Exploring ALI's History and Influence

SUPPLEMENTARY RESOURCES

The American Law Institute: A Centennial History

Restatement of the Law Third, Agency

Restatement of the Law Fourth, Property

Model Penal Code: Sexual Assault and Related Offenses 

A transcript of the full episode is available below. Please excuse typos due to inaudible passages or transcription errors.

Introduction: Welcome to Reasonably Speaking. On this episode, we are celebrating The American Law Institute’s anniversary by looking back on the founding of the Institute, as well as at a few of the projects that have been most influential in American law. We’ll be exploring this history with our moderator, Andrew Gold. Andrew is currently a professor of law at Brooklyn Law School, where he teaches corporations and torts, as well as seminars in equity, tort theory, and fiduciary law. More importantly, for this episode, Andrew served as the co-editor of a book published to celebrate ALI’s 100th anniversary in 2023 titled The American Law Institute: A Centennial History.

Andrew will be joined by three panelists who each serve, or served, as ALI project Reporters: Deborah DeMott, John Goldberg, and Erin Murphy. Deborah DeMott of Duke University School of Law served as the Reporter on Restatement of the Law Third, Agency, published in 2006. Her scholarship and teaching focuses on the law of agency, business organizations, fiduciary obligation, and art law. She also authored the chapter “Restating the Law in the Shadow of Codes: The ALI in its Formative Era,” in the Centennial History book.

John Goldberg of Harvard Law School currently serves as an Associate Reporter for the Fourth Restatement of Property, and also serves as an Adviser to the Third Restatement of Torts. He’s an expert in tort law, tort theory, and political philosophy. Goldberg authored the chapter “Torts and The American Law Institute,” in the Centennial History book.

Erin Murphy of NYU School of Law serves as the Associate Reporter on the Model Penal Code: Sexual Assault and Related Offenses project. Approved last year, and going into print production soon, this project updates Article 213 of the 1962 Model Penal Code. Erin focuses her research on the criminal legal system with a particular focus on procedural questions relating to policing and new technologies, substantive questions related to sexual assault and drug policy, and evidentiary questions related to forensic science. She’s an internationally recognized expert in forensic DNA typing.

I will now turn over the episode to our moderator, Andrew Gold.

Andrew Gold: Welcome, everyone. We have Deborah DeMott, John Goldberg, and Erin Murphy joining us. Very, very glad to have you here for this podcast on the ALI’s influence. If it’s okay, I think I’ll start off with some questions for Deborah DeMott. Among other things, in addition to her work on law of agency and the Restatement of Agency, she also has a chapter in The American Law Institute: a Centennial History, and may be able to discuss some of the early history of the ALI as part of her discussion. So Deborah, let me turn to you. I was wondering if you could start us off with maybe some thoughts on what the Restatements were like at the very beginning, and what they were trying to do with them?

Deborah DeMott: Okay. Well, so thanks for the opportunity to discuss some of what I learned from researching and writing about the early years of The American Law Institute, from when the Institute was formed, which would be 1923, through 1944 and the completion of the First Restatement of Property. It’s to clarify this at the outset, the materials I worked with, that I think contribute to some of the distinctiveness of my account, came from the ALI’s archive and specifically from the minutes maintained over the years from meetings, from the Annual Meetings of ALI members, minutes from meetings of its governing body, the Council, and the Council’s Executive Committee. These revealed some facts about the ALI’s early years not recounted in prior publication or prior scholarship about this.

Just maybe three broad themes to keep in mind. One is that early choices that ALI made had, and I think continue to have, ongoing implications for its work. Second, ALI certainly confronted challenges along the way during its early years and creatively overcame them. Then third, ALI emerged in the period that I looked at as a stable institution, as opposed to a basically one-shot law reform organization. An institution capable of ongoing existence, and then new projects, different projects.

The early choices. One early choice is why a Restatement? Why restate the law? Why not, instead, draft a civil code?

Given dissatisfaction, which was pretty widespread, with both the state of the common law, or private law, in the United States, there was believed to be state-by-state inconsistency, huge uncertainty, and considerable dissatisfaction with the quality and the reliability of published scholarship about the law. It was, you might say using a contemporary academic vocabulary, it was an epistemic crisis, or at least believed to be one. I, myself, have been curious about this since I started working on the Restatement Third of Agency, which would be in the mid-90s.

I was aware that seven states, as of 1923, had civil codes that codified private law, including California. These included coverage of agency. The codes dated from the last quarter of the 19th century onward. I became curious, in part because I noticed that neither the First Restatement or the Second Restatement of Agency ever mentioned the codes, and the codes were like a secret within the articulation or the development of private law in the United States, and that of course made me curious. I was also enormously preoccupied with simply dealing with, of course, with the law of agency to do the Restatement. When I worked on the history up through the mid-1940s, I discovered what I would just call a paradox, which is that this organization, or the Institute, that from its very beginning, from its very essence, is so committed to not doing code to the common law tradition, that by 1942, the ALI became an enthusiastic proponent of codification.

Specifically, in 1942, by undertaking participation in what became the Uniform Commercial Code, which is, in a way, a remarkable about-face. Then the criminal law codification, which Erin will talk about, then came along a bit later and is another significant departure from the initial choice, I would say, that the ALI made. Looking back, I would say those who shaped the ALI’s early history lived in a very, very different world from our world, in more than one way. They also had this remarkable combination of traits. On the one hand, they systematically tended to over-optimism. They always, as it were, bit off more than they had precisely the resources on hand to chew. This is project after project after project. Deadlines were set and then fell way, way, way behind. Commitments were made, and then how on Earth to make good on them.

On the other hand, the ALI also evidenced, I would say, which may be surprising to some, a remarkable capacity for saving itself. For ingenious solutions to various problems that had emerged. Just a sense of how different the world was, in the book that Andrew and Bob Gordon edited, there are reproductions of some remarkable archival photographs from the ALI’s collection. One of them, Plate Four, depicts from the collection, I think of Harvard University, Samuel Williston, who was the Reporter for the First Restatement of Contracts, which was the first Restatement volume to be published. That was in 1932.

