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Waggoner's Restatement

By John Masson
For Prof. Lawrence Waggoner, the publication of the third and final volume of the American Law Institute's (ALI's) Restatement (Third) of Property: Wills and Other Donative Transfers is a fitting way to round out a long and distinguished career.

Waggoner, a 1963 Michigan Law grad, served as the reporter, or lead writer, of the massive project. He saw the last part of the work—which covers rules governing class gifts, powers of appointment, future interests, and perpetuities—published this month, just weeks before his retirement, after 36 years on the Michigan Law faculty, becomes official.

For judges and legislators, having a substantial influence on the law may become old hat. But for the mere mortals who practice in courthouses or toil on law school campuses, one of the best ways to have outsize impact on the law is to work with ALI, laying out what amounts to best practice recommendations for courts to adopt—should they so choose.

So far, Waggoner said, many courts have so chosen, citing the work in their decisions in support of changing prior law or making new law. 

"We don't have any power to force courts to do what we say," said Waggoner, the Lewis M. Simes Professor of Law. "It's just a matter of whether they accept our analysis and arguments. If I write a law review article, it just says 'This is what Waggoner thinks, assuming it's read at all.' But the Restatement comes with the imprimatur of the ALI, and that gives it a lot more clout."

Waggoner teamed up with Prof. John H. Langbein of Yale and a group of 15 advisers, including practitioners, state appellate court judges, and others, to painstakingly produce the work. First the reporters wrote a draft, which the advisers pored over and criticized. Once suggested changes were incorporated and approved, the newly revised document went to the larger ALI Council, where the process was repeated. Finally, the approved document was approved by the full membership at ALI's annual meeting.

All three volumes followed a similar process, Waggoner said. All together, it took 20 years.

"The Restatements started as a way to synthesize complex law," Waggoner said, "but that's changed over the years. Now it's well accepted that Restatements state what the Institute thinks the law should be."

 

Read more about the Restatement (Third) of Property at http://www.prnewswire.com/news-releases/the-american-law-institute-completes-the-restatement-third-of-property-wills-and-other-donative-transfers-134848393.html. Or check out a more detailed PDF of the ALI press release at http://www.ali.org/doc/pr_wills1112.pdf.

 

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