After Justice Scalia’s dissent in Kansas v. Nebraska, the ALI may deem fit to convert his Ex-Offico Membership into just Ex.

I write separately to note that modern Restatements—such as the Restatement (Third) of Restitution and Unjust Enrichment (2010), which both opinions address in their discussions of the disgorgement remedy—are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Restatement of Conflict of Laws, Introduction, p. viii (1934). 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. Keyes, The Restatement (Sec- ond): Its Misleading Quality and a Proposal for Its Amelio- ration, 13 Pepp. L. Rev. 23, 24–25 (1985). Section 39 of the Third Restatement of Restitution and Unjust Enrich- ment is illustrative; as JUSTICE THOMAS notes, post, at 8 (opinion concurring in part and dissenting in part), 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, with- out further inquiry, that a Restatement provision describes rather than revises current law.

Here is the section from Justice Thomas’s dissent about the Restatement:

This Court, however, has never before relied on §39 nor adopted its proposed theory of disgorgement. And for good reason: It lacks support in the law. One reviewer of §39 has described it as a “novel extension” of restitution prin­ ciples that “will alter the doctrinal landscape of contract law.” Roberts, Restitutionary Disgorgement for Opportun­ istic Breach of Contract and Mitigation of Damages, 42 Loyola (LA) L. Rev. 131, 134 (2008). And few courts have ever relied on §39. The sheer novelty of this proposed remedy counsels against applying it here.

Your turn ALI.

Will Baude previously commented on the value of even more Restatements.