Actions Taken with Respect to Drafts Submitted at 2002 Annual Meeting

Pending publication of the 2002 Proceedings, which will contain the complete edited transcript of the 79th Annual Meeting, the following summary is presented as a guide to actions taken with respect to the drafts submitted at the Meeting.

Restatement of the Law Third
Restitution and Unjust Enrichment
Tentative Draft No. 2

Reporter: Andrew Kull

The Reporter agreed to review the entire draft with a view toward assuring consistency of terminology throughout.

Chapter 2

§ 17

Consideration will be given to changing the title of this section to "Breach of Fiduciary Duty." The Reporter indicated that, once the sections on remedies are in place, the discussion of specific remedies in the Illustrations and elsewhere in this and other substantive sections may be replaced with cross-references to those sections. A suggestion to qualify this section by stating that it applies only in the absence of an applicable affirmative defense was rejected.

Comment b — The Reporter agreed to explain how the concept of apparent authority relates to the affirmative defenses discussed here. In response to the suggestion that there should be some special recognition of the significance of being a purchaser who takes without notice and in good faith, the Reporter indicated that he would prefer to defer treatment of notice to a subsequent section.

Illustrations — It was suggested that the Reporter begin with an Illustration that exemplifies the general rule, rather than with three Illustrations pertaining to exceptions.

Illustration 1 — Consideration will be given to changing the facts to make the purchaser entirely ignorant of the existence of the trust.

Comment e — Discussion of the varieties of forms that a remedy may take will be added.

Chapter 3

It was suggested that there should be more effort in the substantive provisions to specify how the value of any particular enrichment to the defendant has been arrived at.

§§ 20-26

The Reporter will resolve any inconsistency in terminology between §§ 20-24, which speak of a "claim in restitution" and §§ 25 and 26, which speak of being "entitled to restitution."

§ 20

It was suggested that the word "customary" be substituted for "reasonable" in the last line of the black letter and that it be indicated that, if there is no custom that would capture market value, the amount of restitution should be measured by a "reasonable charge."

Comment b — The Reporter agreed to state more clearly here that Illustration 7 is meant to indicate that the problem at issue is not one of restitution for benefits conferred but of compensation for injuries suffered. More will said about professional rescuers, such as lifeguards and rescue squads, for whom restitution may not be appropriate because they are contractually obligated to perform these services and routinely charge for them. It will also be indicated more clearly that, if it is concluded a service was intended to be gratuitous, its performer is not entitled to recovery under the principles of restitution. The term "professional" in this context may also be further clarified. Consideration will be given to whether "unjust impoverishment" is an appropriate basis for restitution.

It was suggested that the phrase, "rescuers who might better remain on the sidelines," in the second paragraph on page 23, be reconsidered because it might discourage people from being rescuers and the last sentence of the first paragraph on page 24 because it might improperly encourage persons with no particular talent or skill to perform emergency rescues for financial gain.

Illustrations — Consideration will be given to adding Illustrations in which the rescuer is a municipal agency, including cases in which a statute imposes a fee for the service.

Illustration 2 — Consideration will be given to moving here the discussion of the doctrine of necessaries found in § 22, Comment c, or at least to including here a cross-reference to that Comment.

Illustration 7 — See Comment b above.

§ 21

It will be made clearer why recovery under this section, unlike § 20, is not restricted to professionals.

§ 22

It was suggested that the situation described in Illustration 14 of § 24 might be covered more appropriately under this section.

(1) — Consideration will be given to adding the words, "not otherwise obligated to do so by contract," after "debt" in line 1 or to suggesting such a limitation in the Comment.

(1)(a) — Since this subsection and subsections (2)(a) and (3)(a) are nearly identical, consideration will be given to combining them in a single subsection. The Reporter agreed to resolve any inconsistency between this subsection, which speaks of "circumstances" rather than contract, and subsection (1)(b), which speaks of "the original obligation in contract."

