The American Law Institute and the U.S. Supreme Court, Revisited

This Director's Letter was originally published in the winter 2020 edition of The ALI Reporter.

In my Winter 2016 Director’s Letter, I looked at the U.S. Supreme Court’s use of ALI materials during the 2013 to 2015 Terms, as part of an effort to examine how the ALI’s influence extends beyond the state courts and affects the development of federal law.^[1] Now that four years have passed since my last analysis of the Supreme Court’s use of ALI materials and several new Justices have joined the Court, revisiting this topic seems worthwhile.  

During the 2016 to 2019 Terms, the Supreme Court cited ALI publications in 51 separate opinions across 42 argued cases—roughly 15 percent of the total number of cases argued. (This proportion is comparable to the 16 percent of argued cases citing ALI publications during the 2013 to 2015 Terms.) Thirty-one of these 51 opinions were majorities, 17 were dissents, and three were concurrences. Eleven opinions relied on more than one ALI publication. Justice Sotomayor was the most frequent author of opinions citing ALI publications, with 10 opinions, followed by Justice Thomas and Justice Breyer with eight each, Justice Alito with seven, and Justice Ginsburg and Justice Gorsuch with five each. Every Justice cited the ALI’s work at least once. 

Since 2016, Torts is the field of ALI work that the Court has cited most frequently, with 17 opinions: three citing the original Restatement, 10 the Restatement Second, two the Restatement Third, Torts: Products Liability, and two the Restatement Third, Torts: Liability for Physical and Emotional Harm. Next, there are nine opinions citing the Model Penal Code and nine opinions citing the Restatement of the Foreign Relations Law of the United States, with three citing the Restatement Fourth of the Foreign Relations Law of the United States (including two citations to a Tentative Draft), five the Restatement Third, and one the Restatement Second. 

Not surprisingly, several of the citations are to Restatements involving federal law. For example, in United States Patent & Trademark Office v. Booking.com, which sadly turned out to be her final majority opinion for the Court, Justice Ginsburg cited § 15 of the Restatement Third of Unfair Competition in holding that Booking.com is not a generic term ineligible for trademark registration under the Lanham Act.^[2] And in Bolivarian Republic of Venezuela v. Helmerich & Payne International Drilling Company, the Court considered whether a nonfrivolous, but ultimately unsuccessful, claim that property was taken in violation of international law is sufficient to confer jurisdiction under the expropriation exception to the Foreign Sovereign Immunities Act of 1976.^[3] The Court relied on the Restatement Third of the Foreign Relations Law of the United States and a Tentative Draft of the Restatement Fourth in holding that the claim must be valid, not merely nonfrivolous.^[4] In addition, the Supreme Court also considered other types of ALI projects dealing with federal law, such as the ALI’s 1969 Study of the Division of Jurisdiction Between State and Federal Courts and the 2004 Federal Judicial Code Revision Project.^[5]

The Supreme Court has also looked to our Restatements of state common law, as well as the Model Penal Code, for guidance on a range of constitutional, procedural, and statutory issues arising under federal law. On the constitutional front, for example, the Court relied on the Restatement Third of Trusts in North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust in holding that the Due Process Clause of the Fourteenth Amendment limits a state’s ability to tax in-state beneficiaries of a trust who have no right to demand trust income and are uncertain to receive it.^[6] With respect to procedural matters, in McDonough v. Smith the Court held that the statute of limitations for a fabricated-evidence claim under § 1983 begins to run only when the defendant is acquitted, not when the fabricated evidence is used.^[7] In that case, the Court cited our Restatement Second of Torts in drawing an analogy between the fabricated-evidence claim and the common-law tort of malicious prosecution.^[8] And in the statutory field, both our Restatements and Model Penal Code have been helpful for ascertaining the elements of predicate offenses like burglary referenced in statutes such as the Armed Career Criminal Act, which is a frequent issue before the Supreme Court given that the definitions of these offenses often vary among the states.^[9]

