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Lessons from the Restatement Movement Kristen David Adams Hofstra Law Review Volume 33 | Issue 2 Article 3 2004 The olF ly of Uniformity? Lessons from the Restatement Movement Kristen David Adams Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Adams, Kristen David (2004) "The oF lly of Uniformity? Lessons from the Restatement Movement," Hofstra Law Review: Vol. 33: Iss. 2, Article 3. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol33/iss2/3 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Adams: The Folly of Uniformity? Lessons from the Restatement Movement THE FOLLY OF UNIFORMITY? LESSONS FROM THE RESTATEMENT MOVEMENT Kristen David Adams* CONTENTS I. THE RESTATEMENTS IN THE VIRGIN ISLANDS: MODELING THE PROBLEM ............................................................................424 II. THE RESTATEMENT MOVEMENT, ITS VISION AND PHILO SOPHY ............................................................................ 432 A. Changing Goals of the Restatement ................................... 437 B. Political Influence on the Restaters .................................... 440 III. WHY COURTS FOLLOW THE RESTATEMENTS ............................ 443 IV. THE NATURAL DEVELOPMENT OF THE COMMON LAW ............. 445 V. THE EVOLUTIONARY BIOLOGY ANALOGY ................................ 451 VI. FIT AND AUTHORITY: JUDICIAL ATTEMPTS AT FINDING SO LU TIO N S................................................................................. 462 V II. C ONCLUSION .............................................................................. 472 * Associate Professor and Leroy Highbaugh, Sr. Chair in Faculty Research, Stetson University College of Law. This article is the first fruit of more than a decade of research on the Restatement movement, which has fascinated me ever since I began the formal study of law. I gratefully acknowledge the steadfast support of the faculty and administrators of the College of Law for the extensive study that this research has required. My research was underwritten with a generous grant from the College, and Dean Darby Dickerson, Professor Robert Batey, Leeanne Frazier, Professor Peter Lake, Professor Marleen O'Connor-Felman, and Jo Ann Palchak were each kind enough to read and provide valuable comments on this article in draft form. I also greatly appreciate the encouragement of the Honorable Guido Calabresi, Dean Emeritus Anthony Kronman, and Professors Robert Ellickson and Owen Fiss, all of the Yale Law School, who were supportive of my research during my studies at Yale. Stetson College of Law alumni Lindsay Campbell, Catherine Guthrie, Christopher Kaiser, and Brittain Mitchell provided valuable research assistance and were instrumental in securing rare sources from the Virgin Islands. Published by Scholarly Commons at Hofstra Law, 2004 1 Hofstra Law Review, Vol. 33, Iss. 2 [2004], Art. 3 HOFSTRA LAW REVIEW [Vol. 33:423 There are certain ideas of uniformity that sometimes seize great spirits,... but that infallibly strike small ones. Theyfind in it a kind of perfection they recognize because it is impossible not to discover it:in the police the same weights, in commerce the same measures, in the state the same laws, and the same religion in every part of it. But is this always and without exception appropriate?... And does not the greatness of genius consist rather in knowing in which cases there must be uniformity and in which differences? . .. When the citizens1 observe the law, what does it matter ifthey observe the same ones? I. THE RESTATEMENTS IN THE VIRGIN ISLANDS: MODELING THE PROBLEM This article will examine the way in which the American Law Institute's Restatements have influenced the development of United States common law. In so doing, the article's vehicle will be the Virgin Islands, which by statute have adopted the Restatements in their entirety as the Islands' de facto common law.2 The article's thesis is that the Virgin Islands, using a speciation analogy drawn from evolutionary biology, 3 would otherwise have been an excellent environment for studying the natural development of a common law tailor-made for the community, as the Islands are physically separated and politically isolated from the rest of the United States4 and contain a population with unique characteristics and needs. 