(1)(b) — See (1)(a). Consideration will be given to adding the words "to the extent" at the beginning of the subsection.

(2)(a) — See (1)(a) above.

(2)(b) — The suggestion that use of the word "urgently" here and in subsection (3)(b) is inappropriate and could lead to litigation over its meaning was rejected.

(3) — See § 24, Illustration 14.

(3)(a) — See (1)(a) above.

(3)(b) — See (2)(b) above.

(4) — Consideration will be given to substituting the phrase, "limited by the costs reasonably incurred," or the phrase, "not in excess of the costs reasonably incurred," for the phrase, "or by the costs reasonably incurred," in line 4. Consideration will also be given to referring here to charges as well as costs.

Comment — See (1) above. Consideration will be given to discussing the relationship of this section to the contractual concept of subrogation. Something may also be said about whether it is significant if liability in restitution is greater than the original debt obligation.

Comment c — See § 20, Illustration 2.

Illustration 7 — It was suggested that it be made clear that the parties in reaching agreement had not obtained a judicial modification of the existing child-support order.

Illustration 8 — This Illustration, together with Illustration 15, will be reconsidered. The word "servitude" or "covenant" will be substituted for "equitable servitude" in line 4.

Illustration 9 — The parenthetical qualification in the sixth line on page 61 will be deleted.

Illustration 15 — See Illustration 8 above.

Illustrations 16-19 — A suggestion that these Illustrations either be eliminated or reworked within a statutory framework was rejected.

§ 23

Consideration will be given to stating the black letter in negative terms, i.e., there is no claim for restitution unless one of the subsections applies. The Reporter will also consider incorporating into the black letter the conclusion of Illustration 4, namely that a person is not entitled to restitution by reason of conduct benefiting another if that conduct is required in order to perform an obligation to that person. Finally, consideration will be given to deleting the reference to "self-interested" in the black letter and to adding cross-references to the sections relevant to that term, §§ 20, 21, and 22.

(b) — Consideration will be given to deleting this subsection.

Illustration 4 — See under § 23 above.

Illustration 11 — Consideration will be given to indicating that this Illustration leaves open the possibility that A may have had a protectible property interest in the idea and, if so, a whole range of potential remedies for its misappropriation.

§ 24

It was suggested that it is inconsistent to state in the black letter here, but not in other sections, that there is a claim in restitution to the extent necessary to prevent unjust enrichment, and that instead an initial Comment should be added discussing particular manifestations of unjust enrichment under this section. There was also a suggestion that there may be an inconsistency between this section, which speaks in terms of persons and § 25, which speaks in terms of claimants and defendants.

Comment — See under § 24 above.

Comment b — In light of the several references to servitudes or easements here and elsewhere in this Restatement, the Reporter agreed to draw specifically upon the principles that were developed in Restatement Third, Property (Servitudes), or at least to add cross-references to that Restatement, including to § 4.13 on the duties of repair and maintenance of easements.

Illustration 1 — Consideration will be given to covering the issue of taxes in a separate Illustration from one dealing with improvements. It was suggested that the statement, "A’s remedy will be limited to enforcement of an equitable lien on B’s undivided interest," be reconsidered.

Illustration 13 — This Illustration and Illustration 14 may be revised to make their facts and conclusions clearer.

Illustration 14 — See also Illustration 13 above and under § 22. A suggestion that the result of this Illustration be reconsidered was rejected, but the Reporter will consider using a different set of facts to illustrate the point in light of the suggestion that these facts are not appropriate for the ownership of a dam. It was also suggested that account be taken here of § 22(3) and § 25, in which duties of restitution are triggered by something that is owed to a third party, and that the situation involving neighbors be contrasted with the other property relationships described here. It was also suggested that there be some indication whether or not C and D have reason to believe that repair of the dam is unnecessary to prevent harm.

§ 25

See also under § 24 and § 24, Illustration 14.