In the photograph, Williston is standing beside a desk that contains mounds of paper. The mounds are so tall that they’re tethered with cords. This we learned, or it’s thought, is the manuscript for Williston’s wonderful Treatise on Contracts, which was published in 1920 to great success. But this is a picture to me of what legal scholarship looked like during this era, and certainly through the era of the first, well into the second, Restatement. It’s the stacks of paper.

So Williston’s treatise, I would say, became something of a model in its way for how the first series of Restatements were to be drafted. They were to be very clear. They were to be precise. The organization was to be analytic. In some ways, the Restatements kind of resembled civil codes though, or chapters in a civil code because there was a statement of black letter legal doctrine in text, maybe a little bit of commentary, and that was about it.

So just as civil codes don’t have annotations in them to cases and such, well, neither did the first series of Restatements either. The original plan, and here ALI was very ambitious indeed, was that each Reporter would also simultaneously write, and ALI would publish, a treatise elaborating on the bare bones of the Restatements themselves. This proved totally impractical. One consequence of this was that the first series of Restatements were accused of being authoritative without authorities. This led to interesting jurisprudential questions about, “Well, what’s this authority? What is this organization, and how dare they prescribe what the law is? They’re not even telling us what, in present case law, in the cases, would support what they’re claiming.”

Although the Contracts Restatement and the Agency Restatement sold pretty well, the feedback from the field in sales was that having citations to cases would help sell the volumes. ALI did not have the funding, in addition to paying Reporters and Advisers to Reporters, to begin paying additional people to do the sheer drudge work of compiling annotations. The creative solution that emerged was persuading bar associations in several states that they wanted to organize groups of lawyers who would do this work.

This effort I think resulted in stronger product in some states rather than other states. Meanwhile, the ALI believed that it had at least a moral obligation to publish the annotations as separate volumes. But then there was a new crisis, or a new problem to be resolved, which was, well, 1944 would see the publication, finally, completion of the Property Restatement. And what would be next?

If the ALI is to be an ongoing organization, ongoing institution, it needs work to do, needs work that matters. What’s that going to be? Restatements of additional subjects perhaps, that we’re not dealt with in the first Restatement. Updates, revisions to the original Restatement? But, fortuitously then, ALI was approached by the Uniform Law Commission to become a partner in what became the Uniform Commercial Code, specifically to begin by updating the Uniform Sales Act, which had not been all that successful.

Thus the next chapter, which is heavy involvement of the ALI in codification projects, it came with a cost. The redoubtable, long-serving, Samuel Williston vehemently opposed the ALI’s involvement in what became the UCC. As one of my colleagues said, when I presented this at Duke, “so Williston got off the bus as of 1942?” And that would be right. But, nonetheless, then the future of work that the Institute might do became, I would say, much broader, yet ongoing existence as a reasonably stable institution then continued onward.

Gold: A couple of things you mentioned struck a chord that, as far as what Restatements do, in some ways there’s this resemblance to codification, but they were very resistant early on to codifying, although that pretty clearly changed. Then there’s also a strong relationship early on, it sounded like, to the treatise projects. We have something that is a little like a treatise but not, and a little like a code, but not, and I wanted to turn to John for a related set of questions, because he’s also, in his work, described how restating can be like the way an appellate court acts, which I think is yet another model. In fact, John suggested a few different models or modes for what the ALI has done. Turning to John, and maybe discussing tort law some as well, can you tell us a bit about that?

John Goldberg: Sure. Thanks, Andrew. I think, if I can react to one thing Deborah said, and she knows more about this than anyone, but my sense is part of the story for the Restatement model was it was meant to be a kind of middle ground. Back at the turn of the 20th Century, there was a big fight between the codifiers, who wanted to get rid of common law as old, and irrational, and regressive, and the adherents, who insisted that common law was a superior mode of law. The Restatements were halfway in between. They were not codifications, but they were a little more codified than standard common law. So that may be part of the explanation, although I defer to Deborah’s expertise on that.

I have focused on the Torts Restatements, both in the volume that Andrew showed us earlier. I should say upfront, I am currently employed by the ALI as a Reporter, working both, doing double duty, on the Restatement of Property and the Restatement of Torts, doing the interface between those two, meaning things like trespass, conversion, nuisance and the like. I come into this conversation mindful and appreciative of how challenging it is to do these Restatements. I will say some critical things I suspect, but I wanted to preface them by saying this is a hard job, and not merely to get sympathy for myself, but to put my own comments in context.

All right. Enough preliminaries. I’m going to speak specifically to torts, because I don’t think this has happened necessarily in other subjects. It certainly hasn’t happened in contracts or criminal law, but in torts, for some reason, and torts was one of the first subjects that was tackled by the ALI, there’s been a tendency to vacillate a bit within each of the three Torts Restatements between what I identify as two different models of restating. They’re both restating, but they’re two different models of restating.

One, as Andrew suggested, is more in the model of a certain kind of appellate court. What I mean by that is, you take a common law appellate court, and obviously, there are huge contentious debates about what goes on when appellate courts decide cases and make common law, but a standard description is: a good appellate court takes the precedence and takes the principles in the precedence, and tries, in applying them to new situations, tries to play out the threads and have rendered decisions that keep the web of decisions and concepts and principles relatively coherent while adapting to modern times. There’s a lot in all those metaphors, but that’s the basic idea.

I think it’s fair to say that some of the great appellate judges in our legal system have done things like that. I think that’s Cardozo’s methodology, for example. There’s a different way though of doing restating. You’re still doing a Restatement, I don’t think it’s illegitimate, it’s just different. It comes with different benefits and costs and it’s a more aggressive way, if you will, of restating the law from my perspective. This is when Restatement Reporters behave a bit more like a law reform commission. What I mean by that is they look at a field, or a subfield, or some problem in the area of tort law and say, "You know what? Things just aren’t working here. There’s too much incoherence. There’s too much disagreement. Try as we might, we can’t restitch or reconstruct the law in the manner of an appellate court opinion, so we just need to start afresh in some respects. Not completely, we’re not reworking the entire law of torts, but we’re starting with some new concepts, or new categories, or new rules."

