Codification and the Rise of the Restatement+A5 Movement

This article first critically examines and disputes the theses of Professors Gilmore and Friedman. It then presents an argument that the Restatement movement was, in fact, sympathetic to the goals of codification and, far from being a reaction to the challenge of realism, originated before realism developed as a coherent position. Both the Restatement movement and the codification movement of the late nineteenth and early twentieth centuries attempted to solve the problems of uncertainty, complexity, and consequent delay which plagued the legal system after the Civil War. Both were instituted, in substantial part, by the same segments of the bar, professional law teachers and corporate lawyers. The Restatement project originated in part because of the failures of the earlier codification movement. Only after the Restatement project was well under way did a new wave of realist codifiers challenge its goals

Ethical Responsibility and Legal Liability of Lawyers for Failure to Institute or Monitor Litigation Holds

The ethical and legal basis for subjecting counsel to discipline or liability for failing to initiate or implement litigation holds in connection with ESI exists. Recent important cases, while not imposing discipline or liability on counsel, have continued to lay the ground work for such liability. ...Cases in which counsel are held liable for damages to their clients or subject to discipline for failing to comply with well established ESI discovery obligations will not be long in coming as the new approach to winning litigation through discovery continues to develop