Blackstone's Tower: The English Law School - College of Social ...

Legal Scholarship and the Roles of the Jurist
diet what the courts are likely to do or to choose what s/he
considers to be the "best" opinion? And what if the law is clear,
but the Reporter or professional opinion generally consider it to be
bad for some reason? 40
Some of these problems were solved by devices such as comments.
Others were glossed over. In the course of time the Institute
gradually weakened its insistence on being strictly confined to
restating the law as it is. By 1990 Black's Law Dictionary contained
the following definition of the Restatement:
"[a] series of volumes authored by the American Law Institute that tell
what the law in a general area is, how it is changing, and what directions
the authors (who are leading scholars in each field covered) think that
the change should take." 41
This open approach drew fire from traditionalists who complained
that it was a deviation from the original purpose of merely stating
what the law is. 42 Others, while welcoming greater openness,
objected that the distinctions between describing, choosing a better
opinion, noting a "trend" and making recommendations are
blurred in practice. 43 The principal theoretical criticisms that were
made of the first Restatements were directed at a number of
assumptions: (a) that it is possible to describe the law as it is in
neutral terms; (b) that it is possible to declare the principles of
common law independently of authority; (c) that it is possible to
make meaningful statements of legal rules without reference to
their rationales; (d) that it is possible to make accurate and meaningful
statements of legal rules without reference to the practical
context of their operation. 44
These debates are enduring, and they illustrate an important
point. Serious scholarly exposition typically involves the careful
analysis of apparently conflicting authorities; an abstraction from
the data, usually reported decisions, of a rule which explains them;
and a marshalling of the data and arguments to persuade the interested
audience that the preferred rule is indeed the established rule.
Both critics and defenders recognised that the Restatements
involved more than exposition and that exposition involves more
than description. Whatever the merits of the American political
debate, the process produced expository works which have been
cited (usually with approval) by courts in over 110,000 cases. 45 It
is naive to criticise the Restatements for not being "purely descriptive";
the A.L.I, was careful to avoid areas of "hot" political contro-
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