A classic example of this is every first year’s favorite tort concept, proximate cause. So every first year is tortured by cases where we try to figure out what proximate cause means. Well, the Reporter for the First Restatement of Torts, Francis Bohlen, who was a brilliant guy, and God bless him for doing the kind of work Deborah described Williston doing, just plowing through millions of documents and coming up with a relatively coherent Restatement. Williston said, "We’re just not going to use the phrase proximate cause anymore. It’s too confusing. It doesn’t help us solve the problems it’s supposed to be solving. So, what are we going to do? We’re going to use instead of different phrase and it’s the phrase legal cause. This is going to help solve our problems."

Now, I don’t want to make Bohlen look silly. He wasn’t silly. Again, being a Reporter is hard, but his thought was that if we just got the word proximate out of there, it would clear up a lot of confusions that people have. All right. Well, that’s an example of not following the cases. Very few cases had used that phrase. That’s more of a law reform commission idea. Interestingly, the Reporters who’ve worked on certain parts of the Third Tort Restatement, which is still underway. Thanks, Deborah, your comment about deadlines hit home, because I’m late on various provisions. But the Reporters for a certain portion of the Third Restatement of Torts, which has come out in pieces because it’s so massive, decided that legal cause wasn’t any better than proximate cause. So, we’re not going to use legal cause or proximate cause. We’re going to instead use the phrase “scope of liability.”

Again, I think this was not a phrase that lawyers and courts were using in every day, in litigation, in briefs, or in opinions. This was a decision by the Reporters, and not a crazy decision by any means, to say, “We just can’t salvage the language of the law in this corner of tort law, so we’re going to start afresh.” Now, my judgment, and of course it is a judgment, is that on balance when the various Reporters for the various Tort Restatements have gone into law reform commission mode and moved away from appellate court mode, my judgment, clearly contestable, is that things haven’t gone as well. My sense is that the efforts of the restaters, which are well-meaning, well-intended, thoughtful efforts, to be at the front of the train rather than in the middle, or the back of the train, if that metaphor makes any sense, haven’t gone very well.

I don’t think “legal cause” replacing “proximate cause” helped us clarify that set of problems. I’m skeptical, we’ll see, time will tell. I’m skeptical about “scope of liability,” and so what I think that might tell us, and it’s an interesting question, at least in the domain of torts but not necessarily, for example, in the domain of criminal law, which Erin’s obviously going to talk about, there’s something about Restatements that they are at their most helpful when they are in this appellate court mode, speaking the language that the courts and lawyers are already speaking, and trying to clarify at the margins.

Now, I’ll say two more things and then I’ll shut up, appellate court mode, it would be a mistake, in my opinion, to equate “appellate court mode” with “small-C conservatism,” meaning that if you’re an appellate court on the terms I’ve described, you’re never going to do anything very significant or innovative, you’re just going to tweak things at the margin.

I think, even when it’s acted in appellate court mode, the Torts Restatements have at times been innovative, but innovative still within that mode. A famous example of this, that is well-known, is the introduction by William Prosser into the Second Restatement of Torts of this thing called 402A, Section 402A, which recognized the doctrine that we now know as “strict products liability.” I think everyone agrees there wasn’t a heck of a lot of case law in support of 402A. It was not, by any measure, the majority rule. But I also think Prosser was very thoughtful about how he made the case for including 402A as imminent, if not explicit, in a range of doctrines that were recognized. Certain features of negligence law, certain features of warranty law, he said, and I think he was entitled to say, actually point towards a new tort liability called strict products liability. I think that was appellate court mode in an innovative way.

The last thing I’ll say is, at times, or at least once in the history of the ALI, it’s tried, for torts, something altogether different and it was never presented as a Restatement. It’s a very different kind of project. It’s what I call, in my chapter in the book, ALI in “think tank mode.” Now here, there’s no pretense to be restating the law. Instead, it’s very thoughtful academics getting together and stepping back and asking at a 30,000-foot level, “Gee, at least when it comes to the domain of accidents in 1991, should we still be doing anything like tort law? Maybe it’s time to rethink the whole project. Maybe we should be thinking more about something like a compensation system.”

This gave birth, in the ALI’s history, to this 1991 reporter study on enterprise liability. Now, the name tells you something. It’s called the Reporter Study. It’s not called The Restatement, and that’s for a reason. It isn’t a Restatement, it doesn’t purport to be. It’s the reporter study for is it time, in the domain of workplace injuries, product-related injuries, auto accidents, is it time really to move on and abandon centuries of jurisprudence that have committed us to tort law, and instead move with something more like a compensation system? Now that’s a very different intellectual project. Super interesting, and anyone who reads the reporter study will be rewarded by some very thoughtful chapters on how we might reform the law. Interesting question whether, this played to the ALI’s strengths, to reveal my cards, which have already been I think foreshadowed, I have my doubts. It’s an interesting document to read. Whether the ALI, as opposed to scholars just doing this on their own as scholars, is well-positioned to do that by way of comparative vantage I think is an interesting question. But just to wrap up, I think the torts projects over the years, and they’ve now been going for more than a century or almost, yeah, I guess more than a century, the torts projects have shown these different modes and I think it’s a really interesting question to sit back and ask whether in torts, or some other field, when is the ALI at its best in terms of accomplishing what it’s hoping to accomplish?

Gold: I don’t want to jump too far ahead because Erin hasn’t spoken yet, but related to both your topic and what she might be speaking on, you’ve mentioned these different modes. There’s the appellate court idea, there’s the think tank idea, law reform commission.

Why pick the Restatement mode at all as opposed to a statute? So take something like 402A, are there reasons why tort law should still be in a Restatement mode of whatever form?

