Penn State Law students witness ALI process for writing a Restatement

UNIVERSITY PARK, Pa. – Three Penn State Law students recently had the opportunity to witness the internal workings of the American Law Institute’s process for making a Restatement. Students Adam Martin, Cynthia Yan, and Steven Ziegler joined Penn State Law professor Catherine Rogers at an American Law Institute (ALI) meeting on Sept. 29 in in Philadelphia, where legal scholars from around the country gathered to discuss the most recent draft of a chapter of the Restatement Third, of the U.S. Law of International Commercial Arbitration.

Restatements are a revered feature in U.S. law by which selected areas of law effectively advise the judiciary. In form, a Restatement is a series of “black letter” rules and related commentary with “Reporters’ Notes” that explain and analyze the underlying case law. In making a Restatement, selected legal scholars, called “reporters,” produce a draft, which is then extensively vetted by a range of carefully selected advisers and consultants and ultimately approved through ALI processes.

Restatement drafts, once approved by the ALI Council and Membership, provide guidance for the nation’s judges and lawyers about that area of law. While Restatements are not binding law when they are published, once they are relied on by judges, they often become embedded features of the jurisprudence in a particular area. Although many lawyers and students read final published restatements in classes such as Torts and Contracts, it is exceptional that students are permitted to witness the work that goes into making a restatement.

In its sixth year of work, the Restatement on International Arbitration is currently focused on the third of its five planned chapters. The topic for this chapter is the enforceability of international arbitration agreements. As Rogers is a reporter for the Restatement, this year she was able to bring Yan, Zeigler and Martin to attend the closed-door meetings at which the draft was discussed.  

“For me, seeing this process in person really made the law come alive,” says Yan. “As we see all the thoughts and discussions going into the drafting of these important legal sources, law suddenly becomes so much more than just words on paper.”

The students listened and took notes to assist the reporters as about 50 attorneys, judges, and scholars who comprise the Restatement’s Advisory Committee and Members’ Consultative Group discussed nearly every word in the nearly 400-page draft chapter of the Restatement.

“It was fascinating to hear all of the discussion that goes into forming black letter and commentary,” says Martin. “Being a law student, it was a great experience to see how Restatements come together and hear the arguments over the interpretation of the law before final wording is agreed on.”

In addition to getting a rare glimpse of how American Restatements are crafted, the students also had the opportunity to meet and interact with the attorneys, professors, and judges in attendance.

“We were able to hear from some of the most preeminent scholars in this field, from attorneys from around the country, to law professors, to state and federal judges,” says Ziegler. “As a law student, it was a great opportunity to discuss both substantive legal topics and professional issues with true leaders in the field.”

Back at Penn State Law in University Park, the students will continue to work with Rogers to address the issues raised in the discussions and incorporate them into the new draft chapter of the Restatement, which it is hoped will be presented to the Executive Council in January and the ALI membership in May 2015. After this chapter, a little more than two chapters remain, which will continue to keep Rogers and the students who work with her busy for several more years to come.

Over the years, Rogers has involved dozens of students in background research, as well as proofreading and cite-checking, for the various drafts on this Restatement. In addition to Yan, Martin and Ziegler, several other students and former students assisted with the draft of this chapter, including current J.D. students Emily Franco and Justin Krajeski; current S.J.D. student Inan Ulan; and former students Alex Wiker ’13, Jessica Draizin ‘13, Idil Tumer ‘13, and Hayati Irkiçatal, LL.M. ’14.