Transcript Using Restatements, A.L.R., and finding aids effectively

Using Restatements
FSU Research Center
Spring 2008
Faye Jones
Director and Professor
• Restatements
• Highly regarded distillations of common law
• Restate what the law is, not what it should be
• Contrast:
• Uniform Laws Annotated – recommend
statutes that have a reasonable chance of
enactment in a substantial number of states
• Model laws – suggested acts which do not
have a reasonable chance of enactment
• Suggested State Legislation
Restatements: Origins & Goals
• American Law Institute (ALI), http://www.ali.org/
• 1922: Two defects in American law -- uncertainty and
complexity
• 1923: ALI founded by prominent American judges,
lawyers and law professors
• Goal: To produce a clear/concise statement of existing
common law from cases
• To distill the “black letter” rules of common law, to indicate a trend
in common law, and to allow researchers to use Restatements to
argue what a rule of law should be.
• Highly persuasive in courts
ALI Annual Report, April 2004
State/federal courts cited the Restatements 161,486 times
By the end of 2007, approximately 175,000 citations
60% of citations to Restatements on torts and contracts.
Torts citations almost double contracts cites.
Many fewer cites to other topical areas.
Some states have established the Restatements' as
default principles of law:
Arizona courts "follow the principles set forth in the
American Law Institute's Restatement of the Law
except in cases where a different rule has been laid
down by this Court" or where a statute is controlling.
Odekirk v. Austin, 366 P.2d 80, 81 (1961)
Restatements
• Agency (Second)
• Apportionment of
Liability (Third)
• Conflict of Law (Second)
• Contracts (Second)
• Foreign Relations (Third)
• Judgments (Second)
• Law Governing Lawyers
(Third)
• (N.B. No 1st or 2d Series
exists.)
• Products Liability (Third)
• Property (Third)
• Prudent Investor Rule
(Third)
• Restitution (First)
• Security (First)
• Suretyship and Guaranty
(Third)
• Torts (Second)
• Trusts (Second)
• Unfair Competition (Third)
• Wills and Donative
Transfers (Third)
Restatements
• Now publishing Restatements, 3rd series
• Updated by pocket parts and/or supplementary pamphlets
• To check for completeness, see the ALI Checklist
• Must be formally adopted by ALI members
• Publication pattern:
• Annual Meeting Discussion Drafts
• Tentative Draft(s) (T.D. #1; #2; etc.)
• Preliminary Final Draft
• Official Text (approved final draft)
• FSU Law Library: KF395 A2
• Penn’s Biddle Law Library ALI Archives
• Reporter’s Notes are at the end of each section or
in the Appendix volumes of the agency, torts, and
trust restatements.
• Recent volumes have cross-references to the West
Key Number System® and ALR annotations.
• Updating Restatements
• Drafts of new series are published in soft-cover
format
• Cumulative annual supplements
• Interim case citation pamphlet
• Pocket parts
• Restatement Structure:
• Chapters
• Narrower titles
• Numbered sections.
Comments
• Each section begins with a “black letter”
statement of a broad legal issue
• Sub-issues are discussed in the author’s
Comments and Illustrations that follow
each statement.
• Comments and Illustrations are often cited by
courts to explain the law.
Research Aids in the Restatements
• Research aids include:
• Tables of Cases and Statutes
• Conversion Tables for Drafts
• Cross References to ALR and West’s Key
Number System
• Indexes
• Appendix volumes
• Contain summaries of cases that have cited each
section of the Restatement.
• Indexes
• Restatement, 1st series, has a one-volume
index to all Restatements.
• Restatements, 2d and 3d Series, do not have
a comprehensive index.
• Some have subject index for each volume.
• Recent Restatements have an index in the
last volume or in a separate volume.
• Features vary by series and by volume.
Research methods for Restatements
• 3 ways to find a relevant Restatement section:
• 1. Search an online version using keyword searching
• 2. Use the Table of Contents online or in print
• 3. Use the Index in print.
• Table of Contents are clear and easy to browse
but are usually volume specific.
• For Restatements two or three volumes long, you
must search each volume to browse the entire Table
of Contents.
• Note: As a research technique, this is effective only in
limited circumstances.
Research Scenario
• Facts: At a private party in a trailer park, a 16 year old
boy, a new driver, is killed after he is taunted by a 19
year old friend into “ghost riding the whip.” Your client
is the trailer park owner. A year earlier, you wrote a
letter to the boy and his parents barring him from the
trailer park for fighting.
• Issues: Does your client owe a duty to the boy and his
parents under a premises-liability theory because the
harm was foreseeable? If so, is the trailer park liable
to the minor as an invitee? Is recovery barred under
Florida law because a 16 year old should have realized
and appreciated the harm to which he voluntarily
subjected himself?
Restatement of Torts Research in Print
• Where to Search:
• No comprehensive index to 2d and 3d series of Torts
Restatements
• Skim the Table of Contents to find a topic
• Sec. 341A – Read rule in bound volume; check to see
if there is a pocketpart; check for cases in all
Appendix volumes (covering 1999-2006); and check
the paperbound Annual Supplement pamphlet.
• To expand research, Shepardize the relevant
Restatement sections and the cases that are on
point.
Restatements Online
• Lexis: Secondary Legal library, Restatements file
• Westlaw: REST Westlaw database
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REST – all Restatements of the Law
REST-AGEN – Agency
REST-CONFL – Conflict of Laws
REST-CONTR – Contract Restatement
REST-FOREL – The Foreign Relations Law of the United States
REST-JUDG – Judgments
REST-LGOVL – Law Governing Lawyers
PL-REST – Product Liability
REST-PROP – Property
REST-RESTI – Restitution
REST-SEC – Security and Suretyship and Guaranty
REST-TORT – Torts
REST-TRUST–Trusts
REST-UNCOM – Unfair Competition
Restatement of Torts Research in Lexis
• Where to Search:
• In the Secondary Legal sources, choose Restatements
• From there, choose the Torts subcategory
• 1st Series is not available online in Lexis
• Search Strategey:
• Use keyword search
• Minor or child! /15 invitee /15 harm
• Once you’ve retrieved the search findings, review the first case
• Click on View Rule to see the Rule as it would appear in the print
Restatement of the Law, 2d, Torts
• Review the Comments & Illustrations
• Click on the TOC (table of contents) button to expand into other topics
such as 341A Activities Dangerous to Invitees
• Once again, review the Comments & Illustrations then click Case Citations
• Retrieve Kessler v. Visteon, Corp., 448 F. 326, 337 (2006)
• To expand research more, Shepardize the relevant Restatement sections
and the cases that are on point.
TOC
• Westlaw includes text for all series, Comments and
Illustrations, Case Citations, Reporter’s Notes and
cross references.
• A Table of Contents link on the Links for tab opens
the Table of Contents for the section being displayed.
• Drafts of future series are included in the databases.
• Example: REST-TORT dram-shop /p “social host” /s liab!
Restatement of Torts Research in Westlaw
• Where to Search:
• REST-TORT
• Search Strategies:
• Use keyword search
• Minor child! /s invitee /s harm
• Review then select the relevant Restatement rules
• Review the Comments & Illustrations
• From one of the relevant rules, open the TOC (table
of contents) button to expand into other topics such
as 341A Activities Dangerous to Invitees
• Link to Case Citations beginning with the most recent and
working backward
• Retrieve Kessler v. Visteon, Corp., 448 F. 326, 337 (2006)
• To expand research, Keycite the relevant cases.