What Would Law Teachers Like to See the Institute Do? · What Would Law Teachers Like to See the Institute Do? own selected spot where he thinks the most important effort should be

The American Law School Review

What Would Law Teachers Like to See theInstitute Do?

A symposium held at the Thirty-Third Meeting of the Association of AmericanLaw Schools in New Orleans, December 30, 1935.

HERBERT F. GOODRICH

Dean, University of Pennsylvania Law School,and Adviser on, Professional liRelation-s

of American Law Inst'itute

Mr.'President and Gentlemen of theAssociation of American Law Schools:It certainly is appropriate that the lawteachers should talk about the futurework of the Institute because, after all,it was through this Association that the.Institute was started. It is due to theindividuals who compose the faculties ofthe schools of this Association that theInstitute has functioned successfullysince its organization in 1922.

Since the American Law Institute wasorganized in 1923 it has been chieflyengaged on two main projects. One ofthem was the Model Code of CriminalProcedure. The Code was finished andapproved in 1931. It was universallyacknowledged to be a highly competenttechnical piece of work. At the time ofits completion the interest of lawyers andthe public in criminal law administra-tion seemed to be at low ebb. No oneseemed to be excited about improvingcriminal procedure except for a fewscholars in law schools, or in any workin the criminal law. We have moved aconsiderable distance since that time. Itseems fair to say now that the interestis almost at flood tide. Whether changescome through the American Bar Associa-tion activities, the federal government'sparticipation through the Department ofJustice, or from certain spectacular crim-inal careers by well-known and well-ad-vertised public enemies is an interestingquery, but not important here. TheModel Code of Criminal Procedure has

received and is receiving a great deal ofattention due to this awakened interest inmatters concerning criminal justice. Itis constantly discussed by Bar Associa-tion Committees, state commissions andother bodies, official and unofficial. Eachlegislative year sees portions of it enact-ed into law in the various states.'

The other main piece of business ofthe Institute thus far has been the Re-statement of the Law. Nine volumeshave appeared; two in Contracts, two inAgency, two in Torts, one in Conflict ofLaws, and two in Trusts. It has beenhard work, terribly hard work. Onlythose who have been very close to itknow the thought and energy it has takenfrom the 'Director, the Reporters, theirassistants, and from many members ofthe Advisory Committees. The productis high in quality, and is so regarded bythe profession. Lawyers cite it tocourts; judges quote it in opinions; lawprofessors write articles about it. Thecommon law can be restated, and theInstitute is successfully restating it.

As is inevitable in human affairs, thereare varying degrees of enthusiasm aboutthe Institute's accomplishments to date.Many of us in the law, and especiallythose whose legal work is within theteaching profession, feel that there is aserious social lag between our legal rulesand our rapidly shifting society. Beingconscious of that lag and being sociallyminded persons, we are eager to see itgrow less. Each has his own favoritemethod of taking up the slack and his

I Statistical material was published In A. B. A.

Journal for April, 1935, p. 255.

What Would Law Teachers Like to See the Institute Do?

own selected spot where he thinks themost important effort should be made.It is to be expected in the course ofthings, therefore, that, when considerableeffort is expended in a different methodor outside the particular field which oneof us thinks most important, he will di-rectly or inferentially chide those whoseapproach is not the same as his. Thusthe criminologist may say that a Codeof Criminal Procedure does not help tosolve the riddle of the misfit individualin society and ":he penologist add thatsuch a code offers no program for re-shaping the misfit, if he is convicted ofcrime and sent to a penal institution, totake his place in the complex life of ourday. A restatement of existing law, an-other suggests, does not grapple with themore fundamental problem whether theexisting law is adequate to the needs ofpresent day society.

The truth of such statements will bereadily admitted by any thoughtful law-yer and certainly by all members of theAmerican Law .nstitute. Criminal Pro-cedure is only one part, and perhaps asmall part, of an enormous social prob-lem. But note also that it is the part ofa larger problem with which the lawyeris closely in touch and for the successfuloperation of which he is responsible. Hedoes not know, from his professionalknowledge or experience, why men com-mit crimes. Ile has no answer, basedupon his technical learning, to the ques-tion what is the best thing to do withlaw breakers. Ile should not ignorethose questions, but his first responsibil-ity is surely in the field where he doeshave peculiar professional knowledgeand skill. It was entirely appropriate,therefore, that the Institute's first workwas in Criminal Procedure.

In the same way many of the problemsof our substantive law go far beyondquestions concerning that body of prec-edents built up in the course of develop-ment in Anglo-American law. The), arebased upon urnsolved questions in eco-nomics, socio ogy, and government.Their solution, if, as, and when we findthe solution, will call for many otherheads in addition to that of the lawyer.It is likely, too, that the method used

fdr changing law to fit changing timeswill in some instances need to be morerapid and more drastic than the slow de-velopment through judicial precedent.Who knows, for instance, but that acompensation scheme in motor vehicleaccidents may one day come with theswiftness which marked the change fromemployer's liability to workmen's com-pensation in the industrial field?

Be that as it may, the problem of im-mediate importance and of professionalresponsibility for the lawyer seems thatof our common law. Is it clear? Is itconsistent with itself? Do our legal.terms mean what they say? IHave wegeneral principles or only myriads ofseparate instances? So here, too, thefirst place for legal work to start seemedthe straightening out of our own mate-rial, a re-examination and restatement ofexisting common law. That is just wherethe Institute began.

It is the privilege of any one workingin one part of our legal field to deprecatethe endeavors of others in different partsof the field. The same privilege is opento the spectator who sits on tl-e fenceand watches both groups.. But it is alsothe privilege and the duty of those whoare on the job which seems to themworth doing to say, as did Nehemiahwhen Sanballat and Geshem invited himto a party when he was building the wallsof Jerusalem: "I am doing a great work,I cannot come down." The project ofrestating the law was not adopted in ahurry. It had thoughtful considerationfrom a group of distinguished peoplefrom all branches of the legal profes-sion who concluded it was worth a majoreffort in time and money. The successof the work thus far and the invalu-able co-operation which it has receivedfrom law teachers throughout the coun-try prove the soundness of the originalconclusion.

Along with the Restatement, we havethe state annotation program. The proj-ect of local annotations is not, strictlyspeaking, an Institute activity, althoughthe Instilute has encouraged it and help-ed it. Obviously, an annotation programcannot keep pace in all states in allsubjects with the Institute's rate of work.


There are not enough well-organizedbar associations in the country to carrythe program at such a pace. Bar associ-ations have many other useful activitieswhich they should and do promote, and,as every one knows, annotation work it-self is hard, long, and tedious. Teachershave participated in it in a most helpfulway. But obviously there can be no callupon them to abandon all other enter-prises to do an annotation in a given sub-ject for their state. There are manythings to do in the law. The harvest isgreat, and the laborers are few. Therecent article by Mr. Harold Laski inHlarper's magazine, called "The Declineof the Professions," demonstrates anewhow few the laborers are. If a lawteacher is meeting his classes and gettingout a casebook or working upon a legis-lative program for his state or doing anyone of the many useful extracurricularthings which law teachers do, he obvious-ly cannot be reading state decisions andgetting out an annotation. Yet thepoint should be stressed that, in what-ever legal field a man is working, a thor-ough knowledge .of his own state deci-sions and statutes in that field confersan immensely important enlargement ofhis usefulness. This is no new idea.Albert Kales talked it a good many yearsago and others of us had emphasized itlong before the American Law Institutewas organized. The proposition is stillsound. A man can learn an immenselot that is useful to him by a check ofhis own decisions and statutes with theRestatement in any given subject. Ifhe will head up his research into writ-ten form so that the product is a stateannotation, he has contributed to his ownknowledge and the Restatement's practi-cal usefulness, to the mutual benefit ofthe Institute, the users of the Restate-ment, and himself.

The considerations underlying thispoint seem of such high importance thata few words should be devoted to them,even at the risk of straying from theimmediate question of Institute futureprogram. In a little more than fiftyyears the law teacher has changed froma benevolent retired judge or practition-er reading set lectures richly larded with

personal anecdotes in a perfunctory classexercise to a position of power and im-portance in the legal profession. Iehas done it by years of devoted and intel-ligent intramural work in the law. Assaid before, there is still plenty to do.Not that all worthwhile effort is limitedto reading, analyzing, classifying cases,understanding legal history and other ac-tivities known as orthodox. Certainly wehave need of new methods of approach,new systems of terminology, liason withother fields of social science. But weshall make a mistake so grave as to becatastrophic if a generation of law teach-ers appears which is afraid to do ortho-dox work in the law for fear of beingthought old fashioned. Surely we arestill lawyers, even though to be good law-yers we have to pick up something ofthe other social sciences in our stride.