Comment — See Illustrations 1-3 below. It was suggested that the statements in the Reporter’s Note on page 134, indicating that portions of this section are intended to be consistent with Restatement Third, Suretyship and Guaranty, and Restatement Third, Torts: Apportionment of Liability, be moved to the Comment. It was also suggested that it be noted here that, because most surety bonds involve joint and several liability, they are properly covered in § 26, even though it may appear that they should be dealt with here.

Illustrations — Consideration will be given to adding an Illustration dealing with joint and several liability.

Illustrations 1-3 — It was suggested that, if the notes referred to in these Illustrations are negotiable instruments, they would be controlled by Article 3 of the Uniform Commercial Code rather than the law of restitution, and that therefore they should be here described as non-negotiable instruments. In addition, it was suggested that there be an indication in the Comment as to when Article 3 also mandates the result called for by the law of restitution.

Comment e — Consideration will be given to making it clearer that it is not intended here to exclude from the possibility of restitution the situation in which a settlement was made with no admission of liability.

§ 26

See also under § 25, Comment.

Comment — Consideration will be given to adding cross-references here to Restatement Third, Suretyship and Guaranty, and to indicating that the subject matter of this section is treated consistently with its treatment in that Restatement.

Illustrations — It was suggested that, since this section applies also to guarantors who are not jointly and severally liable, Illustrations might also be added covering such guarantors.

Comment b — The Reporter indicated his intention to reexamine the accuracy of the use here of the term "collateral source."

Subject to the discussion at the Meeting and to editorial revisions, the draft was tentatively approved.

Uniform Commercial Code Proposed Revisions to Articles 3
(Negotiable Instruments) and 4 (Bank Deposits and Collections) Tentative Draft, as modified and supplemented by a
subsequent May 10, 2002, Memorandum and accompanying Comments and Legislative Notes

Drafting Committee Chair: Edwin E. Smith (Reporter Ronald J. Mann was unavailable because of travel difficulties. Mr. Smith was assisted in presenting the draft by Donald J. Rapson, an ALI Representative on the Drafting Committee.)

§ 3-103

(a)(15) — Consideration will be given to substituting the word "item" for "check" in the first line.

Comment — It was suggested that it be emphasized here, regarding § 3-103(a)(15), that, if the customer has not authorized the debit, then the item is not properly payable.

§ 3-305

[(f)] — A motion that this subsection be made mandatory, rather than optional, and thereby consistent with an analogous provision in Revised Article 9, was approved.

§ 3-416

(a)(6) — See Comment below.

Comment — Cross-references to state and federal consumer-fraud laws, specifically, the Federal Trade Commission’s Telemarketing Sales Rule, which requires a recording to have the type of item covered by § 3-416(a)(6) authorized, may be added here with respect to § 3-416(a)(6), as well as to the Comments on § 3-417(a)(4), § 4-207(a)(6), and § 4-208(a)(4).

§ 3-417

(a)(4) — See § 3-416, Comment.

Comment — See § 3-416, Comment.

§ 4-207

(a)(6) — See § 3-416, Comment.

Comment — See § 3-416, Comment.

§ 4-208

(a)(4) — See § 3-416, Comment.

Comment — See § 3-416, Comment.

§ 3-602

(a)(2) — The Drafting Committee Chair indicated that there was an error in the supplemental May 10, 2002, Memorandum presented at the Meeting, in that under "Payment and Discharges," regarding this subsection, the word "not" should be inserted before "received adequate notification."

Comment — Discussion will be added as to what would constitute "adequate notification." It may also be indicated that including a copy of the assigned note or information abstracted from the note would constitute effective notice of the transfer. It was also suggested that something be said here about the effect of conflicting notice from two different lenders.

Subject to the discussion at the meeting and to editorial revisions, the Tentative Draft, as modified by the subsequent May 10, 2002, Memorandum with Comments and Legislative Notes, was approved by the Institute. The provisions relating to suretyship may also be subject to modification after consultation with the Reporter for Restatement Third, Suretyship and Guaranty.

