When Restating the Law Can Become Empowering the Sex Police

by John Fund

Few people who aren’t lawyers have ever heard of the American Law Institute, the most important organization in the country that seeks to clarify and modernize the nation’s laws. Its annual meeting begins tomorrow in Washington D.C. and its large behind-the-scenes power to not just interpret the law but revise it in dangerous directions bears watching.

The ALI will vote at its convention this coming week on whether to adopt a model penal code that would make “affirmative consent” when it come to sexual relations its official policy. Affirmative consent — or “yes means yes” — policies have already been adopted by many colleges and universities, and have become law in California and New York.

A letter signed by some 120 ALI members says the group should vote down the changes as a vast expansion of the definition of sexual assault in the legal system.

“The prosecutor need only say, ‘Ladies and Gentlemen of the Jury, under the State’s definition, it does not matter whether the complainant actually was willing,’” the ALI members wrote. “It is undisputed that the sex act occurred and there is no evidence in the record that the complainant communicated willingness. There is no consent if the complainant has not communicated willingness. You must convict if you find that the defendant recklessly disregarded that absence of consent.”

Ashe Schow wrote in the Washington Examiner: “Such a definition would shift the burden of proof onto the accused, something not currently permitted in the U.S. criminal justice system. The accused would have to prove that they received ‘communicated willingness.’ This would mean that any time someone engages in sexual activity, they not only have to make sure they obtain this specific form of consent, but also proof of this consent.”

The ALI’s elite membership includes all the justices of the U.S. Supreme Court, the chief judges of the U.S. Court of Appeals, and the chief judges of the highest state courts, deans of almost all law schools, and a limited number of law professors and distinguished private practitioners. All law students study the ALI’s “Restatements” of the law of many subjects, such as torts (including product liability), contracts, and other subjects. It also frequently drafts model laws that become statutes with few questions asked.

These “Restatements” are an effort to codify common law. In many areas, statutes do not govern us but “case law” or judicial precedent, does. The ALI tells courts what the case law is, and Courts routinely rely on the ALI Restatements as authority for what the law is. The ALI’s work serves as something between Cliff’s Notes and an authoritative encyclopedia of law for many judges.

The problem is that this unelected body does much more than explain what the law is, it also it shifts the law in the direction that the ALI wants that law to go. For many decades, the ALI nudged the law or shifted it only slightly. Now, it is much more active in changing the law, and that affects all of us. We are in danger of moving from a governed by judges and elected representatives to a society governed by the ALI.

In January, 2015, the ALI revised its manual to make clear that its Restatements “reflect the law as it presently stands or might appropriately be stated by a court.”

The U.S. Supreme Court cites the ALI more than once month on average. The ALI itself rightly brags that state and federal courts have cited ALI Restatements and its similar law reform projects about 200,000 times.

This power attracted the attention of the Justice Antonin Scalia last year. In Kansas v. Nebraska he noted that the ALI’s “modern Restatements” are “of questionable value, and must be used with caution.” Now, “the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be.” Scalia argued that such novel views of the law should have “no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar.” No longer can one assume that “a Restatement provision describes rather than revises current law.”

The legal blog Simple Justice put it more starkly. It asserted that the ALI “has been taken over in a bloodless coup by ideologues bent on recreating the law to suit their ideology.” It sounds as if the ALI meeting this week in Washington needs to be covered by a lot more media than a few fusty legal journals.

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