ARTICLES

Introduction: Did the First Restatement Adopt a Reform
Agenda?
Patrick J. Kelley .........................................................................................................................................................................................................................................................................................1
Articles Editors: Jeffrey D. Wright, Amber N. Jeralds, and Luke M. DeSmet.

The First Restatement of Agency: What Was the Agenda?
Deborah A. DeMott ...................................................................................................................................................................................................................................................................................17
Although the first Restatement of Agency provided a systematic account of its subject–no small accomplishment–its agenda was not reformist in any conventional sense. Indeed, the Reporters for Agency defended the inclusion of a number of common law rules explicitly characterized as unsound, outdated, even “barbarous” and “shocking” in extreme instances. Likewise, the first Agency Restatement lacked the intellectual boldness that characterized some Restatement work on other subjects. Agency’s own history, the intellectual styles of the project’s key participants, and institutional context all help explain the outcome. The article’s account begins with the Reporters–Floyd Mechem and Warren Seavey–the characters most central to the Agency Restatement. Their professional and personal biographies help understand what Mechem and Seavey understood their work to be. This was, first and foremost, to construct and articulate a coherent account of agency doctrine and thereby establish their subject’s position as a subject of legal scholarship. To succeed required surmounting Roscoe Pound’s doubts about Agency’s status and Oliver Wendell Holmes’s assertion that Agency lacked cogent intellectual substance. The article also examines contributions from others who worked to produce the first Restatement: the project’s Advisers, the ALI’s first Director and its Council, and culminating debates on the project at ALI Annual Meetings. The prospect that the Agency Restatement would serve as a vehicle for substantive legal reform was substantially reduced by an unquestioned and narrow understanding of what should count as “the law” and by a circumscribed definition of the proper function of Restatements. The exclusion of statutes from the domain from which legal principle might be drawn aggravated the narrowness of what could be accomplished. The article, which relies for the most part on published sources (including minutes of Council meetings from the ALI’s early days), also draws on unpublished minutes from meetings among the Reporters, their Advisers, and the ALI’s Director. Articles Editor: Andrew J. Fisk.

The First Conflicts Restatement Through the Eyes of Old:
As Bad as Its Reputation?
Symeon C. Symeonides......................................................................................................................................................................................................................................................................... 39
The first Conflicts Restatement (1934) has been the favorite punching bag of every conflicts teacher, well before it was toppled by the conflicts revolution of the 1960s. Because history is often written by the victors, it is worth asking whether the Restatement and its drafter Joseph Beale were as bad as their reputation. This Article is not an attempt to rehabilitate them. Rather it is a necessary historical journey undertaken with all the trepidation of a traveler who expects the worst but hopes for at least some small pleasant surprises. It revisits Beale and the Restatement in the context of their own time–the 1920s–and examines Beale’s life and work, the state of American conflicts law before him, the criticisms of his contemporaries, and the imperfect process that produced the Restatement. For the impatient reader, the short answer to the above question is that, generally, the bad reputation is deserved. However, the journey is rewarding for what one discovers along the way. Articles Editors: Jessica Reese and Ryan Straw.

Restitution and Reform
Andrew Kull ...............................................................................................................................................................................................................................................................................................83
Whether the American Law Institute’s founding project embodied a “reformist agenda” depends on what is meant by “reform.” While the original Restatement of the Law was scarcely an engine of social change, some of its achievements in the realm of traditional “law reform” were more significant than its contemporary or present-day critics have acknowledged. In the Restatement of Restitution (1937), the ALI presented a unified, functional account of what were still disconnected scraps of law and equity (quasi-contract, constructive trust), giving recognizable form to the modern law of unjust enrichment in accord with the “realist” prescriptions of the time. Articles Editors: Jessie M. Mahr and Luke M. DeSmet.

