The American Law Institute is a private, independent, nonprofit organization that publishes Restatements of the Law, Principles of the Law, and Model Codes to further its mission to clarify, modernize, or otherwise improve the law to promote the better administration of justice.
ALI’s founders identified two chief defects in American law: its uncertainty and its complexity. They noted that these defects cause useless litigation, often make it difficult to advise persons of their rights, and create delay and expense after litigation begins. Since its founding in 1923, ALI has sought to provide a resource to the legal profession, legislatures, and courts to alleviate these concerns.
A key difference between Restatements, Principles, and Model Codes is their intended audience.
Restatements are primarily addressed to courts and aim at clear formulations of common law and its statutory elements, and reflect the law as it presently stands or might appropriately be stated by a court. Although Restatements aspire toward the precision of statutory language, they are also intended to reflect the flexibility and capacity for development and growth of the common law. That is why they are phrased in the descriptive terms of a judge announcing the law to be applied in a given case rather than in the mandatory terms of a statute.
Principles are primarily addressed to legislatures, administrative agencies, or private actors. They can, however, be addressed to courts when an area is so new that there is little established law. Principles will often take the form of best practices for either private or public institutions. Some examples of current or recently completed Principles include Election Administration, Policing, and Student Sexual Misconduct.
Model Codes are addressed mainly to legislatures, with a view toward legislative enactment. They are written in prescriptive statutory language. Two of ALI’s most influential works are Codes: the Model Penal Code and the Uniform Commercial Code (a joint project with the Uniform Law Commission also known as the National Conference of Commissioners on Uniform State Laws).
ALI’s publications are persuasive authorities, not controlling law. That is, Restatements, Model Codes, and Principles are not, have never been, and do not purport to be controlling law. These publications do not displace controlling statutes and precedents. They serve as useful secondary sources to aid interpretation, advance understanding more generally, or provide a basis for legislation.
ALI publications are used in a variety of ways by judges, lawyers, legislators, academics, students, government administrators, and private companies.
Restatements of the Law are primarily written for judges, to help judges understand an area of law and to aid judicial decisionmaking. Restatements typically synthesize existing case law from across U.S. jurisdictions, and they offer commentary explaining varying approaches. Although Restatements “restate” case law issued by courts, ALI does not possess lawmaking authority—it is a private, non-profit organization that produces scholarly work. With that said, many courts, and even some legislatures, have “adopted” sections of Restatements.
Principles of the Law are primarily addressed to legislatures, administrative agencies, or private actors, and generally aim to suggest best practices for these institutions. A governmental institution, such as a legislature or an administrative agency, might rely on a Principles publication to inform the development of statutory law or administrative regulations. A private institution, such as a corporation, might rely on a Principles publication to inform the development of company policies.
Model Codes and other statutory proposals are addressed mainly to legislatures, with a view toward legislative enactment. Thus, in these projects, ALI develops model statutory language and offers it to the state legislatures, which then can decide whether or not to use ALI’s model language. For example, the Uniform Commercial Code (a joint project of ALI and the Uniform Law Commission) has been enacted by all 50 states. ALI’s Model Penal Code has been enacted at least in part by many states. Even in states that decide not to enact ALI’s model language, ALI models, such as the Model Penal Code, often provide guidance for statutory drafting.
Additionally, ALI publications are frequently used by law teachers and their students to further understanding and discussion of the law.
ALI is funded through publication sales, educational programs, membership dues and contributions, endowment distribution, grant funding, and rental income from its headquarters building in Philadelphia. It is the policy of ALI to accept from individuals, corporations, law firms, and foundations gifts that support its purposes and activities and that can be reasonably administered. ALI will not accept gifts that, in its judgment, may appear to compromise its integrity or independence, require excessive expenditures, involve unreasonable responsibilities, or cause ALI to depart from its mission.. Much of the money donated to ALI each year comes from our membership, and ALI has received several generous bequests recently, including approximately $6.4 million from longtime ALI Treasurer Bennett Boskey and $1.25 million from ALI Council member Vester T. Hughes. You can read more about all donors and their contributions in our Annual Reports.
ALI’s more than 4,500 members come from the bar, bench, and academy and are selected on the basis of outstanding achievement in the legal profession.
