Restatements FSU Research Center Fall 2008 Laura Fargo Research Center Intern

Restatements

FSU Research CenterFall 2008

Laura FargoResearch Center Intern

• Restatements • Highly regarded distillations of common law• Restate what the law is, not what it should be

• Why are the Restatements good secondary sources?• The “black letter law” covered by

Restatements are highly influential in courts• They are a great way to find cases

associated with particular topics

Restatements: Origins & Goals• American Law Institute (ALI), http://www.ali.org/

• 1922: Two defects in American law -- uncertainty and complexity

• 1923: ALI founded by prominent American judges, lawyers and law professors. Their goals:

• To produce a clear/concise statement of existing common law from cases.

• To distill the “black letter” rules of common law, to indicate a trend in common law, and to allow researchers to use Restatements to argue what a rule of law should be.

• Highly persuasive in courts

http://www.ali.org/

ALI Annual Report: April 2004• State/federal courts cited the Restatements

161,486 times • By the end of 2007, approximately 175,000 citations

• 60% of citations to Restatements on torts and contracts. • Torts citations almost double contracts cites.• Many fewer cites to other topical areas.

• Some states have established the Restatements as default principles of law: • Arizona courts "follow the principles set forth in the

American Law Institute's Restatement of the Law except in cases where a different rule has been laid down by this Court" or where a statute is controlling. Odekirk v. Austin, 366 P.2d 80, 81 (1961)

RestatementsCurrent Series

Restatement, 1st

(1923-1951)

Restatement, 2d

(1952-1986)

Restatement, 3d

(1987-present)

Property 1st Conflicts of Law 2d Agency 3d

Restitution Contracts 2d Foreign Relations Law of the United States

Judgments 2d Property 3d – Mortgages

Property 2d – Donative Transfers Property 3d – Servitudes

Property 2d – Landlord and Tenant

Property 3d – Wills and Other Donative Transfers

Torts 2d Suretyship and Guaranty

Trusts 2d The Law Governing Lawyers

Torts 3d – Apportionment of Liability

Torts 3d – Products Liability

Trusts 3d

Unfair Competition

Restatements

• Now publishing Restatements, 3d series• Updated by pocket parts and/or supplementary pamphlets• To check for completeness, see the ALI Checklist

• Must be formally adopted by ALI members• Publication pattern:

• Annual Meeting Discussion Drafts• Tentative Draft(s) (T.D. #1; #2; etc.)• Preliminary Final Draft • Official Text (approved final draft)

• FSU Research Center: KF395 A2

http://www.ali.org/index.cfm?fuseaction=publications.categories&parent_node=1

• Restatement Structure: • Chapters • Narrower titles• Numbered sections.

• Each section begins with a “black letter” statement of a broad legal issue

• Sub-issues are discussed in the author’s Comments and Illustrations that follow each statement. • Comments and Illustrations are often cited by courts

to explain the law.

Comments

Main Volume

Appendix Volume

• Reporter’s Notes are at the end of each section or in the Appendix volumes of the Agency, Torts, and Trust Restatements.

• Recent volumes have cross-references to the West Key Number System® and ALR annotations.

• Updating Restatements• Drafts of new series are published in soft-cover

format• Cumulative annual supplements• Interim case citation pamphlet• Pocket parts

Research Aids in the Restatements• Research aids include:

• Tables of Cases and Statutes• Conversion Tables for Drafts• Cross References to ALR and West’s Key Number

System• Indexes

• Appendix volumes• Contain summaries of cases that have cited each

section of the Restatement.

• Indexes• Restatement, 1st series, has a one-volume

index to all Restatements.• Restatements, 2d and 3d Series, do not have

a comprehensive index.• Some have subject index for each volume.• Recent Restatements have an index in the

last volume or in a separate volume.• Features vary by series and by volume.

Research methods for Restatements

• 3 ways to find a relevant Restatement section: • 1. Search an online version using keyword searching• 2. Use the Table of Contents online or in print• 3. Use the Index in print.

• Table of Contents are clear and easy to browse but are usually volume specific. • For Restatements two or three volumes long, you

must search each volume to browse the entire Table of Contents.

• Note: As a research technique, this is effective only in limited circumstances.

Restatements Online• Lexis: Secondary Legal library, Restatements file• Westlaw: REST Westlaw database

• REST – all Restatements of the Law• REST-AGEN – Agency • REST-CONFL – Conflict of Laws • REST-CONTR – Contract Restatement• REST-FOREL – The Foreign Relations Law of the United States• REST-JUDG – Judgments• REST-LGOVL – Law Governing Lawyers• PL-REST – Product Liability• REST-PROP – Property• REST-RESTI – Restitution• REST-SEC – Security and Suretyship and Guaranty• REST-TORT – Torts • REST-TRUST–Trusts • REST-UNCOM – Unfair Competition

Restatements Online

Lexis• Rules (along with comments, illustrations, and notes) are

searchable in separate sources from case citations.

• This makes searching for relevant rules very efficient on LexisNexis.

• Case citations are linked from individual rules. • Browse Tables of Contents or search by keyword. • Restatement drafts are in separate sources from final versions

of Restatements. • The first series of Restatements is not available on LexisNexis.

• Retrieving Restatement sections using Get a Document is not intuitive. Search for restatement in the Get a Document Citation Formats list to determine the proper Get format.

Restatements Online

Lexis• You can Shepardize a Restatement section on

LexisNexis using the following formats: • torts second sec. 46 • property second (donative transfers) sec 25.9• conflict of laws second sec. 6• contracts second sec. 35 cmt. d illus. 7

• Bluebook citations do not work

Restatements Online

Westlaw• All series of Restatements are available on Westlaw.

• Browse Tables of Contents or search by keyword.

• Searching the Restatements on Westlaw can be problematic because multiple series, selected drafts, and case citations to all of them are combined into one database

• This can make keyword searching inefficient unless you use a fielded search or use the Table of Contents mode to search within a particular Restatement.

• Examine search results carefully to make sure you are looking at the current version of a rule. If a rule has been superceded, there is an indicating note above the rule text.

Restatements Online

Westlaw• You can KeyCite a Restatement section on Westlaw

using the following formats:• rest agen s 1• rest 2d contr s 3 • rest 2d prop-lt s 1.1 • rest 3d trusts-pir s 170

• KeyCite on Westlaw finds much more citing material than Shepardizing on Lexis.

Restatements Online

• If you wanted to know how to determine the standard of conduct in a negligence case, how would you search for this?

• First, we’ll look at the Restatements on Lexis, then we will look at Westlaw…

Restatements in Lexis













Restatements in Westlaw
















Restatements Online

• Lexis• Table of Contents, but no index• Table of Contents easy to find for

rule sections• Drafts, archives, and case

citations in separate database from current rule sections

• Does not have Restatement 1st Series

• Westlaw• Table of Contents, but no index• Table of Contents somewhat

hard to find• All versions of rule sections

(drafts, current, and archives) as well as case citations are in the same database

• Browsing through the rule sections easier than in Lexis

• Has all series of Restatements• Will get more results when

searching because Westlaw publishes the Restatements and has more cross references available

Any Questions?

Documents

Restatements FSU Research Center Fall 2008 Laura Fargo Research Center Intern