This piece is adapted from a speech by Ward Farnsworth on November 14.
I consider a Restatement in general to be an exercise in harnessing collective wisdom, not the wisdom of a Reporter. It’s an attempt to gather the collective wisdom of the courts in this country on various difficult questions, and the collective wisdom of the bench, the bar, and the legal academy in making sense out of what the courts have said. My job as a Reporter is to gather, assimilate, and make sense out of data from those two directions—to understand very well what the courts are saying and doing, then to understand as well as I can what lawyers and scholars have to say about all the issues raised when the courts do not agree.
As for my project: everybody has heard of the Restatement of Torts and especially the Second Restatement. The Second was written in the 1960s and 70s and greatly influenced American tort law in the years afterwards. The American Law Institute then set out in the 1990s to restate the law of torts once again. Every area of American law that is active needs to be restated and then re-restated from time to time, because of course the law changes and evolves. For a Restatement to be a useful and meaningful document to the bench and bar, it must be reasonably current. It has to be restating where the courts currently are, not where they once were. Tort law of course is an area that is often in flux. Courts are deciding new questions all the time or deciding old questions differently than they used to. It falls to the ALI to keep up.
For the Third Restatement of Torts, however, the ALI decided to go about the project a little differently than it had before. The Second Restatement of Torts was just that: one Restatement of all of tort law. The Third Restatement project was divided into parts. There is a products-liability Restatement. There are also Restatements of Torts on physical and emotional harm, apportionment of liability, and intentional torts to persons. My job as Reporter has been to work on a different part of the project: Liability for Economic Harm. This project covers torts that just cause money losses.
To return to the process of creating this Restatement, I repeat that our job one is to harness collective wisdom. That wisdom is embedded in the judicial decisions that our common-law courts make. Not any one decision, but the accumulation of them. Our first job is to ascertain the consensus of the courts if there is one. A judge who is confronted with a new question wants to know how a majority of American courts have answered it. But we seek to do more than just explain that. Our goal is to make the law as rational as we can, to understand not just where our courts are but the best reasoning they have been able to offer to explain why, and then to present their position—the consensus view of American courts—in the most rational and intelligent light we can.
With that said, we don’t always adhere to the majority approach. It sometimes happens that in the considered view of the Reporter, the Advisers, the Members Consultative Group, and the ALI Council, the best view on a question is the one taken by a minority of American courts. The ALI gives itself the liberty to restate the law as it is represented in a minority of jurisdictions for good and sound reasons that are then explained in the Restatement itself. But this is not done lightly. I carry a very strong presumption in favor of restating the law as I find it in the majority view of American courts. But sometimes a smaller number of courts will offer strong enough reasoning to overcome that presumption.
I think of this as something like managing a bank account. The ALI accumulates credibility, and its Restatements accumulate force, to the extent they are faithfully recounting the position of a majority of American courts on various questions. When the ALI takes a position contrary to the majority, in effect it spends some of that capital. People have come to trust the ALI and its judgment, and they’re willing to defer to the ALI even when it doesn’t agree with the majority of courts, because usually the ALI is quite conservative in their approach to these kinds of questions—not politically conservative, but conservative in method.
Once I create a draft that reflects the priorities just described, it is put before a series of audiences for comment and criticism—the Advisers, the Members Consultative Group, the ALI Council, and finally the general membership. This is not always the most pleasant process in the world for a Reporter. You spend a lot of time writing something, and then sit in front of a lot of people who know at least as much about it as you do, if not more; their job is to throw darts at it and try to expose weaknesses, problems, or things that did not occur to you. They do a great job, and as a Reporter I’m always chagrined by the number of excellent points offered in those settings that I had not thought of myself. But of course I am also delighted, because this process improves the project considerably. I go back home with a book full of comments and objections that are usually very well taken. I revise the document and end up with something far better than before, because—again—it reflects collective wisdom: not just the collective wisdom of the courts, but this time the collective wisdom also of lawyers, judges, and scholars who have thought hard about the draft.
The result is never what I would have written by myself. It’s better. So when the draft is finally done and approved, I don’t quite view it as something that I wrote. It’s more like something I coordinated. That’s how it should be, because the Restatement was never supposed to be about what I thought anyway. It’s supposed to be about the best we can all create together. And the more points of view the draft takes into account and the greater the number of contributors, the better the result will be.