The Ugly Battle Over the Role of the American Law Institute: Unwanted Trespassers As Visitors When It Comes to Liability

The American Law Institute (ALI) was formed in 1923, a group of law professors, lawyers, and judges, to provide the courts with a national view of the common law.  The Restatements of Law of the ALI have served as a guide for courts in determining the majority view of the states on particular common law issues such as when property owners are liable to visitors, trespassers, repair personnel, customers, and what the standard for liability is when those categories of individuals are injured on the property of another. 

ALI has issued Restatements on Agency, Real Property, and three editions on Tort law.  That last area and the Restatement Third: Torts: Liability for Physical and Emotional Harm, issued in 2009, had a slight departure from ALI’s previous role.  In that Restatement, the ALI moved from reflecting the current state of the law among the states to making recommendations.  The Restatement Third:  Torts expanded the liability of landowners to trespassers. 

Until the Restatement Third, there were three categories of persons on your property:  invitees (included business customers; licensees (repair personnel, meter readers, and, in some states social guests); and trespassers.  The duty of property owners to protect these various categories varied, with the highest duties being owed to invitees and the lowest level of duty owed to trespassers.  The only duty to trespassers was to not intentionally injure them (i.e., man traps).  If someone trespassed and slipped and fell on your property, it was their cost, not yours.  A thief stealing your TV who slips and falls into the Jacuzzi could not recover from you or your insurer.  With the Restatement Third, the ALI did away with the three categories and stated the law as being that of landowners owing one singular duty of reasonable care to all three groups. 

The American Legislative Exchange Council (a group of businesses and insurers) were concerned about the level of liability for landowners and created a model code on landowner liability for the states to adopt before the Restatement Third became the common law in the states because of the ALI shift. A plea from corporate counsel to the ALI on what such a change would do to their insurance contracts and coverage resulted in the postponement of the change in landowner liability.

Presently, ALI is working on a new Restatement on Consumer-Contract law, an area that has been, since the 1970s, an area dominated by extensive federal regulation and, thereby, preempting state and common law changes to the rights afforded federally. 

The role of the Restatements is now under debate, question, and challenge.  For example, in 2015, in the case of Kansas v. Nebraska,  135 S.Ct. 1042 (2015), the late Justice Scalia, in a water rights case, wrote, in rebuking the lower courts for using the Restatement in resolution of a case: 

Over time, the Restatements' authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be. Section 39 of the Third Restatement of Restitution and Unjust Enrichment is illustrative; as Justice THOMAS notes, . . .  it constitutes a “ ‘novel extension’ ” of the law that finds little if any support in case law. Restatement sections such as that should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar. And it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.

The highest court has thus viewed “ought to be” as different from what the common law actually is. The battle is political, legislative, judicial, and bitter. Tiger Joyce, “Tort Lawyers Take Over the American Law Institute,” Wall Street Journal, June 30, 2017, p. A15.  As the sides battle it out, relying on what ALI has in its Restatements should be examined for ought vs. is in terms of the state of the common law.


Explain why ALI and the Restatements were begun to do.

Explain the shift in the Restatements and why it is important.