My Winter 2016 Director’s Letter also addressed criticism of the ALI’s work made by Justice Scalia in a 2015 partial concurrence and partial dissent in Kansas v. Nebraska.^[10] Justice Scalia claimed that the newer Restatements do not accurately describe the law as it is but instead reflect the Reporters’ own normative vision of what the law should be.^[11] He warned that “it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.”^[12] This issue came up again this past June when Justice Thomas wrote a dissenting opinion in Liu v. SEC that quoted Justice Scalia’s criticism in discussing the Restatement Third of Restitution and Unjust Enrichment.^[13] 

I agree that it is vital that our Restatements accurately describe the law. Even before Justice Scalia’s criticisms, we added a provision to our Style Manual requiring that a Restatement adopting a minority position “should say so explicitly and explain why.”^[14] The ALI, the Style Manual adds, “needs to be clear about what it is doing.”^[15] Such clarity makes it as easy as possible for busy judges and other readers who wish to make “further inquiry” into the case law underlying our Restatements to do so.

I like to think that it is at least in part because we have heightened our transparency and made it crystal clear where the Restatement adopts a minority or new position not well embedded in the prevailing law that both Justice Scalia and Justice Thomas continued to rely on our work. As I pointed out in my Winter 2016 Director’s Letter, Justice Scalia was the member of the Court who most cited the ALI’s work during the 2013-2015 Terms, and he cited the newer Restatements as well as the older ones around the time of his opinion in Kansas v. Nebraska. As indicated above, Justice Thomas is also one of the Justices who most uses our work. And while he has cited many of our older Restatements, he has also made use of our newer Restatements, too. In fact, he became only the second Justice to cite to the Fourth series when he quoted a Tentative Draft of the Restatement Fourth of the Foreign Relations Law of the United States in his dissent in Upper Skagit Indian Tribe v. Lundgren in 2018.^[16]

It is gratifying to see the Supreme Court use our publications in so many ways. The trust the Justices repose in our work is to be earned and safeguarded. We should continue to be very proud of our work! 

[1] Richard L. Revesz, The American Law Institute and the U.S. Supreme Court, Director’s Letter, ALI REPORTER (Winter 2016): 3, available at https://www.ali.org/news/articles/american-law-institute-and-us-supreme-court/; see also Richard L. Revesz, Restatements and the Federal Common Law, Director’s Letter, ALI REPORTER (Fall 2016): 3, available at https://www.ali.org/news/articles/restatements-and-federal-common-law/.
[2] United States Patent & Trademark Office v. Booking.com B. V., 140 S. Ct. 2298, 2303 (2020). 
[3] See, e.g., Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., 137 S. Ct. 1312, 1316 (2017). 
[4] Id. at 1318-21. 
[5] Artis v. District of Columbia, 138 S. Ct. 594, 604-05 (2018); BNSF Ry. v. Tyrrell, 137 S. Ct. 1549, 1555 (2017). 
[6] N. Carolina Dep’t of Revenue v. The Kimberley Rice Kaestner 1992 Family Tr., 139 S. Ct. 2213, 2221, 2223, 2225 (2019). 
[7] McDonough v. Smith, 139 S. Ct. 2149, 2153 (2019). 
[8] Id. at 2156.
[9] Quarles v. United States, 139 S. Ct. 1872, 1877 (2019) (citing the Restatement Second of Torts); United States v. Stitt, 139 S. Ct. 399, 406 (2018) (citing the Model Penal Code); Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1571 (2017) (citing the Model Penal Code to determine the meaning of sexual abuse of a minor under the Immigration and Nationality Act). 
[10] Kansas v. Nebraska, 574 U.S. 445, 475-76 (2015) (Scalia, J., concurring in part and dissenting in part). 
[11] Id.
[12] Id. at 476.
[13] Liu v. Sec. & Exch. Comm’n, 140 S. Ct. 1936, 1953 (2020) (Thomas, J., dissenting) (quoting Kansas v. Nebraska, 574 U.S. 445, 475 (2015) (Scalia, J., concurring in part and dissenting in part)).
[14] ALI, Capturing the Voice of The American Law Institute: A Handbook for ALI Reporters and Those Who Review Their Work 6 (rev. ed. 2015), available at https://www.ali.org/publications/style-manual/.
[15] Id. 
[16] Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1659 (2018) (Thomas, J., dissenting).