We think that one can only understand how the project titled “Restatement Third of Torts: Concluding Provisions” came about and what it will address with some background about the Third Restatement of Torts. So, this profile might more appropriately be titled, “A Brief History of the Third Restatement of Torts.”
This story begins with the Responsibility for Personal Injury (Enterprise Liability) project, itself inspired by the widespread adoption of strict products liability, which occurred, in no small part, because of the 1965 publication of § 402A of the Second Restatement of Torts. Authored by leading torts and administrative law scholars of the day and ultimately published in 1991, the Enterprise Liability project was a magnificent piece of academic work, providing a range of recommendations for an optimal system to address accidental injuries. Once completed, though, the Institute realized that this project, which was somewhat unmoored from case law, could not be published in any form that the ALI had previously utilized, all of which the ALI endorsed as appropriate for common law judges. The Institute thus named it a “Reporters’ Study,” which meant that it was the voice of the Reporters, not the Institute, and also meant that, other than publishing it, the ALI did not endorse its recommendations.
In the aftermath of that somewhat ill-fated project, then-ALI Director Geoffrey Hazard determined it was time to start work on the Third Restatement of Torts, which he hoped might benefit from the Enterprise Liability’s Reporters’ Study. To kick off that effort, in 1992, the ALI convened two meetings of tort law experts, where Hazard canvassed attendees’ views about the wisdom of restating product liability law and, once convinced that the project was worthwhile, sought advice about how to proceed.
After these meetings and much deliberation, the Institute launched the Products Liability project, with two leading products liability scholars, Jim Henderson of Cornell University and Aaron Twerski of Brooklyn Law School, as the Reporters.
Notably, in so doing, the die was cast for the future of the Third Restatement. Peeling off products liability and addressing it solo meant that the Institute would be breaking with tradition in the manner it had previously prepared Restatements. In the past, one or perhaps a couple of Reporters took on the entire subject (whether torts, property, or the law governing lawyers) and proceeded seriatim through the subject, culminating with the publication of a multivolume final product. Instead, Products Liability (PL) would be a discrete project and volume, which meant, for better or worse, that further efforts on the Third Restatement would follow this mold.
Though that much was clear, for a long while the shape and scope of the remainder of the Third Restatement of Torts was distinctly uncertain. Some supported a “General Principles” project that would address the core issues of duty, negligence, intent, and causation. Others pointed out that a Third Restatement couldn’t just address those basic elements but would also have to address the major reforms of the latter part of the 20th century, including comparative fault, which, starting in the mid- to late 1970s, supplanted the complete bar of contributory negligence; states’ many modifications to the traditional rule of joint and several liability; and states’ new rules for contribution and credit, in the event of a partial settlement.
That latter idea gained traction, and the Institute ultimately commissioned Bill Powers of the University of Texas to lead that project, eventually dubbed “Apportionment of Liability” (AoL). One of us (Mike, then of the University of Iowa) also joined to collaborate with Bill on this project. Meanwhile, as to General Principles, the Institute scored a great coup and convinced Professor Gary Schwartz of UCLA, who we consider one of the torts titans of the latter part of the 20th century, to take the pen.
Gary began his work in 1997, covering topics such as negligence, intent, and causation, and was eventually joined by Mike (by then at Wake Forest) to assist in the project’s completion. Tragically, however, Gary died six months into that partnership. To continue the project after Gary’s untimely death, Mike enlisted (by that time, his frequent coauthor and dear friend) Bill Powers.
In time, just as that project’s leadership changed, its scope did as well. The project, which started with a narrow focus on limited topics, ultimately morphed into something much larger, in recognition of the fact that “General Principles” needed to be supplemented with a deep dive into the many bricks that make up a contemporary tort law edifice, including, for example, negligence per se, lost chance, market share liability, and stand-alone claims for emotional distress. Remarkably Bill continued on this project—which came to be called “Liability for Physical and Emotional Harm (LPEH)”—even after he became President of the University of Texas in 2006. When liability of those who hire independent contractors was appended to this project, Ellen Pryor, now of the UNT Dallas College of Law, generously agreed to join Bill and Mike as an Associate Reporter. LPEH was ultimately published in two volumes in 2010 and 2012.
Gentle and impatient readers: Yes, this background really is critical to understanding Concluding Provisions.
In 2007, as LPEH was winding down, Director Lance Liebman convened an important meeting about the future of the Third Restatement of Torts in Austin, Texas. From Mike’s perspective, the meeting’s critical takeaway was a decision that the Third Restatement would not leave any provisions of the Second Restatement expressing the position of the Institute. The Third Restatement would not be a “lite” restatement
of the tort law of the 21st century. Instead, it would be, attendees agreed, comprehensive and complete on its own terms. Attendees immediately recognized some implications of this decision (for example, that Intentional Torts, a largely stable area, would have to be included). The full implications of this decision, however, would not be revealed for a decade.
