The Top Reason that the ALI’s Restatement of Torts Should Steer Clear of Partisan Conflicts

Michael D. Green is one of the Reports for the American Law Institute’s Restatement (Third) of Torts: Liability for Physical and Emotional Harm.  Larry S. Stewart is an advisor to the ALI’s Tort Restatement, and a well-known plaintiffs’ trial lawyer, as well as a former president of the organization euphemistically named American Association of Justice (AAJ), and formerly known as the Association of Trial Lawyers of America.

Victor E. Schwartz, also an advisor to the Restatement project, and Christopher E. Appel, of Shook Hardy called attention to the incongruity of the Restatement’s Reporter joining forces with an AAJ former president to tout what the Restatement will do for plaintiffs.  See “Reshaping the Traditional Limits of Affirmative Duties Under the Third Restatement of Torts,” 44 The John Marshall Law Review 319, 319-20 (2011).   The offending article was printed in Trial, a publication of the AAJ.  Michael D. Green & Larry S. Stewart, “The New Restatement’s Top 10 Tort Tools,” Trial 44 (April 2010).

I tracked down a copy of this article to see whether the authors really were touting the Restatement’s Reporter as a tool for winning lawsuits by plaintiffs.  To my dismay, the authors were doing just that:

The Restatement (Third) of Torts: Liability for Physical and Emotional Harm contains many clarifications and modifications that you can use to your clients’ advantage. Here’s a quick look at the most important updated provisions.”

* * *

“Trial lawyers handling tort cases have a powerful new tool: the Restatement (Third) of Torts: Liability for Physical and Emotional Harm.”

Id. at 44.  The article goes on to consider ten substantive areas within the scope of Restatement’s coverage where plaintiffs’ counsel could benefit from the ALI’s efforts:

  1. The duty to use reasonable care as the default rule.
  2. Legal causation.
  3. Proof of causation by toxic substances.
  4. Reasonable medical proof.
  5. Affirmative duties.
  6. Statutes as the basis for affirmative duties.
  7. Land possessor duties.
  8. Negligent infliction of emotional distress.
  9. Res ipsa loquitur.
  10. Abnormally dangerous activity.

Id.

As Victor Schwartz points out in his article, above:

“Traditionally, those in charge of the Restatement projects of the American Law Institute (ALI) have avoided any publication that could present the appearance of an agenda favoring either plaintiffs or defendants. While there is not an ALI ‘rule’” against such activity, the reason for this tradition is that Restatements are primarily a vehicle for judicial education. They are viewed by judges as an objective and neutral voice that ‘restates’ the most thoughtfully reasoned existing case law, reflecting sound liability rules and public policy.”

Schwartz & Appel at 320 (footnoted references omitted).  Perhaps the point could have made more dramatically by a thought experiment:  imagine that the Restatement’s reporter had written an article with another advisor, say Victor Schwartz, in For the Defense, on how the new Restatement can and should be used to help defendants avoid liability in tort claims.  Maybe the reporters are busy writing such an article, although I hope not.

The reporters, as well as many others in the ALI, spent a great deal of time and energy on the scholarship involved in producing the new torts restatement to date.  There is much that is sound, and some that is dubious in that scholarship.  Professor Green has written and spoken a great deal about his and the ALI’s work product, and there has been a healthy debate about many of the Restatement’s provisions.  The Green and Stewart article may have been offered as an encouragement to plaintiffs’ counsel to use of some of the controversial provisions of the Restatement, to help promote judicial acceptance of these provisions.  This approach appears inappropriate precisely because it casts the ALI and the Restatement’s Reporter as making common, partisan cause with plaintiffs’ counsel on controversial issues.  The Trial article serves only to jeopardize the credibility and impartiality of this Restatement.

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