The Institute's organization, method ofwork, and accomplishments are so fa-miliar to the professional public by thistime that elaboration is uninteresting andunnecessary. This discussion is moreconcerned with a future program thanwith past accomplishments. But thereare two collateral successes of the Insti-tute which should be mentioned here be-cause they bear upon suggestions for itsfuture program.

One is that there has been developed,through experience, an effective way toproduce co-operative work in the law. Itis not hard to find an able scholar whois willing to work. It is not hard to getCommittees together who will talk atlarge (and at length) and pass resolu-tions. But to get a scholar's work help-fully considered by successive groupsin widening circles has not only been anindividual triumph for Dr. Lewis but adistinct achievement for the Institute aswell. Already this modus operandi hasbeen taken up by other workers in thelegal field. It has been adopted by thosein charge of research in InternationalLaw and by the committee working uponfederal court rules.

The second by-product of Institute ex-perience is its membership. It is coun-try-wide; it contains leaders in the lawfrom every state. It includes, in well-balanced portions, the teaching, judicial,


and practicing branches of the profes-sion. It is a working membership. Itsmembers read rcams of material, writevolumes of critical comments, presenttheir views to committees, and discussthem in open meeting. A list of promi-nent names as window dressing for anenterprise is too well known an Americanphenomenon to excite comment or sur-prise. But a collection of people ofstanding who will interest themselves inthe technical side of the work is some-thing new, and the Institute has accom-plished it.

So much for past history. CriminalProcedure finished for the present; theRestatement well under way with ninevolumes in print; a tried and successfulmethod of co-operative work in law; aselected working membership of highquality.

What can the Institute do in the fu-'ture? Already plans for a future pro-gram have been drawn and steps madein the direction of enlargement of activ-ity. These may be mentioned briefly.

The first is the completion of the Re-tatement of the Common Law. This in-volves considerable thought and work

,along the lines already well established.Questions will arise concerning thechoice of subjects which are appropriatefor Restatement and the selection of in-dividuals to carry the work along in thosesubjects. Law teachers and others havebeen consulted as to their views uponthe suitability of subjects for restate-ment. The conclusions on the list as itnow stands are not necessarily final, andadditional suggestions are welcome.

Second. A program of work on thesubstantive side of the criminal law.This program has had thought and at-tention over a great many months. TheInstitute has had the help of an able ad-visory committee and has had the benefitof the thought and conclusions not onlyof lawyers, law teachers, and public ad-ministrators, but scholars in the fields ofsociology, education, and psychiatry aswell. The recommendations of this com-mittee are in print, 2 have been consid-

*See American Law Institute Reports in Rela-

tion to Future Work 1935.

ered and approved by the ExecutiveCommittee and Council of the Institute,and have been submitted to one of theFoundations as a basis for possible grantof funds to finance the enterprise. If theappropriation is made, the Institute willbe prepared to do work of value in thelegal side of this important and chal-lenging series of problems and also tomake such further co-operative studiesand investigations in related branches oflearning as is necessary and useful.

Third. Program of co-operation withResearch in International Law. Re-search in International Law has beengoing forward since 1927 under the aus-pices of the faculty of the Harvard LawSchool. This research has now becomeaffiliated with the American Law Insti-tute, and the results of the work will,under the working agreement, be broughtto the attention of the American Law In-stitute from time to time as the workprogresses.

Fourth. Steps toward co-operationwith other agencies for law improvement.The National Conference of Commis-sioners on Uniform State Laws is anolder body than the American Law In-stitute. Their aims and purposes arenot mutually inconsistent, but indeedvery close together. The beginning hasalready been made for closer associa-tion between the work of the Instituteand the Conference, a method of proce-dure outlined, and two subjects for jointeffort selected, namely, AeronauticalFlight and an Estates Act. As to pro-cedure, the agreement provides that eachbody shall appoint representatives tomeet from time to time for the purposeof discussing acts which their respectiveorganizations contemplate drafting. Atthe meetings, agreements will be reachedconcerning the drafting of acts in whichthe two groups may advantageously co-operate. When the two organizationshave agreed to join their efforts in draft-ing an act, the representatives of eachwill attempt to agree on a Reporterwhom they can recommend to their re-spective organizations. After a Report-er has been selected, his advisers will benamed by the Institute and the Confer-


ence. The completed draft prepared bythe Reporter and his advisers will besubmitted to the Conference and to theCouncil of the Institute, respectively, inthe customary manner.

Along similar lines is the beginning ofco-operative effort with such bodies asthe New York Commission on Law Im-provement. There has already been con-sultation with the officers of this organ-ization, and it is expected that eachgroup can find subjects on which thework of each will be useful to the other.

Fifth. Creation of a fund to encour-age scholarly and scientific legal work.

The best statement of this project canbe taken from the Report of DirectorLewis upon the point as follows:

"The creation of a legal research fundwhich can be used to encourage men, es-pecially young men of outstanding abil-ity, to study the subjects which we lookforward to restating and produce mono-graphs and other writings thereon. Thewise expenditure of such a fund would,we believe, not only tend to insure ade-quate Restatements, but would also, apartfrom this, of itself advance legal science.It is, we submit, true of law as of theother sciences, that any considerable im-provement rests not so much on the planof improvement, though a proper planis important, as on the development ofmen of first-class ability to take part inthe work."

Sixth. The drafting of statutes forthe improvement of the law. This fieldof endeavor grows directly out of the ex-perience in the Restatement. The In-stitute already has a memorandum list-ing a large number of situations wherethere seemed obvious need for legisla-tive action to take the law beyond whatRestatement could properly do. Wheth-er the work in this field will be done bythe Institute independently or whetherin co-operation with the National Con-ference of Commissioners on UniformState Laws, or both, is a question whichremains to he worked out in the future.But that there is a field here for usefulendeavor there is no doubt.

See American Law Institute Reports In Rela-tion to Future Work 1935.

So much for plans already sufficientlyworked out to be stated as present proj-ects. The object of the discussion thisafternoon is to ask the law -teachers what,in addition to the present work and pro-posed program, they would like to see theInstitute do. Should it give some helpin matters of legal procedure? Shouldthe Institute be the means through whichuseful factual investigations could becarried on and the results scrutinized byits membership? Examples would be thefederal court study by Dean Clark andhis associates, published by the Institute,and the fact study of motor vehicle ac-cidents which appeared a few years back.Just what are the concrete suggestionsfor law improvement, orthodox or un-orthodox, with which the Institute shouldassist, is a matter upon which everymember of that body and every personwith responsibility for its administrationvery earnestly desires the benefit of thelaw teachers' thought and experience.

ROLLIN M. PERKINS

Professor of Law, State University of Io-a

l\1r. President and Members of the As-sociatioti: It had been the plan to havethe comments of the speakers on the pro-gram available to each of them in advanceof the meeting, but that plan did not ma-terialize, and consequently there will bea certain amount of duplication.

It has been noticed for some time that,whenever two or three or ten of us havebeen together in the hall or around tlhedining table, presently some one wouldbegin to describe some project of out-standing importance which should receiveimmediate attention and which wouldbe undertaken at once were it not forsome insuperable obstacle, and the obsta-cle has ordinarily been the same, althoughsometimes expressed in different lan-guage. Now we have spoken of the wantof time; again we have mentioned thelack of man power; and sometimes wehave been frank and spoken in terms ofthe need of money.

During this same period the AmericanLaw Institute has rather successfullydemonstrated its ability to secure ade-quate financial backing whenever it has


a project of sufficiently outstanding meritdemanding its attention. And, if thereever was a "natural" in the field of juridi-cal endeavor, it would seem to be this:Projects literally crying out for perform-

.ance, on the one hand, and the AmericanLaw Institute eagerly looking around fornew worlds to conquer, on the other. Thepurpose of this symposium is to bring thetwo together, so that any law teacher whohas in mind some project which he feelsis reasonably comparable with the Re-statement of the Common Law, as a mat-ter of size and importance, may bringthis out into the open for general consid-eration, so that all of these projects maybe compared, with the thought that per-haps one of them may be found suitablefor the next major undertaking of the In-stitute.

Now one project of this nature seemsto me to lie in the field of statutory law.When we discuss some problem of nego-tiable instruments or a problem in someother field which has received the atten-tion of uniform legislation, we have nohesitation in getting right down to thevery words of the statute itself. Butwhat we have to say on other problemsis frequently of such a nature that anoutsider who happened to be listening inand who judged only from what he heardon that occasion, might feel that we werequite unfamiliar with the general field oflegislation.