Note: The National Conference of Commissioners on Uniform State Laws at its 2002 Annual Meeting approved and adopted the Proposed Revisions to Articles 3 and 4, without making additional substantive changes. After the text and Comments are finalized, they will be ready for submission to the States for enactment.

Restatement of the Law Third Agency
Tentative Draft No. 3

Reporter: Deborah A. DeMott

Chapter 3

§ 3.14

Comment — Consideration will be given to addressing here the situation illustrated by the United States Supreme Court case of U.S. v. Bestfoods, in which the Court created a presumption that an officer of both a parent and a subsidiary is acting for the subsidiary, not for the parent.

Comment a — In the first full sentence on page 2, the word "regulatory" will be added before "law."

Comment b — Consideration will be given to moving here the discussion relevant to this Comment’s discussion of "primary control of the appointing agent" and "ultimate control of the appointing agent’s principal" presently found in § 3.15, Comment d, on page 23.

Illustration 2 — The fourth sentence will be corrected to substitute "T Insurance Co." for "P."

§ 3.15

(1) — The Reporter indicated that a sentence will be added to the black letter, reflecting the point made in the commentary, that the relationship between the appointing agent and the subagent is itself one of agency and created like any other principal/agency relationship, as stated in § 1.01.

(2) — Consideration will be given to rephrasing this subsection to state that an agent may appoint a subagent only if the agent has actual or apparent authority to do so.

Illustration 1 — It was suggested that the concept of "subordinate co-agent" be demonstrated here.

Illustration 3 — The Illustration will be revised so as not to intimate that a broad but nonparticularized grant of authority, such as P Corporation telling S "to take all measures that S believes necessary to improve the performance of P Corporation’s portfolio," is sufficient to authorize the total subdelegation to another portfolio manager.

Comment d — See also § 3.14, Comment b. The Reporter agreed to reexamine the implication on page 23 that the subagent owes a duty of loyalty to the principal.

Comment f — Consideration will be given to treating the substance of this Comment in a separate Chapter dealing with the application of agency doctrines specific to particular industries.

§ 3.16

Illustrations — Consideration will be given to adding one or more Illustrations involving agents selling real estate, conducting business appraisals, or managing portfolios.

Illustration 1 — It was suggested that short names or real words be used here and elsewhere in the draft instead of letters to identify the parties.

Chapter 5

§ 5.01

See also Comment b. It was suggested that the entire section be reexamined to be sure that the same words are used for the operative factor here, rather than alternately using "effective," "imputed to," and "charged with." It was also suggested that three separate sections be created defining the terms "knowledge," "notification," and "deemed to know."

(2) — The words "or by" will be added after "to" in line 2, and consideration will also be given to substituting the word "notification" for "notice" there.

(3) — Consideration will be given to using a different term here than "should know" and possibly to changing the conclusion to read, "would have known the fact if it had fulfilled its duty." It was suggested that the distinction between "should know" and "reason to know" should be consistent with that in the Restatement of Torts.

Comment b — It was suggested that, if item (5) in the first paragraph of the Comment was inadvertently omitted from the black letter, it should be added there, but that, if it was deliberately omitted, the omission should be explained in the Comment.

§ 5.02

(1) — See also § 1.04(5) below. Consideration will be given either to substituting the word "notification" for "notice" in line 2 or to deleting "notice" altogether.

(2) — Consideration will be given to substituting the word "if" or the words "if it has been" for the word "notification" in line 2.

Reporter’s Note to Comment b — Additional cases may be added in support of the proposition stated in the first sentence of the first full paragraph on page 76.

§ 5.03

A motion to amend both this section and § 5.04, animated by concern that the draft’s proposed rule on imputation could prevent a trustee in bankruptcy from recovering from a negligent auditor because of the knowledge of a disloyal agent and proposing instead a broader test, at the end of § 5.04(1), that "the totality of the circumstances would otherwise render it inequitable to impute such notice," was at first tabled and later withdrawn after extensive discussion when the Reporter agreed to take the concerns expressed into account and to rework §§ 5.03 and 5.04 accordingly. The revised sections will be brought back for review at a future Meeting. The full text of the motion may be found online at www.ali.org.