Goldberg: Well, that’s a great question, and a hard question. I think that’s going to depend on a whole bunch of considerations, but my own view is that having 402A in a Restatement as part of a set of provisions that include also provisions on negligence and various other things, various other torts, I think is valuable for a couple of reasons. First, a lot of the same ideas, even though strict products liability in some ways differs from negligence, in other ways, it’s pretty similar. On things like the issue of causation, or injury, or comparative fault, or things like that, generally speaking, most courts these days see overlap.

So one of the nice things about not having a products liability statute and having, instead, a provision on strict products liability in an overall Torts Restatement is it emphasizes the connections and the coherence amidst the differences. I think that’s part of when common law works well, and Lord knows sometimes it does not, but when it works well, I think it works well by showing the complex coherence of a body of law like torts or contracts, and that’s hard to do in a statute.

DeMott: If I could just jump in briefly, there’s a nice comparison between the history and the wonderful success of 402A, from the Restatement Second of Torts, and the doctrine introduced in the Restatement Second of Agency, of inherent agency power, which Andrew is nodding. You said, John, and I agree with this, that 402A is not just 402A as if it were a provision in a civil code, but it’s also a thoughtful, we say here, normative, justification by Prosser, and working within existing tort doctrine to pull it out and then articulate the principle of strict products liability within it.

The section for, the doctrine, in contrast of inherent agency power, was like an ex-cathedra declaration, that had no particular justification. It was a way you could explain and generalize outcomes in a bunch of strange cases that didn’t fit otherwise. It’s really not worked to the tune that it’s not continued in the Restatement Third of Agency, and there really are not cases that turn on inherent agency power, as such. I think that’s interesting, because I think the appellate court mode, as you identified and as you’ve written about it, invites normative justification. Whereas then the more declaratory mode in the law reform commission approach doesn’t. It seems to me that those two Restatements, with what seemed like very innovative provisions in them, certainly did have different fates as the years went on.

Goldberg: Interesting.

Gold: I think that’s right. Then of course, the Model Penal Code is not a Restatement at all. Erin, maybe you can tell us a little bit about why the ALI made that choice?

Erin Murphy: That’s a great entry, I think, into the conversation because of course, it starts as a Code, but it is a Model Code. What effect and impact it’s going to have on law is obviously top of mind.

In thinking about all the things I could talk about today, I came up with six themes I thought I might try to hit and walk through. So I thought I’d talk about, in some ways, what drove the Model Penal Code, what led to it being a Code rather than a Restatement, and how a lot of that rings true today. I wanted to touch on its impact, its wide-ranging impact.

Third, I thought I’d get into its continued influence, even as times have changed and there’s been criticism of specific provisions. And then fourth, getting into some of that criticism a little bit. Then fifth and sixth, I thought it would be worth pausing on the process questions, of the value of homogeneity in the ALI and among the legal elite at the time the code was promulgated, and how that then feeds into the last theme, which is revisions. What do we do with this code in today’s era of mass incarceration? And how we think about criminal law, and whether it’s due for revision just as an old document.

So marching through those ideas, the first thing that stands out is that when the Model Penal Code was first imagined, it was not imagined necessarily to be a Code, which is to say, as soon as the ALI was founded, they started thinking about what to do with criminal law. At the time, criminal law was very much the ugly stepchild of the law. It was not considered, I think Langdell was teaching a teeny bit, like one credit of criminal law in HLS, but law schools were not teaching criminal law. Everything was really focused on private law. There’s a parallel story here about the redemption of criminal law as a field worthy of study, as a place that people of elite minds would want to spend time and think.

There was, I think, widespread recognition that the law was in, what I’m just quoting some of the scholars who’ve written in this area, “chaotic, unprincipled, in a sorry state, disastrous, less of a code and more a collection of ad hoc statutory enactments.” The only state with a comprehensive code was Louisiana. All the provisions were overlapping, inconsistent, unclear, politically motivated, driven by one incident that happened. I think all of that rings true to us today, this notion that our code is broad and unconstrained, that it’s inconsistent and unprincipled in ways. So it’s interesting to try to trace that conversation and ask how it moved through an arc, whether the Code, the Penal Code, had a rationalizing effect and that we’ve now, through entropy, fallen back into chaos and what to do with that.

But because of that, they decided to, at first, just have a report about whether we should even have a Model Code, a Restatement, anything at all. In the report, they identified all these problems and ultimately over the course, really, of several decades, went back and forth and "What should we do, how are we going to do this?" Until finally settling in 1952 on the penal code notion as both proper, in terms of endorsing a codification structure, as opposed to just continued refinement on common law, and proper in the model form, which is to say animated by the goal to create the best code, not necessarily just a mirror of existing law. Again, partly because existing law couldn’t really be mirrored, it was too incoherent. But also because the notion that they had was to come up with something that was thoroughly modern and new.

I found a quote from Wechsler back in, who of course was a Reporter and well praised and deservedly so for the project, where he said “The challenge,” this is in 1951, in a piece called “The Challenge of a Model Penal Code,” he said, “The challenges in substance is that the penal law is ineffective, inhumane, and thoroughly unscientific.”

I think that really encapsulates the approach. They wanted to make it a more coherent, effective code, they wanted to make it a more humane code. The unscientific piece, I think, was a little bit a part of this notion that law could be a science, it could be a rigorous discipline, and not just a collection of whims recorded on a page. Also I think a reflection of the mode of the time, where the behavioral sciences was really the thinking about criminal law, that we were going to have this revolution in psychological theory, in social theory that was going to transform how we do criminal law.

Again, I should credit Kim Ferzan and Markus Dubber, and Paul Robinson, and Gerry Lynch, and a number of scholars who’ve written about this who I’ve looked at in preparing, along with some of the original material, and it’s an interesting reflection of the time that if anything, they’re like, "Well, the behavioral science is going to get so much better. Should we wait a decade until we’ve cured criminality with drugs or mental treatments?" It’s funny to, in hindsight, read that and realize they were at the apex of the belief in this technique rather than what they thought, which was if we just wait a little longer, we’re going to fix deviance.