It is not that way when we are back athome in the classroom. After we haveintrigued the class through and over andunder and round about some problem ofthe common law, we frequently make ref-erence to some local enactment or sometype statute, and at that point the discus-sion starts all over again to see whetherthis statute is merely declaratory of thecommon law or whether it has madesome change, and. if so, what change;to see whether this statute has succeededin clarifying old doubts or whether ithas, as is all too frequently the case, givenrise to doubts which had not existed be-fore.

But, when we come together from allparts of the country so that we should bein a position to throw important light up-on this statutory material, from a com-

parative point of view, we seem to be pe-culiarly silent. Our records disclose veryscant references to statutory trends orpatterns in this country.

Probably no one has been long engagedin the teaching branch of the professionwithout having occasion now and again togo to the books of the forty-eight statesand of the territories and the possessionsand perhaps also to the federal enact-ments in order to trace out all of the leg-islative material of the country on someparticular problem. This is interestingand illuminating work, but it is time con-suming. It is not only the time it takesto go to the forty-eight or more differentsets of books; it is not only the time thatit takes to solve the puzzle of statutoryindices, each constructed according to adifferent plan, if any; nor is it that, afterthis has been done, it takes time to checkup the recent supplements and sessionlaws to see what changes have been madesince the last general compilations. But,if it is worth the time and effort to traceout and copy down the law of all of thejurisdictions, it is because it is importantto compare that of each with every other.

When we refer to the common law inthe general and casual sort of way, ourreference is frequently suggestive of thethought that we regard it as somethingimmutable and indisputable, whereas, ofcourse, the moment we become specific,we recognize that it is subject to changeand frequently subject to different inter-pretations in different jurisdictions at thesame time.

When we speak of the statutory law,we often refer to it as if it were some-thing too evanescent to be even entitledto our attention, something here todayand gone tomorrow, which doesn't evenstay long enough for us to find it, where-as we know very well that a very substan-tial part of our legislation has been pe-culiarly stable and enduring.

We often speak of American legislationas a whole a. if it were entirely too con-plicated to be capable of reasonable con-sideration. How can we possibly dealwith forty-eight and more laws on everypoint? But every investigation that hasbeen made along this line has disclosed


that, difficult as the problem may be, it isalways something less complex than that.

The practice of copying statutes fromthe books of other states has tended togive rise to certain patterns. At onepoint, for instance, we may find a generalpattern which prevails on more than halfof the statute books of the country. Ina considerable number of other states, thispattern is still clearly discernible, al-though perhaps there are certain majorvariations, and there are few jurisdictionsin which that pattern can't be found atall. At another point we may find fiveor six patterns, each having substantialrepresentation. Elsewhere the patternsmay be even more numerous, but it al-ways seems to be something substantiallyless than just forty-eight different laws.

Viewed from another angle, if we openthe statute book of any state at random,we may find before us an enactment thatis really unique. It may be there is noth-ing else like it anywhere. But the proba-bility is that we can duplicato it exactlyin the books of a few other states andperhaps of many other states.

What a boon it would be to the courtwhich has occasion to pass, for the firsttime, upon some difficult problem of stat-utory construction, if there were someplace to which it could turn and see at aglance whether this statute is actuallywithout counterpart or whether exactlythe same thing can be found on the booksof certain other states, and, if so, justwhat jurisdictions these are.

In the one event the court would knowat once that no direct light upon its prob-lenis would be found in the decided cases.In the other event, the court would knowjust where to turn to see whether or notany other court had occasion to pass uponexactly the same point. Needless to say,the court might or might not be satisfiedwith the solution reached elsewhere, ifthere were any. But, notwithstanding thesuggestion that we had in one of ourround table conferences, the court wouldbe glad to know what some other courthas had to say upon the subject, if any-thing has been said.

For the same reason, it would be a boonto the lawyer who has occasion to presentsuch a case to the court, if such material

were available to him. The importanceof a comparative picture of the Americanlegislation to members of the teachingbranch of the profession is too obviousto require mention at a meeting of thisnature. In fact, any one who is interest-ed in the law from other than the narrow-est possible point of view might have oc-casion to make reference to such infor-mation, if it were available. If, for ex-ample, we have a group made up of law-yers and laymen interested in approach-ing the crime problem from an interstatepoint of view, it may be important toknow in- advance that there is no jurisdic-tion in the country in which a privateperson, acting without a warrant, is au-thorized to make an arrest for a misde-meanor which was not committed in hispresence. It may be of further interestto add that there are four different viewsin the different states with reference tothe right of the private person, actingwithout a warrant, to make an arrest fora misdemeanor which was committed inhis presence. It may also be worth whileto go further and specify what theseviews are and in what jurisdictions theyprevail.

Now this information is not availablewithout reference to legislation as well asto the common law. If our interest is inanother field, the substantive law of homi-cide, perhaps, are we warranted in con-tinuing to repeat, without qualification,the old formula that there can be no hom-icide except of one who has been firstborn alive, when we know that, by statutein more than a dozen states, it is possibleto have the killing of an unborn quickchild under circumstances amounting tomanslaughter and at least one state inwhich it may amount to murder?

The truth of the matter is that we havein this country a veritable wilderness ofstatutory material, some of it good, someof it bad, some of it indifferent. Some ofit is merely declaratory of the commonlaw; some of it has very definitely chang-ed the law; some of it is still in the fieldof doubt as to whether it belongs in onegroup or the other. Much of it has beencopied, with or without variation, fromthe books of one state by some other stateor by many other states, and yet we have


not had, in recent times, an) study ofthis material as a whole to see which ofit is good, which bad, which indifferent,to find out exactly which has merely beendeclaratory of the common law, just howextensive and how significant is thechange which has been made by thatwhich is not declaratory, nor to traceout the various intricate patterns whichwill be found when we have made a thor-ough examination of American legislationas a whole.

A pioneer wcrk along this line wasconducted some years ago by Stimson inhis American Statute Law. Some partsof the problem have been investigated inrecent times. The American Law Insti-tute itself conducted a very elaboratestudy of legislation in the field of criminalprocedure as a part of the preparationfor its model code. Individual effortshave begun to niake their appearance,among which may be mentioned, merelyfor the purpose of sampling, at least, Ver-nier on American Family Laws and Bord-well on Wills.

Legislation has been playing, and mustcontinue to play, a role of constantly in-creasing importance in the legal field.We cannot answer Mr. Goodrich's ques-tion, What have we got? without knowingsomething of the picture of legislation aswell as having a Restatement of the Com-mon Law.

With the Code of Criminal Procedurefinished, with the Restatement of theComdmon Law well on the road to com-pletion, with the task of constructing aCode of Criminal Law definitely agreedupon, an exhaustive study of Americanstatutory law on an analytical and com-parative basis seems to me to be the largestassignment in the legal field which is nowin need of immediate attention.

The Restatement of the Common Lawbrought forth as a by-product the stateannotations. Probably a study of ourlegislative material would not requireanything in the form of state annotations,for the reason that most of the jurisdic-tions have already undertaken the task ofannotating their own enactments. Butsomething in the form of composite an-notations might be very helpful. If, for

example, a certain statute is to be foundon the books of thirty different stateswith only minor variations, we might turnto any one of these jurisdictions and findsection after section which had so far re-ceived nothing in the form of judicial in-terpretation. Should we bring togetherat one place the leading cases from allof these thirty, it might be possible tothrow important light upon almost everyword.

But, whether or not anything in theform of annotations should be found tobe useful, we may depend upon it that im-portant by-products of one kind or anoth-er would flow from a study of this nature.One which is very definitely within thefield of possibility is with regard to thestatutory index itself. There may bestates in this country in which the statu-tory index is so satisfactory that no onewho has occasion to make use of it everoffers any comment or criticism. Butcertainly state after state may be foundin which the index does not measure upto that standard.

My own work along this line, whichhas been regrettably limited in its scope,has seemed to indicate that the index ofthe Illinois statutes is rather adequate,wher.eas that in most of the other juris-dictions seems not to be so. On the oth-er hand, as I thumb through the Illinoisindex, it seems rather bulky. The thoughthas occurred to me that perhaps a care-ful study of statutory indexing mightsucceed in reducing that material to asubstantially narrower scope without anyreal sacrifice. But whether this could bedone or not and whether or not othershave reached different conclusions withreference to the relative merit of the vari-ous indices, if a careful study should suc-ceed in bringing forth a reasonably ade-quate and reasonably satisfactory productwhich could be recommended as a stand-ard statutory index, with the hope that allof the states might make use of it in theirfurther publications of enactments, thiswould be an achievement of very realmerit. It would be welcomed not only bythose who have occasion to use the statutebooks of many states, but certainly inquite a number of jurisdictions it would


be welcomed by those whose effort doesnot require the use of more than theirown set of books.

