Partnering with the American Law Institute, Professor Elizabeth S. Scott Continues Long Tradition of Helping to Codify and Clarify U.S. Law
When the American Law Institute (ALI), an independent organization that endeavors to codify and clarify U.S. law, began considering a new project that would delve into the thicket of laws regarding children and juveniles, its leadership sought out Elizabeth S. Scott. It did not take much to convince Scott, the Law School’s Harold R. Medina Professor of Law, to submit a proposal and begin thinking about the potential impact of such a publication. After all, much of her work at Columbia Law School, and in her 2008 book, Rethinking Juvenile Justice (co-authored with developmental psychologist Laurence Steinberg), deals with the intersection of social science research and the laws of children and juveniles.
While the ALI had published an earlier work, Principles of the Law of Family Dissolution: Analysis and Recommendations, Scott was convinced that the new project could build on that publication—and go far beyond it. If done properly, she realized, a new restatement of law on the topic, featuring compilations of case law with detailed examples and commentary, would have the capacity to shape the way lawyers, courts, and lawmakers think about the rights of children by encapsulating how legal principles have changed over the past half-century.
“A lot of my work involves the application of social science research to legal problems; so the ALI’s interest in incorporating social science into this restatement was a part of what intrigued me about the project,” Scott says. “This is an opportune time to undertake this project. Because there is so much reform in this area, the restatement can be very influential.”
Scott presented a detailed, eight-page proposal in the fall of 2014 that set forth the reasons why the work was so important, and what it could accomplish. The ALI named her reporter for the new project shortly thereafter, and Scott now leads a six-person team that is drafting the first restatement to address the multitude of ways children and adolescents come into contact with the law. The massive Restatement of the Law, Children and the Law—like many other restatements the ALI has produced in the 93 years since its founding—will attempt to capture the reform trends in a way that will, as Scott wrote in the proposal, “allow courts and legislatures to evaluate and sometimes reject regulation that is based on values that are outmoded.”
The project will cover everything from juvenile justice to minors’ access to contraception and abortion. It will examine the overarching question of what rights parents have over their children now that one’s offspring are no longer viewed as mere property under the law. And the restatement will not shy away from thorny issues, like when school administrators may regulate their students’ use of social media and whether juveniles may waive their rights to an attorney.
“It is a big project,” Scott says. “Our goal is to bring some coherence to an area of the law that is very messy, because children are not like adults. Children are subject to the authority of their parents and to state authority, but they are legal persons and have some rights. So we are trying to clarify when children should be treated differently from adults and when they should have the rights and responsibilities of adults.”
Scott is just one of many Columbia Law School professors to have partnered with the American Law Institute over the years. A dozen current professors have worked on ALI projects—among them George A. Bermann ’75 LL.M. (arbitration), Richard Briffault (government ethics), Thomas W. Merrill (property), and Jane C. Ginsburg (copyright)—and for all but two of the past 53 years, a Columbia Law School faculty member or graduate has served as director of the ALI.
“I think Columbia has a larger percentage of professors who are actually interested in the law and what the legal doctrines are, and how to make better rules,” says Lance Liebman, Columbia Law School’s former dean, who served as the ALI’s director from 1999 to 2014. “There’s a connection between the Columbia tradition and the real world, and the ALI’s work fits that very well.”
For lawyers and judges, the American Law Institute, and its painstaking work clarifying and restating the law, is crucial. Its restatements offer roadmaps for practitioners. Its principles of law, meanwhile, are intensive analyses of legal areas thought to need reform that generally include recommendations for change. While the ALI’s work does not have the force of law, its restatements are often referenced by judges, and the works are cited by the U.S. Supreme Court fairly often. “It has no government authority, but it has influence,” says Liebman, who is now the Law School’s William S. Beinecke Professor of Law. “We know this from thousands and thousands of citations.”
To understand the ALI’s influence, one must go back to its founding nearly a century ago as an independent organization focused on assessing some of the incoherencies in U.S. law. A group of prominent American judges, lawyers, and teachers convened in 1922 as the Committee on the Establishment of a Permanent Organization for the Improvement of the Law, and found that two chief defects in American law—uncertainty and complexity—had resulted in a “general dissatisfaction with the administration of justice.”
More specifically, according to the committee, legal uncertainty existed due to a lack of agreement on fundamental principles of common law, and complexity was becoming increasingly problematic because of numerous variations within different jurisdictions in the United States. The committee recommended that a lawyers’ organization work to improve the law and its administration. The result was the founding of the ALI in 1923, with William Draper Lewis, the former dean of the University of Pennsylvania Law School, as its founding director. Other prominent legal minds involved in the organization’s early days included U.S. President William Howard Taft, then chief justice of the United States; Columbia Law School graduate Charles Evans Hughes 1884, who would later become chief justice of United States; former U.S. Secretary of State Elihu Root; Judge Learned Hand; and another Columbia Law School graduate who would go on to become a U.S. Supreme Court justice, Benjamin Cardozo 1891.
