Expanding the Law under the New Restatement of Torts
The American Law Institute, a body of legal scholars, professors and attorneys, sporadically releases its Restatement of the Law, Torts to clarify the common law that judges rely on to evaluate cases.
The most recent Restatement, however, has arguably and troublingly taken liberties in its interpretation of the overarching common law. ALEC has developed legislation to counter some of the most problematic policies in the Restatement.
An article in TRIAL magazine, a publication of the American Association of Justice (formerly the American Trial Lawyers Association), boasted that thanks to the Restatement, “trial lawyers handling tort cases have a powerful new tool.” The article, authored by a former head of the plaintiff bar’s association and the expectedly impartial Reporter for the Restatement, is titled “The New Restatement’s Top 10 Tort Tools.” Particularly at a time when legislators across the country are looking for ways to keep state justice systems in check, the expansions in the Restatement are exceptionally concerning.
Below are two instances in which the Restatement troublingly alters widely accepted law and in which ALEC has adopted model legislation to preempt concerning changes in the direction of the law.