Common Law Archives - Columbia Law Review

Introduction Restatements of the Law are today ubiquitous and influential sources in the American legal system. Produced by the American Law Institute (ALI), a private organization dedicated to the clarification, modernization, and improvement of the law since 1923,[footnote]See About ALI, ALI, https://www.ali.org/about-ali/ [https://perma.cc/V37N-Z4Q4] [hereinafter ALI, About ALI] (last visited Aug. 29, 2022).[/footnote] Restatements cover a wide range of legal subjects.[footnote]Restatements of the Law, ALI, https://www.ali.org/publications/#publication-type-restatements [https://perma.cc/DS2L-TF98] [hereinafter ALI, Restatements of the Law] (last visited Aug. 29, 2022). The ALI lists a total of thirty-four Restatements, including those in progress as well as those approved by the organization’s membership. Id.[/footnote] While they initially focused on state common law areas, the Restatements have since expanded their coverage and today deal with a wide range of federal, state, and hybrid subjects.[footnote]The ALI’s initial Restatement subjects were the laws of agency, conflict of laws, contracts, judgments, property, restitution, security, torts, and trusts. See Arthur L. Corbin, The Restatement of the Common Law by the American Law Institute, 15 Iowa L. Rev. 19, 23 (1929) (“Thus far, the committees of the Institute have prepared Restatements of large parts of the fields of Contracts, Conflict of Laws, Agency, and Torts; and much work has been done in Property and Trusts.”); Michael Traynor, The First Restatements and the Vision of the American Law Institute, Then and Now, 32 S. Ill. U. L.J. 145, 159 (2007) (describing the 1933 publication of the Restatement of Restitution as a “pioneering work”); ALI, About ALI, supra note 1. More recently, the list has expanded to cover subjects like unfair competition, employment law, foreign relations law, copyright law, and the law of American Indians—many of which cover both federal and state legal rules. See ALI, Restatements of the Law, supra note 2.[/footnote] Every first-year law student is introduced to Restatements with the understanding that they are “highly persuasive” sources of law even if not binding as such.[footnote]Peter C. Schanck, A Guide to Legal Research: In the University of Michigan Law Library 32 (1976). The extent to which Restatements are “authoritative” has been a matter of some debate. Compare Charles E. Clark, The Restatement of the Law of Contracts, 42 Yale L.J. 643, 651 (1933) (noting how the ALI aimed to have the black letter of Restatements be treated as authoritative), with Harlan F. Stone, The Significance of a Restatement of the Law, 10 Proc. Acad. Pol. Sci. City N.Y. 3, 6 (1923) (questioning the ability of Restatements to be authoritative in the strict sense of the term).[/footnote] The influence of the Restatements, however, extends well beyond their pedagogical value. Courts in every single U.S. jurisdiction—federal, state, and territorial—routinely rely on or cite to Restatements in their decisions. Ever since their origins, courts around the country have cited to them nearly 10,000 times, with a significant number of those opinions quoting extensively from the language of the Restatements.[footnote]A Westlaw search for the term “Restatement of” in all U.S. federal, state, and territorial courts since 1922 yields over 9,880 results (of them 6,755 in state courts). Westlaw, http://westlaw.com/ (filter search by “All States” and “All Federal”; then filter by “All dates after” 01/01/1922; then search in search bar for “Restatement of”) (last visited Sept. 19, 2022).[/footnote] Indeed, such is their influence that in a relatively recent U.S. Supreme Court case, Justice Antonin Scalia authored a separate opinion with the sole purpose of “caution[ing]” courts against using modern Restatements as part of their reasoning without closer examination.[footnote]Kansas v. Nebraska, 574 U.S. 445, 475 (2015) (Scalia, J., concurring in part and dissenting in part) (“I write separately to note that modern Restatements . . . are of questionable value, and must be used with caution.”).[/footnote] Owing to their enormous influence on the development of judge-made law, much has been written about the substantive content of individual Restatements and the process through which they are each produced.