Even other by-products may reason-ably be expected. No doubt committeesworking in many parts of the field wouldnot be satisfied merely to deal with theexisting material, but would want to gofarther and recommend something in theform of a model statute on the subject,and this might not necessarily be limitedto a statute which was thought to be ofsuch a nature that it should be urged up-on every Legislature for adoption as itis. It might perhaps be something merelyto be set aside for reference purposes, sothat any legislative committee having oc-casion to draw a bill on that subject wouldhave some place to which it could turnand find what had been recommended forthe purpose, by some recognized author-ity, and would not be forced to venturea guess as to what state probably had thebest working model. My own belief isthat probably the greatest service to berendered to legislative bodies in the fu-ture will not be in the field of uniformlegislation. It is not the purpose of thisremark to belittle in any way what hasbeen done in uniform legislation. Thethought is rather that, after more thanforty years of intensive and effectivework along that line, probably the greaterfield of usefulness in the future may befound in the other direction. There aredepartments in which uniformity is ofoutstanding importance. There are oth-ers in which the requirement seems to bethat of flexibility, so that the law may beadjusted to meet different needs in dif-ferent parts of the country.

Even this does not exhaust the list ofpossible by-products. No doubt one com-mittee after another, working in variousparts of the field, would want to have be-fore it not only the enactments of ourown jurisdictions, but also what may befound on the statute books of Englandand of Canada. The Restatement of theCommon Law did not find it necessary togo much beyond these jurisdictions, butthere is no reason why a study of stat-utes should be so limited, and one con-mittee after another might find its curi-osity still unsatisfied until it had brought

to light the pertinent provisions from theCodes of France and Germany and Spainand other countries, and a study of thisnature might not be complete until wehad an exhaustive study of the statutorymaterial, not only of our own jurisdic-tions, but also of every major country inthe world.

If this were done, this together withthe Restatement of the Common Lawwould give us a rather adequate pictureof law at the present time. It would of-fer a rather useful starting point for al-most any study of comparative law.

Furthermore, when the time comes forus to make a really bold re-examinationof the whole legal scheme in the light ofsociology, economics, politics, ethics, andthe other so-called nonlegal materials, itwill be rather useful for us to have thestrictly legal materials themselves in asusable form as possible, and such a studywould seem to contribute rather largelyto that end.

Without seeking to go farther for themoment, let it suffice to say that a studyof the statutory law certainly needs toconcede nothing to the Restatement of theCommon Law as far as size is concerned,and it seems to me that it is equally asimportant and that it offers equally asmuch promise of making substantial con-tribution to the general field of juridicalscience.

E1ESSEL E. YNTEM.

Professor of Law, Univcrsity of Michigan

Mr. President and Colleagues: By anobscure and somewhat gratuitous chain ofevents which I don't quite understand,I have been injected into this symposium.The only explanation which I have beenable to find as offering a reasonable indi-cation of the reason for this phenomenonis the fact that I presume I am one of thefew remaining nonparticipant observersof the work of the American Law Insti-tute and can represent that point of view.In so doing, I shall simply try to expressmy own honest conclusions about it.There will doubtless be some misunder-standings as to details, but you will beable to correct them, and, in order to per-mit me to do so with brevity and, at thesame time, avoiding the imprecision of


extemporary discourse, I beg of you toallow me to read the few suggestions thatI have to make.

It will generally be agreed, I believe,that the creation of the American LawInstitute in 1923 was one of the mosthopeful events in the recent legal historyof this country. The plan for the Insti-tute, as formulated in the impressive re-port which motivated its establishment,was well-conceived, broad-visioned, andbased upon a comprehensive analysis ofthe chief defects in the legal system of theUnited States. This plan was significantin at least three important respects. Inthe first place, it defined an ambitious and,in some respects, a unique task for the In-stitute to accomplish; the report refersto "the work which the organizationshould undertake as a Restatement," andadds that the object of this Restatement"should not only be to make certain muchthat is now uncertain and to simplify un-necessary complexities, but also to pro-mote those changes which will tend bet-ter to adapt the laws to the needs oflife."' In other words, the proposed ob-ject was to undertake an exhaustive studyof the law of the United States in orderto state that law in ideal terms, whichshould take account of new social needsand at the same time form a commonpattern for judicial decision, to the endthat the maladjustments of law to con-temporary conditions and the evils of thelaw's diversities might thereby be alleviat-ed. In the second place, conceiving thatthe task of the improvement of the tech-nical legal systei was incumbent uponthe legal profession as a whole, the plandesignated a selcct and nevertheless rep-resentative organization through which aconscious, equal, and permanent union ofthe efforts of the judiciary, the bar, andthe law schools might be formed to prose-cute the task. In the third place, and thiswas perhaps the most significant featureof the plan, the necessity of comprehen-sive exhaustive study was for the firsttime in this country adequately recog-

1 Report of the Cormittee on the Establishment of

a Permanent Organization for the Improvement ofthe Law Proposing the Establishment of an Amer-ican Law Institute, p. 14, reprinted in the AmericanLaw Institute Proceedings, vol. 1.

nized as the indispensable basis of sys-tematic legal reform. In sum, the Insti-tute was formed to promote the improve-ment of the laws of the United States byscientific research. This feature, whichhas distinguished the Institute from thewelter of organizations dedicated to legalreform, was highly significant and hope-ful.

It will not need to be emphasized thatthe branch of the legal profession whichis here represented has a special stake anda peculiar responsibility in this enter-prise. In a real sense, the Inst'tute isthe offspring of this Association; it grewout of ideas as to the need of a more vitalstudy of law expressed in the meetingsof this gathering by the late Wesley N.Ilohfeld and others some twenty yearsago and was actually brought into beingas a result of the activities of a committeeof this Association of which ProfessorBeale was chairman. Moreover, the.lion's share of the labor which has goneinto the Restatement 6f the Law has beenborne and will in the future have to beborne by members of the law school facul-ties here represented. The Institute hasbeen a great opportunity for the lawteacher; it is correspondingly his respon-sibility.

Other considerations than the imme-diate interest of this group justify a dis-cussion of the work of the Institute atthis time and in this place. Ideals of re-form, however high, when translated intoreality, must inevitably take concrete, andtherefore more rigid, form. Likewise,institutions which are devoted to the per-formance of a particular task, in the exi-gencies of its execution, tend to lose some-thing of their initial flexibility and to be-come stereotyped. The Institute and thelarge purpose which it was created tofulfill have not been immune from thisinevitable metabolism. Furthermore,even in the brief period since 1923, therehas been a perceptible movement of legalideas, an appreciable reorientation ofsocial values, and, let us hope, a certainaccumulation of experience. The Re-statement of the Law has now been inprocess for more than a decade. If onlyfor this reason, it is a welcome omen thatoccasion has been sought here to take


counsel together and, considering the ex-perience which has been had, once moreto lift up our eyes unto the hills.

Fortunately, in this discussion, the con-cern is not primarily with the virtues orimperfections of any particular workwhich has been done by the Institute,but with the possibilities for the future.If it may be put that way, we are met nei-ther to bury Caesar nor to praise him, butrather to survey Caesar's domain. In sodoing, however, it is essential to takebearings. Therefore, before attemptingto mark out directions in which the ac-tivities of the Institute could profitably beextended, brief account should be taken,first, of the major objective in view; sec-ond, of the peculiar resources of theAmerican Law Institute; and, third, ofthe respects in which it may be thoughtthat the Restatement of the Law, as thusfar accomlplished, falls short of the objec-tive. In the light of a consideration ofthese matters, it will be possible succinct-ly to itemize the chief suggestion which Ihave to contribute to this discussion,namely, that it would be a misfortune toregard the Restatement of the Law in itspresent form as more than a preliminaryreconnaisance of the battleground, andthat accordingly, in advancing towardsthe objective for which it was created, theAmerican Law Institute has before itlarge and inviting possibilities.

First, then, to recur to the cardinalpoint, the objective of the Institute. Thedefinitive terms in the Institute charterare as follows:

"The particular business and objectsof the society are educational, and are topromote the clarification and simplifica-tion of the law and its better adaptationto social needs, to secure the better ad-ministration of justice, and to encourageand carry on scholarly and scientificwork."

