Reviving the Realist Restatements and the Common Law Codes: Neil Cohen and the Grand Style

The “Second” Restatements and the Uniform Commercial Code have shaped the sensibility of lawyers and law students for the last half century. Both projects were anti-formal at their core, articulating pragmatic principles to guide judicial decision making without necessarily determining the outcome. Recent jurisprudence interpreting the Restatements, as well as efforts to update both sets of instruments, have taken a formalist turn. As examples, this essay will consider judicial interpretations of § 402A of the Restatement (Second) of Torts where internet platforms like Amazon are involved.

Then it will consider the tortured and recently concluded experience in connection with the Restatement (Third) of Contracts – Consumer Contracts. Finally, it will offer an appreciation of Neil Cohen, the draftsman, and describe his crucial role in the most recent round of Restatements and UCC revisions.