[footnote]See, e.g., Sarah H. Cleveland & Paul B. Stephan, Introduction: The Roles of the Restatement in U.S. Foreign Relations Law, in The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law 1, 1 (Paul B. Stephan & Sarah H. Cleveland eds., 2020) (describing the Restatements’ impact on foreign relations law); Thurman Arnold, The Restatement of the Law of Trusts, 31 Colum. L. Rev. 800, 800 (1931) (discussing the tentative draft of the Restatement of the Law of Trusts); Shyamkrishna Balganesh & Peter S. Menell, Restatements of Statutory Law: The Curious Case of the Restatement of Copyright, 44 Colum. J.L. & Arts 285, 291 (2021) (reflecting on the “mismatch between the traditional approach to Restatements and statutory law” within the Restatement of Copyright); Albert A. Ehrenzweig, The Second Conflicts Restatement: A Last Appeal for Its Withdrawal, 113 U. Pa. L. Rev. 1230, 1230 (1954) (expressing “serious misgivings” about the publication of the Second Restatement of the Conflict of Laws); Samuel Estreicher, Matthew T. Bodie, Michael C. Harper & Stewart J. Schwab, Foreword: The Restatement of Employment Law Project, 100 Cornell L. Rev. 1245, 1245 (2015) (discussing the process of producing the Restatement of Employment Law); Arthur L. Goodhart, Restatement of the Law of Torts, 83 U. Pa. L. Rev. 411, 411 (1935) (describing the Restatement of the Law of Torts as a “storehouse in which the expert can find material for his arguments or judgments”); Thomas W. Merrill & Henry E. Smith, Why Restate the Bundle? The Disintegration of the Restatement of Property, 79 Brook. L. Rev. 681, 681 (2014) (expressing disappointment in the transparent law-reform efforts found in some volumes of the Restatement of Property); Edwin W. Patterson, The Restatement of the Law of Contracts, 33 Colum. L. Rev. 397, 397 (1933) (describing the publication of the Restatement of the Law of Contracts as “highly significant”); Harvey S. Perlman, The Restatement of the Law of Unfair Competition: A Work in Progress, 80 Trademark Rep. 461, 461 (1990) (discussing the process by which Restatements are formulated and issues animating the Restatement of the Law of Unfair Competition); Basil H. Pollitt, Some Comments on the Restatement of Agency, 17 Geo. L.J. 177, 177–78 (1929) (describing three “essential elements of an agency relationship,” which appear in the Restatement of Agency).[/footnote] Similarly, the history of the ALI has also been the subject of extensive scholarly commentary and critique.[footnote]See, e.g., Alex Elson, The Case for an In-Depth Study of the American Law Institute, 23 Law & Soc. Inquiry 625, 625 (1998) (describing the substantial contributions of the ALI throughout its history); N.E.H. Hull, Restatement and Reform: A New Perspective on the Origins of the American Law Institute, 8 Law & Hist. Rev. 55, 56 (1990) (examining the origins of the ALI based on new manuscript sources and interpretations); Jonathan R. Macey, The Transformation of the American Law Institute, 61 Geo. Wash. L. Rev. 1212, 1212 (1993) (exploring the ALI’s struggle to approve new corporate governance principles); G. Edward White, The American Law Institute and the Triumph of Modernist Jurisprudence, 15 Law & Hist. Rev. 1, 2 (1997) (examining the early history of the ALI and its significance); Hessel E. Yntema, What Should the American Law Institute Do?, 34 Mich. L. Rev. 461, 461 (1936) (exploring the origins and plan for the ALI).[/footnote] Despite the voluminous literature on the ALI and the Restatements, scholars have devoted surprisingly little attention to examining the manner in which Restatements are actually relied on and used by courts as part of their reasoning.[footnote]For the only limited prior effort in this regard, see Kristen David Adams, The Folly of Uniformity? Lessons From the Restatement Movement, 33 Hofstra L. Rev. 423, 424 (2004) [hereinafter Adams, The Folly of Uniformity] (focusing on the Restatements’ wholesale adoption by statute in the Virgin Islands to draw lessons about their influence on the development of the common law).[/footnote] Beyond simple citation numbers, woefully little is known about the techniques and methods employed by courts in their use of Restatements, that is, the very process through which Restatements get incorporated into the law. What makes this oversight particularly consequential is the reality that in relying on Restatements, courts are required to engage in the task of interpretation , a process that has itself been the subject of rather significant methodological disagreement.[footnote]See Antonin Scalia, A Matter of Interpretation 14 (2014) (explaining that there is no agreement on a statutory interpretation theory); Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 271 (2019) (“[N]o agreement on interpretive methodology has yet emerged.”).