It deserves to be borne in mind, owingto the limitations later imposed, that thisbroad purpose to improve the laws ofthe United States through scientific re-search is the basic function of the Amer-ican Law Institute, that this is what theRestatement of the Law in its initial con-

21 American Law Institute Proceedings, 33.

ception connotes. In fact, in view of thespell which mere nanies sometimes castupon the imagination, it would doubtlessclarify the position of the Institute, if theambiguous term, "Restatement of theLaw," were abandoned, and an expressionmore aptly signifying the essential pur-pose were instead adopted, as a descrip-tion of the work of the Institute. At anyrate, it is clear that the competence of theInstitute within this purpose is wide.

Second and briefly as to the resourcesat the disposal of the Institute. The chiefof these may simply be enumerated: (i)The Institute is a going Institution with arecognized and important function. (ii)It comprises a select personnel, represent-ative of the influential elements in thejudiciary, the bar, and the law schoolworld. (iii) It is widely and favorablyknown among the active members of theprofession. (iv) It is able to command alarge amount of expert assistance, for themost part at relatively nominal cost. (v)It has been liberally financed and presum-ably should be in a favorable position tosecure additional grants for really worth-while extensions of its activities. (vi)Finally, the Institute has the great ad-vantage of an independent national posi-tion, which enables it to co-operate ef-fectively with the various law schoolsand other interested institutions withoutyielding to the sectional jealousies andcompetitive instincts by which less repre-sentative organizations are sometimeshandicapped. These factors, combinedwith the inherent soundness of the initialplan upon which the Institute was found-ed, are tremendous assets. In fact, it isdifficult to perceive any serious limitationupon the effective prosecution of its taskby the American Law Institute other thansuch as are an integral part of the taskitself or may exist in the imagination orresolution of those by whom it may be di-rected.

It would doubtless be more comforta-ble to rest at this point, but candor com-pels a consideration of the third prelimi-nary item, the sufficiency of the Restate-ment of the Law in its present form. Ob-viously, this is a relevant topic; if theRestatement, as at present conceived, isan ultimate fornmlation, adequate to rem-


edy the grave defects in the legal systemof the United States, there is clearly notmuch for the Institute to do but to foldup its books so soon as the Restatementsnow projected are completed. I take it,therefore, that a candid expression ofopinion is indicated at this point as tothe crucial question of the adequacy ofthe present Restatement of the Law, ifonly since, even in these degenerate days,honesty on an issue such as this may bethought the best policy.

In approaching this somewhat delicateissue, one source of difficulty can be elimi-nated ab initio; the question relates tothe general policies which should be fol-lowed in the Restatement of the Law, andtherefore it seems unnecessary to surren-der to the possible embarrassments ofdiscussing the merits of any particular.published Restatement. On the /otherhand, it is impossible to consider the ques-tion of policy without recurring to theoriginal plan for the Institute, particular-ly in view of the fact that it is in essen-tial respects sound. This may have theappearance of exorcising Banquo at oneof Macbeth's feasts, and, I fear me, that,as in the play, Macbeth may dismiss usperemptorily. If the next paragraph orso seems to rehearse a part for Banquo,I trust that you will understand that it isdone benevolently.

As this corment implies, the initialconception of the work of the Instituteas outlined in the original report, subjectto certain qualifications by no means vitalwhich may be noticed in a moment, fur-nishes an admirable standard by which tomeasure the adequacy of the actual Re-statement of the Law. It is not possibleto read this document justifying the crea-,tion of the Institute without being im-pressed by the cogent analysis of the de-fects in the system of American law there-in portrayed and by the appropriatenessof the objective thereby defined for theAmerican Law Institute, Measured bythis yardstick, the work of the Institutehas been incompletely accomplished in anumber of significant respects.

1. The initial plan contemplated anideal statement of law, analytical, criti-cal, and constructive, embodying what-ever impiovements in the law itself might

be recommended by exhaustive study.The actual Restatement of the Law pur-ports to be, and is substantially limitedto, a statement of the law as it is. Thisdeparture from the original conception, itneed not be emphasized, is a material nul-lification of the major objective of the In-stitute.

2. The initial plan definitely prescrib-ed that a complete citation and criticaldiscussion of all relevant legal materialsto support the Restatement would be es-sential to its success. The present Re-statement contains no citation and nocritical discussion of any specific legalsources. The sole relief to this situationis that the several'Restatements are beingsupplemented by state annotations, whichare, however, necessarily inadequate, be-cause localized and for the most part un-critical.

3. The initial plan explicitly anticipat-ed that studies of the field of legal proce-(lure and of the administration of justice.might form a part of the Restatement ofthe Law. Thus far the work of the In-stitute in these basic fields has been limit-ed to criminal procedure, and the producthas been put forth, not as a part of theRestatement itself, but as a model law.

4. The initial plan supposed that thelaw in the books would provide inade-quate information with respect to certainlegal questions, and therefore contemplat-ed that the activities of the Instituteshould necessarily include factual sur-veys. For reasons which are not entirelyapparent, no such endeavor to obtainfactual information on vital issues hasbeen made by the Institute as such.

In addition to these limitations of theRestatement of the Law revealed by com-parison with the initial plan, there are twofurther limitations which derive fromimperfections in the plan itself.

5. The initial plan did not prescribe a'clear and satisfactory position as to thevalue which should be attributed, in thework of Restatement of the Law, to mod-ern statutory trends as contrasted withcurrents of judicial decision. This am-biguity is reflected in the actual Restate-ment, which exhibits no definite policy asto either the inclusion or the exclusion ofstatutory materials as a l:asis for the Re-


statement of the Law. Even to a Restate-ment of the Law as it is, it might bethought such statutory materials are rel-evant.

6. The initial plan made no specificprovision for the comparative study offoreign experience or even for the con-sideration of data accumulated in othersciences, in connection with the Restate-ment, and it does not aplpcar that suchdata have systematically been employedin the actual work.

Of clurse, this method of ascertaining,by reference to the initial plan for theInstitute, the aspects in which the actualRestatement of the Law needs to be sup-plemented, amended, or repealed, is notnecessarily conclusive. The ultimatequestion is whether the Restatement isan effective remedy for those defects inthe system of justice to which the Ameri-can Law Institute has been addressed.This is a question which it is doubtlesspremature to estimate at the present time.Nevertheless, it is to be remarked thatthe affirmative evidence as to the influ-ence of the Restatement of the Law inalleviating the defects in the legal systemthus far is negligible. Assuredly the bur-den of the mass of the law has been in-creased rather than lessened to date bythe Restatement and the related legal lit-erature. The flow of judicial decisionscontinues unabated. The complexities oflegislation have magnified rather than di-minished during the past decade. Thereare more law reviews to be examinedthan ever before. The stream of juris-prudence has not been stopped by addingto its waters. It is to be anticipated thatmany of the tributaries will be affected,if not illuminated, by the Restatement ofthe Law, but whether the total result willbe to clarify uncertainty, to eliminatediversity, to create greater precision in le-gal terminology, or to enlighten the ig-norance of judges and lawyers, is, in viewof the limited scope of the Restatement,the generality of its rules, and the ab-sence of a critical explanation of the au-thorities, disputable to say the least. Nosignificant evidence to that effect has yetappeared. In the absence of cogent evi-dence as to results, the adequacy of theRestatement of the Law as hitherto con-

ceived has to be tested by general consid-erations. For this reason, the precedingremarks have suggested that the initialplan of the Institute, envisaging a thor-oughly scientific, thoroughly documented,and forward looking study as a basis forthe improvement of the law, furnishes anacceptable standard of reference. In theinterests of clarity, the first thing to berecognized in this discussion is that thelimited scope of the present Restatementof the Law necessarily reduces it to apartial, or, let us rather say, a preliminarycontribution to such a study.

Realization that the initial essay of theInstitute in the Restatement of the Lawhas distinct limitations, is not seriouscause for dismay. Even when restrictedto a single jurisdiction, the difficulties ofthe mere formulation of law are formida-ble. Past experiences in the drafting ofconsolidated statutes and in the codifica-tion even of relatively restricted branchesof the law indicate that repeated revisionsare essential to approach acceptable state-ment. The German Civil Code, for ex-ample, representing the results of a cen-tury of intensive analytical study, was notadopted until after the initial project hadbeein thoroughly criticized over a periodof time and superseded, in a later draft,on a number of important points. Ourown chief written law, the Constitutionof the United States, was anticipated bya considerable experience with colonialcharters and state constitutions and in-volved a drastic revision of the Articlesof Confederation. It is to be rememberedthat the Restatement of the Law is insome respects an original venture, andthat each topic not merely covers a vastsubject-natter, hut is also intended toserve the purposes of a variety of juris-dictions. These considerations suggestthat, while it is highly necessary to rec-ognize the limitations and to identify thepossible errors of the Restatement of theLaw at the present juncture, it is also de-sirable to realize that the Restatementmay nevertheless be regarded as a prelim-inary survey which may afford a basisfor further progress.

