Global and Regional Harmonization in Private Law

On September 1, 2026, ALI Director Diane P. Wood delivered remarks at the European Law Institute’s Annual Meeting and 15th Anniversary in Paris. Speaking on a panel titled “The Interplay between Global and Regional Harmonization in Private Law: The Experience of The American Law Institute,” Wood discussed ALI’s approach to developing its work, its influence on U.S. law, and its growing engagement in the international arena.

Below is a transcript of her speech.

Let me begin by giving my heartfelt thanks to the organizers for inviting me to this double-celebration and for including me on this panel. Although we come from different legal traditions, no one can doubt that we are engaged in a common project – trying to make law work for an ever-shrinking world, while at the same time preserving our individual identities. Conferences such as this, and entities such as the European Law Institute, UNIDROIT, and The American Law Institute, would hardly be necessary if it were not for the rich diversity of laws and legal systems that exist across the world, and also if it were not so beneficial economically, culturally, artistically, and technically for all of us to interact.

WHO, OR WHAT, IS THE AMERICAN LAW INSTITUTE

The ALI has never been a stranger to multiplicity of legal doctrine and systems, although its involvement in the international arena took some time to develop. But it was the growing complexity of the law and sheer volume and diversity of legal sources that inspired the giants of the American legal system, including Elihu Root, Benjamin Cardozo, Learned Hand, Arthur Corbin, Ernst Freund, Roscoe Pound, Charles Boston, and Charles Evans Hughes, to name only a few, to gather together on February 23, 1923, to consider a “Report on the Establishment of a Permanent Organization for the Improvement of the Law.” And that is just what they did. Even more impressively, they found a way for the American Law Institute, as they named their new creation, to grow with the times and to become stronger with each passing generation. This distinguished group of judges, law professors, and practitioners aspired to create an organization that could “promote greater uniformity, clarity, and systematic organization of case law in different fields.”^[1] Few would have questioned the need for such an effort, gargantuan though it was. At the time the United States was a federation of 48 states (having added New Mexico and Arizona in 1912 – Alaska and Hawaii would join only in 1959, and there were several territories, including Puerto Rico, the U.S. Virgin Islands, Guam, the Panama Canal Zone, and the Philippines!). Every state had its own body of private law, covering torts, contracts, property, agency, family law, and countless other topics. Yet at the same time, inventions such as the railroad, the telegraph, and soon the telephone were creating a national market unlike anything the country (or indeed, the world) had seen before.

The ALI’s founders, who appear to have been influenced by earlier notions that the law itself was a type of science that could be rationalized, but who were not yet in thrall to the Legal Realists, came to the conclusion that the right way to smooth out differences of opinion was through the common-law courts. This fundamental decision, obvious as it may seem today, sparked controversy at the time. Not everyone agreed that the common-law method was the right tool for the job. Some thought that codification designed to replace divergent state laws with a uniform system was preferable; some thought that digests of the ever-increasing number of judicial decisions was the best anyone could do; some favored a more comprehensive set of treatises. In the end, the ALI created something unique: the Restatements of the Law. And even those Restatements have matured over time. No longer do they take their original form of unexplained statements of “black-letter law,” and no longer must readers conduct their own research to find out what prompted the Institute to choose a certain rule over many other possibilities.

The first thing that was settled was authorship. Unlike a treatise, unlike a statute, unlike even a digest, a Restatement is a collective achievement. It is the work product of the Institute as a whole, not any one individual, however distinguished and respected that person may be. In carrying out that work, the ALI organizes an impressive team of people: expert Reporters to draft, assimilate comments, re-draft and re-draft, in order to make the project a reality; expert Advisers from both inside and outside the Institute; interested ALI members who volunteer for a Members’ Consultative Group for the project in question; the 60-person governing Council of the ALI; and finally every Member who is able to make it to the Annual Meeting. I’m reminded of the old adage that two heads are better than one. The ALI has learned that hundreds of heads are better than just a few. And critically, this process assures the courts—which remain ALI’s primary audience—that the work is nonpartisan and uninfluenced by lobbyists for one interest or another. ALI’s process, in short, comes as close as possible to guaranteeing the reliability of the final work product.

The Restatement format facilitates these ambitious goals through its method of presenting a legal proposition. This method will feel familiar to anyone who comes from a civil-law jurisdiction. Each discrete topic begins with a concise “black-letter” statement of the legal proposition it is addressing. Thus, for instance, when the Restatement (Second) of Contracts turns to the issue of remedies, it starts by identifying the purpose the remedies are designed to serve. Section 344 identifies three such purposes in play: the expectation interest, the reliance interest, and a restitution interest.^[2] Next, it elaborates on each of these points, through Comments that are also developed using this laborious process, and which also represent the voice of the ALI itself. Finally, the Reporters add notes that represent their views only. Those notes are very useful for anyone consulting the Restatement, because they lay out the path that the Reporters followed as they elaborated the law of a given area. They discuss such topics as where different state laws diverge, by how much do they differ, how the Reporters dealt with inconsistencies, what was the rationale for selecting one rule over another as the “best,” and the reasons courts have given for one choice or another.

