The State of the Restatements

In the CNMI, we cite to the Restatements as precedent in the absence of local law. 7 CMC 3401. Recently, I’ve noticed a proliferation of Restatement Third editions and drafts, and this raises some questions for me. If a prior Restatement has been used as authority by our local courts, does that version of the Restatement then become the CNMI local law, such that we would not cite to a later edition? Will the CNMI courts find a Restatement Draft persuasive, considering that the Restatement is supposed to be a reflection of the common law of the United States? Does the fact that there has been some discussion about the validity of the Restatements themselves impact the CNMI? At this point, I haven’t seen any direct precedent on these issues from our courts. There are a lot of cases which parrot our statute, but not much to answer my questions. CJ Dela Cruz, in a one man opinion (with concurrences), noted that our reliance on the Restatements was merely a “short-hand attempt to fill a gap due to the absence of statutory laws in many areas.” Borja v. Goodman, 1 N. Mar. I. 225, n.4 (1990). Perhaps this suggests that we stick to whatever we have come up with, even if it’s from an old Restatement. My problem with this approach, however, is that I find that the newer editions are clearer and easier to understand than their predecessors. Of course, then we have to deal with the issue of whether the Restatement is actually reflecting the common law of the United States. Professor Kristen David Adams wrote a terrific article discussing these issues as they pertain mostly to the Virgin Islands, a jurisdiction with a very similar statute directing the courts to consider the Restatements authoritative in the absence of local law. “The Folly of Uniformity? Lessons from the Restatement Movement,” 33 Hofstra L. Rev. 423 (also to a lesser extent discussing CNMI cases and precedent). She cites to several Virgin Islands cases which have followed Restatement Drafts, suggesting that there is some persuasive reasoning out there for us to follow the Drafts--but the VI cases are a mixed bag. The article is actually very comprehensive and interesting, and I don’t do it justice to sum it up here—get on your electronic search vehicle of choice and take a look. [Professor Adams has recently followed up with an in depth discussion of the criticisms leveled at the Restatements, and how this may just reflect defects inherent in the common law system. “Blaming the Mirror: The Restatements and the Common Law,” 40 Ind. L. Rev. 205.]