5 Because of their geographic and political isolation, I have referred to the Virgin Islands as a "legal backwater.",6 Using the language of evolutionary biology, a backwater is often a valuable creative engine and resource.7 Because, however, the Islands have employed the Restatements as their default common law, the natural development of Virgin Islands law has been interrupted.8 This effect has become more significant as the Restatements have become more normative over time and also have been subjected increasingly to interest group politics.9 In the same way, examining the Restatement movement more generally, the movement has encouraged 1. CHARLES DE MONTESQUIEU, THE SPIRIT OF THE LAWS 617 (Anne M. Cohler et al. eds., Cambridge Univ. Press 1989) (1748). 2. See infra note 20 and accompanying text. 3. See infra notes 133, 134, 141 and accompanying text. 4. See infra note 119 and accompanying text. 5. See infra notes 120-22 and accompanying text. 6. See infra note 118 and accompanying text. 7. See infra notes 133-41 and accompanying text. 8. See infra notes 20-31 and accompanying text. 9. See infra notes 60-73 and accompanying text. http://scholarlycommons.law.hofstra.edu/hlr/vol33/iss2/3 2 Adams: The Folly of Uniformity? Lessons from the Restatement Movement 2004] THE FOLLY OF UNIFORMITY? an artificial clean-up of the common law and has discouraged the very backwaters that might otherwise have served, through speciation, as resources for the development of the law in the manner that best serves the needs of the community.'0 The crucial question, which this article seeks to answer, is whether the Restatements have provided an effective substitute. Ultimately, this question turns on the manner in which the courts employ the Restatements. The balance of the introduction explores the way in which the Restatements have been employed in the Virgin Islands and the manner in which this decision has affected the natural development of the Islands' common law.1" The second section describes the Restatement movement-both its history and the way it has changed over time.' 2 The third section examines arguments in favor of the courts' use of the Restatements and suggests that their enumerated positive attributes may not, standing alone, outweigh any negative consequences of the Virgin Islands' use of the Restatements as de facto common law. 13 The fourth section briefly examines, for purposes of comparison, the natural common-law-making process in jurisdictions outside the Virgin Islands. 14 The fifth section defines the term "legal backwater," introduces the evolutionary biology analogy, and explains why studying the Virgin Islands is productive in illuminating the effect of the5 Restatement on the development of U.S. common law more generally.' The sixth and final section seeks to discover whether the courts have utilized limits that govern the use of the Restatements, so as to ameliorate any potentially distorting effect.' 6 In each section, the intent is to use examples from the Islands that may be applied more generally to all jurisdictions currently employing the Restatements in any capacity, so as to illuminate the manner in which the Restatements are used throughout the United States. The Virgin Islands are one of only two jurisdictions (the other being the Commonwealth of the Northern Mariana Islands) in which the 17 18 Restatements have been adopted as de facto common law, by statute. Having done so, the legislature of the Virgin Islands has elevated the 10. See infra notes 116-41 and accompanying text. I. See infra notes 20-39 and accompanying text. 12. See infra notes 40-78 and accompanying text. 13. See infra notes 79-87 and accompanying text. 14. See infra notes 88-115 and accompanying text. 15. See infra notes 116-66 and accompanying text. 16. See infra notes 167-206 and accompanying text. 17. See infra note 20 and accompanying text. 18. See infra note 20 and accompanying text. Published by Scholarly Commons at Hofstra Law, 2004 3 Hofstra Law Review, Vol. 33, Iss. 2 [2004], Art. 3 HOFSTRA LAW REVIEW [Vol. 33:423 Restatements from persuasive authority to controlling authority in matters of first impression. 19 Thus, although the Restatements have been generally influential in jurisdictions across the United States, their influence is particularly concentrated in the Virgin Islands. The relevant statute is Title 1, § 4 of the Virgin Islands Code Annotated, which provides as follows: The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in20 cases to which they apply, in the absence of local laws to the contrary. Although the statute has been applied in over two hundred reported cases, its language has never expressly been interpreted.2' Therefore, the statute remains unclear as to whether the language "as expressed" means that
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