We are now in position to respond tothe principal question, What should theInstitute do? The preceding remarks


have emphasized the broad competenceof the Institute in the promotion of scien-tific research to improve the law, the en-viable resources at its disposal, and, meas-ured by the initial plan for the Institute,the distinct limitations of the work thusfar undertaken. In consequence, it hasbeen suggested generally that the Re-statement of the Law in its present formmust therefore be regarded as a necessarypreliminary stage in the evolution of thetask to which the Institute is dedicated.By inference, the directions in which theeffort should be extended have alreadybeen suggested. The limitations of thepresent Restatement of the Law consti-tute the opportunity of the American.Law Institute. It remains to considercertain specific practical aspects of theproblem with which the Institute is faced.Attention is directed to four principalpoints.

1. The first and fundamental desidera-tum is to have a thorough clarificationof ideas as to what the Restatement ofthe Law is about. This much is certain,that the notion of improving the law byrestating it as it is is unsatisfactory. Naymore, it constitutes an indefensible retreat.from the objective of the Institute. TheInstitute was created to ameliorate, notto perpetuate, the existing difficulties inthe legal system. Moreover, as a guideto define the contents and sphere of theRestatement, the conception of restatingthe liw as it is is not merely ambiguous,but it places the Reporters in an unenvia-ble position, which can only be concealedby verbal compromise and censorship.\Where there is diversity in the law, howcan it be stated in a single rule? Wherethere is uniformi'v, what is the need forRestatement? If the law as it is is to berestated, there is no escape from this di-lemma. In consequence of this concep-tion, it is convenient to suppress thetreatises, since they would demonstratethe insecure basis upon which the sup-posed law as it is rests. Consequently,too, most of the data to which attentionshould be given in a responsible formula-tion of law have to be excluded in thepreparation of the Restatement-. data asto the practical needs to be met and as tothe appropriateness of the means of reg-

ulation employed to meet them. The con-ception of restating the law as it is nec-essarily cannot admit such considerations,because they might require an improve-ment and therefore a change in existinglaw. If, as may well be the case, anysuch considerations have obtruded them-selves into the present Restatement, theyhave been smuggled.

These remarks, it will be noted, comeclose to the threadbare issue as to codifi-cation. Undoubtedly, many errors andevils have been committed in the name ofcodification, but it deserves to be addedthat the argument against codification inthe report embodying the initial plan forthe Institute is unsatisfactory. It is theresuggested that the so-called common-lawmethod of judicial legislation has twoadvantages over statutory enactment-namely, greater flexibility (which is butanother word for uncertainty), and great-er precision and detail in the formulationof law (which presupposes greater cer-tainty)-and it is therefore proposed that,in contrast to the European codes, whichconfide excessive discretion to the courtson account of the generality of theirprescriptions, the Restatement of the Lawshould be, not a code, but a formulation ofspecific principles and rules. This is astrange concatenation of ideas, which ap-pears the more extraordinary now thatthe Restatement of the Law has turnedout to be a statement of the general prin-ciples of the common law, not dissimilarto the European codes. It may be re-marked that the chief motive for the po-sition taken with respect to codification inthe report, to wit, the anticipated hos-tility of the bar, has probably been exag-gerated. There is evidence that the sup-posed traditional opposition to codifica-tion in this country was engendered inthe dispute as to the adoption of DavidDudley Field's Civil Code rather by itsnumerous defects than by the fact thatit was a code. It is to be rememberedthat, despite these defects, the Code wasadopted in a number of states, that muchof the law of the several states has beenreduced to statutory form, and that eventhe arch opponent of codification, JamesC. Carter, expressed the opinion that agood digest of the law, as contrasted with


a general code, would be a work of "price-less value." 3 It is something of an ironythat Carter's argument is employed to,support a Restatement of the Law whichhas a purpose and many of the characterswhich he opposed. In any event, thereis abundant justification on other groundsfor the decision not to place the Restate-ment in effect through uniform enact-ment, and particularly the danger of pre-mature adoption of so comprehensive aformulation. It is a mistake, however, toinfer from this decision that the Restate-ment is essentially other than a code. Itsintention is to state the law in authorita-tive comprehensive terms, and this, giveit whatever name you please, is a speciesof codification. Awareness of this factis essential in providing as to the fu-ture work of the Institute.

In the writings of a recent humorist,I have been told there is a description ofa fabulous bird, which, because it ab-horred looking ahead, always flew back-wards. Yet, strangely enough, in spiteof its remarkable habits of locomotion,it managed to survive. This bird, thestory alleges, is the law. The Restate-ment of the Law, as thus far conceived,will enable the legendary creature to ap-preciate the somewhat rarefied atmos-phere of the common law in which it flies,but this is not enough. It would be anexcellent thing if the American Law In-stitute could, through the Restatementof the Law, educate the bird of justice totry to fly forward once in a while. Todo so will not necessarily involve themethod of uniform legislation, but it willrequire a Restatement that is forward,as well as backward looking or, in otherwords, a statement that is not a mereRestatement of the Law.

2. The second practical observationwhich seems pertinent is that, in the pro-spective work of the Institute, primaryemphasis should be laid upon the prepara-tion of exhaustive treatises or digests asa means of supporting and verifying theseveral Restatements of the Law, ratherthan upon mere subjective formulation.The reasons for this suggestion are:

3 Carter, "Provinces of the Written and Unwrit-ten Law" (1889) 2 Va. State B. A. Rep. 95, 125.

Firs', that, unless and until such basicstudies are available, it will be impossibleto form an assured judgment that the Re-statements are what they should be and toamend them as may be required; second,that such studies will involve a type ofcritical investigation which individualscholars cannot reasonably be expected toundertake on their own initiative andwithout assistance; third, that there is avery considerable possibility that, with-out such supplementary studies, the in-fluence of the Restatement of the Lawwill be seriously curtailed. As a meansof improving the law and of guiding fu-ture legal action, statements of generalprinciple alone are a poor substitute forsuch statements substantiated by a criticaland comprehensive analysis of the au-thorities and other relevant data.

In the preparation of such studies,certain specific considerations should beattended. In the first place, it would bevery advantageous to push forward thestate annotations, in conformity withthe present policy of the Institute, so asto make the results available for morecritical examination. In the second

,place, it would be more or less indispen-sable to have the treatises or digestsassigned so as to take advantage of freshand unbiased viewpoints. This consid-eration should in principle rule out thoseresponsible for a restatement from thepreparation of the analogous treatise.In the third place, as an incidentai partof the work, the respective Restate-ments should be critically examined, andthe results should be expressed in theform of specific recommendations to theInstitute as to whether and, if so, howthe Restatements in question should beamended. In the fourth place, as an-other incidental part of the work, es-pecial attention should be given to thepossibilities of eliminating antiquated orunfortunate precedents from the formallaw. Finally, the treatises should be in-spired by the paramount objective toimprove the legal system of the UnitedStates; to this end all relevant data, in-cluding legislation, foreign experience,evidence as to the practical operation oflegal rules, as well as judicial opinions,or, in other words, all the resources


which modern science has to offer forthe solution of legal problems should beutilized. If we are to have a Restate-ment of the Law. we are entitled to havethe best that can be devised.

3. A third observation, which neednot be elaborated, is the desirability ofextending the scope of the Restatementof the Law in area as well as in content.In this connection, to refer to a specificexample, the claims of legal procedureand of the administration of justiceshould be given attention. There is noaspect of law which is more fundamentalto scientific legal inquiry, has greatersignificance in the practical operation ofthe legal system, stimulates a keener in-terest in the bar, or stands in more def-inite need of simplification and improve-ment, than this field, which has too longbeen the Cinderella of jurisprudence.

