Legal Skills Guides: The Restatement System
Using Restatements of the Law
||What are they?
Restatements of the Law are published by the
American Law Institute, an independent organization which has, since the 1920s,
sought to create clear statements of particular areas of American common law.
They have been working hard ever since, churning out a new Restatement every few
years, and there are now Restatements of the following areas of law (Note
that the links below are to one sample Restatement title for each topic;
there are often many other volumes or editions of each Restatement topic,
and you may have to look at more than one):
"Rules" of law from the Restatements are
frequently used by judges when crafting their opinions.
What is the "American Law
Institute," and why
are they allowed to dictate what the law is?
In a way, the American Law Institute is just another publisher of a set of
(particularly complicated) treatises. But in a way they are not: each
Restatement is written by an eminent legal scholar assisted by a "committee" of dozens of
"advisors," often law professors and judges, further guided by a "consultative
group" of attorneys from around the country; drafts are submitted to a
"council" of attorneys; and each Restatement goes through
numerous drafts before it is approved by the entire Institute at an annual
meeting and finally published,
one slow volume at a time. Because of this, from the beginning courts have
granted the Restatements far more weight than your typical secondary source,
almost as much as the binding authority of other courts.
How can the Restatements help
The Restatements are particularly useful when you
need to cite some principle of law in support of your case, but you can't find
any court rulings in your jurisdiction which create clearly binding authority.
For example: Let's say your client is a teacher with the
Sunnydale public school system, close to Santa Barbara. To counter the
high local cost of housing and attract new teachers to the area, the school
district many years ago bought a supply of local houses, which it allowed its
teachers to buy at below-market rates -- with a provision in the deed stating
that if the teacher stopped being employed by the district, he or she would be
required to sell the house to another teacher. The sale price would be
determined by increasing the price at which the teacher originally bought the
house by the intervening increase in the national consumer price index --
generally, much less than the local appreciation in home prices. Now the
teacher wants to leave, because she's tired of the local vampire population,
but she feels she should be able to realize more profit from the sale of the
house; if she had bought a house on the open market, it would have doubled in
value by now. Does she have to sell the house to another teacher?
Can she sell it at a more realistic price? In other words, is this part of
the deed enforceable?
Now is the time to frantically probe your brain
for anything you remember from your Property class. Is this a convenant?
An easement? Something else? The library's California Real Property
practice manuals don't deal with anything this obscure, and a search of
California cases on
Westlaw is fruitless. You look through the table of contents of Witkin's
Summary of California Law, and find a discussion of "Conditions and
Covenants Restraining Alienation" (§ 190). This sounds promising!
But the discussion gives you two conflicting cases, Taormina Theosophical
Community v. Silver, 140 C.A.3d 964, 973, 190 C.R. 38 (1983) (a covenant
restricting condominium ownership to members of the Theosophical society who are
over 50 years old is unenforceable) and Martin v. Villa Roma, 131 C.A.3d
632, 182 C.R. 382 (1982) (restriction of sale of membership in a
federally-regulated public housing project to persons meeting certain income
levels at a pre-determined price is enforceable); and a state statute which says
merely that "Conditions restraining alienation, when repugnant to the interest
created, are void" (California Civil Code § 711). Well, thank you very
much. What does that mean? The case annotations following the
statute are no more helpful than the statute itself. It's time to find a
Restatement Rule on the subject!
How do I find Rules
for a particular area of law in the Restatements?
In this situation, you pretty
clearly want to go to the Restatement of Property. Let's take a look:
Why so many versions? And why are the old
ones still on the shelves? As the law develops over time, the ALI may publish a new
edition, or "series," of a Restatement, either to reflect prevailing
changes in old rules, or to address topics not covered in the original Restatement.
As you can see, the Third Restatement of Property contains a revised section on
"Servitudes," which was last addressed in the First Restatement, as well as a
section on "Donative Transfers," previously addressed in the Second Restatement.
But just because a new Restatement has been published does not mean that the old
one is "superseded." Courts may continue to cite the old Restatement for
years, until a brave judge or panel decides to switch their allegiance to the
new version, and other courts follow suit.
||That said, you should start your research with
the most recent version: in this case, you will go to the Third
Restatement's volumes on "Servitudes." Why? Well, this isn't a
"Donative Transfer" (i.e., GIVING the land away), or a "Mortgage," and "Servitudes" is
all that's left. Take a look at the index. "Covenants" and "Restrictive
Covenants" lead you nowhere useful, but "Restraints on Alienation" leads you to
"Direct Restraints, § 3.4." You could also have found this by
paging through the Table of Contents.
||Turning to § 3.4, you find the following
language in bold:
§ 3.4. Direct Restraints on Alienation
A servitude that imposes a direct restraint
on alienation of the burdened estate is invalid if the restraint is
unreasonable. Reasonableness is determined by weighing the utility of the
restraint against the injurious consequences of enforcing the restraint.
So far, so good. This is the "Rule."
You then get many pages of comments and "illustrations," or hypothetical fact
patterns involving this Rule, which help you to determine how the ALI, at least,
intended it to be applied.
||In this case, comment "h" states
that severe restrictions on alienation as part of an affordable housing
program are usually reasonable.
||Illustration 9 is
a fact pattern involving a university program to provide affordable housing
for faculty -- a program which shares many elements with your client's
situation, and which the Restatement suggests would be considered
"reasonable" by the courts.
But that's not all:
next are many pages of "Reporter's Notes," which refer you to other, related
Rules of the Restatements of Property (this and previous editions), law
review articles, and cases -- including some cases from California.