So, they begin the project. It takes a decade. In 1962, the ALI adopts it. It’s not actually published as a full six-volume set until 1985. The commentaries are worked on for many years after, and a huge team of really, the most respected names in the field are part of that process. So, that’s how we land. In terms of the impact, it has obviously had an incredible impact. I’ll say, and this is really relevant for Deborah and John’s conversation, that Wechsler really intended, early on, that this become a working Code. You see in his writing during the period that he was not aspiring to make a text for scholars, or a text for even really judges, to be inspired as they’re making decisions about their own codes. He really wanted it to be adopted as a code wholesale, getting rid of this incoherence of common law, rationalizing.

He recognized there’d be local variation. He understood that the commentaries would be essential for localities who wanted to do small departures, to tweak, but he cited James Fitzjames Stephens and Macaulay as models that had been influential in the Canadian code, obviously India’s code. ALI’s own Model Youth Authority Act, which dealt with the older juvenile population, which had been published in 1940, that had actually had an incredible influence and had been adopted as a youth act in a lot of states, and that was an inspiration. The goal, and I think one of the things that the Code is praised for, is although he did have, or the Code reflects, a theory and a sentiment about criminal law that, in some ways was at odds with the prevailing common law, it wasn’t really a grand theory actualized. It was a pragmatic, a Code driven by the necessities and reality of criminal law as he saw it, as opposed to an academic exercise.

I think, because of that, perhaps in part, it worked. Which is to say I think it’s been incredibly successful. Gerry Lynch in an early piece described it as “One of the great intellectual accomplishments of American legal scholarship of the mid-20th Century, and also one of the most successful law reform projects in American history.” I don’t think that’s necessarily hyperbolic. Two-thirds of states adopted the Model Penal Code in part or in total. Oh, wait, that’s, I think, Robinson and Dubber’s count.

I’m in New York, where, in part, because Field had pushed codification decades earlier, and also there were people affiliated with the Model Penal Code who were active in the state, we essentially became a Model Penal Code state. When I teach criminal law in New York, when you look at the provisions in New York, there are many of them that mirror the exact wording of the Model Penal Code.

This wave of reforms in the 60s and 70s, at a time when jurisdictions were ripe for consideration of adopting of a code, really led to it being incredibly powerful. I could go on a long list of ways in which it’s influential. I want to just highlight a couple of its successes, in terms of specific provisions. The four mental states, the mens rea that is condensed into the Code, which takes what had been just an endless proliferation, a true thesaurus of adjectival waves to describe people’s mens rea, and distills it into these four concepts, which nobody labors under the illusion that this is the complete way that people behave. But the ability of these just four concepts to distinctively lay out culpability levels in a way that proves functional and that has allowed people to even have conversations across disagreement that speak the same language, I think is, clearly, one of, if not the singular achievement, of the Code.

You hear it in contemporary Supreme Court arguments, you see it in scholarly writing everywhere. It was a Rosetta Stone that allowed people to actually start understanding the conversations they were even having with each other because, in the past, these words have been so ill-defined and indeterminate that you could talk past each other. Also, there’s been social science that shows that they work. Which is to say lay people, simulating jurors, apply them and apply them accurately. There’s marginal places where they might get a little off-key, but consistently they seem to be able not only to say, “I recognize this level and consistently identify the mens rea,” but it keys to their own notions of culpability and punishment. Related to that is it offered a coherent way to think about breaking down the elements of a statute, or an elements of a criminal defense, and again, labeling those.

It wasn’t perfect. There’s obviously a number of criticisms of parts of the Code that both either were adopted and then were recalled back as populations felt dissatisfied with them. I think most famously in some ways are the provisions related to the insanity defense, the totally different approach it took to manslaughter.

I’ll talk a little bit more about that, but the last general category here as I think there were aspects of the Code that did feel more academic. The artificial, in some ways, complexity of complicity liability or attempt liability, some people felt both failed to accurately reflect intuitions about liability, but also were just too difficult to apply. It’s also obviously been hugely influential in academic scholarship, hugely influential in how we teach criminal law. Every case book reprints it, for better or for worse.

It did have the effect, I think, of elevating the status. As they had said, we have no Wigmore, no Williston to lend us credibility, and now we’ve got the Model Penal Code. I think it was in Gerry Lynch’s article where he said, which I found funny, “Those guys have to do updates. You got to have the whole team of people to update Wigmore and update Williston. Here we got our good old 1962 Code, and we’re not even updating it. We’re still working with the same material.” I think that’s to its great credit that it has not just had something else come along and usurp it entirely in terms of mens rea or some of the different approaches.

So, what about this continued influence as times have changed? And this leads me into some of the criticisms, I think, that are worth mulling.

First, the biggest thing that, obviously, has happened is the Code both departed from criminal law understandings, which had been much more harm-focused, much more attributive-focused as a matter of theory, and into this frame of behavioral science and rehabilitation models. More focused on individual culpability, less concerned with harm. The archetype here is, in the common law, attempt is punished as a misdemeanor by and large, and in the Model Penal Code, attempt is punished as equivalent to the completed offense, unless it’s homicide.

So, that’s a dramatically different view of what criminal law is supposed to be doing. Is it trying to stop harms or is it trying to address harms, or redress harms from a retributive perspective, or is it trying to prevent and reform people from a culpability perspective? Lynch and others have pointed out that it’s held up doctrinally, even as the shifting sands have shifted back. As our society, especially with the crime rise in the 70s and 80s, have become more punitive, or more retributive, as we’ve seen the behavioral sciences model or the rehabilitative model, called into question in terms of what it can achieve.

In that way, it’s both impressive that it remains so hugely influential, but also it has to raise the question of: Should it be? If so much of the sands it stood on have shifted, is that some testament to its ingenious quality? Or is it something more sinister and darker about our refusal to wake up and smell the coffee? In that way, I think it’s useful to think of some of the criticisms, and I’m just going to take through a few of them, I’m sure I’m omitting some that folks would be happy to add.