4. The fourth observation which isoffered is that the American Law Insti-tute may conceivably serve a highly use-ful function as a legal science researchcouncil. It is obvious that such a func-tion might easily, develop out of thetask upon which the Institute has em-barked. As conceived in the initial planand as justly so conceived, the vistas ofinvestigation opened up by the task arealmost unlimited. There is no reasonwhy all parts of the task should be lonedirectly under the auspices and directionof the Institute; indeed, if such a thingwere possible, it would nevertheless beundesirable for the Institute to try tocommand the entire field of scientific le-gal research involved in the Restatementof Law. On the other hand, there isevery reason why the Institute shouldstimulate and assist, morally and, if fea-sible, financially, any independent scien-tific enterprises which are relevant to thetask. It has been pointed out that theInstitute has the unique advantage ofbeing a representative national institu-tion, and that, to accomplish its object,the participation of many heads andmany hands will be required. It wouldtherefore be entirely appropriate for theInstitute to enlarge the wise policy whichit has developed with respect to the prep-aration of state annotations and to pro-mote specific investifations. comDara-

tive, historical, or factual, in the fieldswhich may be involved in its futurework. For obvious reasons, it would beadvantageous to the legal community ifthe Institute or some similarly influentialbody could thus serve to co-ordinate andadvance scientific study looking to theimprovement of the law. To dischargesuch a function effectively, the principalrequirements are imagination, imparti-ality, and a generous yet astute policyof co-operation.

In conclusion, the point from which westarted in these observations may be re-called, namely, that, if the mind is fixedupon the central task of the Institute asdefined in the initial plan, the opportu-nity of the American Law Institute tocontribute to the betterment of the legalsystem in this country appears large, ifnot indeed unique. The prospect cannotbut stir the imagination. But this pointof view implies a recognition of the factthat the Restatement of the Law in itspresent form should be regarded as apreparatory survey, a somewhat inevita-ble preliminary to more intensive and in-cisive inquiry. There may perhaps bean incidental difficulty in accepting thisviewpoint, owing to the policy which theInstitute has pursued with respect to thepromulgation of the Restatement of theLaw. It has apparently been thoughtthat the authority of the Restatementshould not merely derive from its intrin-sic merits, but should also be built up byenergetic publicity. I do not wish tocriticize this policy, which has a degreeof justification, but merely to point outthat it involves the danger that the ef-fective propagandization of the Restate-ment may conceivably compromise thefuture work of the Institute. Cavecanen. It will require a certain finesseto suppose that a Restatement of theLaw, which has been advertised as au-thoritative, is imperfect. Yet this isprecisely what must be done, if the In-stitute is to fulfill its opportunity.

In this connection, if I may voice afinal observation, lies one of the mostdifficult and responsible problems in thedireclion of the affairs of the Institute.By virtue of its very purpose and con-ceution to improve the law bv scientific


study, the Institute, Januslike, faces intwo directions, the scientific and thepractical. It has, to use the language ofbusiness, a sales as well as a produc-tive function. It will require great wis-dom and fortitude to harmonize thepractical counsel of expediency that nostep should be taken which may impedethe reception of the Restatement by thebar with the scientific counsel of perfec-tion. And, particularly so, since thework of the Institute is too important toadmit of material compromise. Ref-erence is made to this matter, becausethere are a few signs that, as sometimeshappens, in the direction 'of the Institutethe sales motif has substantially in-fluenced production. The decision torestate the law as it is, rather than toput forth a candid effort to improve thelaw by critical formulation, as originallydesigned; the omission of the treatises;the imperfect provision for incisive in-dependent criticism of tentative Restate-ments as the condition sine qua non oftheir submission for approval-these arephenomena which are difficult to explainexcept upon the supposition that thepolicy of securing the public acceptanceof the Restatement has affected its con-tent and perhaps even partially divertedthe fundamental purpose. I trust thatthese are not significant signs, that theyare not indicative of preconceptionswhich may preclude a fresh and coura-geous view being taken of the futurework of the Institute. If such a viewbe taken and, as in the initial plan, re-newed emphasis be placed upon the ne-cessity of the most thorough research asthe indispensable condition of substan-tial legal reform, it is my profound be-lief that the American Law Institute hasthe opportunity to render to this republicservices of the highest significance in theimprovement of its laws. There is muchto be done in this direction, and, becauseof its peculiar possibilities, we confide tothe Institute many of our hopes.

WILLIAM DRAPER LETVIS

Director of American Law In8titate

I am very sorry, gentlemen, that theexigencies of time, which I recognize.

prevent me from having the advantageof suggestions from a number of youhere. I hope you will not feel that youare doing something that will not be wel-come, if you write me any suggestionswhich out of your own thinking or outof this discussion occur to you, because,as has been more than once emphasizedthis afternoon, we really need your sug-gestions.

It is true that the magnitude of theInstitute's work on the Restatement andthe fact that during the thirteen yearsof the Institute's existence it has beenour major work have doubtless givenmany the idea that the Restatement ofthe Common Law was the sole object ofthe Institute's organization and exist-ence. Of course it was not, and I amvery glad that Mr. Yntema has em-phasized that fact. He has done thatvery well.

We started out with the desire to re-state the existing law, but that merely fortwo reasons: One, that we felt it wouldbe a decided boon to the administrationof justice in this country if there was aclear, definite, and, to some extent, anauthoritative statement by such a body asthe Institute, of what the general com-mon law of the United States is. Wehave never for one moment concealed thefact that the law of any particular statemight vary in some respects from whatthe Restatement stated. But we felt,as Mr. Lemann has expressed it, that, ifwe were going on to make any improve-ments of the law, this Restatement ofthe existing general common law was anessential preliminary thing to be done.A clear statement of what the law is isone of the essential things to make thelawyer think that it should be changedand improved.

When we started the work on the Re-.statement, we had two things which wethought we could do. One was to pro-duce the Restatement in substantially thefo-n that it has been produced. The(, her was to accompany each Restate-ment with a treatise which would setforth the case authorities, which woulddiscuss the law from various angles,and have a critical as well as a construc-tive discussion of whait that liw wn-


I think Mr. Lemann will rememberthe attempt to do that, which was in-stantly undertaken, in the Conflict ofLaws. That group thought that theyshould begin first to work with thetreatise, and Mr. Beale submitted sev-eral chapters of a proposed treatise onConflict of Laws. Now it is no criticismof Mr. Beale tc say that the part of theplan of the Institute, as far as the Re-statement was concerned, which brokedown-which hadn't been properlythought through-was this very treatisewhich was to accompany the Restate-ment. The Restatement itself was basedon the concept that it should be groupwork, that it shouldn't be merely thework of one man, which a group wouldwork over and say it was good or bador criticize it and suggest certain chang-es, but that it should be built up bygroup discussion from conference toconference. That is the way that it hasbeen built up.

When we tried to do that with a trea-tise, I made this discovery: It was that,while it was entirely possible to secure agroup of men who would unite on anexpression of -what the law was, withoutany qualifications, not by compromise butsimply by gett.ng around a table andhammering at its correct expression, theycould get to a united result. So that,as the Restatement stands today, it isnot a series of compromises, and in veryfew instances does it contain statementsthat the entire group which worked withthe Reporter on the Restatement doesnot agree with. Of course, such instanc-es do exist. If you will look at the ten-tative drafts, you will see where they doexist.

But when we tried to take Mr. Beale'streatise and get a united expression asto what that treatise should express, asto the criticism of this case or what an-other case stood for, we found we wereengaged in an impossible task.

I never imagined that that would betrue, but it was true. What hapr nedwas that we spent in Conflict of Laws,,onthis treatise, something over $10,000 or$11,000, and we got nowhere. There-fore we have only accomplished, as faras the Restatement is concerned, one-half

of what we started out to do, whichwas to produce a Restatement with anaccompanying treatise. We have onlyproduced the Restatement.

One of the things that I should like tohear from you here is how that otherhalf of our original project should becarried out.

I should like to deal first with the sug-gestions of Mr. Yntema. I think I maysay to him, and I am sure he will un-derstand it when I do, that I was quitesurprised when I found what he had gotout of a very careful study of the Re-port on which the Institute was started.I happened to have something to do withthe writing of that Report. I do notattempt for a moment to say that I wrotethe entire Report, because that, too, wasgroup work. But, after all, it was thewriting out, after some nine months ofmeetings of the small group, of whichI was one, of the ideas which Mr. Rootand I had talked over before the thingwas started at all. Therefore, I havehad something to do with that Report.

I think you made just one mistake. Inreading the Report you mixed what wasspecifically recommended to be done inthe way of Restatement with the anal-ysis of the defects in the law. The Re-statement was never conceived for amoment as a work to correct the defectsof the law. It is an attempt to give anorderly statement of the existing law.

As stated, the Institute as organized isnot confined to stating existing law. But,when we began the work on the Re-statement, I had a council of thirty-fourlearned gentlemen, of which Mr. Lemannwas one. They were all convinced ofthe worthwhileness of the Restatement.Therefore, when I intimated that weshould take up other things, as, for in-stance, Criminal Procedure, I met frommany of the Council this reaction:"Why, we were established to do theRestatement. We are doing the Restate-ment. It is not done. It is a very im-portant work, and we don't want to bebothered with anything else."