[/footnote] Even though they involve the synthesis of judge-made law, Restatements endeavor to function as quasi-statutes, attempting to emulate “the care and precision of a well-drawn statute.”[footnote]ALI, Capturing the Voice of the American Law Institute: A Handbook for ALI Reporters and Those Who Review Their Work 36 (2d ed. 2015) [hereinafter ALI, Capturing the Voice 2015].[/footnote] The founders of the ALI saw the drafters of the Restatements as “experts” in “legislative drafting” who were better suited to codification than were legislators.[footnote]Report of the Committee on the Establishment of a Permanent Organization for the Improvement of the Law Proposing the Establishment of an American Law Institute, 1 A.L.I. Proc. 1, 69–70 (1923) [hereinafter Founding Committee Report].[/footnote] In an effort to codify judge-made rules and principles, Restatements therefore embody very distinct structural similarities to statutes: Their primary directives are described as “black letter” and placed in bold text, their provisions are sequentially numbered and organized logically as a code, and, perhaps most importantly, their drafters pay acute attention to every single choice of word that is included in the text of a Restatement—all in the unstated hope that courts will engage them just as they do ordinary statutes, even if through the common law process.[footnote]See ALI, Capturing the Voice 2015, supra note 11, at 36 (noting how the language should be in the nature of a “codification”). For a comprehensive history of the ALI’s efforts to engage statutory law and its rejection of an internal report that exhorted it to reproduce the language of the statute rather than paraphrase such language or suggest alternatives, see Balganesh & Menell, supra note 7, at 285–312. [/footnote] Not surprisingly, innumerable courts do just this and treat Restatements as statutory directives, that is, as primary sources of law. As a prime example, consider the celebrated property law case of Intel Corp. v. Hamidi , decided by the Supreme Court of California.[footnote]71 P.3d 296 (Cal. 2003).[/footnote] The case involved the applicability of a common law property tort—trespass to chattels—to an internet server. The question before the court was whether the defendant’s spamming of a private computer server constituted a trespass.[footnote]Id. at 299–300.[/footnote] In answering the question in the negative, the court placed extensive reliance on the Restatement (Second) of Torts, and specifically section 218 therein, which deals with trespass to chattels.[footnote]Id. at 302.[/footnote] What is particularly noteworthy in the court’s engagement with the Restatement is not just its extensive quotation of the relevant provision or its parsing of the precise words contained therein but also the very framing of the Restatement’s role as a source of law that would guide its reasoning. The majority opinion framed its reliance on the Restatement as follows: “ Under section 218 of the Restatement Second of Torts, dispossession alone, without further damages, is actionable . . . but other forms of interference require some additional harm to the personal property or the possessor’s interest in it.”[footnote]Id. (emphasis added).[/footnote] At first glance, this observation may appear rather straightforward. Yet on closer scrutiny it perfectly illustrates the tendency of courts to equate Restatements with statutes. The court’s framing treats section 218 of the Restatement as the primary source of the cause of action; actionability was to be determined by that section since it was seen as arising “[u]nder” it.[footnote]Id.[/footnote] The flaw in the court’s formulation lies in its treatment of section 218 as a free-standing source of the legal proposition it was considering, when the provision merely synthesizes and restates judge-made law on the point. That framing is, however, ordinarily reserved for statutes, which as independent sources of law, dictate whether something is “actionable under” their terms.[footnote]See, e.g., Universal Health Servs., Inc. v. United States, 136 S. Ct. 1989, 1996 (2016) (“A misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the [False Claims Act].”); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108 (2002) (describing behavior that is “actionable under Title VII”); Herman & MacLean v. Huddleston, 459 U.S. 375, 383 (1983) (“[S]ome conduct actionable under § 11 may also be actionable under § 10(b).”).