When the American Law Institute was founded a century ago, one of its chief purposes, it tells us, was to address the legal uncertainty that flowed from “a lack of agreement on fundamental principles of the common law” (emphasis added)—the common law being the body of judge-made law that developed in different fields in the various states in the absence of legislation. To that end, ALI commissioned so-called Restatements of the Law on such topics as contracts, property, and torts.
As Justice Scalia observed four years ago, the “object of the original Restatements was ‘to present an orderly statement of the general common law’” (quoting one of the early Restatements). “Over time,” however, “the Restatements’ authors”—who still bear the neutral title of “reporters”—“have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be.” For that reason, Scalia cautioned, “it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.”*
One large danger, of course—which modern Restatement “reporters” are likely to see as a feature, not a bug—is that overworked judges, relying on the reputational capital that Restatements built up in now-distant decades, will tend to treat aspirational passages as though they were merely descriptive and thus give undeserved weight to the Restatements.
The ALI’s own account of the purpose of its Restatements substantiates Scalia’s concern: It identifies “the central tension” between “the impulse to recapitulate the law as it presently exists and the impulse to reformulate it,” and it presents reformulation of the law as a permissible aim of a Restatement. Restatements, it says, “resemble codifications more than mere compilations of the pronouncements of judges.” Indeed, one step in the “Restatement process” is “to ascertain the relative desirability of competing rules.” A Restatement will thus “effect changes in the law, which it is proper for an organization of lawyers to promote and which make the law better adapted to the needs of life.” (ALI’s italics.)
But—pardon the long wind-up—we can pass over here the debate over whether the Restatements should be descriptive or aspirational about the common law. For I instead want to address a very odd section of a draft Restatement of the Law on Children and the Law, a section on “Medical Decisions Affecting Reproductive Health.” That section—more than 30 dense single-spaced pages long—is heavily about access of minors to abortion. (The word “abortion” appears more than 200 times in the discussion.)
What I find very strange is that the topic of minors’ access to abortion is a topic that the states have addressed predominantly, if not exclusively, via statutes enacted in the aftermath of Roe v. Wade. So there is no need for, and I think no sense in, a Restatement-style effort to try to codify what the various states have, in their different ways, already codified.
By forging ahead nonetheless, the authors of this Restatement section generate a lot of confusion. Their “black letter” statement of law, for example, asserts that a “mature minor is authorized to provide legally sufficient consent” to abortion (and other “medical treatment affecting reproductive health”) “without notification of the minor’s parent.” But it nowhere sets forth a process to determine whether a minor is mature or not. It instead asserts in a comment that a minor “is functionally presumed to be mature for the purpose of consenting to reproductive health treatments” (emphasis added). I have no idea what “functionally presumed” means here, and I don’t think that the authors do either.
What the authors struggle to get around is that most states require either parental consent or parental notification for a minor to get an abortion, subject to a (Supreme Court-mandated) judicial-bypass option in which the minor can show that she is sufficiently mature to be excused from the requirement. The default rule in the majority of the states, in other words—the functional starting place, so to speak—is that a minor is not mature enough to get an abortion without parental involvement. But the entire Restatement section seems designed to obscure that reality.
I will address further defects in this draft Restatement section in my next post.
* For the sake of clarity, I have added italics to the words Restatement and Restatements in the quotes in this post.