Posted by Randy Barnett:
Restatements Revisited:
On his blog [1]Freespace, Tim Sandefur raises a fundamental challenge
to my skepticism of Restatements (which I recommend reading in full):
What I mean is this: my college economics professor, Gary Wolfram,
explained to us that the concept of spontaneous order teaches us
that we should wait to see the order that arises from people's
choices before we make policy, rather than trying to impose policy
on people from the top down, on the basis of pure theory. He used
to explain it by reference to sidewalks: suppose you want to lay
out a college campus, and you want to put in sidewalks that the
students will use to go from building to building. The best way, he
said, is to wait a few years to see what pathways the students wear
into the lawn, and put the sidewalks there, because those are the
pathways the students use. Otherwise you'll have sidewalks, and
then you'll have these pathways across the lawn where the students
actually walk.
But you have to pour out the cement and make those sidewalks at
some point. And at any time that you finally decide to pour the
sidewalks, there's Randy Barnett saying "wait a second, this is a
dynamic process, and if you pour cement here, you're freezing that
dynamic process in place, and interfering with spontaneous order."
You see my point. Barnett's complaint about the Restatement could
be made, with equal validity, of any case that decides any issue
in, say, contract law. The judge could say "I'm supposed to be
`restating' the law on this issue and applying it to the facts
before me, but once I do so, a case tends to freeze the common law
evolution in amber."
There is much to be said about what remains fixed and what changes in
a dynamic evolving common law system. The doctrine of precedent is an
integral part of a common law process (unlike a process that
interprets a written constitution), which is analogous to judges
pouring the sidewalks. If the doctrine of precedent is considered too
strong, however, then courts will not reverse their previous
decisions--hence the traditional appeals by common law judges to their
legislatures to modify the common law when experience has revealed
their precedent to be defective. On this view, judges may pour the
sidewalks, but only the legislature can tear them up.
But if precedents can be reversed then courts are able modify them
when new circumstances reveal the limits of previous formulations of
legal rules. The main point is that, while legal rules should be
"fixed," judges should consider it their responsibility to repair
broken sidewalks they themselves poured, remove unused sidewalks, and
lay new ones. The Restatement movement seems to have gotten judges out
of this mind set. "That's not my job, let the ALI decide" seems to be
a judicial attitude inspired by the Restatements (though I may be
wrong about the judicial sociology here). Responsibility for changing
the judge-poured sidewalks has shifted from the legislatures to the
ALI (which may be a good move) and away from judges themselves (which
may be a bad move).
My original point was that the Restatements themselves were NOT based
primarily on the wisdom of their drafters--though they do incorporate
some "reforms" at the margin--but the wisdom of the common law
process, a process that is subsequently curtailed by the existence of
Restatements, making any new Restatement more a product of the
knowledge of a handful of academics--often motivated by partisan pro-
or anti-business concerns--than the diffused knowledge of numerous
judges deciding countless cases. Or such is my concern. I remain open
to being convinced otherwise, and I thank Tim for his thoughtful
response.
References
1. http://sandefur.typepad.com/freespace/2005/02/on_the_abuses_o.html
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