Because Restatements have as their primary audience the common-law courts (state and federal) of the United States, they are not the best format for every type of project. Sometimes the ALI puts together a group to tackle material that may be more legislative, administrative, or just plain cutting-edge in nature. When it does so, it has the option of structuring the project as one that articulates broader Principles of the law. This format is also the one that we have often chosen for projects with a more global scope, such as the Principles for a Data Economy: Data Transactions and Data Rights, which the ALI and the European Law Institute jointly produced, or the ongoing project on the Principles of the Governance of Biometrics, another joint ALI/ELI project, or the Principles of the Law related to Government Ethics, to name just three. Finally, though rarely, the ALI has undertaken Model Code projects. It worked together with the U.S.’s Uniform Law Commission to produce the influential Uniform Commercial Code, first published in 1952. Over the ensuing years, the UCC has come as close as humanly possible to harmonizing vast areas of commercial law among the now-fifty states and other miscellaneous jurisdictions. Another example, this time from the ALI working alone, is the Model Penal Code, which Co-Pilot tells me has been adopted in whole or in part by over two-thirds of the states. Finally, more recently, the ALI has begun to add conferences on timely issues and short-term member-initiated projects to its portfolio, in recognition of the undeniable fact that legal problems and the need for guidance in our 21st century world have a habit of arising and sweeping through the world at a dizzying pace. These are not projects that lend themselves to a leisurely ten- to twenty-year gestation period, nor do they lend themselves to any authoritative final pronouncement telling the world what is the “right” answer. What the ALI does instead is to convene the most serious voices on all sides of an issue, put them in a room together (either literally or virtually) and see where consensus can emerge and be fostered. In the final analysis, however, the Restatements and the Principles are at the heart of the ALI’s work and influence. 

BRIDGING THE GAPS

It will come as no shock to this audience that the task of distilling the law for any given Restatement or Principles project is no small undertaking. Borrowing from the excellent account of “Torts in the American Law Institute,” written by now-Dean John C.P. Goldberg of the Harvard Law School,^[3] I can give you several examples of areas where our conscientious Reporters searched the law of the 50+ jurisdictions and found a mess – certainly nothing resembling unanimity. What is the ALI to do with such a situation, where common ground among the many jurisdictions in the United States is nowhere to be found? In that situation, choice among different approaches can’t be avoided. Some sort of decision principle is essential. Candidates include majority rule, oldest rule, newest rule, or most persuasive rule (even if only a minority of courts follow it). Majority rule might seem attractive at first glance, but there are real problems with it. Forcing the Institute to limit itself to a mechanical count of jurisdictions, even if that means endorsing a rule that is long out-of-date, or poorly reasoned, or questioned by thoughtful observers, is deeply unsatisfying.  It would saddle the ALI’s excellent Reporters and Membership with the need to incorporate and defend something second-best. The same criticism holds for other arbitrarily chosen approaches.

Importantly, no apex common-law court would feel that it was bound to the majority rule if a question of first impression came up. An example illustrates this point. Surveying the field of products liability law, the Supreme Court of California in 1963, in the pivotal case of Greenman v. Yuba Products, Inc.,^[4] single-handedly created the modern law of strict liability in tort for product defects. It did so at the same time that the ALI was working on the Restatement (Second) of Torts. The Reporters found the California position to be compelling, and so they drafted (and the Council and Membership accepted) section 402A, which adopted the California rule, and 402B, which dealt with misrepresentations of fact about a product sold to the public. Critically for my point here, most of the states in the United States had yet to endorse the strict liability approach. But that did not stop the ALI from endorsing it, and in retrospect, sections 402A and 402B are among the most influential provisions the Institute has ever written. This achievement was possible because of the ALI’s approach to its Restatements. The Reporters are charged with putting themselves in the shoes of a distinguished common-law court and adopting whatever rule such a court would think best. The quid pro quo for this freedom is the obligation the Reporters have, when competing viewpoints exist or when they wish to adopt a minority position, to be transparent about the choices they are making and to explain the final result as clearly as they can.

HOW HAS THE ALI INFLUENCED U.S. LAW?

It is natural to wonder whether all this effort has been worth it, or if the ALI has just spent years writing books that wind up collecting dust on someone’s shelf. The record shows that nothing of the sort has happened. Time permits only a few concrete examples here, but many more could be cited. 

First, we know that the ALI’s work product has been highly influential, because we can track citations. As of June 2026, ALI publications have been cited more than 226,000 times by courts throughout the United States, including the United States Supreme Court, the supreme courts of every state and territory, and intermediate appellate courts in every federal circuit and state. The courts turned to the ALI for all the reasons I outlines a minute ago: the work is thorough, nonpartisan, and persuasive. 