[/footnote] Restatements are not independent sources of law despite their superficial resemblance to statutes. The black-letter text of Restatements is drawn directly from the language and content of actual judicial opinions, which it synthesizes into succinct directives. While the black-letter text of a Restatement may thus resemble statutory text in form , in substance its source is the judicial opinions that it digests into a directive, a distinction of significance. A longstanding rule—now reiterated multiple times by the Supreme Court—warns against treating the expository language of a judicial opinion as equivalent to the concise text of a statute, since judicial reasoning emerges contextually from the circumstances of the dispute before a court.[footnote]St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (“[W]e think it generally undesirable . . . to dissect the sentences of the United States Reports as though they were the United States Code.”); Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979) (“[T]he language of an opinion is not always to be parsed as though we were dealing with language of a statute.”).[/footnote] Consequently, a strong interpretive canon cautions courts against parsing and dissecting the language of judicial opinions in ways commonly done for statutes. Courts relying on Restatements, however, routinely fail to realize that they are in substance interpreting and relying on judicial—as opposed to legislative—language. Further, unlike statutes, Restatements contain more than just black-letter text. They contain additional components that are meant to aid judges in their reliance on the document. These components commonly include a “Comments” section, which explains the background and rationale for a black-letter provision, and the “Reporter’s Notes,” which are authored by the drafters to convey their own individual views about the provision (and topic) independently.[footnote]See ALI, Capturing the Voice 2015, supra note 11, at 34 (detailing the component parts of a typical Restatement).[/footnote] Implicit in their structure and arrangement within a Restatement is a presumptive hierarchy of authoritativeness that the Restatements’ drafters advance: The black letter is meant to embody binding law while the Comments and Reporter’s Notes elaborate on the law and its rationale, with the latter treated as the product of the individual drafter rather than the organization’s membership.[footnote]See ALI, Capturing the Voice 2015, supra note 11, at 45. A prime example is found in the majority and dissenting opinions in Intel . See Intel , 71 P.3d at 304, 307 n.6; id. at 327–28 (Mosk, J., dissenting).[/footnote] Comments and Reporter’s Notes are therefore meant to function as interpretive guides to the black letter, but from inside the official text of a Restatement—like the oddity of interpretive guidance contained within the enacted language of a statute. Owing to their presence as intrinsic guides, courts all too commonly treat Comments and Reporter’s Notes in the way that they do the black letter of Restatements and scrutinize their language very closely.[footnote]See, e.g., Federal Republic of Germany v. Philipp, 141 S. Ct. 703, 713 (2021) (citing to a Reporter’s Note in a Restatement without distinction); Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 164 (2003) (citing Restatement black letter and reporter’s notes concurrently without distinction).[/footnote] Perhaps most importantly, in stark contrast to formal legislation, Restatements are produced through a decidedly nontransparent process. Early drafts of a Restatement—and the debates around its provisions—are never publicly revealed nor recorded.[footnote]As an example, consider the recent controversy around a draft of the Restatement of Consumer Contracts, in which one ALI member attempted to make the draft publicly accessible. The ALI’s opposition to the attempt confirmed that drafts were accessible only to ALI members and that nonmembers could be provided drafts only for “an appropriate, limited use.” Letter from Stephanie A. Middleton, Deputy Dir., ALI, to Paul Alan Levy, Pub. Citizen Litig. Grp. (May 15, 2019), https://static.reuters.com/resources/media/editorial/20190201/alioncopyright.pdf [https://perma.cc/P3W3-TYX7]. None of the organization’s unapproved drafts are therefore publicly available. See Alison Frankel, State AGs Protest ALI Consumer Contract Restatement Ahead of May 21 Vote, Reuters (May 21, 2019), https://www.reuters.com/article/us-otc-ali/state-ags-protest-ali-consumer-contract-restatement-ahead-of-may-21-vote-idUSKCN1SL2VB [https://perma.cc/E7WB-YZ23] (describing the episode and linking to the ALI’s public access policy description).