Consideration will be given to clarifying here and in the Comment that, if an agent has reason to know, reason to know is what is imputed to the principal, not knowledge, and that knowledge is imputed to the principal only if the agent had that knowledge. It was suggested that the cross-references for an agent acting adversely to a principal here and elsewhere need to be reexamined and treated with greater consistency and that the words "knowledge of" in line 3 be deleted.

Comment — See also under § 5.03. The Reporter agreed to think further about the significance of imputation within firms that have separate departments and will say more about imputation in multifunctional firms, either here or in Chapter 8. In addition, some discussion may be added of the different, possibly conflicting, duties that an organization owes to others.

Comment b — It was suggested that the discussion about the forgetful agent, beginning at the bottom of page 86, be put into a separate Comment.

Illustration 1 — Consideration will be given to whether the instruction from the principal to the agent not to disclose the facts the principal did not want to hear is a necessary part of the facts of this Illustration or simply contingent circumstances. It was suggested that the words "charged with violations of anti-bribery laws" in line 7 deal with criminal, rather than civil consequences, and therefore may be beyond the scope of this Restatement.

Illustration 8 — The conclusion of this Illustration will be reconsidered.

Comment c(iii) — The Reporter agreed to reconsider this Comment’s treatment of the equities of imputation.

Comment d — Consideration will be given either to putting the paragraph on the bottom of page 99 into a separate Comment or to expanding it to include not only a duty not to disclose the fact to the principal but also one not to disclose to fellow agents. Duties to third parties in the multifunctional-organization setting may also be considered here. It was further suggested that the problem of "collective knowledge" within the organization be more fully discussed. Consideration will also be given to whether the coverage here of the "Chinese Wall" problem is adequate.

Comment f — Consideration will be given to moving the substance of this Comment into a separate section in Chapter 5 or elsewhere. Consideration will also be given to expanding imputation in such a section to include facts that the agent should know.

§ 5.04

See under § 5.03. It was also suggested that, in revisiting this section, the Reporter consider sorting out more clearly the different distinctions, relationships, parties, and Illustrations and separate them into two or more different sections of black-letter law.

(1) — See under § 5.03.

(1)(a) — See under Comment b.

(1)(b) — It was suggested that the phrase, "the principal knows or should know that they are retaining a benefit" should be substituted for the phrase "the principal knowingly retains a benefit" in lines 1-2.

(2) — It was suggested that language be added here focusing on two additional circumstances in which the agent might be acting adversely to the principal: (1) the agent is acting illegally without the knowledge of the principal, for example, the board of directors of a corporation, or (2) the agent is breaching a duty to the principal and knows that he or she is doing so.

Comment — It was suggested that there be added more discussion of (1) the concept of adverse domination, (2) the situation in which courts look for some benefit that the agents were creating for the corporation so that the party can escape imputation, and (3) the situation in which the agent’s actions were in some respect adverse to the corporation, taking into account to whom the third party owed the duty and to whom the lawyers owed the duty.

Comment b — Consideration will be given to discussing here whether, if the agent is not actually acting adversely within the narrowed definition of this section, but the third party still knows, or has reason to know, that the agent will not convey the information to the principal, the information known to the agent will be imputed to the principal. It was suggested that, if a change is made in subsection (1)(a) to substitute "should have known" for "have reason to know," then the question of "what is the duty" can be explored here in terms of an accountant, as well as the person to whom the duty is owed within the corporate structure.

Comment c — Consideration will be given to striking the third sentence of the paragraph following Illustration 3.

Illustration 3 — Consideration will be given to striking the words, "As a consequence," in lines 5 and 6. It was suggested that the facts of this Illustration should be discussed instead in the commentary, taking into account both those facts and their possible permutations.

