The President's Letter
"THAT’S DEBATABLE": THE ALI AS A PUBLIC POLICY FORUM
Part I
What follows is based upon remarks I delivered on February 26 in Atlanta at the 20th annual breakfast meeting of members of the Georgia State Bar and Georgia members of the ALI. I am grateful for the fine Georgia hospitality of Senior Judge Dorothy Toth Beasley, who has played a major role from the beginning in arranging these valuable meetings.
From time to time, I plan to review historic ALI debates under the heading "That’s Debatable" and to consider issues involving the ALI as a public policy forum. In general, I will not review in detail the substantive pros and cons but rather will identify interesting points of process and examples of civility and humor that are characteristic of our approach to matters of public policy.
My starting point is "the working formula" for our Restatement work articulated by our former Director, Herbert Wechsler, which is posted prominently in our meeting room in Philadelphia: "We should feel obliged in our deliberations to give due weight to all of the considerations that the courts, under a proper view of the judicial function, deem it right to weigh in theirs."1 He made this statement in 1967,2 not long after the ALI had approved a new principle of strict liability for defective products in § 402A of the Restatement Second of Torts.3 The Defense Research Institute had "mounted an official protest … that 402A was a minority rule" and that its endorsement by the ALI was "an unprecedented departure from its traditional role" that threatened "to undermine the confidence of the American courts and the legal profession generally in this authoritative institution in restating the law."4 Director Wechsler’s statement, of general and enduring importance for making it clear that the ALI, like the courts, need not be bound by a mere preponderance of precedent, was made partly in response to this protest, echoes of which we still hear occasionally in other contexts.
While approving what was then a "minority" view about products liability in the Restatement Second of Torts, the ALI remained cautious about "privity" and the extent to which its new principle should apply. It accordingly adopted a caveat that the ALI expressed no opinion on whether the new principle applied to "harm to persons other than users or consumers."5 As the case law developed, it soon became clear that the principle of strict liability for defective products extended beyond users or consumers to encompass "harm to persons or property caused by the defect," a principle adopted in Restatement Third.6 It also became clear that strict liability for a "manufacturing defect," i.e., "when the product departs from its intended design,"7 had become widely accepted but that issues were developing about liability for "design defects" and "warning defects."8
Although many efforts had been made in Congress over the years to bring so-called "reforms" to products liability, the proponents generally failed to get their bills adopted by both houses and, on the one recent occasion when both houses approved a bill, the President vetoed it.9 The ALI thus became the vital national forum for the resolution of various issues of products liability. To their great credit, our members who are plaintiffs’ trial lawyers and those who represent defense and insurance interests, as well as our academic and judicial members, stayed with and contributed to the debate, notwithstanding significant pressures and controversy.
The most controversial issue concerned the "reasonable alternative design" test now in § 2(b) of the Restatement Third of Torts: Products Liability,10 a subject of debate that continues in the courts and the law reviews.11 Most of the debate concentrated on the policy arguments, pro and con, and on the extent to which the cases relied on by the Reporters actually supported their proposal, not on a contention that the ALI’s role was merely one to distill and report the recent case law without weighing the various considerations in the spirit of the Wechsler formulation. The ALI’s policy role and its national influence on legal and public policy were an underlying and accepted theme of the debate.
Although the Reporters had attempted to mitigate the reasonable-alternative-design test with a Comment about the "possibility of manifestly unreasonable design,"12 and a new section on circumstantial evidence supporting an inference of product defect without proof of a specific defect,13 serious concerns were expressed that injustice could occur "because the plaintiff cannot get through the gatekeeper of reasonable alternative design,"14 that the plaintiff "may not be able to come up with an expert,"15 and that greater attention should be paid to "consumer expectations."16 Although these points did not prevail ultimately within the ALI, they continue to be important as the courts develop the law.
During the debate, while various spokespersons were properly disclosing their particular representation of the plaintiff side or the defendant side, the late Professor Friedrich Juenger, with his customary wit, rose and began a brief comment with the words "I represent sound draftsmanship."17 His remark was followed by friendly laughter, indicated in the transcript as "(Laughter)." Although we are deliberate, we are not unduly serious, and our records reflect the good humor that enters into our discussions.
