Early in their 1L year, all law students see or hear mention of something called a “Restatement.” They learn, for example, that basic rules of contract formation are set out in something called the Restatement of Contracts, or in something different called the Second Restatement of Contracts. Most new law students find these references mysterious. “I remember in Torts, just writing ‘Restatement’ followed by, like, 75 question marks in my notes,” said Molly Brady, Louis D. Brandeis Professor of Law at Harvard.
Now, however, Brady is part of a team of professors striving to accomplish what three prior generations of scholars were unable to do: create a comprehensive Restatement in another area of law — property. The project, helmed by Harvard’s Fessenden Professor of Law Henry E. Smith, which could take up to 20 years to complete, promises to provide a single, overarching, and fully cohesive repository of American common law covering the complex, sometimes archaic, and seemingly unrelated topics under the heading of “property” that have baffled first-year students and bar exam-takers alike for more than a century.
“It feels like a once-in-a-generation experience to be involved in the drafting of this major project and to try to see it through.”
Molly Brady
For the record, Restatements are multivolume treatises published by the American Law Institute, an independent organization founded in 1923 by leading lawyers and scholars of the time to aid the cause of clarifying and improving the law. Each Restatement aims to organize and present in a systematic manner the legal rules and principles in a particular area of law, such as agency, contracts, family law, property, or torts. And each is shepherded through the ALI’s elaborate development process by one or more persons designated as reporters.
Smith, appointed by the ALI as the reporter of the Fourth Restatement of Property, is taking on the task assisted by a cadre of approximately a dozen associate reporters. The team is the largest ever to work together on a single Restatement project overseen by a single reporter, and includes two other faculty members from Harvard Law School: Brady and John C.P. Goldberg, Carter Professor of General Jurisprudence and interim dean.
“It is pretty remarkable to have three reporters from one school all working on one project,” Brady said. “The property professors here think the subject really matters and there is a lot that connects these areas.”
According to Smith, a Restatement has a “special place in the law,” somewhere between a legal code and a treatise, and is explicitly aimed at judges. A typical treatise can advance the views of just one or a handful of authors; the Restatement, by contrast, purports to capture a more objective truth distilled through the efforts of dozens of individuals.
The associate reporters engage in a multistep process that distinguishes the Restatement from a typical legal treatise and lends it additional credibility. Drafters write portions which are reviewed and revised internally before being submitted to a larger advisory committee. The committee, consisting of scholars, judges, and practitioners specializing in property law, provides detailed feedback necessitating another round of edits. Later, the chapters are disseminated to a wider ALI council for a more generalist perspective and, finally, submitted for approval by the ALI membership at large.
“It’s a bit like Wikipedia, in the sense that it’s based on crowdsourcing, although not from the world but from lawyers and judges and legal academics rather than a single author,” said Goldberg.
Once portions of the Restatement are approved by the full ALI membership, they are published in a semidraft form on legal databases, awaiting finalization when all the remaining volumes of the work will be completed, cite-checked, paginated, and cross-referenced. Only then will the ALI produce a physical, bound version at a future, unknown date that Smith hesitates to estimate.
The History of Re-Restating Property
In 2014 , just before he embarked on this herculean task, Smith co-wrote with Columbia Law School Professor Thomas Merrill an article titled “Why Restate the Bundle? The Disintegration of the Restatement of Property.” It criticized the ALI’s failed attempts, over the course of 17 volumes published over 75 years, to produce a complete Restatement of the law of property, and blamed the failure largely on the disjointed nature of the prior attempts, as well as excessive liberties taken by prior reporters, who had drafted Restatements that aimed to push the law in particular directions, rather than capture the state of the law as it was.
The article posed the question of whether it would be possible to resolve these issues by appointing “a new cadre of reporters, instruct[ing] them to stick to restating the law without advocating sweeping reforms, and produce, at long last, a complete Restatement of Property.” Smith and Merrill, now also serving as an associate reporter on the Fourth Restatement, answered: “We doubt it.”
“The whole tenor of theory in the 20th century was not to see themes in property, and to express skepticism that there was anything really holding [the bundle of rights] together.”
Henry Smith
To understand the challenges of pulling together a comprehensive treatise on property law, one must go back in time to the origins of property law as a discipline. In the early 20th century, Wesley Newcomb Hohfeld, a 1904 Harvard Law graduate and professor at Yale University, originated a conceptual scheme of property law often referred to now as the “bundle of sticks” or “bundle of rights.” In that framework, property law could best be understood as a formless, unconnected set of distinct legal rights and privileges. “The whole tenor of theory in the 20th century was not to see themes in property, and to express skepticism that there was anything really holding [the bundle] together,” Smith explained.
The First Restatement of Property was published in five volumes between 1936 and 1944 and concerned itself mostly with interests in land; personal property was not addressed at all. The Second and Third Restatements included volumes on topics that had been initially overlooked, such as landlord/tenant law and the law of mortgages. But major holes remained. Some topics that are considered bread-and-butter for property courses and bar exams have never made it into the Restatement of Property at all: Adverse possession, eminent domain, recording acts, bailments, and zoning will all be addressed, for the first time, in the Fourth Restatement.
