Using Restatements

1. Using Restatements FSU Research Center Spring 2008 Faye Jones Director and Professor

2. Restatements Highly regarded distillations of common law Restate what the law is, not what it should be Contrast: Uniform Laws Annotated – recommend statutes that have a reasonable chance of enactment in a substantial number of states Model laws – suggested acts which do not have a reasonable chance of enactment Suggested State Legislation

3. Restatements: Origins & Goals • American Law Institute (ALI), http://www.ali.org/ • 1922: Two defects in American law -- uncertainty and complexity • 1923: ALI founded by prominent American judges, lawyers and law professors • Goal: To produce a clear/concise statement of existing common law from cases • To distill the “black letter” rules of common law, to indicate a trend in common law, and to allow researchers to use Restatements to argue what a rule of law should be. • Highly persuasive in courts

4. ALI Annual Report, April 2004 State/federal courts cited the Restatements 161,486 times By the end of 2007, approximately 175,000 citations 60% of citations to Restatements on torts and contracts. Torts citations almost double contracts cites. Many fewer cites to other topical areas. Some states have established the Restatements' as default principles of law: Arizona courts "follow the principles set forth in the American Law Institute's Restatement of the Law except in cases where a different rule has been laid down by this Court" or where a statute is controlling. Odekirk v. Austin, 366 P.2d 80, 81 (1961)

5. Agency (Second) Apportionment of Liability (Third) Conflict of Law (Second) Contracts (Second) Foreign Relations (Third) Judgments (Second) Law Governing Lawyers (Third) (N.B. No 1st or 2d Series exists.) Products Liability (Third) Property (Third) Prudent Investor Rule (Third) Restitution (First) Security (First) Suretyship and Guaranty (Third) Torts (Second) Trusts (Second) Unfair Competition (Third) Wills and Donative Transfers (Third) Restatements

6. Restatements • Now publishing Restatements, 3rd series • Updated by pocket parts and/or supplementary pamphlets • To check for completeness, see the ALI Checklist • Must be formally adopted by ALI members • Publication pattern: • Annual Meeting Discussion Drafts • Tentative Draft(s) (T.D. #1; #2; etc.) • Preliminary Final Draft • Official Text (approved final draft) • FSU Law Library: KF395 A2 • Penn’s Biddle Law Library ALI Archives

7. Reporter’s Notes are at the end of each section or in the Appendix volumes of the agency, torts, and trust restatements. • Recent volumes have cross-references to the West Key Number System® and ALR annotations. • Updating Restatements • Drafts of new series are published in soft-cover format • Cumulative annual supplements • Interim case citation pamphlet • Pocket parts

8. Comments • Restatement Structure: • Chapters • Narrower titles • Numbered sections. • Each section begins with a “black letter” statement of a broad legal issue • Sub-issues are discussed in the author’s Comments and Illustrations that follow each statement. • Comments and Illustrations are often cited by courts to explain the law.

9. Research Aids in the Restatements • Research aids include: • Tables of Cases and Statutes • Conversion Tables for Drafts • Cross References to ALR and West’s Key Number System • Indexes • Appendix volumes • Contain summaries of cases that have cited each section of the Restatement.

10. Indexes • Restatement, 1st series, has a one-volume index to all Restatements. • Restatements, 2d and 3d Series, do not have a comprehensive index. • Some have subject index for each volume. • Recent Restatements have an index in the last volume or in a separate volume. • Features vary by series and by volume.

11. Research methods for Restatements • 3 ways to find a relevant Restatement section: • 1. Search an online version using keyword searching • 2. Use the Table of Contents online or in print • 3. Use the Index in print. • Table of Contents are clear and easy to browse but are usually volume specific. • For Restatements two or three volumes long, you must search each volume to browse the entire Table of Contents. • Note: As a research technique, this is effective only in limited circumstances.

12. Research Scenario • Facts: At a private party in a trailer park, a 16 year old boy, a new driver, is killed after he is taunted by a 19 year old friend into “ghost riding the whip.” Your client is the trailer park owner. A year earlier, you wrote a letter to the boy and his parents barring him from the trailer park for fighting. • Issues: Does your client owe a duty to the boy and his parents under a premises-liability theory because the harm was foreseeable? If so, is the trailer park liable to the minor as an invitee? Is recovery barred under Florida law because a 16 year old should have realized and appreciated the harm to which he voluntarily subjected himself?

13. Restatement of Torts Research in Print • Where to Search: • No comprehensive index to 2d and 3d series of Torts Restatements • Skim the Table of Contents to find a topic • Sec. 341A – Read rule in bound volume; check to see if there is a pocketpart; check for cases in all Appendix volumes (covering 1999-2006); and check the paperbound Annual Supplement pamphlet. • To expand research, Shepardize the relevant Restatement sections and the cases that are on point.

14. Restatements Online • Lexis: Secondary Legal library, Restatements file • Westlaw: REST Westlaw database • REST – all Restatements of the Law • REST-AGEN – Agency • REST-CONFL – Conflict of Laws • REST-CONTR – Contract Restatement • REST-FOREL – The Foreign Relations Law of the United States • REST-JUDG – Judgments • REST-LGOVL – Law Governing Lawyers • PL-REST – Product Liability • REST-PROP – Property • REST-RESTI – Restitution • REST-SEC – Security and Suretyship and Guaranty • REST-TORT – Torts • REST-TRUST–Trusts • REST-UNCOM – Unfair Competition

15. Restatement of Torts Research in Lexis • Where to Search: • In the Secondary Legal sources, choose Restatements • From there, choose the Torts subcategory • 1st Series is not available online in Lexis • Search Strategey: • Use keyword search • Minor or child! /15 invitee /15 harm • Once you’ve retrieved the search findings, review the first case • Click on View Rule to see the Rule as it would appear in the print Restatement of the Law, 2d, Torts • Review the Comments & Illustrations • Click on the TOC (table of contents) button to expand into other topics such as 341A Activities Dangerous to Invitees • Once again, review the Comments & Illustrations then click Case Citations • Retrieve Kessler v. Visteon, Corp., 448 F. 326, 337 (2006) • To expand research more, Shepardize the relevant Restatement sections and the cases that are on point.

16. TOC • Westlaw includes text for all series, Comments and Illustrations, Case Citations, Reporter’s Notes and cross references. • A Table of Contents link on the Links for tab opens the Table of Contents for the section being displayed. • Drafts of future series are included in the databases. • Example: REST-TORT dram-shop /p “social host” /s liab!

17. Restatement of Torts Research in Westlaw • Where to Search: • REST-TORT • Search Strategies: • Use keyword search • Minor child! /s invitee /s harm • Review then select the relevant Restatement rules • Review the Comments & Illustrations • From one of the relevant rules, open the TOC (table of contents) button to expand into other topics such as 341A Activities Dangerous to Invitees • Link to Case Citations beginning with the most recent and working backward • Retrieve Kessler v. Visteon, Corp., 448 F. 326, 337 (2006) • To expand research, Keycite the relevant cases.