Our debates also are marked by civility. One great debate involved the Rule Against Perpetuities as well as, more broadly, what should be the Institute’s role in the development of law. At our Annual Meeting in 1978, Professor A. James Casner, the Reporter for the Second Restatement of Property, presented a draft adopting a wait-and-see approach to the vesting requirement of the Rule, which was opposed by Professor Richard R. Powell, Chief Reporter for the first Restatement, and others.18 The two principal protagonists and others marshaled the arguments with cogency, dignity, and mutual respect. Although the "wait-and-see" rule unquestionably then was a minority rule and indeed opposed to the rule as stated in the first Restatement, it was adopted at the Annual Meeting in 1979.19
There are four other points about that 1978 debate that bear mentioning:
First, Professor Casner stated his understanding that "the policy of the Institute is no longer, if it ever was, that we are forced to adopt the majority view with respect to an issue that comes before the Institute," and Director Wechsler responded, "It never was."20
Second, during the second day of debate, Professor Eldredge moved and Professor Lusky seconded, "in view of the position taken in the first Restatement and the present state of the common law authority in the United States, that the Institute does not approve the wait-and-see rules as presented in the present Draft."21 Debate ensued on this principal motion. Then Judge Charles Breitel made a "substitute motion," seconded by Judge Eugene Burdick, that "the Reporter be authorized to continue with the basic principle of his Draft, without this body definitely deciding today or even in this Annual Meeting, that we will approve it finally; that he pursue the matter and pursue it in light of the various criticisms that have come from Professor Powell, Professor Lusky, the other people on the floor."22 The presiding officer, Judge Ammi Cutter, then President of the Institute, rejected a point of order that consent of the maker and seconder of the principal motion was required, saying, "No, I think the motion comes on whether the substitute motion will be substituted for the motion otherwise before the house."23 The presiding officer has some discretion about the order of debate and Judge Cutter’s apparent sense that the house was ready for the substitute motion was soon confirmed by a voice vote adopting it.24 The Breitel motion gave Professor Casner another year in which to refine his proposal and to enlist additional support on its behalf. At the 1979 Annual Meeting Professor Ronald H. Maudsley, a leading English authority on the law of property, reported that adoption of a wait-and-see approach had produced no dire consequences in the mother country, 25 and the membership, thus reassured, adopted the Casner formulation.26 In short, instead of what might have happened in 1978, by itself "waiting and seeing" the Institute was persuaded to adopt the proposed reform in 1979.
Third, on the morning of the second day of discussion, the first item of business was the report of the Nominating Committee, which I note because of its significance in the Institute’s history. On that morning, May 18, 1978, during a pause in the Institute’s intense consideration of the Rule Against Perpetuities, the following luminaries were nominated and elected to the Institute’s Council: Ruth Bader Ginsburg; Louis H. Pollak; Patricia M. Wald; and William H. Webster.27
Fourth, the debate also provides a capsule example of Professor Casner’s sense of humor. In his introductory remarks, he pointed out a typographical error in the draft, claiming as his only excuse that "our esteemed Director was pushing me all the time to get this through and out, and so I figure if there is any fault he should assume the blame."28 Then, just before receiving a customary round of applause at the end of the debate, and after approval of the Breitel motion, he said, "Thank you all very much for being here. Some of you that made some statements, if you will see me afterwards, I will tell you where you were wrong."29
The next debate I will discuss here also involved Professor Casner and the law of property, specifically, rental property and the warranty of habitability. It brings up another point about the Institute’s processes. At our Annual Meeting in 1973, we considered a discussion draft on the relationship between landlord and tenant that proposed a remedy of temporarily withholding or abating the rent if the premises did not live up to a warranty of habitability. The debate raised both a critical issue of public policy and a question regarding the Institute’s ability to engage in empirical analysis.