One criticism I think is that it artificially separates procedure and substance, and, in particular, doesn’t think about enforcement or doesn’t contemplate enforcement. Now the Code, the ALI had adopted a criminal procedure code, has not met with the same success, and that was prior to the MPC. The notion that you could do substantive criminal law and that you could see it as constraining in any meaningful way, without directly intertwining that with procedure, I think, is what has become a question.

If discretion is such an embedded and inherent part of the criminal law and how it’s actually executed, there is, at times, this dissonance about talking about the constraining power of the substantive law when the procedural law can come along and undermine it in one fell swoop. I think in the same sense, there’s the big criticism of the ways in which the current, like I referred to earlier, this current movement to take what had been this, if at all, one-time pristine Code and attach things onto it like barnacles, I think one of the writers said, "barnacles on a sunken ship," has led to the same inconsistency, proliferation of substantive liability that led to the creation of the Code, that motivated the creation of the Code to begin with, only now it’s a codified artifice.

There’s a way in which there isn’t the coherence the Code purports to offer us, because we do have these broad diffuse statutes with overlapping liability, inconsistent liability. I remember one of the examples, I think in the Hadley Report, of why reform was needed is that they cite a jurisdiction in which purposefully and maliciously cutting out a person’s tongue, eye, or hand was a misdemeanor, but giving away a toy on which was painted the American flag or a flag of the US was a felony. That was an archetype.

I’ll say, as an aside, we confronted this when we were doing the sexual assault revision because cruelty to animals is punished as like a mid-tier felony, and we were trying to ratchet down penalties in light of what we all recognize as the excessive harshness of our system. But it’s very hard in a Code where you’re trying to make it rationalized to punish sexual assault of even the lowest aggravating level as less serious than hitting a dog, or something like that.

So this question, I think, of as this accretion of additional liability and broad and diffuse liability continues, how the Model Penal Code really does, or can do, anything to fix that, or where its relevance remains in light of that, is a fair question. I think, relatedly, is just the overall critique that some of the provisions of the Code feel divorced from our reality, as mass incarceration has become a central topic for political reform, for activism, of student interest, that the Code’s deliberate intention to focus on the areas of broad overlap, which is to say the most serious offenses, what we think of as the common law crimes, homicide, rape, burglary, theft, et cetera. In the present day system in which the vast majority of actually processed cases are low level offenses, low level felonies, low level misdemeanors, of the kind that are not even addressed in the Code, regulatory or minor things, the Code itself can feel a little out of touch, or can feel as though whatever theory it’s putting forward of criminal liability doesn’t actually map onto the existing reality of criminal enforcement.

To have a conversation about reforming the Code is to miss the point of the problems that need solving and addressing in our current time. I think this leads into, and is related to, a major criticism of the Code, which has been lobbed from several directions. Alice Ristroph has a piece about teaching criminal law and the relationship of how we think and conceive of criminal law and the Model Penal Code as well to the problems in mass incarceration, is the neutrality of the Code. That there was a notion that things like race and gender were not part of this analysis, in part because of who was in ALI at the time and the way in which we think about those things, but also I think just due to a lack of connectedness between the historical understanding of how criminal law had been abused in the past, and the potential for that to happen in the future. As I think, again, Lynch in his piece says at one point in talking about the Code, he said, “great deal that was assumed by Wechsler and his colleagues is now questioned or rejected.”

I think the sexual assault provisions is a perfect example of that. In some senses, it was very forward-thinking for its time. There are several provisions of the original Code, which while today we might find abhorrent, at the time were actually quite forward-thinking again. But there is also a degree to which considerations of how criminal law has been used for social order, or racial oppression, or economic or gender oppression, is just completely absent in any way from a modern code and in today’s understanding of criminal law and how it works that feels like a blind spot that is hard to ignore.

So, I’ll just close by then talking about the debate over revisions or not. This is apocryphal, I don’t have a citation for it, but I heard so many times from those who might know that Wechsler apparently said that “it will never be revised because it is perfect,” which I appreciate. I think if I had made it, I too would be like, “If you touch my baby, I will never let you live it down.” I’ve also heard that, for a long time, there was a fear of doing a revision because it was so successful. The notion was if you open the Pandora’s box, you don’t know what’s going to fly out, and why also open the door to revision when it could lead to a floodgate?

For a long time, I think there was a sense that we should let it succeed, and let it operate, and to the extent that parts of it started to fall out of currency. Again, I think here the sexual assault provision as being the most pronounced, by the time the revision project started in 2012, I think very few faculty taught those provisions. That was the one part of the Code that everyone skipped. But of course, there have been a few projects, the Sentencing Project, which included addressing death penalty, was the first in 1998 that ran about a decade was a huge undertaking, was part of I think addressing some of these criticisms by trying to take a code that had entirely conceived of sentencing in rehabilitative terms and these behavioral science-y terms of indeterminate sentencing and so forth, and square it with a current world that is far more retributive and less confident in rehabilitative methods, but to do so with a contemporary understanding of issues of justice and equity.

That project had a massive undertaking and completed, and of course we’ve just completed our decade of working on the sexual assault provisions, actual publication soon forthcoming. I’ll say that the process of doing the sexual assault revisions, I think, both to me revealed some of the best strengths and the most challenging weaknesses of this kind of Model Code project because, for such a politically contested area, where a lot of people have lay intuitions, even among legal elite, it was often incredibly challenging to try to address all these things that would pop up, even where some things had been well-established law and were not, in fact, controversial among actors in the field.

At the same time, I’ll say I often felt that the 50s era code was probably a lot easier, in the sense that these were elites who were far more homogenous, far more likely to have gone to law schools, together perhaps, or have social connections, go out to dinner afterward as opposed to a large, diffuse organization that spans a lot of different race, gender, ethnic, cultural, red state, blue state, everything lines. In one of the pieces I read that questioned whether a wholesale revision could be done in this day and age, there was a statement like, "Our postmodern era values diversity and fragmentation in intellectual life more than it values consensus and the middle of the road common sense." That might be a reason why a wholesale revision is just not feasible, even as some of these strategic interventions would be.