[/footnote] Further, the full drafting history of a Restatement is never made public.[footnote]See Deborah A. DeMott, Restatements and Non-State Codifications of Private Law, in Codification in International Perspective 75, 79 & n.17 (Wen-Yeu Wang ed., 2014) (noting how the practice of transcribing adviser and council meetings where the drafts are modified and debated has long been discontinued).[/footnote] The reasons behind a Restatement’s choice of particular language, the inclusions and omissions made to and from its text owing to consultations and suggestions, and the myriad compromises—political, ideological, and otherwise—that such text represents all remain hidden from courts unless chosen to be revealed by a Restatement’s drafters in the Comments or Reporter’s Notes, or by a participant in the process.[footnote]See id. at 78 (noting that though individual authors may have some persuasive say through their writings, the final product is “envelop[ed] in a carapace of institutional authorship”).[/footnote] Unlike with statutes, for which the legislative history routinely informs the understanding of the text,[footnote]See generally Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845 (1992) (defending the use of legislative history in interpreting statutes); Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890–1950, 123 Yale L.J. 266 (2013) (providing an institutional account of the rise of legislative history in statutory interpretation).[/footnote] courts are meant to rely on the language of Restatements without any recourse to its drafting history and intellectual lineage. Courts are thus implicitly directed to accept the text of a Restatement on its own: as neutral, apolitical, and thus capable of being understood without looking behind the curtain, except when a drafter thinks it wise to do otherwise.[footnote]Indeed, this is an approach that became controversial during the drafting of one of the ALI’s most well-known projects, the Uniform Commercial Code (U.C.C.). Its drafter, Karl Llewellyn, “worried” that prior drafts of the project as well as the project’s drafting history would be “extremely misleading” in the interpretation and reading of the code. Consideration of the Proposed Final Draft of the Uniform Commercial Code, 27 A.L.I. Proc. 1, 8–9 (1950). That worry appears to have informed and developed into the current practice.[/footnote] This Article examines the nature and status of Restatements as sources of law in the modern American legal landscape by focusing on the manner in which courts interpret and rely on their substantive content. Despite their formal status as secondary sources, Restatements are today regularly treated as authoritative sources of law by courts, a transformation that the ALI has consciously facilitated and encouraged.[footnote]See infra section I.A for a fuller discussion of this point.[/footnote] Regardless of the wisdom of this transformation, it has unfortunately not been accompanied by a recognition of the rather important ways in which Restatements differ from statutes and other codes and regulations, which should influence the manner in which they are relied on by courts. As legal texts that are developed through a collective institutional process involving experts in a field, Restatements undoubtedly remain invaluable legal sources for courts and lawyers. All the same, despite the Restatements’ fairly standardized form and substance today, courts rely on Restatements in very different ways. In one of the most common versions of reliance seen today, courts treat Restatement language as authoritative statements of law on their own or formally “adopt” Restatement sections as the law of their jurisdiction in their reasoning.[footnote]For a fuller discussion, see infra section III.A.[/footnote] The anomalous nature of such judicial adoption and the constraining effect that it has on future courts’ discretion under the common law are factors that are altogether ignored during such reliance. In this form of reliance, courts effectively outsource their lawmaking role under the common law to Restatement text, analogous to what they would do with an actual statutory text. A second (and more benign) form involves courts relying on Restatements as secondary sources and thus according them no more than persuasive value. Here, courts use Restatements to support their descriptive statements of the law that are independently derived from elsewhere.[footnote]See infra section III.B.