Courts regularly rely on ALI publications when addressing questions of law, interpreting common-law doctrines, and evaluating legal standards.  They find ALI works particularly valuable when they are seeking a neutral and comprehensive synthesis of legal principles drawn from multiple jurisdictions. And these citations come from the highest levels. The U.S. Supreme Court has cited ALI Publications more than 1,400 times. In a representative term, the Court cited 14 different ALI Publications in 16 separate opinions, spanning subjects from constitutional law, criminal law, torts, contracts, statutory interpretation, to commercial law.

Significant as this is at the federal level, the ALI’s influence at the state level is almost certainly greater. Most American law is developed in state courts. Just as our founders hoped, ALI publications play a distinctive role in that process by synthesizing doctrines from all jurisdictions and providing frameworks that courts can adopt when confronting novel issues or conflicting authority. As a result, state courts frequently cite and, in appropriate cases, adopt ALI black-letter rules as governing law.

Finally, American law students are introduced to the ALI’s work from the minute they begin their legal training. Casebooks, classroom instruction, and legal scholarship frequently draw upon Restatements and other ALI works to organize and explain core legal principles. The ALI’s work is woven into the fabric of U.S. law in a way that nothing else matches.

THE ALI IN THE INTERNATIONAL ARENA

 Lastly, and I would guess of particular interest to this audience, is the role the ALI has played in the international arena.  The methodology that the ALI has developed over the years has proven to be flexible enough to support projects that go well beyond the boundaries of the United States. In some instances, the Restatement or Principles treatment of a subject provides useful background for scholars and institutions in other countries. In others, the trans-border application is more obvious. The ALI is now on its third version of the Restatement of the Foreign Relations Law of the United States (called, for odd ALI reasons that no longer apply, the Restatement (Fourth) of that topic). Many of the issues addressed in the Foreign Relations work, including international jurisdictional rules, the law of treaties, and sovereign immunity, have their counterparts around the globe. While others will apply their own rules to these topics, the backdrop of public international law is always there, and it often results in a shared understanding of the legal rules, however they may be expressed in a domestic system. 

Another Restatement with global reach is the Restatement of the Law (Third) of the U.S. Law of International Commercial and Investor-State Arbitration, published in 2023. Much of the law of international commercial arbitration is heavily influenced by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958, which now boasts 172 State Parties. In addition, however, there are important NGOs (private and public) that have issued model rules for arbitrations – organizations such as UNCITRAL and the American Arbitration Association, to name only two, and the progress of an arbitral proceeding can be significantly influenced by the law of the arbitral seat. 

The ALI also has reached into the international realm through its Principles projects. The project on Aggregate Litigation has interesting ideas to offer any country that is thinking about some type of mass litigation, whether it takes the form of a class action, an action by a pre-formed group, or a public citizen’s suit. The United States, too, has been experimenting with more procedural options for problems that reach thousands, if not millions, of people. That type of case can be an awkward fit for traditional litigation models. Another Principles project that had an international focus was the ALI’s first venture into intellectual property law, called Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Disputes, released in 2008. (This should not be confused with our recently completed Restatement of the Law of Copyright, which is now in the final editing stages before release.) 

The last two Principles projects, however, show the potential for further serious work in the international space. The first was the Transnational Civil Procedure project, undertaken with UNIDROIT as a co-sponsor. We will have more to say about that later today. It suffices for now to say that the Principles that the ALI and UNIDROIT jointly developed and issued in 2004 were very influential in the later ELI/UNIDROIT Model European Rules of Civil Procedure, completed in 2020. Finally, there was the Transnational Insolvency Project, undertaken by ALI and the International Insolvency Institute. That project resulted in two publications: the 2003 Principles of Cooperation Among the NAFTA Countries, and a Report to the ALI on Global Principles for Cooperation in International Insolvency Cases, issued in 2012. 

WHAT LIES AHEAD

For better or for worse, neither UNIDROIT, ELI, or the ALI is about to run out of important legal issues to address. Right now, the ALI has ten active projects, and there are others clamoring for attention. Seven of those ten will, when complete, take the form of a Restatement. The titles alone show you the breadth of our efforts: Conflict of Laws, Constitutional Torts, Corporate Governance, Defamation and Privacy; Election Litigation, Foreign Relations Law of the United States part 2; and Property. And we have three more Principles projects. In addition to the Biometrics project currently underway with the ELI, we also have a project on Civil Liability for Artificial Intelligence and High-Volume Civil Litigation (whose primary focus is on the need to make the justice system available to people who do not have the means to obtain legal representation). We are sponsoring our second conference on multi-district litigation, in cooperation with New York University Law School, in about a month, where we hope to focus on coordination among federal courts and state courts (and, who knows, perhaps lay the groundwork for cooperation with courts in other nations as well); in February 2027 we will hold a conference on the burgeoning use of the public-nuisance tort in U.S. federal and state courts, again with NYU; and we are co-sponsoring a conference on the Rule of Law with the University of Chicago Law School in the spring.

We greatly value the opportunity to stay current with the important work that ELI and UNIDROIT are conducting, and we look forward to many years of collaboration. Thank you again for the opportunity to be here.