That said, other proponents think it’s time for re-imagining or revisiting, I think, of the Code in its entirety in terms of tackling some of these incredibly socially pressing problems.

I’ll just say, to close it out, that I joke that the project did have this effect of elevating the status of criminal law in terms of making it more of an intellectual discipline, perhaps, or one that is more considered something worthy of the attention of legal elites. But it also I think, in thinking about what is and what it could be, is true to what Wechsler said, which is that criminal law is the most powerful exercise of state power in this way, and it is worth our attention in a sustained fashion to understand both what it is, what it should be, and what it’s doing. So even though as they said at the very start, from the very beginning, criminal law reform was expected to be difficult, it is an essential thing I think for us to continue to grapple with, especially using the incredible resources of the ALI. So, I will leave it at that and be happy to participate in the conversation.

Gold: Thank you, Erin. I had a question for the group that relates to some of your comments. So I think you’ve helpfully raised the topic of updating. Restatements update in one way, Codes update, obviously, in a different way, and of course, sometimes they don’t update at all, and that too is related to the influence of ALI projects. So we’ve talked a lot about the early history, but the degree to which Restatements or Codes change over time is also a very significant question. I was wondering if anyone had thoughts, including Erin, but in the whole group, if anyone had thoughts on either recent changes of importance in your respective fields or perhaps areas where things haven’t changed yet, but change is in the works or ought to be?

Goldberg: I’ll jump in, but I’m sure others have things to say. It’s a really interesting set of questions and hearing Erin talk about the MPC, I don’t have a handle on it. I have this unstructured intuition that there’s something about revamping an entire Code that sounds more radical and more daunting than coming out with a new Restatement. I’m not quite sure why, because a new Restatement could, in principle, be as dramatic as a completely revised Code. Of course, whether it’s the Model Code or Restatement, none of it is binding on anyone until a legislature or a court adopts it. So I don’t know why I’m having that intuition, but I am. Maybe Erin has some insight into that.

On the question you asked, Andrew, I think one interesting area is the Secondary Statement of Torts was published in the 60s and early 70s, and that coincided with the US Supreme Court getting, for the first time, very involved in the law of defamation and citing the First Amendment, for the first time pretty much in US history, as a significant limitation on defamation liability. I have great sympathy for Prosser and his Co-Reporter, John Wade, who were forced to restate the law of defamation literally as New York Times v. Sullivan was coming down, which was no small challenge, to say the least.

Well, we’re now at the Restatement Third project, which again, as I mentioned, has come out in segments. There’s now a pair of Reporters, Bob Post and Lyrissa Lidsky working on the Restatement of Defamation and Privacy, or rather the defamation and privacy provisions of the Third Restatement of Torts. I think that’s going to be really interesting to see how they handle it, because there’s a lot of noise coming from some of the justices, and I think, maybe more importantly, a cultural sense that maybe Sullivan went too far. Maybe we need to rethink the balance in a world where there’s grave worries about misinformation and the extent to which it’s spread so easily.

Maybe the balance was struck too far in the 60s and 70s in favor of free speech. I don’t know. I’m not advocating that view. I think it’s a really hard set of questions, but I think that’s the kind of thing that if you’re a Restatement Reporter, you’re not only reading the cases, as I think Deborah suggested, you’re reading the cultural moment, you’re reading the tea leaves and making your best guess about where things are headed because if all goes well, whether it’s a Code or a Restatement, you want it to speak to the relevant audiences and it would be easy to unintentionally write provisions that become obsolete almost the moment they’re published because they’re just out of tune with the times.

DeMott: I’ll just jump in briefly here. Early on in my work on the Restatement Third of Agency, I met Professor E. Allan Farnsworth, the Reporter for the Second Restatement of Contracts. He said, we chatted, we became friendly, he said that he had for me the wish that Agency Third would proceed through the ALI as mostly contract secondhand, which is to say it was not a factionalized discussion, as a very fundamental building block of concepts and doctrines for, at least in the agency world, not just private law, but some dimensions of public law too. This would proceed in a pretty straightforward way, which for the most part it did.

Now, I noticed that, and I’m just looking this up, I noticed that the Second Restatement of Contracts was published in 1981. If there is a project for a Third Restatement of Contracts, that fact is unknown to me. So I think there are some fields that don’t have the same always potential for instability, but it’s telling also, I think, again, this is just with regard to my beloved subject agency, that following the publication of the First Restatement of Agency, which is dated in some ways, as it seems particularly in the illustrations, very much of its moment, there was never again, another treatise on agency law written in the United States.

I mean, there are book-length publications directed towards students, for example, but no scholarly attempt to undertake a comprehensive treatise, which I think may speak to the success over time of the ALI’s position in agency. Myself, I just love the ALI’s periodic publication of court citations to Restatements and discussions of the court’s ability to use Restatements. So, I think it’s another indicator of success over time, or staying power over time if courts continue to find the product useful and helpful in adjudicating cases.

Goldberg: Just a very quick footnote on Deborah’s comment about contracts. We do have the new Restatement of Consumer Contracts, and I think, exactly as we’ve been talking about, the thought was the world had changed and the use of standard form contracts and obviously now click through and so forth warranted hiving off of one portion of Contracts for separate treatment. Because it was addressing a hot topic through a somewhat novel organization by breaking off a subset of what had always been understood to be just a part of general contract law, that it made it somewhat controversial as a result.

DeMott: In a way, John, you could say the same thing about the Restatement of Employment Law, it just hives off for separate treatment what otherwise is folded within the breadth of general agency law. But for both of those, and certainly for the Employment Restatement, then there’s a necessity to keep citing to the Restatement Third of Agency and say, well, yeah, what they said apart from things where there is some application distinct to the employment setting.