[/footnote] In between the two forms is a third mode of reliance wherein courts look to Restatements for their reporters’ efforts to choose between conflicting lines of decisional law. In such reliance, courts either unpack a Restatement’s choice to focus on its rationale or instead accept the choice as worthy of reliance on its own without any additional scrutiny.[footnote]See infra section III.C.[/footnote] While the former treats Restatements as secondary sources, the latter outsources the normative nature of the choice back to the Restatement reporters. Rarely if ever, though, do courts specify the form of reliance that they are placing on Restatements, often equivocating instead on the issue. Later courts then routinely misconstrue the nature and scope of a prior court’s reliance on a Restatement in its reasoning, compounding the effect of the initial equivocation. When a court’s form of reliance on a source and its accompanying process interpreting that source lack sufficient transparency, it risks undermining the legitimacy and credibility not just of the source at issue but also of the very court engaged in the reliance and interpretation. Indeed, much of the controversy surrounding courts’ modern use of Restatements stems from their failure to develop a coherent approach for their reliance. At the root of Justice Scalia’s observation that modern Restatements “are of questionable value and must be used with caution”[footnote]Kansas v. Nebraska, 574 U.S. 445, 475 (2015) (Scalia, J., concurring in part and dissenting in part).[/footnote] was the implicit concern that courts were inconsistent and unclear about how and when to interpret and rely on Restatement provisions as part of their reasoning. For Restatements to continue serving a meaningful purpose in the American legal system without undermining their own legitimacy, it is critical for courts to develop a methodology of reliance that is tailored to Restatements’ unique structure, purpose, and status as legal sources. This Article takes the first steps in that direction and offers a set of Restatement-specific canons of construction that alleviate the main problems underlying courts’ extant use of Restatements in their judicial reasoning. These include: the canon of secondarity , which would presume that a court’s reliance on a Restatement is in its use as a secondary legal source, absent an affirmative statement to the contrary; the canon of faux codification , which would require courts to look behind the statute-like framing of Restatements to actually scrutinize the relationship between the text of the black letter and the actual law that it purports to restate; the canon of common law preservation , which would have courts interpret Restatements’ black letter in a way that preserves—rather than narrows—their own lawmaking function in the common law; and lastly, the canon of statutory primacy , which would caution courts against relying on the black letter of Restatements over the language and text of any competing statutory provisions that it seeks to summarize or paraphrase. The argument of the Article is developed in four parts. Part I unpacks the form of legal authority that Restatements embody, focusing on the manner in which they consciously tread a thin line between competing visions of legal authority. This unique positioning has allowed them to play an outsized role in the development of the law and accorded them significant influence among courts. Part II shows how, despite superficial similarities in form and structure, Restatements remain fundamentally different from statutes. These differences have important consequences for the ways in which Restatements are used and relied on by courts. Part III then examines the principal ways in which courts rely on Restatements in their judicial reasoning: as actual codified law (analogous to a statute), as a choice among competing lines of case law, and as the opinion of a treatise-writer, albeit an institutional one. Part IV shifts to the normative and argues for the development of a new methodology for courts’ reliance on Restatements, one that is transparent both about the nature of their authority and the purpose for courts’ reliance on them. It then offers a set of four new interpretive canons for courts to use in their reliance on Restatements as part of their judicial reasoning. A brief conclusion follows. Before proceeding further, an important methodological caveat is in order. Much of the argument about judicial reliance that follows focuses on courts’ use of Restatements in their reasoning as articulated in their opinions. A concern might therefore be raised that such reasoning is little more than an ex post rationalization of an outcome that is developed—either consciously or subconsciously—by judges to mask their real motivations for their decisions.