New ATRA Report: American Law Institute Pushes Advocacy Instead of Education

Press Releases | April 28, 2022

The American Tort Reform Association (ATRA) today released a report documenting how the American Law Institute (ALI) has evolved into a “stealth” legal advocacy organization that is promulgating views well […]

ATRA’s report comes just weeks before the ALI takes a critical vote on its so-called “consumer contracts” project at its May meeting.

ATRA’s report, titled, “From Legal Scholarship to Legal Advocacy: The Evolving Role of the American Law Institute in State Court Jurisprudence,” highlights the adverse impacts this growing American Law Institute (ALI) role will have on the goal of a fair, equitable and predictable civil justice system.

Highlights of the report include:

A proposal to create a separate and unprecedented area of governing law distinct from the established law of contracts;
A draft provision endorsing “medical monitoring,” a remedy only available in a minority of states; and,
A proposed rule that would establish “innovator liability,” a significant change outside the mainstream of settled law in most states.

“We are concerned with the shift in ALI’s mission in recent years from that of a scholarly institution that was safely above the fray in broader policy disputes, to that of an advocacy group proposing novel expansions in liability law,” ATRA President Tiger Joyce said. “ATRA is committed to educating policymakers, judges, the media, and ALI’s own members on the ALI’s advocacy agenda.”

During its annual meeting from May 16 to May 18, the ALI will vote on final adoption of the Restatement of the Law of Consumer Contracts, in which ALI is proposing to create a separate and unprecedented area of governing law distinct from the established law of contracts.

“The upcoming meeting in May is an opportunity for ALI’s individual members to push back on the Institute’s activism and encourage a return to serving as an unbiased resource for the legal profession,” Joyce said.

ATRA cites ALI’s 2010 Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm as the earliest example of this shift. When the ALI adopted an expansive view of the law of trespass that wasn’t consistent with state laws across the country and publicized the benefits to trial lawyers in Trial magazine, 25 states enacted legislation pushing back and rejecting the standard.

“Unfortunately, the ALI didn’t heed the warning bell by the legal community when it began moving toward advocacy with this proposal,” Joyce said. “Instead, they’ve continued down this dangerous path.”

Over the course of the pandemic, ALI’s Restatements and Principles of the Law have been cited in published decisions by U.S. courts more than 3,000 times.

However, ATRA’s report outlines how ALI is no longer merely “surveying and synthesizing existing case law,” but rather promulgating and advocating for legal dogmas that exist well outside of the legal mainstream. In a growing number of cases, the ALI is purporting to summarize law that has never been clearly adopted in the first place.

“Proposed restatements from the ALI are becoming increasingly controversial,” Joyce said. “Many restatements depart from the traditional objective, which is to survey and synthesize the consensus on legal rules based on existing law developed by judges, usually over the course of many years.”

The new report also shines a light on ALI’s insular and slow-moving process, with the majority of the organization’s work performed by law professors, and not necessarily reflective of the current practice of law.

One result of the ALI’s structure is that the restatements can take decades to complete. The third restatement of the law of torts, for example, began in 1992, is entering its fourth decade and remains a work in progress. A lawyer elected to membership in the ALI at age 35, when the project began, has reached retirement age.

“These lengthy projects transcend the tenure of those working on the restatements and ALI leaders,” Joyce said. “Each successor inherently imposes a slightly different viewpoint on the project, a practice which has seemingly pulled the ALI further and further away from its intended purpose to survey and synthesize, not reshape, the common law.”

ATRA intends to send its white paper, including its concerns with the Restatement of the Law of Consumer Contracts, to all members of the state and federal judiciary.

The full white paper is available at ATRA.org.