Chapter 4

§ 4.04

It was suggested that an explicit reference to adoption and ratification as analogous provisions should be included in the black letter.

Comment c — The Reporter was asked to consider whether the concept of novation should be discussed in Chapter 6 rather than here.

§ 1.04

(5) — The Reporter agreed to make sure that, if any change is made to § 5.02(1) as suggested above, the same change will be made to the last sentence of this subsection.

With the exception of §§ 5.03 and 5.04, which were recommitted to the Reporter for revision based on the discussion, the draft was tentatively approved, subject to the discussion and to editorial revisions.

Principles and Rules of Transnational Civil Procedure
Discussion Draft No. 3

Reporters: Geoffrey C. Hazard, Jr.,
Michele Taruffo

Associate Reporter: Antonio Gidi

The draft was extensively discussed and numerous suggestions were made, but as planned, no votes were taken.

Restatement of the Law Third
Torts: Liability for Physical Harm (Basic Principles)
Tentative Draft No. 2

Reporters: Michael D. Green,
William C. Powers, Jr.

Chapter 2

§ 6

A motion that §§ 6 and 7 be recommitted to the Reporters for consideration of the various suggestions made on redrafting and brought back subsequently for reconsideration was defeated. A motion was also defeated that would have substituted new §§ 6 and 7 for the existing sections. The new § 6 would have read: "An actor subject to an applicable duty whose failure to exercise reasonable care is a factual cause of physical harm is subject to liability for such harm within the scope of liability." The new § 7 would have moved existing § 6(a) to § 7(a) and have added the word "foreseeable" before "risk." In addition, it would have added a new § 7(b) containing the third, fourth, and second sentences of existing § 7, in that order, with some word changes. Consideration will be given to changing the title of this section to "A Duty to Exercise Reasonable Care" and the title of § 7 to "Exceptions to the Duty of Reasonable Care." It was suggested that the primacy of duty should be recognized here.

(a) — See also under § 6. A suggestion to delete the phrase, "when the actor’s conduct poses a risk of physical harm," was rejected. It was suggested that the phrase "to others" be added here and in § 6(b) after the words "physical harm." It was also suggested that the word "conduct" in line 2 is problematic and not equivalent to the use of the word "action" in the Restatement Second of Torts because "conduct" implies an omission or lack of action.

(b) — See also (a) above. A suggestion was rejected that would have rephrased "is subject to liability for any such harm within the scope of liability" similarly to the wording of § 29, thereby eliminating the dual reference to "liability."

Comment b — It was suggested that it be stated here that whether the harm alleged is legally cognizable is a question of law rather than of fact. A suggestion that a different word than "factual" be used in line 5 on page 2 was rejected.

Comment f — The issue whether psychic damage constitutes physical harm will be reexamined in light of recent scientific developments, and consideration will also be given to stating in the last paragraph that the Institute takes no position on this issue. In the last paragraph of the Comment, the Reporters will endeavor to make clearer what is meant by "economic loss," perhaps by adding cross-references to Restatement Third, Torts: Products Liability, where distinctions are drawn among harm to person or property, physical harm, and economic loss. It was suggested that the word "purely" be added before "economic loss" in the last sentence of the Comment. It was suggested that the second sentence of the Comment should be reexamined and that the first two full sentences beginning on page 4 should be rewritten to avoid drawing a distinction between misfeasance and nonfeasance. In addition, it was suggested that the word "ordinary" in the first full sentence on page 4 be deleted and that the word "ordinarily" be inserted before "limited."

§ 7

See also under § 6. It was suggested that this section is improperly titled "Duty," because it does not discuss duty itself but circumstances in which there is no duty.