ALI is governed by its Council, a board of directors consisting of a diverse group of 65 leading lawyers, judges, and scholars, who are elected by the ALI membership at our Annual Meeting. ALI has the following named officers (listed with primary affiliation):
President - David F. Levi, Duke University School of Law
1st Vice President - Lee H. Rosenthal, U.S. District Court for the Southern District of Texas
2nd Vice President - Teresa Wilton Harmon, Sidley Austin LLP
Treasurer - Wallace B. Jefferson, Alexander Dubose & Jefferson LLP
Secretary - Paul L. Friedman, U.S. District Court for the District of Columbia
Director - Richard L. Revesz, New York University School of Law; The American Law Institute
Deputy Director - Stephanie A. Middleton, The American Law Institute
A full list of ALI’s current and Emeritus Council members is available here.
There are three key groups of people working on ALI projects: Reporters, Advisers, and Members Consultative Group (MCG) participants. Each plays a unique and critical role throughout the lifecycle of a project.
First, Reporters structure the project, prepare drafts, and present drafts to Advisers and MCG participants for discussion. After receiving feedback and direction on the drafts from Advisers and MCG participants, the Reporters then incorporate this feedback into the next draft. Reporters are explicitly not called “authors” by ALI because they merely “report” to the Institute by means of a series of drafts. The Reporters then continually revise drafts in response to the feedback offered by Advisers, MCG participants, and the Council. Thus, oftentimes no participant—even our Reporters—walks away from the process fully in agreement with every section of the publication. But ALI’s deliberative process ensures that every issue receives a full airing of viewpoints and that the final product will represent the considered scholarship, experience, and judgment of the ALI as a whole. Most Reporters are law professors.
Second, ALI enlists a group of Advisers for each project. This diverse group of subject matter experts makes a commitment to review the drafts and provide input to Reporters. Advisers are recommended to ALI’s Council by the Reporter(s), Director, and Deputy Director. Advisers are selected to be a balanced group that can provide expertise from a broad range of perspectives. For example, on the recently completed Principles of the Law, Election Administration, the advisory group included individuals closely associated with both the Republican and Democratic parties, and the Restatement of the Law, Liability Insurance project involved attorneys with experience serving as counsel to insurers as well as attorneys who regularly represent policyholders.
Third, each project includes an MCG made up of ALI members who volunteer to join project discussions at any stage of a project’s life cycle. MCG members are not necessarily experts in the project’s area of law, but provide a vital perspective, as they read the drafts from a generalist’s point of view. MCG participants may provide input by attending project meetings and by submitting written comments. Even ALI members who do not join the MCG are encouraged to provide their thoughts on project drafts. They too may share their input by attending the Annual Meeting session or by submitting written comments.
All ALI projects have Reporters, Advisers, and MCG members. Because of the nature of some of ALI’s projects, additional project participant types may be invited, such as Liaisons from relevant organizations. For example, on the Children and the Law Restatement, there are several Social Science Advisory Panel members, as well as a Liaison from the Juvenile Law Center.
Reporters, who are typically the leading academics in their field, are identified by ALI’s Director on the basis of their subject matter expertise and are approved by ALI’s Council.
Advisers, Liaisons, et al., are recommended to the Council by the Reporter(s), Director, and Deputy Director. Together, these project participants make a commitment to review the drafts and provide input to Reporters.
No, to the contrary: project participants are expected to “leave their clients at the door” when attending ALI project meetings and offering their views on project drafts. See Council Rule 4.03.
Still, ALI recognizes that a diversity of experiences in the law—including experiences representing clients who are stakeholders on particular subjects—allows those participants to provide a broader range of insight. But participants’ comments on project drafts must be based on an objective understanding of the law, not interests of their clients. For certain subjects with clearly identifiable stakeholders, ALI sometimes invites “Liaisons” to participate in those projects, with the specific purpose of representing the interests of the stakeholder group.
For almost a century, our organization has prided itself on producing impartial, nonpartisan, and independent works. ALI has developed specific procedures to address conflicts of interest on the part of the Director and Reporters. Those procedures are set forth in a Policy Statement and Procedures on Conflicts of Interest with Respect to Institute Projects.
Moreover, Council members and officers may not represent clients in ALI’s deliberative processes. See ALI, Conflicts of Interest Policy.
Ultimately, the best guarantor of objectivity is the breadth of our membership body and the range of views and experiences of our Advisers and the many others who contribute to and comment upon the many drafts.
Project ideas are generated by our Director and Projects Committee, who take into account submitted suggestions from members or others. Projects may be chosen because recent changes in the law have made a previous publication outmoded, or projects may address an entirely new area of law. For example, ALI is revisiting portions of the Model Penal Code in the Model Penal Code: Sexual Assault and Related Offenses project. Also, project participants suggested during the course of this project that colleges and universities would benefit from an ALI Principles project on Student Sexual Misconduct, which would set forth procedural frameworks for handling complaints on campus. ALI therefore began a new project on this topic.
