The following article was originally published in The Stanford Lawyer.
Stanford Law School Professor Nora Freeman Engstrom, JD ’02, was in high school when the American Law Institute’s massive effort to restate the law of torts began in 1991. Today, she is close to putting the finishing touches on that undertaking as a co-reporter for both the Third Restatement of Torts: Miscellaneous Provisions and Medical Malpractice portions of the project.
The ALI is the premier association of American lawyers, a 100-year-old nonprofit that brings together judges, attorneys, and academics to clarify, modernize, and improve the law and the administration of justice. In addition to restatements, which are primarily addressed to judges and aim to capture the law as it stands, the ALI publishes principles of the law, model codes, and other law reform proposals. The publications, which can take years or even decades to complete, are hugely influential: The ALI’s Model Penal Code has been adopted by most states in whole or in part; the Uniform Commercial Code has been codified across the country; and a 1995 U.S. Supreme Court decision called the Second Restatement of Torts “the most widely accepted distillation” of the subject.
Nora Engstrom, Ernest W. McFarland Professor of Law, isn’t the only Stanford Law professor leading efforts within and for the ALI. She isn’t even the only Engstrom. In October, her husband, David Freeman Engstrom, JD ’02, LSVF Professor in Law, was named the reporter for a new principles project addressing high-volume civil adjudication—the millions of debt collection, eviction, and family law cases that have come to dominate state court dockets in recent decades. And Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law and a member of the ALI’s governing council, took on the role of co-reporter for a restatement of constitutional torts. The trio may be the first Stanford faculty members to serve as reporters for ALI projects, but other faculty have served in different roles over the decades. Currently, Robert W. Gordon, professor of law, emeritus, and a life member of the ALI, is co-editing a book commemorating the organization’s centennial, and Professors Robert L. Rabin and David M. Studdert are advisers on the Third Restatement of Torts.
Passing the Torch on Torts
Nora Engstrom says Rabin, who invited her to co-author Tort Law and Alternatives, the long-running casebook written by him and Stanford Law Professor Marc A. Franklin, helped inspire her passion for the subject. “He made torts come alive for me,” she says.
Another co-author on the casebook, Professor Michael D. Green, recruited Engstrom for the Third Restatement of Torts: Miscellaneous Provisions and Medical Malpractice projects. Unlike other restatements, in which a reporter or pair of reporters leads a team in addressing an entire area of the law, the Third Restatement of Torts has been broken into discrete topics, including Product Liability, Apportionment of Liability, Defamation and Privacy, Intentional Torts to Persons, and Remedies.
Engstrom, a nationally recognized expert in both tort law and legal ethics, began her work on the Miscellaneous Provisions and Medical Malpractice sections in 2019. She expects to finish Medical Malpractice in 2023 and Miscellaneous Provisions in 2025. But her work has already earned accolades. In May 2022, the ALI designated her the R. Ammi Cutter Reporter’s Chair for her “proven effectiveness” on the restatement. The ALI has only two named chairs. Engstrom says she was “honored and humbled” by the recognition.
“The Third Restatement of Torts will guide courts for years to come,” she adds. “To play a role in its successful conclusion is really gratifying.”
Improving Access to Justice
When ALI Director Richard L. Revesz asked David Freeman Engstrom to lead a principles of the law project on high-volume civil cases and access to justice, Engstrom jumped at the chance “to have a seat at the table to address one of the most urgent challenges facing the American legal system.”
In more than 75 percent of the 20 million civil cases in state courts each year, at least one side lacks a lawyer, Engstrom says. And most of those cases are consequential, even life-altering, because they deal with debt collection, home foreclosure, eviction, and child support.
“These cases pose a clear threat to the legitimacy of our courts,” he explains. “We should worry that a court system built for lawyers and adversarial sparring can’t deliver justice when so many cases pit a represented party against an unrepresented one.”
The project, titled High-Volume Civil Adjudication, will take five to seven years to complete. It aims to identify and recommend best practices for how courts can efficiently but fairly adjudicate millions of high-stakes but small-value cases using new procedures, programs, and technologies.
The role technology plays and will play in improving access to justice in U.S. court systems is a familiar topic for Engstrom. Along with Nora Freeman Engstrom, he co-directs the Deborah L. Rhode Center on the Legal Profession, the leading academic center working to shape the future of legal services and access to the legal system. Legal Tech and the Future of Civil Justice, which he edited and is due out in January 2023, examines how new digital technologies, from artificial intelligence to online proceedings, will reshape the system.
“I often get in trouble for saying this,” he says, “but we probably can’t human our way out of the current access problems. No amount of pro bono or legal aid can meaningfully move the dial.”
Shining a Light on Qualified Immunity
Before Karlan began teaching a course on remedies for constitutional violations at Stanford Law, she sat in on a class on the topic taught by John C. Jeffries Jr. at the University of Virginia School of Law, where she was then teaching. Today, Jeffries and Karlan are co-reporters on Restatement of the Law: Constitutional Torts. The project will examine the right to sue local governments, government employees, and others acting “under color of” state law under 42 U.S.C. Section 1983 and related so-called Bivens actions, which are against federal officials.
Karlan was immediately intrigued when Revesz approached her about working on the restatement. She has dealt with Section 1983 as co-director of Stanford’s Supreme Court Litigation Clinic. For example, in 2020, on behalf of two women who had been repeatedly sexually assaulted at a northern Wisconsin correctional facility, the clinic helped persuade the high court not to review an appellate ruling affirming a judgment against the county that ran the facility.
“There are very complex rules here,” Karlan explains. “I thought to myself, ‘It would be really useful to explain those rules and where the courts have gone on these issues to judges, attorneys, and policymakers so they can see how the law has developed.’”
Gordon says the projects his Stanford Law colleagues are leading are an example of the ALI’s ability to remain influential and relevant 100 years after the organization’s founding.
“This enterprise of law reform has always been integrated with changing social, economic, and political contexts,” he says. “The ALI has remained a vital organization by successfully adapting to changes in the law and circumstance.” SL