What is the difference between standing on legal principle and engaging in legal activism? The wry answer, of course, is that the attorney, scholar or judge who agrees with one’s opinion is a champion of legal principle while any of these who disagrees with one’s opinion is a feckless activist. “…there must be a clear line between describing what the law is and seeking to establish new law and policy,” writes John Fund for the National Review in an article about the “activist” character of the American Law Institute’s current agenda in issuing Restatements of Law. As described in this post, ALI traditionally publishes Restatements for the purpose of consolidating and unifying disparate common law opinions into general guidelines that may be cited almost as though they were statutory law.
I agree with Fund in spirit, even though I suspect that policy-for-policy, he and I would not agree as to what constitutes principle vs. activism. National Review is arch conservative and, as such, its editors probably would not find any hypocrisy in Fund’s citing the late Justice Scalia’s critique of recent ALI Restatements as “aspirations for what the law ought to be.” I would personally say the same thing about Scalia’s opinions in Heller and Citizens United, for example, but such is the subjective nature of the issue at hand. The law is always some version of what we want it to be.
Still, I am inclined to give Fund the benefit of the doubt that ALI Restatements are trending toward a more common definition of “activism” if their proposal to issue a Restatement on copyright law is any indication. As multiple copyright attorneys have stated, even considering a Restatement on a body of law that is already statutory is an undertaking that has never occurred in the hundred-year history of the institution. If that general fact emits a whiff of activist smoke, then the fire is in the detail that all the individuals pushing for the copyright Restatement are known to be ideologically critical of copyright.
I cannot comment on Fund’s report that ALI Restatements are also causing havoc in insurance, tort, and contract law, but he does state, “Last month, a group of six governors — from Texas, Maine, South Carolina, Nebraska, Utah, and Iowa — sent the ALI a letter warning that the proposed draft is a usurpation of the law-making authority of their state legislatures.” Again, I can imagine any number of laws in those states that I personally don’t like, but that doesn’t mean legislative authority should be undermined at the state level any more than it should be expropriated at the federal level. And as with the proposed Restatement on copyright, it would be interesting to know if this is the first time state governors have accused the ALI of overstepping its bounds in this way.
As a non-attorney, I am in no position to comment upon—or even know—the inner-workings of the American Law Institute. Whether Fund’s conspiratorial tone is justified, casting ALI as a near-clandestine organization undermining legal foundations, is hard to say. His short article does not lack conservative rhetoric, even citing the dreaded “political correctness” as motivation behind ALI’s Restatements. Especially in the current political climate, this is a very tough needle to thread. There are plenty of folks who would describe legalized same-sex marriage as judicial “activism,” while I would consider that view euphemistic bigotry. Regardless, the ALI is not a legislature; and to the extent its Restatement process may be seen as supplanting the legislative process, this is certainly grounds for scrutiny from any political perspective.