Though the ALI was based in Philadelphia, its ties to Columbia began early. The organization’s third director, Herbert Wechsler ’31, who ran the ALI from 1963 to 1984, was both a graduate of and professor at Columbia Law School, bookending his career at the Justice Department, where he was best known as the assistant attorney general in charge of the War Division during World War II. Wechsler’s work at the ALI was legendary. He spearheaded drafting of the enormous Model Penal Code. And, during his tenure, he also was responsible for the influential Restatement of the Law Second, Contracts (co-written by former Columbia Law School Professor E. Allan Farnsworth ’52) and the Uniform Commercial Code, a comprehensive modernization of statutes relating to commercial transactions, such as sales, leases, funds transfers, and letters of credit. A remembrance of Wechsler in the Columbia Law Review noted “the thoroughness of his preparation, the modesty and fairness of his approach to controversial issues, and the scholarly integrity of his analyses,” and referred to the Model Penal Code as “a significant basis of legislation throughout the United States.”
Geoffrey C. Hazard Jr. ’54, a professor emeritus at the University of Pennsylvania Law School and a leading expert in civil procedure and legal ethics, ran the ALI from 1984 to 1999, when Liebman took over. Hazard was responsible for supervising the launch of the third series of restatements in 1987, an undertaking that continues to this day. “The director’s job is to pick the projects where the ALI should work,” Liebman says. “At any given time, there are 15 areas of law being worked on.”
Over the years, the ALI has published dozens of restatements of law, principles of law, and other proposals for legal reform. Its current lineup spans projects that range from the law of charitable nonprofit organizations to foreign relations law to police investigations. These publications can take five to 10 years to complete, and each goes through an arduous review process that culminates in a final draft being submitted to the ALI’s 4,000 members. The discussions can get heated, especially if the legal issues at stake are political or controversial, as an increasing number of topics have been. “The main thing about the ALI,” Liebman says, “is that it’s not just one pointy-headed professor.”
This past winter, Liebman hosted a luncheon at Faculty House on the Columbia University campus for a delegation of Chinese jurists interested in learning more about the ALI. The judges and legal scholars, led by the reformist Jiang Huiling, senior judge of the Supreme People’s Court and president of the Chinese Institute of Applied Jurisprudence, wanted to better understand the role the ALI plays in the American legal system. “We are at a very new starting point for judicial reform,” Jiang noted during the gathering.
At the luncheon, three Columbia Law School professors—Ronald J. Gilson, the Marc and Eva Stern Professor of Law and Business; Richard Briffault, the Joseph P. Chamberlain Professor of Legislation; and Suzanne B. Goldberg, the Herbert and Doris Wechsler Clinical Professor of Law and director of the Center for Gender and Sexuality Law—spoke about their recent work with the ALI.
Briffault’s current project, Principles of the Law, Government Ethics, is premised on examining the emerging law of government ethics in an effort to set forth principles on such issues as lobbying, gifts to public officials, and conflicts of interest. “The focus is on coming up with a set of rules to provide guidelines to states and local governments that want to improve their codes, or even more so for those local governments that may not have ethics codes at all,” says Briffault, who is also chair of New York City’s Conflicts of Interest Board.
The goal is to assess the multitude of gray areas where public officials can run into ethical quandaries. These areas include how officials should deal with relatives and outside activities, and how to handle situations when regulators jump between governmental and private sector positions. “Some people want to have very tight rules, and others contend, ‘Let’s be realistic, how burdensome do you want these rules to be?’” Briffault explains. Drawing the lines to balance such competing interests is a big part of what happens in the ALI process.
The project Goldberg is working on as an associate reporter is delving into a relatively uncharted area of law: sexual and gender-based misconduct on campus. The project, which is at an early stage, will include coverage of issues such as sexual violence, rape, stalking, and social media harassment. As universities and colleges across the country grapple with these problems, the publication will consider how schools should handle student complaints, what the procedures should be for sanctioning students and contacting the police, and how to deal with the sticky issue of confidentiality. “Every university is struggling with this,” Goldberg says.
Whether the ALI’s work ultimately will have any impact on the Chinese legal system remains to be seen, of course. But the ALI has already spurred Europe to take a hard look at its legal system, and to set up a similar independent legal organization. The European Law Institute, established in 2011, now works to improve the quality of European law and to facilitate pan-European legal research. “We had all these meetings with the Europeans, and then they moved down this path,” Liebman says. “And this was good contact as China tries to strengthen its legal system.”
Back at the Law School, Elizabeth Scott taught a seminar this past fall titled Children and the Law: The Restatement Process, which let students see what goes into a restatement, and work on sections of it as if they were reporters. In the class, the law students examined issues such as whether juveniles can waive their rights to an attorney, and the infancy doctrine, which allows minors to disaffirm contracts they have made with adults. “It was a lot of fun, and their work will be very useful when we begin work on those sections,” Scott says.
That could be awhile, though, as she expects that the project on children and the law could take another five years to complete. Not only are there longstanding legal concepts like the infancy doctrine to consider, but, in addition, shifts in American cultural norms, such as the increased use of technology and social media, have given rise to new legal questions. So, too, have new conceptions of family structure, and contemporary research on adolescent development, begun to shift the legal thinking. “The law,” Scott says, “is struggling with the question of when, and to what extent, children should be treated similarly to adults.”
For Scott, the work of clarifying this legal thinking is an exciting and fascinating endeavor. And while the goal of producing a comprehensive, influential restatement lies at the heart of her efforts, it could not be more clear that the journey to that final destination is something she views as being of equally great value.