Posted by Randy Barnett:
Marcus Cole on the Restatements:
As I said in my initial post on this topic, my opinion on the merits
of Restatements has been influenced by [1]Professor Marcus Cole of
Stanford. Marcus offers this response to my posts here (which I
reproduce with his permission):
While I do not have time to fully engage the issue right now, I
would like you to please point out to Mr. Sandefur that his
arguments are compelling reasons why statutes are an important,
perhaps necessary, compliment to common law processes. His
arguments do not, however, make the case for restatements.
Indeed, statutes and common law decisions have long operated in
tandem with each other, with statutes operating as the "concrete
blocks" in the water around which the "coral reef" of common law
develops. Common Law and statute law complement and correct each
other. To paraphrase Holmes, the value of the common law is that it
decides actual cases first. Not imagined cases, not hoped-for
cases, not contemplated cases. It decides cases were real people
experienced real facts and have real interests at stake. Statutes
have meaning where common law develops around them.
Restatements, on the other hand, substitute another set of
"statutes" in place of the spontaneous order of the common law.
What is worse, these "statutes" are "enacted" by law professors.
Now, I've heard all of the arguments in favor of "the Electorate of
the Law," but you and I both know that if the only votes counted in
the Presidential election were those of law professors, we would
have just witnessed the inauguration of President Ralph Nader
(Kerry would have been a distant second). I've never understood why
anyone who has any understanding of the makeup of the legal academy
could trust the formation of actual law to people who bear so
little resemblance to those who are to be governed by it.
While public choice theory has exposed the infirmities of
legislation enacted by duly elected representatives, I don't
understand why anyone would believe that an unelected "legislature"
comprised of law professors might be completely immune to these
same infirmities. The beauty of the common law, operating in
conjunction with real legislation, is that they are, as Hayek
pointed out, different in nature, and therefore capable of
complementing, correcting and adjusting each other.
Now, I know that there are many well-meaning members of the
American Law Institute, and many of them are trying to do what they
believe is right. This does not, however, justify the enterprise of
crafting law for others to whom they are completely unaccountable.
I find it hard to view restatements as more than attempts by a very
unrepresentative and possibly disaffected minority to exercise
power and influence in a society that has elected leaders that
they, for the most part, dislike, and whose values they do not
share.
PS: I never name the sender of an email that I quote on the blog
unless expressly authorized. So if you want your name included if I
quote your email response, you should let me know in your message.
References
1. http://www.law.stanford.edu/faculty/cole/
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