Once a suggestion is made, the Director investigates a potential project and may elect to develop a project proposal, which usually includes a prospectus from a proposed Reporter(s). The project proposal is presented to the Projects Committee for its advice and recommendation to the Council, which approves the project and the Reporter(s).
ALI’s Style Manual sets forth “four principal elements” of the Restatement process: “The first is to ascertain the nature of the majority rule… . The second step is to ascertain trends in the law… . A third step is to determine what specific rule fits best with the broader body of law and therefore leads to more coherence in the law. And the fourth step is to ascertain the relative desirability of competing rules.” The complete Manual is publicly available online.
The Institute looks to identify the best rule on a particular issue. For example, if 30 jurisdictions have gone one way, but the 20 jurisdictions to look at the issue most recently went the other way, the pattern might indicate that the majority rule is outmoded, and a Restatement may select the position stated in less jurisdictions as the better rule.
ALI takes great care to ensure that Reporters do not impose their own normative vision of the law. While there are good reasons why a publication may not follow a majority rule, ALI requires that Reporters be transparent and provide thorough citations explaining competing approaches. ALI drafts and publications must say explicitly when the Institute is following a minority rule.
a. Black Letter. A black-letter provision normally consists of a single rule, principle, or statement of law or of an integrally related series of rules, principles, or statements. Black letter is easily identified in the publications as it appears in bold, black type. Black letter text is approved by ALI’s members and the Council and represents the position of the Institute.
b. Comments. The Comments appended to an ALI black-letter provision are mainly explanatory. Like the black letter, Comments are approved by ALI members and the Council and are therefore the official product of the Institute, representing ALI’s institutional voice rather than the voice of the Reporter(s). Along with the black letter, Comments are an integral part of the section to which they belong. Readers consult the Comments in order more fully to understand the background and rationale of the black letter and the details of its application.
c. Illustrations. Illustrations are distinct but integral parts of the Comment. They are inserted into the Comment for the purpose of providing concrete, “real world” examples of how the black-letter rule or principle under discussion applies to specific factual situations.
d. Reporter’s Notes. Unlike the black letter and Comment (including Illustrations), the Reporter’s (or Reporters’) Notes are regarded as the work of the Reporter (or Reporters). Reporter’s Notes are not approved by ALI members or the Council. Nevertheless, they are submitted for review together with the other components of the section to which they pertain. Reporter’s Notes set forth and discuss the legal and other sources relied upon by the Reporter(s) in formulating the black letter and Comment and enable the reader better to evaluate these formulations; they also provide avenues for additional research. In addition, the Notes furnish a vehicle for the Reporter(s) to convey views to suggest related areas for investigation that may be too peripheral for treatment in the black letter or Comment.
For areas of law controlled by statute, ALI seeks to be a resource to the courts when the statutory text leaves broad scope for judicial interpretation and discretion, which can be the case even for statutes that are very detailed. It is not the function of any Restatement to say what a better statute might look like. Instead, the aim is to suggest and evaluate the possible interpretations of existing statutory provisions, which is exactly the inquiry that a court applying the statute would engage in. In the courts, conflicting lines of precedent can emerge, as is the case in common-law areas, and Restatements can help judges as they attempt to resolve and understand complex and differing precedents interpreting portions of a particular statute.
Because of the deliberative nature of our work, it takes years to complete a project. Recently, we have increased the number of Reporters and Associate Reporters on our work, which will help speed the drafting process.
All projects are listed on the ALI projects page on this website. Each individual project page includes the current project status as well as the list of participants.
ALI is a bicameral body: Institute drafts, and sections of the drafts, are not considered the position of ALI until approved by both the ALI Council and ALI membership. Both bodies give approval by voting (by Council at a Council meeting; by membership at an Annual Meeting).
The text of a project section may change drastically from an early draft to an approved draft. Therefore it is important to understand when text is still in draft form, and so may change before it is considered the work of the Institute:
a. Are Preliminary Drafts considered the work of the Institute? No. These drafts are prepared for discussion at a project meeting.
b. Are Council Drafts considered the work of the Institute? No. These drafts are prepared for Council meetings. Even after the Council has voted to approve a draft, that draft is not considered the work of the Institute unless and until it also is approved by a vote of the membership at an Annual Meeting.
c. Are Discussion Drafts considered the work of the Institute? No. These drafts are prepared for the sole purpose of discussion at an Annual Meeting.
d. Are Tentative Drafts considered the work of the Institute? These drafts are prepared for the Annual Meeting. After discussion at the Meeting, membership votes to approve the material presented subject to the discussion and the usual editorial prerogative. Tentative Drafts may be approved in whole or in part, and may also require edits beyond general editorial changes that require the draft to be presented to the Council and membership again.(See “Boskey Motion” question below.)
e. Are Proposed Final Drafts considered the work of the Institute? These drafts include all sections of a project and are presented at an Annual Meeting. A Proposed Final Draft will be prepared if extensive or structural changes must be made to previously approved Tentative Drafts. The approval of a Proposed Final Draft by membership follows the same policy as a Tentative Draft. (See “Boskey Motion” question below.)