Professor Charles Meyers stated: "My concern is that it is quite possible that the adoption of this rule will put the lower income tenant in a worse position in the future than he is in now…. [and in] the situation in which this rule will deprive the landlord of any return on his property at all, … will lead to abandonment of tenement property…. I would invite the Institute’s attention to the possibility in this area of postponing decision on which way to go on this matter, and actually making an empirical study to see … if we can find out what the effect of the rule would be."30 Bennett Boskey, in his usual constructive fashion, stated that "I think that time lag in this particular case may be a very good thing. I doubt that the Institute as such is in a position to launch any of the pragmatic studies that have been alluded to, but on the other hand, during the next year, it may be that the work of others will produce some additional useful information."31 He also supported the "general thrust of these remedies that are set forth here."32 Director Wechsler stated that "I should first explain that the funds on which the Restatements’ work is supported, the Judge Mellon Fund, would not give us the funds to undertake such an inquiry on our own, which I think Professor Meyers recognizes. I believe his suggestion that this supplementary effort might be made if the financing could be found is one that we would want to study."33
Dean Jefferson Fordham stated: "It is obvious when we talk about fundamental social policy which is involved in addressing ourselves to these matters of adequate shelter for people in this country that we are talking about things that do require empirical data, that do require looking at the social and economic facts of our national existence. At the same time, this organization has traditionally not been geared to that type of activity…. We have decided that the way to go about this is the Restatement idea, which of course, is the common law method as distinguished from the legislative method. I am inclined to agree with Mr. Dunham that we can move the ball forward…. I don’t think it takes too much solidity of judgment to say that we should move away from caveat emptor toward caveat venditor as to a matter so fundamental as decent housing."34
President Norris Darrell, who was presiding, stated that "the suggestion that we make an empirical study the way we did in drawing up the Penal Code bothers me, because the whole suggestion is that we are to make the law in the light of the facts that we find from the study. That was fine when we were drawing a statute, but I am a little puzzled as to how we can justify an empirical study to try to find out what the courts have said, and will say."35 At the conclusion of the discussion there was a sense-of-the-meeting voice vote expressing confidence in the interpretation of the authorities that the Reporter was reflecting in the draft. Whether the resulting effort dealt deeply and reflectively enough with the problem is a separate question, but I believe the ALI was right not to try to sponsor empirical research about housing markets.
The issues raised by the foregoing debate continue to be important ones. They bear on the extent to which the Institute can and should consider certain statutory projects or policy issues that turn on empirical analysis or the kind of information adduced by legislative hearings. Since the 1973 debate, both the American Bar Foundation and the RAND Institute for Civil Justice have developed strong and significant capabilities in important empirical research and analysis. One question for us to contemplate is whether there are ways in which the Institute can make good use of such resources.
The Restatements themselves now reflect significant and substantial statutory material as building blocks in the evolution of the common law. Restatement Third, Unfair Competition, which integrates principles under state and federal statutes as well as under the common law, is a significant example. A crucial distinction about Restatement work, however, is that the precedents, whether judicial or statutory, are already part of the raw material that we try to synthesize.
The relationship between Restatement work and public policy was illustrated dramatically in 1970 in a debate about public nuisance in the law of torts. The Reporter’s draft had characterized public nuisance as fundamentally a criminal violation and provided that a plaintiff seeking to enjoin it must show a special injury. John Frank rose to criticize ancient limitations and to call attention to his observation that "What is happening at the moment all over America is that the people are asking to deal with pollution of air and of water and of land, that in this connection a developing body of law is beginning to formulate which is breaking the bounds of traditional public nuisance."36 Frank’s point and eloquence gained support and then carried the day. The members voted to recommit the section37 and a new and different version was adopted the next year.38 In a recent law review article, Professor Denise Antolini reviews the history thoroughly and states that "This dramatic clash over the Restatement’s formulation of private parties’ access to public nuisance marked an intellectual watershed in the long history of the special injury rule and represented a powerful new intersection of private law torts and public law developments." 39
I would like to close with an example that suggests a distinction about the kind of public policy issues that we debate. Although there have been many developments in the law of capital punishment since 1959, an important debate at the Annual Meeting that year concerned the roles of judge and jury in capital cases. The members approved the recommendation of Herbert Wechsler, then Reporter for the Model Penal Code, that it should be the jury that decides on the death penalty;40 they then approved a motion to table all motions addressing the authority, if any, of the judge to impose a different sentence;41 they next defeated a motion to delete language calling for the judge to "inform the jury of the nature of the sentence that may be imposed, including the possibilities with respect to parole, if the jury verdict is against sentence of death."42
At the conclusion of the discussion, a question was raised whether the Institute should also take a position on abolition of the death penalty.43 Director Goodrich stated that "We have felt that legislative opinion as backed by public opinion is so divided on the subject that we did not think a formal expression by us would help settling the question one way or the other…. Let’s be practical. You know what will happen if we start the debate on this subject. We never will get through with it, and we cannot do the other things which we have to do. And at the end, everybody will be of the same opinion as he was when we started out." 44
A precious resource of the Institute is its ability to apply deliberative processes to the central object of clarifying and simplifying the law and adapting it to social needs. Even on an issue as provocative as the death penalty was over 40 years ago and still is, the Institute could usefully debate the important legal and policy issue of the function of judge and jury without having to tackle the divisive question of abolition.45
The selected examples above are only a small sample of the important debates that the Institute has conducted and the civility and humor that has attended them. All of them occurred at Annual Meetings. We will have such debates in the future, and likely also debates conducted electronically, such as a recent e-mail discussion among interested members about the scope of Article 2 of the Uniform Commercial Code. In future installments, I plan to review key debates in such important areas as Corporate Governance, The Foreign Relations Law of the United States, The Law Governing Lawyers, Torts, Contracts, and other subjects. I will welcome your suggestions of other historic debates, including ones in which you may have participated, and attendant issues to cover in "That’s Debatable."
