PUBLISHED:June 26, 2013

DeMott gratified by Supreme Court’s citation of Restatement (Third) of Agency

Prof. Deborah DeMott

Professor Deborah DeMott says she was pleased to see how prominently the Restatement (Third) of Agency figured in two Supreme Court rulings issued during the closing week of the 2012-2013 term, Hollingsworth v. Perry and Vance v. Ball State University.

DeMott, the David F. Cavers Professor of Law, served as sole Reporter for the American Law Institute’s latest Restatement project on the law of agency, which was published in 2006. 

“The Restatement is generally a secondary authority but, it is hoped, secondary authority that can be helpful,” she said.  “In my judgment, it’s quite appropriate for the majority and the dissent to draw on the concepts, the reasoning, and the analysis in the successive Restatements as the Court finds useful.” 

The Restatement (Third) on Agency was referenced most prominently by Chief Justice John Roberts in his majority opinion in Hollingsworth v. Perry.  The court held that the petitioners in the case – the initial proponents of California’s same-sex marriage ban, known as Proposition 8– lacked standing to appeal the District Court’s ruling after state officials declined to do so. The chief justice quoted the Restatement in his reasoning, in defining the essential elements of the agency relationship:  “‘An essential element of agency is the principal’s right to control the agent’s actions,’” he wrote.  “Yet petitioners answer to no one; they decide for themselves, with no review, what arguments to make and how to make them.”  And if, as the Restatement indicates, a hallmark of agency is that the agent owes a fiduciary obligation to the principal, the “petitioners owe nothing of the sort to the people of California,” he wrote.  In this context, the chief justice also quoted the amicus brief of Walter Dellinger, the Douglas B. Maggs Professor Emeritus of Law, who cited the Restatement (Third) of Agency in support of respondents on the issue of standing.

Justice Anthony Kennedy also cited the Restatement (Third) on Agency in his dissent in Hollingsworth.

Writing for the majority in Vance v. Ball State University, Justice Samuel Alito looked to the Restatement of Agency for guidance in identifying situations where an employer might be vicariously liable for an employee’s unlawful harassment of a co-worker, that is with no showing of negligence by the employer.  In this regard, Alito cited the ALI’s 1957 Restatement (Second) of Agency for the proposition that although “‘masters’ are generally not liable for the torts of their ‘servants’ when the torts are committed outside the scope of the servants’ employment,” the master may be liable when the existence of the agency relationship aided in accomplishing the tort. The justice, who teaches a seminar at Duke Law titled Current Issues in Constitutional Interpretation, noted, in a footnote, that the Restatement (Third) “disposed of this exception” to the general rule. 

“I would not have undertaken something of that magnitude without the thought that it might be helpful to users at some point,” DeMott joked about her decade of work on the Restatement (Third) of Agency.  “I’m pleased that it proved to be helpful.”