“The law is unnecessarily uncertain and complex.… Many of its rules do not work well in practice, and … its administration often results not in justice, but in injustice.” So concluded a 1923 report prepared by a committee of prominent American lawyers, judges, and law professors. Among them was one of the Law School’s most illustrious alumni, Elihu Root (Class of 1867), a recipient of the Nobel Peace Prize in 1912, and a former US secretary of state, secretary of war, and senator. The report called for the establishment of “a permanent organization for improvement of the law,” and this impetus led to the founding of the American Law Institute (ALI) the same year the report was issued.
In the years since, ALI has established itself as the leading independent organization in the United States producing scholarly work to clarify, modernize, and improve the law. In line with the vision of Root and his colleagues, ALI publishes Restatements of Law, Principles of Law, and model statutes that are enormously influential in US courts and legislatures, as well as in legal scholarship and education. What Root—for whom the Root-Tilden-Kern Scholarship Program is partly is named—may not have envisioned is the prominent role his alma mater would play in ALI’s leadership and across a broad range of its projects a century after the organization’s founding.
An exhibit currently at the north end of the NYU Law library’s main reading room—prepared by ALI as part of its commemoration of its 100th anniversary—documents the extent of the Law School’s recent involvement with the organization. Those ties start at the top, with Richard Revesz, AnBryce Professor of Law and dean emeritus, who has served as ALI’s director since 2014 while remaining an active member of the full-time faculty. The primary role of the director is to oversee selection of new projects and the recruitment of top academics to serve as those projects’ leaders, or “reporters,” as ALI describes them.
“Our Restatements of the Law, the Model Penal Code, and the Uniform Commercial Code all have had a profound influence on the US legal system,” Revesz says. “During my tenure,” he adds, “the ALI has significantly diversified the scope of its projects and sought to give guidance on some of the most vexing problems facing our nation.” As examples, he points to Principles of the Law, Policing and Principles of the Law, Student Sexual Misconduct.
NYU Law is also well represented on the ALI’s governing body, known as the council. Current faculty members of the council are Emilie M. Bullowa Professor of Law Richard Brooks; Bonnie and Richard Reiss Professor of Constitutional Law Samuel Issacharoff; and Dean and Cecelia Goetz Professor of Law Troy McKenzie ’00. Alumni members include Evan Chesler ’75, former chair of Cravath Swaine & Moore; Judge Raymond Lohier Jr. ’91 of the US Court of Appeals for the Second Circuit; Sheila Birnbaum ’65, a partner at Dechert; and Martin Lipton ‘55, a founding partner of Wachtell, Lipton, Rosen & Katz (Birnbaum and Lipton are emeritus members).
In May, the ALI membership approved the project on policing, for which Jacob D. Fuchsberg Professor of Law Barry Friedman is the reporter, and it will be published next year. Among the many topics it addresses are search and seizure, including surveillance and data collection; use of force, including de-escalation and force avoidance; police interviews and interrogations; and interacting with vulnerable populations. “With the encouragement of Ricky and ALI, we assembled a remarkable group of advisors with varied ideological views and life experiences, from police chiefs and prosecutors to activists, advocates, and technologists,” Friedman says. Now he, the associate reporters, and advisors on the project are “looking at a wide range of ideas of how to move the Principles into action.”
Two other projects that received final approval from the ALI membership this year were a Restatement on consumer contracts, for which Boxer Family Professor of Law Florencia Marotta-Wurgler ’01 was a co-reporter, and a revision of the Model Penal Code provision on sexual assault and related offenses, for which Robert B. McKay Professor of Law Emeritus Stephen Schulhofer served as reporter and Norman Dorsen Professor of Civil Liberties Erin Murphy as associate reporter. Work on a Restatement on corporate governance, for which Martin Lipton Professor of Law Edward Rock and George T. Lowy Professor of Law Marcel Kahan are reporter and an associate reporter, respectively, is still underway. NYU Law faculty members also serve, or have recently served, as reporters on several other ALI projects.
“What I found most satisfying as a co-reporter was working with numerous other ALI members on the project,” Marotta-Wurgler says. “The process of writing a Restatement is intensely collaborative, and having the opportunity to work together with and learn from highly knowledgeable and accomplished lawyers, academics, and judges has been a highlight of my career.”
ALI has more than 4500 members, consisting of eminent judges, lawyers, and legal academics from the US and abroad. The exhibit in the law library, which will run through the end of the Fall semester, features a list of more than three dozen current NYU Law professors who are members. And on October 14, just three days after the exhibit opened, ALI announced the election of 32 new members. Among them are Professor of Practice and Distinguished Scholar in Residence Bob Bauer and Professor of Practice Randal Milch ’85.
Revesz was elected an ALI member in 1991. In September 2022, President Joe Biden nominated him to be the next administrator of the US Office of Management and Budget’s Office of Information and Regulatory Affairs. If confirmed by the US Senate, Revesz will step down as ALI’s director. ALI’s mission, meantime, will continue into its second century. “Because Restatements are so influential, it is important that they be updated from time to time so they don’t come to stand in the way of desirable developments in the law.” Revesz notes. “We are also always on the look-out for projects in areas that we have previously not addressed.”
Posted November 21, 2022