The First Restatement of Torts: Reform by Descriptive
Theory
Patrick J. Kelley ........................................................................................................................................................................................................................................................................................93
In assessing a set of reform positions in the first Restatement of Torts, Patrick J. Kelley focuses on the intellectual commitments and legal theories of Francis Hermann Bohlen, the Reporter for that Restatement. He concludes that a number of those reforms─all based on Bohlen’s prior theoretical articles─constitute “mild reforms” identified as appropriate for a Restatement in the ALI’s founding document: (1) support for the minority rule that consent to a fight in anger, or to illegal conduct generally, should bar plaintiff from recovery; (2) support for the rule that the ultimate consumer injured by a negligently manufactured product should be allowed to recover in a direct action against the manufacturer; and (3) support for the position that a defendant whose negligence threatens physical injury to the plaintiff should be held liable if physical injury results from the plaintiff’s fear, caused by the danger threatened by defendant’s negligence. Kelley identifies three instances of “radical” reform embedded in the first Restatement of Torts, where the ALI adopted a position not supported by any substantial precedent: (1) [T]he unreasonable foreseeable risk test of negligence; (2) modified standards of negligence taking into account the lessened capacity of defendants who are children or mentally ill; and (3) a generalized “strict liability” cause of action for harm caused by ultrahazardous activities not ordinarily engaged in by others, which threaten an irreducible risk of harm to others. Each of these positions, Kelley suggests, reflects the theories of legal scholars in the progressive, pragmatic era of legal scholarship, after publication of Holmes’s The Common Law and before the advent of the legal realists. Articles Editors: Derek Ruzicka and Jennifer L. Walsh

Williston as Conservative-Pragmatist
Mark L. Movsesian .................................................................................................................................................................................................................................................................................135
Professor Hull argues that the movers and shakers behind the Restatement project were pragmatic reformers who understood the need to accommodate traditionalists like Samuel Williston, the Reporter on the Contracts Restatement. In my comments, I demonstrate that Williston did not oppose reform. In fact, he was largely responsible for the Contracts Restatement's most thoroughgoing innovation, the doctrine of promissory estoppel. If, as Professor Hull argues, the creators of the ALI were “progressive-pragmatists,” Williston is best understood as their conservative counterpart: a “conservative-pragmatist.” Articles Editor: Amy R. Ragan
Restatement and Reform Redux: Comments for the AALS

Open Source Program: “Did the First
Restatement Implement a Reform Agenda?”
N. E. H. Hull ............................................................................................................................................................................................................................................................................................139
Professor Hull restated her thesis that the first Restatement implemented a ‘progressive,’ ‘pragmatic’ reform agenda. She went on to clarify the meaning of progressive and pragmatic. Professor Hull explains that she uses progressive in its early twentieth century meaning as making government more efficient through the use of administrative expertise in order to avoid social disorder, economic conflict, and political corruption. Professor Hull defines the meaning of pragmatic as, at its inception, a test of truth deeply rooted in a philosophy of knowing. Simply put: that which could be tested, demonstrated, and replicated had meaning. That which could not be empirically demonstrated was nothing but hot air. Pragmatism mightily changed the legal thinking of the ALI’s founders. Law meant what law did, and law was thus not written in some heaven of perfect forms, it was a product of its time and place. Articles Editor: Amy R. Ragan.

The First Restatements and the Vision of the American Law
Institute, Then and Now
Michael Traynor ......................................................................................................................................................................................................................................................................................145
At the AALS program featuring the authors contributing to this Symposium, Michael Traynor, President of the American Law Institute, gave closing comments. Expanding on them here, he reviews the present status of the five Restatements discussed as well as the Institute's processes and implications of the Symposium for the Institute's projects. He calls for a systematic overhaul of the law of Conflict of Laws, including attention to the unique role of the judge. He also identifies four recent non-Restatement projects of the Institute that reflect a modern vision comparable to that of the founders and ventures ideas for new projects. Articles Editors: Natalie R. Gregory and J. Matthew Thompson.

The American Law Institute: Justice Cardozo’s Ministry
of Justice?
Kristen David Adams ............................................................................................................................................................................................................................................................................173
This paper explores an influential reform agenda – the notion of a Ministry of Justice─advanced by Justice Benjamin Nathan Cardozo, one of the American Law Institute's founding members. The article in which Justice Cardozo introduced the concept of a Ministry of Justice was published in the Harvard Law Review the very month that the exploratory committee was formed that ultimately recommended the formation of the American Law Institute, and two years before the Institute itself was founded. This article explores the extent, if any, to which the reform agenda that Justice Cardozo propounded in this famous article was fulfilled by the founding of the Institute. Articles Editor: Luke M. DeSmet.

