Legal Research

What are the Restatements of Law & Why are They Important in Arizona?

By Leslie A. Pardo

Restatements are a secondary legal source published by American Law Institute (ALI), formed in 1923. The committee, consisting of prominent judges, attorneys, and law professors, has undertaken to restate certain areas of the common law of the United States.

The first series of Restatements were written between 1932 and 1942 and covered the topics of Agency, Conflict of Laws, Contracts, Judgments, Property, Restitution, Security, Torts, and Trusts.

The second Restatement series, written between 1957 and 1981 added Landlord and Tenant Law as a subsection of the Restatement of Property and further added a Restatement of the Foreign Relations Law of the United States.

The third Series began in 1987 and added Mortgages as a subsection of the Restatement of Property, Restatement for Employment Law, Restatement for Unfair Competition and Restatement for Law Governing Lawyers.

Restatements Contain:

1. Introductory note:  The newer Restatements will have an introductory note for each chapter setting out the importance and scope of the chapter.
2. The rule:  a restatement of the common law principle
    
3. Comments from the authors: sometimes clarify the scope and meaning of the rule or offer insight into the rationale for the rule.
4. Illustrations of the law: many illustrations are based on real cases
5. Reporters notes:  give the history of the rule
6. Citations: to case law and other secondary sources

Although the Restatements have no force of law on their own, they have had a persuasive impact on the courts. Some portions of the Restatements are adopted by courts. The adopted language then becomes the primary law.

In Arizona, the courts have stated the following:

We have heretofore announced that we would follow the Restatement of the Law where we are not bound by the previous decisions of this court or by legislative enactment, feeling that by so doing uniformity of decision would be more nearly effected.

Smith v. Normart  51 Ariz. 134, 143, 75 P.2d 38, 42 (Ariz.1938)

And more recently:

Absent controlling Arizona law to the contrary, we generally follow the Restatement, provided we deem it good legal authority. In re Krohn, 203 Ariz. 205, 210, ¶ 18, 52 P.3d 774, 779 (2002) (stating the Arizona Supreme Court has long followed the rule that it will follow the Restatement when not bound by previous decisions or legislative enactment); Southwest Pet Prod., Inc., v. Koch Indus., 273 F.Supp.2d 1041, 1052 n. 17 (D.Ariz.2003) (stating reliance on Restatement Third is in keeping with ?Arizona’s long-standing policy to look to the Restatement absent contrary precedent.?). However, we do not follow the Restatement blindly, Barnes, 192 Ariz. at 285, ¶ 6, 964 P.2d at 486, and will come to a contrary conclusion if Arizona law suggests otherwise. Wilcox v. Waldman, 154 Ariz. 532, 536, 744 P.2d 444, 448 (App.1987).

Full post as published by Ross-Blakley Law Library Blog on March 29, 2010 (boomark / email).