Gold: Erin, did you have further thoughts?

Murphy: Well, I mean, I can jump in, if it’s helpful. I don’t know how to answer John’s question about why a wholesale Model Code feels more daunting than a Restatement. To me, in hearing you talk, both you and Deborah talk about Restatements, I feel like, this is not a fair characterization, but to me, the anchor of the law in a Restatement project just helps tremendously. Understanding all the open texture that still exists, it’s still an anchor that just the word model leaves ambiguous. We had those discussions in our sexual assault reform, where there’s both the understanding that a Model Code has to be, if the goal is to have it be adopted, it has to, in some ways, reflect all the learned knowledge that has accreted so far. You’re not the genius who’s going to just somehow think up something no one else has come up with.

On the other hand, we had space as a Model Code to do just that. There are a few places in the Code where we innovate. We came with things that don’t really exist in law, but ironically some of those were not the ones we met resistance with. We also met resistance on principles that have literally been in the common law since Blackstone and we had to write memo upon memo to explain why, and it was just a failure to be able to communicate effectively, I think, why those things were really not on the table. So, there is the way in which the model can be used on both ways. It can be used both to say, “You can’t depart too much from existing law,” but also it can be used to say, “You should be doing something different. This is a Model Code. You don’t have to actually reflect back the law.”

I think with criminal law, I think the critiques about substance and procedure being intertwined, the critiques about the work-a-day criminal law that takes place right now not being well reflected in substantive criminal law in the Model Penal Code, and this is not a new critique. This is a longstanding one. I feel as though the interventions, I think the interventions that have been done so far have been well advised because the sexual assault provision was so completely useless in contemporary understandings, and there was a driving need for the kind of expertise that the ALI marshaled so well that could help think through these really complicated questions while jurisdictions were really searching for answers on how to deal with their codes.

Whether that’s where I would put my energies now, there have been calls to we should have a domestic violence part, we should deal with narcotics, the whole Model Penal Code doesn’t deal with drugs, doesn’t deal with narcotics. It was a little bit below them, I think, it was not as much of a pressing issue, we obviously hadn’t started the War on Drugs at the time. It’s hard to look at our current criminal justice system and the problems in it and think what we really need to do is rethink homicide again, as opposed to some of these other areas that are real areas of concern. I think on the challenges, they’re real, but I also think there’s opportunities for these strategic strikes and strategic interventions.

Goldberg: If I may, your discussion, Erin, of the procedural dimensions put me in mind that one of the things that happened in the ALI, a different kind of project, was the publication of something called the Principles of Aggregate Litigation. In some ways, that’s a procedural counterpart largely to the Torts Restatement, not exclusively. But the thought was, look, if you look around the world in 1990 or 2000 or 2020, a lot of the action, where the rubber hits the road in tort law, is not "What are the elements of battery or trespass?" As much as I love them, but how do claims get aggregated? When should they be aggregated? This is going to tell us which claims actually get to court and what they’re going to settle for, and so on and so forth. One definitely sees, in other domains, of the law that pressure to integrate the procedural side with the substantive side.

Murphy: Yeah, I mean, if I could jump in on that just because picking up on one of my, you can probably tell, one of my topics here, but I do think, given the reality of our system, as I went back and prepared for this conversation, I was surprised by how many of the problems of then are still the problems of today. The usual, I think we find that history just repeats itself. To some extent, I could imagine a similar type of structure, the procedural overlay that makes the substance come alive in our current thinking of a new kind of code.

If we could ever do for plea bargaining, how should we think about what is a just and fair plea bargain? I’m not talking about ethical rules, I’m not talking about constitutional procedure, I’m talking about how might we essentially figure out how to deal with stacked charges and discounts and what kind of pleas or coercive and what are not, and all that stuff. If we could come up with some taxonomy and set of rules for that, the way that Wechsler was able to innovate mens rea, take from this mass of what seems completely unsolvable body of law and distill these really functional working principles, if could do that, that would be an incredible innovation, if it were something that could propagate through the law. I think those kinds of challenges, I could see that kind of set of procedural overlays sitting on top of the substantive law in a way that would reinforce but also compliment it.

Gold: Did anybody have any further thoughts before we close?

Goldberg: I think the ALI is a fascinating institution. Love it, hate it, some of each, it’s like every institution. It’s far from perfect, but my limited snapshot experience of it is it’s pretty distinctive, the bringing together of academics, practitioners, and judges I think is really valuable. Particularly, there was a time I’m sad to say, it makes me sad every time I utter sentences like this, but there was a time when courts would engage pretty seriously with the law journal literature and even cite law journal articles in the course of working through some difficult question of contracts or agency, or what have you.

That time seems to have largely passed, I’m not quite sure why. So the ALI as an institution remains a critical area in which you can get conversations going on the merits between judges, practitioners, and academics. I think each have strengths and weaknesses that they bring to the conversation. So I found it to be, for the most part, very edifying and a way of really generating knowledge that’s distinct. Now that doesn’t mean there’s no guarantee that it’s going to not misfire sometimes. Sometimes it will, but on average I think the processes that it deploys are actually quite admirable and impressive and distinctive.

DeMott: I’d say too, one thing that stays with me from my work on the early history of the ALI, which is consistent with what John just said, is how seriously they took what they were doing. They might’ve expressed this in different ways, but I think they understood that what they were doing was likely to matter. I think they thought that it was constructive and it was valuable.

I think, like John, they welcomed the opportunity to engage with academics, and with judges, and with practicing lawyers. Of course, they were incorrigibly optimistic, I think, about the end result, and the medium-term progress towards that result. So I think that it’s a wonderful point of continuity with regard to the organization, the institution at, I believe, 101 years and going.

Murphy: It’s nice in this day and age to still have some parents in the room, some voices of authority left.

Gold: All right. Well, thank you, everyone. I really appreciate your very interesting and very helpful comments, and thank you for joining us.

Murphy: Thank you so much.

Goldberg: Thank you for having us.

DeMott: Thank you, Andrew.