Evolving tort law

School of Law professor Mike Green currently serves as a Co-Reporter for the Restatement (Third) of Torts: Liability for Physical Harm, a publication of the prestigious American Law Institute. Wake Forest University School of Law, University of Texas School of Law and The American Law Institute are co-hosting a symposium on April 2 and 3 on the Third Restatement of Torts. The American Law Institute’s efforts to prepare updated principles for negligence and strict liability claims have been in process for more than a dozen years and is scheduled for completion in May.

What is a tort?

A tort is a lawsuit to obtain monetary compensation for accidental or intentional injury, typically for injuries to the person or property. It includes injuries occurring in automobile accidents, due to defective products, or occupational injuries.

Briefly describe the history of the Third Restatement of Torts.

Restatements of the Law are prepared by a prestigious organization, the American Law Institute, lawyers, judges and law teachers. They are designed to synthesize and rationalize the law that develops in each of the 50 states to encourage more uniformity and clarity. Although these Restatements have no official sanction, they are often influential with courts. Historically, the Restatement of Torts has been the most widely adopted and influential of all of the Restatements. But the last Restatement of Torts was published in 1965, and a great deal has changed since then. The Third Restatement of Torts was begun in the mid-1990s to update the Restatement to reflect these changes, and its large body of work will reach a conclusion later this year, after which it will be published.

What does the Third Restatement of Torts mean to lawyers? To the general public?

Lawyers use Restatements in making arguments to courts about what the law is or should be because they know that courts frequently find them persuasive sources of law. When courts do adopt Restatements, they affect the parties in the case by providing the rule of decision to govern resolution of the case.

What is the significance of this week’s Tort Symposium?

This week’s symposium will bring together the Reporters who prepared this Restatement, leading torts scholars from across the country and internationally, prominent jurists, and nationally recognized lawyers to discuss and critique the work that comprises the Third Restatement.

The causation session of the Symposium specifically addresses toxic substances cases. Why is this considered controversial?

Toxic substances such as asbestos, silicone gel breast implants, and drugs such as fen-Phen and Vioxx, that are claimed to cause disease rather than traumatic injury have emerged as a new and important aspect of tort litigation. The primary difficulty with this class of torts is determining whether the drug or other product caused the victim’s disease. Courts have had to resort to a variety of forms of scientific evidence to decide these cases. Earlier Restatements were prepared before this type of lawsuit existed and hence did not address the law that applies when these difficult causation issues arise. The Third Restatement seeks to remedy that vacuum. Because of the large stakes and strong emotions these cases generate, this subject has been a much-debated aspect of the Third Restatement.

Where do you go from here to ensure that tort law is coherent?

We need to obtain final approval of the Third Restatement of Torts at the ALI annual meeting in Washington, D.C., on May 18, 2009.

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