Restatements of the Law are authoritative treatises, published by the American Law Institute, that pull decades of scattered court decisions in a given field into a single organized statement of the governing rules. They cover common law subjects like torts, contracts, property, and trusts, and they exist because the same legal question can be answered differently by courts in different states. Judges and lawyers reach for them when the law in a jurisdiction is unsettled, inconsistent, or silent on a particular issue.
They are not statutes. No legislature passes them, and no court is required to follow them. Their influence comes from the quality of the analysis behind each rule and from the Institute’s reputation.
Why Restatements Exist
American common law is built case by case. A court in one state might resolve a products liability question one way while a court elsewhere reaches the opposite conclusion, and over decades those disagreements multiply into conflicting precedent across fifty-plus jurisdictions. Anyone trying to state “the law” on a given point runs into that thicket.
Restatements synthesize that case law, along with relevant statutes, into prevailing rules for a field.1Cornell Law Institute. Restatement of the Law They also look forward, offering courts a framework for problems that have not yet been squarely decided. The American Law Institute, which produces them, is an independent organization founded in 1923, with an elected membership drawn from the judiciary, legal academia, and private practice.2The American Law Institute. About the American Law Institute It operates outside government, and that independence is a large part of why courts take its publications seriously.
What a Restatement Section Looks Like
Each numbered section follows the same four-part structure, and the components do not carry equal weight.1Cornell Law Institute. Restatement of the Law
- Black letter rules. Concise statements of the governing principle, printed in bold. These are the propositions the Institute officially endorses.
- Comments. Explanations that give context, rationale, and guidance for applying the rule. Comments are approved by the full membership and represent the Institute’s position.
- Illustrations. Fact-based hypothetical examples showing how the rule produces an outcome. Also officially approved.
- Reporters’ Notes. Discussion of the cases, statutes, and scholarship the Reporter relied on in drafting the section. Unlike the other three components, Reporters’ Notes are the work of the individual Reporter and may go beyond the Institute’s official view.3The American Law Institute. Capturing the Voice of The American Law Institute – A Handbook for ALI Reporters and Those Who Review Their Work
That last distinction gets missed often. Lawyers sometimes cite Reporters’ Notes as if they carried the same authority as the black letter rule. They don’t. For the Institute’s considered position, the rule, comments, and illustrations are what count; the Notes explain the drafter’s thinking and reflect one scholar’s analysis rather than a vetted consensus.
Which Subjects Are Covered
The series spans more than thirty subject areas. The most cited volumes handle foundational common law topics: Torts, Contracts, Property, Trusts, and Agency.4The American Law Institute. Publications Newer projects reach into Employment Law, The Law Governing Lawyers, Liability Insurance, Consumer Contracts, Restitution and Unjust Enrichment, and Copyright.
Successive editions keep the series current. Most Restatement First volumes have been superseded by Second or Third editions, and two subjects, Property and Foreign Relations Law, have reached a Fourth. Within a single subject, different subtopics can live in different editions. The Third edition of Torts, for example, is split into separate volumes on Products Liability, Liability for Physical and Emotional Harm, and Apportionment of Liability. Citing the wrong edition can mean relying on a rule that has since been revised, so checking which edition governs the specific issue matters.
How Courts Actually Use Them
Restatements are persuasive authority. They do not have the force of a statute, and no judge is obligated to adopt any particular section.5Legal Information Institute. Persuasive Authority In practice courts cite them heavily, especially when a question has not been decided in the jurisdiction. A Restatement provision gives a judge a well-reasoned rule supported by extensive analysis, which is more useful than choosing among conflicting out-of-state precedents.
Here is the mechanism that makes them matter: when a court formally adopts a Restatement provision in a written opinion, the provision becomes binding precedent within that court’s jurisdiction. The rule shifts from one plausible interpretation to the governing standard for later cases. That is how the series produces a degree of national consistency in common law without federal legislation.
Restatements Don’t Just Pick the Majority Rule
A common misconception is that Restatements survey the states and declare the most popular rule the winner. The Institute has never worked that way. From the start, it was willing to endorse minority rules it considered better reasoned. Former Director Herbert Goodrich put it plainly in 1948: when states disagreed, “a choice had to be made and naturally we chose the view we thought was right.”6The ALI Adviser. The Debate Over the Role of Restatements The Council formally endorsed that approach in 1968, directing that the Institute weigh the considerations courts themselves weigh in deciding cases. The weight of authority gets serious consideration but is not conclusive.
The practical takeaway: a Restatement rule may reflect the position of only a handful of states if the drafters believed it was the stronger analysis. Courts in undecided jurisdictions are then free to adopt it, and many have.
Where the Criticism Comes In
The willingness to endorse minority positions drives the most common criticism: that modern Restatements legislate rather than restate. Justice Antonin Scalia warned that “modern Restatements are of questionable value” because their authors “have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be.”
The Restatement of Liability Insurance, published in 2019, drew that criticism hard. Opponents argued it recommended novel rules designed to expand insurer liability rather than reflecting existing law. At least five states passed legislation to prevent their courts from relying on it, with four acting before the volume was even published. That level of legislative pushback was new for the Institute. Defenders responded that the Restatement process has always been “analytical, critical, and constructive” rather than mechanical.
The upshot for a reader: a provision that looks like settled law may actually represent the drafters’ preferred direction, particularly in volumes covering rapidly developing areas. Treating every section as a neutral mirror of current law is a mistake.
How Restatements Differ From Uniform Laws and Model Codes
Restatements are often confused with Uniform Laws or Model Acts, which do something different. Uniform Laws are drafted primarily by the Uniform Law Commission, a separate organization created by state governments, and are designed for state legislatures to adopt as written. Model Acts are templates that states can modify to fit local needs.7Dulaney-Browne Library at Oklahoma City University. Uniform Laws and Model Acts – Introduction and Explanation
Restatements aim at courts, not legislatures. They describe how the common law works or should work rather than proposing statutory text. The American Law Institute does also produce Model Codes, including the Model Penal Code, and some projects like the Uniform Commercial Code are joint efforts with the Uniform Law Commission. The core difference is enforcement: a Restatement has no legal force until a court chooses to follow it, while a Uniform Law becomes binding when a state legislature passes it into statute.
How to Read and Cite a Restatement
Restatements are copyrighted by the American Law Institute and are not freely available online. Lawyers and students typically access them through Westlaw or LexisNexis, which include the full text with annotations showing which courts have cited each section. Historical volumes are scanned in HeinOnline’s American Law Institute Library. Print copies sit in the reference sections of most law school libraries and many county law libraries, which usually allow public access at no charge.
Citation follows the Bluebook. A standard reference looks like: Restatement (Third) of Torts: Products Liability § 2 (1998). To cite a specific component within a section, append it: “cmt. a” for a comment, “illus. 3” for an illustration. Tentative Drafts, which have been approved by the membership but not yet finalized, are cited with the draft number and year so the reader knows the text may still change before publication.