Michael Traynor
President
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1. 1967 A.L.I. Proceedings 16.
2. Id. See also Herbert Wechsler, Restatements and Legal Change: Problems of Policy, in the Restatement Work of The American Law Institute, 13 St. Louis Univ. L.J. 185 (1968). "In judging what was right, a preponderating balance of authority would normally be given weight, as it no doubt would generally weigh with courts, but it would not be thought to be conclusive." Id. at 190.
3. Restatement Second, Torts § 402A (1965).
4. See John G. Fleming, The Restatements and Codification, The Jewish Law Annual, Vol. II, 108, 116-17 (1979).
5. Restatement Second, Torts § 402A, Caveat (1), and Comment o (1965).
6. Restatement Third, Torts: Products Liability § 1 (1998).
7. Id., § 2(a).
8. See id., §§ 2(b) and 2(c).
9. William J. Clinton, Remarks on Returning Without Approval to the House the Common Sense Product Liability Legal Reform Act of 1996 and an Exchange with Reporters, 32 Weekly Comp. Pres. Doc. 776 (May 2, 1996).
10. Restatement Third, Torts: Products Liability, § 2(b) (1998).
11. See Michael Traynor, Products Liability: The Reasonable Alternative Design Test, the Learned Intermediary Rule, and Recent Developments, in United States and International Litigation and Dispute Resolution: Current Developments and Their Impact on U.S. and European Companies, Insurers, and Lawyers, ALI-ABA Course of Study, April 10-12, 2002, London, England.
12. Restatement Third, Torts: Products Liability § 2, Comment e (1998).
13. Id., § 3.
14. 1995 A.L.I. Proceedings 202 (statement of Robert L. Habush).
15. Id. 208 (statement of Bill Wagner).
16. Id. 212-213 (statement of Marshall Shapo).
17. Id. 205.
18. Restatement Second, Property (Donative Transfers) (Tentative Draft No. 1, 1978).
19. 1979 A.L.I. Proceedings 424-446.
20. 1978 A.L.I. Proceedings 244-245.
21. Id. 293-295.
22. Id. 301-303.
23. Id. 303.
24. Id. 306.
25. 1979 A.L.I. Proceedings 463-465.
26. Id. 466.
27. 1978 A.L.I. Proceedings 279-280.
28. Id. 227.
29. Id. 307.
30. 1973 A.L.I. Proceedings 377-378.
31. Id. 380-381.
32. Id. 381.
33. Id. 386.
34. Id. 389-390.
35. Id. 395.
36. 1970 A.L.I. Proceedings 291.
37. Id. 304-305.
38. 1971 A.L.I. Proceedings 71.
39. Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule, 28 Ecol. L.Q. 755 (2001).
40. 1959 A.L.I. Proceedings 178-192.
41. Id. 201.
42. Id. 207-212.
43. Id. 217.
44. Id.
45. A motion was eventually adopted at the1959 session in favor of conducting a poll of all members of the Institute to ascertain their views on the death penalty. Id. 219. The Council subsequently gave extensive consideration to the question of how such a poll might be formulated, but no evidence has been found to indicate that it was ever carried out.