Another report from the annual meeting of the American Law Institute. (Readers likely know that ALI is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. It publishes the Restatements and other works, including, notably for our readers, the Principles of the Law of Aggregate Litigation.)
Day 2 highlights included an address by the still-new Chief Justice of the California Supreme Court, the Honorable Tani Cantil-Sakayue. Her remarks focused on the issues of access to justice in these challenging economic times. She talked about the looming issues in her first 5 months as Chief Justice, presiding over a judicial branch with 2000 judges, 21,000 employees, and 500 facilities.
She noted how over the past 14 years the California judicial system has evolved from a loose confederation to a more unitary system, having more control over where the courts will be situated. The use of court fees is a primary mechanism funding 60 major construction projects to bring the California judicial system into the 21st century.
Another interesting session concerned the recently completed Restatement Third of Restitution and Unjust Enrichment. Starting about a generation ago, many law schools stopped having courses on these doctrines, which had been a staple of law school curricula. For the younger ALI members, the Reporter, Prof. Kull noted that restitution is like in the game of Monopoly; you land on Community Chest and get a card “Bank error in your favor, collect $20”, and then the next day the bank wants that money back.
But even if the classes have, the claims have not vanished — ask Mets fans about the Madoff-related litigation. Indeed, along with torts, contracts, equity, and statutory claims, restitution provides one of the fundamental sources of economic harm claims. Restitution is a distinct form of liability, not necessarily based on a tort or a contract, and its remedies can be distinct as well.
The First Restatement from the 30’s and the leading treatises from the early 70’s had been outdated and out paced — hence this project. The new restatement strives for plain English, and does not rely on arcane pleading doctrines. It attempts to fit the cases into a set of General Principles, and then discusses the rules governing liability, remedies, and defenses. Publication is expected by summer 2011.