In Tuesday’s original jurisdiction opinion, Kansas v. Nebraska, Justice Scalia wrote a separate opinion almost all of which consisted of the following discussion about Restatements of the law promulgated by the American Law Institute:

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 (Second): Its Misleading Quality and a Proposal for Its Amelioration, 13 Pepp. L. Rev. 23, 24–25 (1985). Section 39 of the Third Restatement of Restitution and Unjust Enrichment 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, without further inquiry, that a Restatement provision describes rather than revises current law.

I don’t know anything at all about the Restatement (Third) of Restitution and Unjust Enrichment, but I thought Scalia’s opinion was noteworthy.

Hat tip: Josh Blackman

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