restatement is implicit—which is why the ALI’s advocacy and lobbying efforts, on behalf of all ALI members, are so troubling.

The Committee on Codes of Conduct’s view on “indirect advocacy” in its Exposure Draft also calls into question ALI membership.  The draft asserts that membership in the Federalist Society and ACA creates an impression with the general public that members from the judiciary are engaged in policy advocacy.

As the 200+ judges who wrote in opposition to the Exposure Draft make clear, ALI seeks to do more than simply improve the law. In contrasting the Federalist Society’s activities to those of groups acceptable to the Committee on Codes of Conduct, the letter states, ALI “advocate[s] far more specific legal positions.” The judges added that ALI pursues its goal by “publishing restatements and model codes, which advocate detailed changes to all aspects of the law.”

As noted above, the Committee explicitly endorses judicial membership in ALI in Advisory Opinion 93. Past judicial advisory opinions also permitted judges to be members in ACS and the Federalist Society. But as the Exposure Draft reflects, the Committee has reversed course on its opinion of those groups. Given ALI’s mission drift, and especially its involvement in legislative-advocacy methods that judges themselves could not sanction or perform, the Committee on Codes of Conduct could very well change its mind about judges’ ALI membership, too.

To resolve the challenge facing ALI’s judicial members, the organization must weigh two options. ALI can either return to drafting and approving Restatements that merely “distill, rationalize, and restate” the law as it currently stands, consistent with Opinion 93, or it can rescind membership for sitting judges. Under the canons as currently interpreted, ALI cannot have it both ways.

The impartiality and independence of the judiciary are integral to our system of justice, and even the perception that judges have a hand in making the laws they are charged with neutrally applying, undermines that system. ALI and its members, among others, should reexamine the venerable organization’s policies to protect its sitting judicial members from the charge that they lack impartiality and are making—not interpreting—the law.

Also published by Forbes.com on WLF’s contributor page.

Notes

1. See Frank J. Vandall, Constructing Products Liability: Reforms in Theory and Procedure, 48 Vill. L. Rev. 843, 850 (2003).
2. Id. at 843, n.2.
3. Reporters prepare “Notes” to the various sections of Restatements designed to provide case law that supports the cited rule. RLLI § 12, Reporters’ note d.
4. “Although most courts have not addressed this issue, the very few state courts that have addressed it have resolved the tension in favor of the public policy against insurance for punitive damages, typically in divided judgments with strong dissents indicating that there is considerable uncertainty regarding the direction insurance law should take. This Section follows the approach of the dissenting judges….” RLLI § 27 cmt. e. As one long-time member of the ALI pointed out in moving to strike this provision at the 2018 ALI annual meeting, “I don’t know of any instance where we’ve built a Restatement on dissents, and I’ve been a member for 45 years. I’ve never seen it.” See Westlaw Transcript 2018 A.L.I. Proceedings 88, Tuesday Morning Session [May 22, 2018] at p. 30.
5. As the RLLI itself states, in creating the new rule regarding insurer liability for an insured’s punitive damages, “this approach furthers the public policy in favor of encouraging reasonable settlement decisions by insurers.” RLLI § 27 cmt. e. In cautioning Reporters against drafting rules that change public policy, the ALI explicitly recognizes that “[a]n unelected body like the [ALI] has limited competence and no special authority to make major innovations in matters of public policy.” ALI Style Guide at 4. Thus, on the one hand, the ALI says it has no “special authority” to make major changes in public policy, while, on the other hand, it does just that. The usual response of the ALI to this self-created paradox is to say that judges have to adopt the provision in the RLLI for it to become law, as if the ALI plays no role in promoting the very rules it has adopted. Given that judges—like the ALI—are also not the decision-makers of public policy, this argument is particularly circular and unhelpful.
6. Written statement of David F. Levi, Hearing on House Bill 2757, Texas House Committee on Judiciary and Civil Jurisprudence (Apr. 8, 2019).
7. Witness List HB 2757 Senate Committee Report State Affairs May 13, 2019, listing Nelson Nesse, Austin, TX, for the American Law Institute.
8. See Testimony of Mr. Kevin DeMenna of DeMenna Public Affairs, before Arizona House Commerce Committee Hearing on HB 2644 on January 28, 2020 appearing on behalf of the ALI against the bill.
9. Nicholas Malfitano, Two More States Pass Measures Targeting Controversial Restatement Issued by American Law Institute, Pennsylvania Record, Apr. 7, 2020.
10. Id.
11. ALI Style Manual at 15-18.