COMMENTS

The Lone Second Amendment Interpretation: Has it Reached
The Status of “Superprecedent”?
Jessica Reese .......................................................................................................................................................................................................................................................................................211
Every election year, millions of dollars are poured into lobbying efforts aimed at members of Congress and state legislatures. While it often seems that hot button political issues are tied to landmark Supreme Court cases, that has not been true with the Second Amendment and its right to bear arms. The issue of gun control in America has raged for decades with very little input from the United States Supreme Court. Unlike affirmative action, abortion, or campaign finance regulation, the Supreme Court has not weighed in with an opinion for over fifty years. This Comment attempts to analyze whether this lack of direction from the highest court might be the result of an idea, most often used by politicians, known as “superprecedent.” The last Supreme Court decision that attempted to interpret the Second Amendment was United States v. Miller in 1939. This Comment analyzes this case under five guideposts to determine whether the Supreme Court would consider this case to be superprecedent, and whether its collective rights approach to the right to bear arms should be disturbed. This Comment also examines whether the concept of having superprecedent is more judicial or political in nature.

The Unique Case of Conflicts of Interest and the Need
for an Exception to Sixth Amendment Automatic
Reversals
Ryan Straw ..............................................................................................................................................................................................................................................................................................231
The Supreme Court recently held in United States v. Gonzalez Lopez that in all cases where a defendant’s choice of counsel is wrongly denied, the conviction should be immediately overturned. However, in the holding the Court failed to fully consider the impact such automatic reversals would have on cases in which the criminal defendant insists on proceeding with an attorney burdened by a conflict of interest. The holding has lead trial court judges to allow more attorneys burdened by conflicts of interest to represent criminal defendants for fear that if they wrongfully deny the attorney the defendants’s conviction may be immediately overturned. This comment argues that the rule imposes a great cost upon the fairness of the system, and an exception should be created in which a conviction is not automatically reversible if the trial court judge wrongfully denies an attorney due to a conflict of interest.

CASENOTES

Prosecution of Domestic Violence Cases: The Practical Effects
of The Ruling in Davis v. Washington, 126 S. Ct. 2266 (2006)
Andrew Fisk ............................................................................................................................................................................................................................................................................................251
In Crawford v. Washington, the Supreme Court excluded some of the primary evidence that prosecutors historically used to convict those accused of domestic violence. This note examines the decisions in Davis v. Washington and Hammon v. Indiana and concludes that these decisions have restored some of the evidentiary possibilities to prosecutors but also leaves many questions about what evidence can and cannot be admitted that may have to be answered by the Court in the future.

The Duty Question in Special Relationship Negligence Cases:
Preserving the Role of the Jury in Marshall v. Burger
King Corp., 856 N.E.2D 1048 (Ill. 2006)
Craig W. Runyon ....................................................................................................................................................................................................................................................................................269
In negligence cases, many courts employ multi-factor policy tests when the duty question is at issue. This practice can lead courts to invade the jury’s role, basing their duty determinations on factors the jury is expected to consider in deciding the questions of breach of duty and proximate cause. Multi-factor duty tests are especially improper in cases where a special relationship, such as business invitor-invitee, exists between the parties; the special relationship alone should be sufficient for the recognition of a legal duty. Many courts, however, deem a special relationship insufficient and consider whether policy factors weigh in favor of the recognition of a duty. In Marshall v. Burger King Corp., the Illinois Supreme Court was faced with a special relationship negligence case and risked invading the jury’s role by considering Illinois’ own multi-factor duty test. The court reached the correct result, finding that the policy factors did not weigh against recognizing a legal duty, but failed to take the next logical step of abandoning the multi-factor duty test in cases where a special relationship exists. This Note examines the Marshall decision and explains why courts should abandon multi-factor duty tests in special relationship negligence cases.