Additional information is available on the “How the Institute Works” page.
ALI meetings are generally not open to the public. The Annual Meeting may be attended by guests (see "May I attend the Annual Meeting as a guest?" below), and the full transcript of every Annual Meeting is published by ALI in the Annual Meeting Proceedings.
ALI is bicameral. In order for any portion of a project draft to be “fully approved” and therefore considered to be the position of the Institute, it must first be approved by ALI’s Council before being sent to the Annual Meeting for membership approval.
Once a portion of a project is considered to be “ready” by the project Advisers and MCG participants, the Reporters prepare a Council Draft. A Council Draft may contain any number of sections of the project. At the Council meeting, each section in the draft will be discussed, and if approved by the Council, those sections may then be prepared for an upcoming Annual Meeting.
Named for longtime ALI Treasurer Bennett Boskey, this motion is made to approve a draft, or portions of a draft, by ALI’s Council (at a Council Meeting) or membership (at an Annual Meeting). A standard structure of the Boskey motion is: “I move we approve [draft] subject to today’s discussion and the usual editorial prerogatives.”
In other words, the members are asked to approve the draft, subject to any requested changes to which the Reporters agreed or any motions that passed during the course of the meeting, as well as general, nonsubstantive edits that may be required before publishing. This speeds the process by giving prospective consent to minor or uncontroversial revisions already agreed to.
At the Annual Meeting, a series of project drafts are presented to ALI members either for discussion only (Discussion Draft), or for approval (Tentative Draft or Proposed Final Draft).
Each draft is made available to ALI members and project participants in advance of the Meeting, so all attendees may come prepared to debate the sections in the draft. An ALI Council member presides over each project session, and guides members through each section of the draft.
During the discussion:
a. Project Reporters sit on the dais with the Council member who chairs the session.
b. Any registered attendee (see the next question below for information on guest floor privileges) may queue at the available microphones to comment on the section currently being discussed.
c. Reporters may accept suggestions for change to the draft made from the floor and commit to making those changes to the text before the Official Text is published.
d. Members may make a motion rather than a comment—this is a request for a change, and requires a majority vote from the members in attendance. If a motion passes, the requested changes will be made to the draft.
e. Reporters and meeting attendees have the opportunity to respond and add to each discussion on any comment or motion, before a decision is made. For detailed floor procedures, see https://www.ali.org/annual-meeting-2019/procedures/.
f. Voting for approval:
If time allows for the entire draft to be fully discussed, a Boskey motion will be made to approve the full draft in light of the Annual Meeting discussion, any motions that have passed, and in view of the Reporters’ ability to make further minor editorial changes.
If the time allotted on the agenda expires before the entire draft is discussed, a Boskey motion may be made for any sections that were fully vetted by the members.
Discussion Drafts are never up for approval by the members.
Members may invite a nonmember guest. Members can register these guests via the member’s online registration form. Members of the press who are interested in attending a session should contact Jennifer Morinigo (firstname.lastname@example.org; 215-243-1655). Additional instructions will be provided to members of the press upon registration.
Speaking and voting
Nonmembers may not make or second a motion or vote on any matter. If nonmembers are recognized to speak from the floor of the Annual Meeting, they must identify themselves as nonmembers and state their role or the nature of their interest in the project.
The President, in consultation with the Director, may extend the privilege of the floor to a nonmember who wishes to speak on a particular matter before the Meeting. A request for such privilege should be submitted in writing in advance of the Meeting to the President by email to email@example.com. The following information should be included: (1) the particular issue that the nonmember wishes to address; (2) the nonmember’s relevant credentials and affiliations with respect to the issue; (3) the nature of the nonmember’s interest in the matter; (4) the name of any employer, client, or other person or organization that may have suggested that the nonmember address the matter at the Meeting or on whose behalf the nonmember may be speaking; and (5) a summary of the nonmember’s intended comments. Whether a nonmember to whom a floor privilege is extended at the Meeting will be recognized for subsequent comment or further discussion is subject to the discretion of the presiding officer.