Toarmina and Villa Roma are there, as well as some California cases
which discuss the "reasonableness" requirement more generally. The result?
You can not only cite the Restatement Rule itself and the illustration, but you now have
additional cases which you can cite -- either to your client, to tell her that
she is unlikely to have this deed provision declared invalid; or to the court,
if you decide to go ahead and argue that the provisions are, in this situation,
"unreasonable" under the law. Don't
forget to Shepardize or Keycite the cases you decide to rely upon. And you
will want to take a look at the other, surrounding Restatement Rules; some
of these may be useful, as well.
How do I find out if this
Restatement Rule has been cited by the California courts? Or any other
courts? If a Restatement Rule
has been cited with approval by the California courts, it obviously will have
more authority to the judge hearing your case. And the opposite is also
true: if California courts have, in the past, explicitly declined to
follow a Rule, then you had better be prepared to address this if you cite
it yourself. And if it has been cited in other states in fact situations
which are very similar to your client's, this may also be helpful to you. There
are three ways to find such cases:
- First, check the pocket part, looking under your
handy Rule number, § 3.4. The pocket part will include any cases
which have cited that Restatement Rule since the volume was issued. For
older Restatements, there are typically so many citations that the ALI issues
"Appendix" volumes, which are shelved after the main volumes (for some
Restatements, such as the Second Restatement of Torts, there are over a dozen
such volumes. Look carefully at the dates and Rule numbers on the spines
of each, and try to check all that include your Rule). Pocket parts
are issued annually; in between, look at the pamphlet entitled
Citations to the Restatements of the Law, which is issued every few months.
The ALI also used to publish a series called
Restatement in the Courts,
which collected the citations to all of the different Restatements, but this
was discontinued in 1976.
- You can also look at
of the Law Citations, a special Shepard's publication which, like the old
Restatement in the Courts, collects all citations to Restatements.
- Finally, you can KeyCite your Restatement
Rule on Westlaw, or Shepardize it on Lexis.
What are all these "Drafts"
and "Revisions" of Restatements which I keep finding in the library catalog?
These are just what they sound like, drafts of a
proposed new Restatement, which has been submitted to the entire ALI for its
consideration, and may (or may not) be adopted as it stands. You could
certainly cite to a "Rule" in a Tentative Draft or Final Draft to show how the law seems to
be evolving, but do not expect the court to give it the same level of trust and
authority that it would a fully adopted Restatement.
Can I search the Restatements
Restatements are available in the "" directory
(you will see this directory either by clicking on "Restatements" in the general
Westlaw Directory, or by typing "Restatements" into the "Search these databases"
box on the left). Westlaw's Restatements databases include all of the
Restatements on each topic, even those which have been followed by
later Restatements, and there is also an "archive" database for each topic,
which includes the various drafts issued by the American Law Institute before a
Restatement was adopted.
||Click on the picture at left
to see a list of the Restatements databases. You can
search one Restatement topic, or all of them at once. Like the others, the
"Restatement of the Law -- Property" database includes all three property
Restatements, as well as links to all of the cases citing each section.
A simple search of "covenant*
and restrain* and alienat*" (which will get you any document with covenant or
covenants, restraint or restraining, and alienate or alientation) in the
Restatements -- Property database got 11 results, including § 3.4.
||As when using the books, you
will want to look at the other Rules around this one, to see if any are also
(or more) useful to your case. The easiest way to do this is
to click on the "Full-Text Document -- Table of Contents" link on the left
side of the screen (click on the picture at left to see what this looks
||This will bring you to the
Table of Contents for this part of the Restatement of Property (see the
picture at left), where you can troll for other useful Rules. You
could also click on the "Previous Section" and "Next Section" links next to
the title of the document, to view the sections near this one. And of
course, it is easy to KeyCite any Restatement Rule which you find on
Westlaw by clicking on the "KeyCite" link at left. You can also click directly on a link in the document to the
cases citing that Rule, which is just like looking in the Restatement's pocket part
the Restatements are available in the "Restatements" directory, found
with the "Secondary Legal" resources. Lexis includes only the most
recently-enacted version of a particular Restatement in its database.
Therefore, you will not be able to use Lexis to, for example, read the
Servitudes section of the first Restatement of Property. Lexis also does
not carry the various drafts of the Restatements.
||As with Westlaw, you may
search an individual Restatement topic, or all of the Restatements combined.
Unlike with Westlaw, you can also search all of the cases citing the various
Restatements separately (although it's not quite clear why you would want
to...). Click on the link at left to see the Lexis "Restatements"
||If you choose to search an
individual section of the Restatements (such as, in this case, the
"Servitudes" section of the Third Restatement of Property), you will be
taken to a search screen which not only gives you the usual search window
where you can type your terms and connectors, but also, below, a Table of
Contents, which you can expand to view the different Rules in that section
of the Restatement. This is often a much easier way of finding useful
Rules than hoping that you use the right combination of words in a search.
||Once you find a useful Rule,
you can click on the "Case Citations" link to see subsequent cases citing that Rule. You can
also click on the "Book Browse" link at the top of the page to see
nearby Rules in the Restatement volume. And you can Shepardize the
Rule by clicking on the "Shepard's" link at the top of the page.
How do I properly cite a
Restatement section, comment or illustration?
Here is the proper citation, according to the Bluebook:
Restatement (Third) of Property § 3.4 cmt. h, illus. 11 (2001). See the
Bluebook: a Uniform System of Citation (2005)
Rule 3.4. Simply drop the "cmt." or "illus." part if you're not citing to
one of these.