[footnote]The notion of a rationalization draws from the legal realist idea that judges give formal reasons for their opinions and outcomes that differ from the real reasons that drove them to that point. See, e.g., Felix S. Cohen, Ethical Systems and Legal Ideals: An Essay on the Foundations of Legal Criticism 237–38 (1959) (discussing “realistic jurisprudence” as emerging from “discrepancies . . . between what courts are saying and what courts are doing”); Ronald Dworkin, Taking Rights Seriously 3 (1977) (describing legal realists’ arguments that “judges actually decide cases according to their own political or moral tastes, and then choose an appropriate legal rule as a rationalization”); Jerome N. Frank, Law and the Modern Mind 130 (1935) (arguing that one of the chief uses of legal rules and principles is “to enable the judges to give formal justification—rationalizations—of the conclusions at which they otherwise arrive”); Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 Tex. L. Rev. 267, 268 (1997) (describing that from the realist perspective, judges “rationalize [decisions based on their personal values] after-the-fact with appropriate legal rules and reasons”); Jon O. Newman, Between Legal Realism and Neutral Principles: The Legitimacy of Institutional Values, 72 Calif. L. Rev. 200, 203 (1984) (discussing that “[f]or the legal realist, the expression of preferences predominates” over rational processes in a judge’s reasoning over a decision).[/footnote] In other words, an opinion might well state that it is relying on a provision of a Restatement, when in reality it is motivated by other considerations, many of which are for varying reasons incapable of articulation.[footnote]There is a strong parallel here to the distinction between stated and revealed preferences that is made in economics. See generally Elizabeth Anderson, Unstrapping the Straitjacket of “Preference”: A Comment on Amartya Sen’s Contributions to Philosophy and Economics, 17 Econ. & Phil. 21 (2001) (arguing that a full understanding of rationality requires “a non-preference-based conception of reasons for action ” and “robust conceptions of collective agency and individual identity ”); Amartya Sen, Behaviour and the Concept of Preference, 40 Economica 241 (1973) (discussing the normative implications of the economic theory of revealed preference); Amartya K. Sen, Choice Functions and Revealed Preference, 38 Rev. Econ. Stud. 307 (1971) (providing “a systematic treatment of the axiomatic structure of the theory of revealed preference”).[/footnote] While this concern may well hold true as an evaluation of the psychology of judges (and judging), it fails to account for the independent generativity of legal precedent.[footnote]See generally Charles L. Barzun, Impeaching Precedent, 80 U. Chi. L. Rev. 1625 (2013) (arguing for the evaluation of a decision’s underlying motivations as a valid means of assessing the decision’s precedential value); Oona A. Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 Iowa L. Rev. 601 (2001) (describing a theoretical model to examine how decisions are affected by the historical path leading to them).[/footnote] Even if an opinion at the time does not adequately reflect a judge’s real reasons, to later courts it is only ever the professed (i.e., written) reasons and reliance as seen in the opinion that matter, thus according them principal influence as a structural matter.[footnote]See Shyamkrishna Balganesh, The Constraint of Legal Doctrine, 163 U. Pa. L. Rev. 1843, 1848–49 (2015) (discussing how legal doctrine may “constrain the decision by framing the inquiry and analysis, in situations where it applies”); Shyamkrishna Balganesh & Gideon Parchomovsky, Structure and Value in the Common Law, 163 U. Pa. L. Rev. 1241, 1266 (2015) (describing how “the interaction between [jural and normative meanings that legal concepts embody] is responsible for maintaining an adequate level of stability necessary for the successful operation of the common law, while at the same time allowing for change at the normative level”); Richard A. Posner, Judges’ Writing Styles (and Do They Matter?), 62 U. Chi. L. Rev. 1421, 1429–31 (1995) (discussing how judges’ writing styles in their decisions reflect the audience they intend to target).[/footnote] The argument that follows is therefore built around this reality.

Common Law

RELYING ON RESTATEMENTS

“CYBORG JUSTICE” AND THE RISK OF TECHNOLOGICAL-LEGAL LOCK-IN