Smith isn’t the first Harvard professor to lead the way. The Second Property Restatement was spearheaded between 1970 and 1992 by Harvard Law Professor A. James Casner. But Casner, unlike Smith, aimed to use the publication to advance reforms to the law, and publication of the Second Restatement’s limited volumes was delayed by disputes between Casner and the ALI’s advisory committee, which pushed back on many of his proposals. The result was a treatise that satisfied neither reformers nor traditionalists, and which again left significant gaps in coverage.
The prior Restatements’ lack of cohesion applied to its authors as well. Previously, the ALI recruited an assortment of professors to draft volumes without significant cooperation between the authors or a commitment to a single overarching approach. The result was a fragmented set of summaries that failed to advance a unified vision of property law, ultimately dooming the Restatement of Property to much-reduced relevance. Unlike the Restatements of Torts and Contracts, which have been frequently relied upon by judges and lawyers, the work on property largely fell by the wayside, attracting only a fraction of the attention that its sister publications have received. In 2014, internal data at the ALI, which generates revenue based on the frequency with which its treatises are downloaded on Westlaw, showed that the Restatement of Property produced only a quarter of the royalties earned by the Restatement of Contracts, and only 15% of the royalties from the Restatement of Torts.
A Skeptic Turned Shepherd
Once the author of an article panning the Restatement of Property, Smith soon found himself in the surprising position of leading a possibly decades-long project to revive it. When the director of the ALI asked him, in 2015, to serve as the reporter of the Fourth Restatement, Smith saw an opportunity to rise to the many challenges he had identified. “My qualms, while I still stand by their validity, don’t preclude doing this,” he said.
The Fourth Restatement aims to overcome the obstacles that have previously prevented comprehensive treatments. While covering areas long omitted, it will leave certain subjects, such as trusts and intellectual property, for other scholars to tackle. The reporters also share the goal of faithfully adhering to the law as a general matter, while offering a targeted selection of suggested reforms that may appeal to judges.
As a single resource for judges across 50 states, this will require summarizing rules that are similar across most jurisdictions, while acknowledging areas in which states apply different rules and, where appropriate, suggesting why a majority or minority rule may be better from a policy perspective. “Law obviously isn’t static,” Goldberg explained. “It’s sometimes appropriate for a reporter, as long as they’re candid, to say, Look, the majority rule is X, but this Restatement offers a different rule, and here’s why.”
Although he was a skeptic in the past, Smith has convinced fellow professors to dedicate years of their lives to the project by advancing his vision of a singular document that lays bare the cohesive architecture of property law: not a bundle of sticks, but a true structure. “It feels like a once-in-a-generation experience to be involved in the drafting of this major project and to try to see it through,” said Brady.
Brady, who is currently working on a chapter concerning common-interest communities such as condos and co-ops, has found that her research has unearthed layers of a subject she had presumably already mastered.
“This has really forced me to learn a lot more about a subject that I’ve taught for years, because it’s so much deeper than what you might just glance upon in a first-year property course,” Brady said. Researching the concept of inquiry notice, for instance, led her to work on a law review article exploring the origins and treatment of neighborhoods across property doctrine.
Goldberg, an expert in tort law, was recruited to draft chapters covering topics that sit at the intersection of property and tort, such as nuisance and trespass. He enjoys the intellectual challenge of trading the norms of legal scholarship — namely, crafting creative arguments aimed at other scholars — for the constructive goal of providing clear, well-researched, and carefully considered answers to judges and others. “Participating in the Restatement has given me some confidence that when I as a scholar rely on other Restatements, I am relying on serious, carefully wrought work,” he said.
The goal is to make a document that lasts — one that effectively covers the “old and dusty” portions of property law dating back to rules developed in medieval England, while also codifying general principles, such as the nature of possession, that can extend to new problems, such as the law of trespass as it applies to drone overflights. But making a lasting document, said Smith, requires the humility of recognizing that “a Restatement is not the last word, nor are courts’ decisions.”
That means identifying areas that are ripe for legislative solutions, such as the law of aerial trespass, and leaving room for guiding principles rather than strict rules aimed at narrow or novel topics.
“A Restatement that tied itself to particular questions and tried to answer them in a particular way would get dated fairly quickly,” Smith explained.
Although formerly a skeptic, Smith, with his team, aspires to produce a work laying bare a cohesive architecture of property law.
And most importantly, the reporters note, the Restatement needs to be cohesive and coherent. Ever since the advent of the “bundle of sticks,” property law has failed to find its footing as a distinct subject area governed by unifying themes or concepts, says Brady. She believes that this incoherence, woven into the very fabric of how scholars, students, and practitioners have thought about property law for over a century, has diminished the field’s stature. A number of leading law schools have, for example, dropped the subject from their mandatory 1L curricula.
Brady views the Fourth Restatement as an opportunity to turn things around. “I see all of these things as connected. It’s hard to convince students to go into a field if it makes no sense, or is difficult for no reason, or is a grab bag of topics, and that leads to fewer people around to defend and to clarify the importance of it,” said Brady. “But this subject is everywhere, and the subject matters.”