It took about a year and one-half be-fore practically all the members of theCouncil were convinced that the Restate-ment was merely one of the things which


the Institute should do at the presenttime. However, the Institute is now def-initely committed to a much wider fieldthan the statement of existing law.

The Report on the Future of the In-stitute, submitted to the Annual Meet-ing last year, deals primarily, as Mr.Goodrich has pointed out, with statutorywork that can and should be done bythe Institute. The defects of the law,which are many and manifest, are soclear to the groups that did the work onthe Restatement, that they are anxiousto draw statutes to correct those defects.We have already begun to draft some ofthese statutes, and I hope that there willbe a considerable amount of completedwork of this character for submission tothe Annual Meeting of 1937.

The common-law method of develop-ing law is bone of our bone, flesh ofour flesh, but that does not mean thatat some future time there may not be ageneral code of private law. It certainlydoes not mean that today we shouldn'tbe able to take portions of the Restate-ment where we know the decisions willprevent needed reforms and draft a stat-ute to express the law as it should be.

If I may turn to Mr. Perkins' remarksfor a moment, I was greatly interested inwhat he had to say about the statutorylaw. I am often asked by laymen wheth-er we are not engaged in the work ofmaking clear the entire statutory lawof the United States. Well, we are not.But Mr. Perkins comes along and sug-gests why not? Why not do work withstatutes as a whole? He has several con-crete suggestions. They are well worththinking over. I can assure him that,as far as the present Director of the In-stitute is concerned, they will be givencareful consideration.

There is one thing I should like to callto Mr. Perkins' attention, however, andto the attention of all of you, and thatis the steps that have to be taken beforea major work of the Institute can bebegun. In the first place, the generaldesirability of the project has to appealnot only to the Director and his imme-diate assistants but to the executive com-mittee of the Council and the Councilitself. That, of course, takes a certain

amount of time, as it should take time.Then we have got to have the projectthoroughly thought out by a group whoknow before they begin, where they aregoing and about where they want toarrive. Now, Mr. Perkins, that is thething that I am looking at you to do;in other words, to take your paper andgive us concrete suggestions as to whatcan be done. You were concrete inspots, and that was highly desirable-but concrete so that I can place yourproject before others. To do this Imust get into my own rather slow brainnot only the general object of your sug-gestion but the detailed manner of carry-ing it out.

Take, for instance, the work on crim-inal justice. We had an idea that wewanted to do some work on criminal jus-tice, and we were surprised to get, andwere grateful to get, a request from theAmerican Bar Association and laterfrom this Association that we shouldappoint a joint committee to see whatwork could be done by this Associationand the American Bar Association andthe Institute along these lines. Theyworked for six months; they workedvery hard; and they produced a more orless definite plan. The only unfortunatepart of the plan was that they producedit just at the height of the depression;in other words, in July, 1931. Theyrecommended that the Institute under-take to restate the substantive criminallaw and produce a Code of CriminalLaw. We couldn't go any farther. Welooked at it, and we thanked them forit, but the conditions of the country justthen made the two pieces of work, oreither one of them, impossible.

Furthermore, I had some doubt aboutit. I was chairman of that committee,but I sat there to be educated by theexperts in criminal law. When I gotthrough with the end of that education,I came out with the feeling that theywere all very able men, but that perhapsthey had made two mistakes. In thefirst place, I could not help feeling thatwe didn't want a Restatement of theCriminal Law; nor that it wasn't nec-essary to spend the time, even if it couldbe done, to get the kind of Restate-


ment of Law that we put out in othersubjects, in the criminal law to have thenecessary basis for improvement of thelaw. Of course, the present criminallaw would have to be known, and agood deal of work would have to be done,but not that. Then I had this otherprofound doubt. There are problems ofcrime and criminology and criminal lawconcerning which the lawyer can havean opinion because of his experiencesas a lawyer; but there are other socialsciences which have their point of viewtowards the criminal law, the result oftheir studies. I made up my mind that,if there ever was a reasonable prospectthat we could undertake this work, weshould get a new committee that wouldre-examine the recommendations of thefirst committee, and that that new com-mittee should be composed in part ofpersons who we're psychiatrists, criminalsociologists, and persons of that generalilk, as well as lawyers.

So two years ago we appointed anothercommittee to advise us as to the workwhich we should do in criminal justice.They worked for a year; they workedvery hard. The members, legal and non-legal, gave each other full co-operation.They produced a report. Now, if youcompare that report with the first re-port, you will find they are not in thesame class. Anybody looking at thosetwo reports rea' izes that the second re-port, compared with the other, is A-1and the other is about C, though it wasthe best that could be done at the time.

Having the second report, the nextthing was to find out whether the Coun-cil of the Institute wanted to go aheadwith it. To do that, I had to take thatreport and work for two or three monthsover it and put a lot of concrete detailsinto it. The Council agreed that it wasjust the thing the Institute should do.We were then confronted with the finan-cial problem. That problem of financeis not nearly as hard as the problem ofgetting things right, but it is not an easyproblem. The persons who controlfoundations rightly want to know in de-tail exactly how their money is going tobe expended and what are to be the re-

sults. It took another three months towork out additional details and to placebefore one of the larger foundations adefinite project with the confidence that,if they had the money and were willing toexpend it, we could produce definite re-sults of value in a definite amount oftime and, by so doing, lay the foundationfor still larger work in the field of crim-inal justice.

Now I go over this matter for this rea-son: The first thing we want from youis guggestions. I don't care how muchyou have thought them out. Let mehave them. But if you can go on be-yond that and give us suggestions whichwill fill in the picture, which will enableme to take the initial step, which is totalk the matter over with the men whocount in the inner control of the Insti-tute, and to say to them, "I think thisis worth while," and then to make addi-tional detailed suggestions so that. we arejustified in expending the money neces-sary, because it does take money, tomake a thorough investigation of theplan and to build up a project that canultimately justify us in going to personsof means, or to foundations for themoney necessary to carry it out-thatis the kind of help which we most need.In other words, what I want, gentlemen,is the initial suggestions, just as manyof them as you have and also as muchdetail as possible. Get as far as Mr.Perkins got, or even not as far, andthen add to your suggestions as manyconcrete things as possible.

Gentlemen, I was going to concludethe paper I prepared, which I have notread to you, with a hope and a warningagainst discouragement. The hope wasthat those of you who were primarily in-terested in the work of the Institute as aRestatement work should not think thatwe were going to abandon the comple-tion of the Restatement up to a pointwhere it should be and can be completed,in view of the present state of Americanscholarship and judicial decision. I don'tthink it is necessary for me to stress thathere in this group. You know that wehave sufficient money to go on and com-plete the definite subjects on which we


are now engaged; that we may get ad-ditional money to complete other subjectswhen we are convinced that they shouldbe restated. In other words, the founda-tion work of the Institute, which is theRestatement, is not going to be aban-doned. But the world is full of interest-ing things, and I am quite well awareof the fact that there are a great manylaw school teachers who are interested inother things than the Restatement of theLaw, and I am very glad that that istrue. But, because of our concentration,largely on the Restatement, we haven'tyet been able to have their interest in theInstitute.

Now I am very much in hopes that,as we turn to definite, concrete improve-ment of the law, through the drafting ofstatutes or in other ways, we shall havethe interest and the help of scholarsthat heretofore have not been workingwith us. So that we shall not only ex-pand the work of the Institute, but in-crease our hold not only on the bar andon the bench, but on the men who reallyhave to do the constructive work forthe improvement of the law in this coun-try-the law teachers in the principallaw schools of the United States.

I thank you.

Meeting of the Association of AmericanLaw Schools-1935

Held at Hotel Roosevelt, New Orleans, Louisiana, December 27, 28, and 30,1935

OFFICERS FOR THE YEAR 1936

President ................ George G. Bogert, University of Chicago, Chicago.Secretary-Treasurer ....... Herschel W. Arant, Ohio State University, Colum-

bus, Ohio.Executive Committee ...... The President, ex officio.

The Secretary, ex officio.Rufus C. Harris, Tulane University.W. Barton Leach, Harvard University.Harold Shepherd, University of Washington.

ROUND TABLE COUNCILS FOR 1936

Commercial Law:John Hanna, Columbia University, Chairman.H. C. Dillard, University of Virginia.Charles G. Howard, University of Oregon.John E. Mulder, University of North Carolina.S. C. Oppenheim, George Washington University.Roscoe T. Steffen, Yale University.

Documents

What Would Law Teachers Like to See the Institute Do? · What Would Law Teachers Like to See the Institute Do? own selected spot where he thinks the most important effort should be