Meanwhile, as the larger project’s architecture was being worked out, other projects were proceeding. A project on economic harm had been moving forward in stutter-steps, as it was initiated in 2004, suspended, and restarted in 2010 with Ward Farnsworth, who would shortly thereafter become the Dean at the University of Texas, as the Reporter. Covering topics including the unintentional infliction of economic loss, fraud, breach of fiduciary duty, and public nuisance, the final portions of that project were approved at the 2018 Annual Meeting, and publication of this fourth piece of the Third Restatement is imminent.
So too, in 2012, the ALI began the Restatement of Intentional Torts to Persons, with Ken Simons of the University of California at Irvine and Ellen Pryor at the helm. When Ellen stepped down to help launch the law school at UNT Dallas, Jonathan Cardi of Wake Forest stepped in. That project, which will ultimately address matters including assault, battery, and false imprisonment, is well underway.
But, that still left some unfinished business—and after taking over as the new Director of the ALI—Richard Revesz sought to determine what would be required to actually finish a comprehensive Third Restatement, which, even at that point, had been in production for almost a quarter-century. Eager to close the book on the odyssey of this project, Director Revesz contacted Bill and Mike and requested that the two longtime collaborators prepare a blueprint for the Third Restatement’s completion.
In preparing this to-do list, the collaborators agreed that some unfinished business was easy to spot: defamation (with all of its constitutional overlay) and privacy were ripe for revision. Similarly, the critical matter of remedies required comprehensive attention. All were addressed by the Second Restatement but had escaped attention in the patchwork of projects that comprised the Third Restatement up to that point. But the two also found something unexpected: all of the completed and planned subject-specific projects had also left behind numerous matters in the Second Restatement. Though the Austin meeting had concluded with the commitment that the Third Restatement would be comprehensive and not leave orphans—the reality was, even after decades of sustained effort, orphans remained.
At the same time, Bill and Mike found topics that logically should have been in the Second Restatement but weren’t: How can a Restatement
of Torts not address medical malpractice? Or vicarious liability? Neither of those subjects was contained in either of the first two Restatements, although legal malpractice was included in the Restatement Third of the Law Governing Lawyers, and vicarious liability was included in the Restatement Third of Agency.
Finally, Bill and Mike also realized something that all of the work on specific-subjects missed. Important new areas had emerged in the years since the Second Restatement—and these,too, had so far been unaddressed. Recent developments include a wide variety of issues, including: spoliation-of-evidence claims, wrongful birth, pregnancy, and life, and bad-faith insurance claims, among many others.
Canvassing these orphans and newly-emergent areas, Bill and Mike prepared a memorandum, which they submitted to ALI leadership in 2018 recommending that yet another torts project be commissioned to cover these “leftover” subjects, an eclectic but broad swath of tort law. Director Revesz agreed and by the fall of 2018 the Council also provided its approval. Bill and Mike got their just deserts, however, when Director Revesz asked if they would serve as Reporters for this final Torts Restatement project. As Mike remembers it: “Bill and I talked over the phone about the invitation, fully cognizant that we were far too old to do it. Although, I couldn’t see him, I am confident that Bill had a
twinkle in his eye when he said, ‘This is crazy Mike, but let’s do it.’” No doubt the attraction of getting back in the saddle together for a third time provided the motivation for the “crazy” acceptance. Bill and Mike did agree to find a third Reporter, a bit younger, to join onto what is now known as Restatement Third of Torts: Concluding Provisions, and Professor Nora Freeman Engstrom of Stanford Law School (Bill
and Mike’s first choice), after approval by ALI leadership, was approached and signed on.
Given the breadth (some may say, “grab bag nature”) of the project, some subjects will be covered by Associate Reporters recruited to restate those subjects. Mark Hall of Wake Forest one of the leading health-care law experts in the country and a non-physician member of the Institute of Medicine, has been recruited and will oversee medical malpractice. The country’s leading expert on the law of the dead, Wake Forest’s Tanya Marsh—who also serves as an Associate Reporter on the Restatement of the Law Fourth, Property project—will address the Right of Sepulcher and other tort aspects regarding corpses. Don’t know what the right of sepulcher is? Join the Members Consultative Group for Concluding Provisions and save yourself a trip to the dictionary.
As the project progresses, we are working through the list Bill and Mike initially devised and finding still additional areas that demand adequate coverage. For example, loss of consortium in the Second Restatement was limited to married couples. Since that time, a substantial minority of courts have expanded consortium claims to cover the parent–child relationship—and the Third Restatement will need to address that development. Similarly, medical monitoring claims did not exist when the Second Restatement was published. These claims are now quite prominent, and the existence, contours, and limitations of medical-monitoring claims demand careful attention.
Regrettably, the story of the project includes a terrible tragedy about which many readers may already know: Bill Powers died on March 10, 2019 from complications suffered in a fall at the University of Texas. We will not dwell here on his remarkable career and extraordinary contributions to the work of the ALI, as that is well documented in other places. But among those who knew Bill, he will be greatly missed.
And, for our part, we are committed to completing a project that Bill would have been proud of and that will put another twinkle in his eye.