It was suggested that the first sentence of the black letter should be modified to indicate that the court’s determination of no duty or a duty other than the ordinary duty of reasonable care must be based on some standard. A motion to delete the words "are unusual and" from the second sentence of the black letter was defeated, but the Reporters agreed to change the characterization there of "determinations of no duty and modifications of the duty of reasonable care" as "unusual" to "exceptional." It was suggested that the Reporters use the word "actor" consistently throughout this section rather than "defendant" and "plaintiff" in order to avoid confusing the relationships in multiparty cases or comparative-negligence jurisdictions.

There were also suggestions that the black letter be shortened and that it or the Comment speak of strict liability as a judicially imposed form of modification. In addition, the Reporters were asked to reconsider the section’s treatment of the burden of proof.

(a) — See under § 6.

Comment — See under § 7.

Comment d — A motion, supported by the Reporters, to amend this Comment to add language indicating that the serious First Amendment concerns presented by claims alleging negligent physical injury in media or speech-related cases are appropriately addressed under the duty principle in the first instance, was approved. It was suggested that the Comment, as so amended, should clearly distinguish between negligence in publication and negligence in fact-gathering. It was also suggested that the Comment, as so amended, should distinguish between situations in which the First Amendment issue directly affects the determination of liability and those in which it does not.

Comment i — It was suggested that the last sentence of the Comment, on page 20, be rephrased to say that the drug manufacturer’s duty to warn is owed to the patient, but that the duty is generally satisfied if the warning is conveyed to the patient’s physician.

Chapter 5

§ 26

A motion to add the words, "at the time that it occurred," after "occurred" in line 4, was withdrawn, in light of the Reporters’ agreement to seriously consider doing so.

Comment f — Consideration will be given to substituting the language, "by the aspect of the conduct that made it tortious, for example, by producing the incremental risk or the enhanced risk as distinguished from the entirety of the conduct," for "by the incremental risk of the tortious conduct as distinguished from the risk posed by the entirety of the conduct" in the second full sentence on page 35.

Comment k — It was suggested that this Comment should refer to "preempted conditions" rather than "preempted causes" and that it should be broadened to include such conditions occurring at a different time than the actual cause rather than just those occurring after it.

§ 27

A motion to amend this section to add new language was withdrawn in light of the Reporters’ agreement to seriously consider doing so. The motion sought to add "potentially" after "multiple" in the title of the section, to substitute "of the existence of one or more competing sets of causal conditions that are or would have been" for "another causal set exists that is also" in lines 3 and 4, and to add after "harm" the following language: "if it is part of a set of conditions that was actually operative and sufficient for the occurrence of the harm at that time." It was suggested that the section be retitled, "Multiple Causes," and reconceived to deal with two or more causal forces of the same or different character, operating at either the same time or sequentially. It was suggested that the phrase "at the same time" in line 5 needed clarification in the Comment.

Comment — See under § 27.

Comment c — It was suggested that this Comment should be implemented by reference to matters more fully developed in the Reporters’ Note.

Illustration 2 —Part of this Illustration will be rewritten to make it clear that the critical time is when the harm occurred rather than when the drug was given.

Comment f — The language, "if the actor’s conduct is necessary to at least one causal set or the actor’s conduct increased the amount of harm inflicted," will be inserted at the end of the last sentence in the first paragraph. The Comment will also indicate that this section deals only with causation, not negligence, and that because an actor’s conduct is an incremental cause of harm under this section, that does not in itself render the conduct tortious.

Illustration 3 — It was suggested that it be shown in Illustrations 3 and 4 that when there are multiple factors that aggregate to cause a harm, such as three contributors of five units of pollution and one contributor of one unit of pollution, and 10 units are needed to kill a lake, to include the one unit as a cause requires the explict disaggregation of some of the five units.

Illustration 4 — See Illustration 3.

Comment g — It was suggested that clearer and less controversial words be used here than "threshold dose."

Comment i — A motion that this Comment be recommitted to the Reporters for further consideration and substantial rewriting was withdrawn in light of the Reporters’ agreement to reconsider whether there is a confusion in the Comment between true multiple sufficient causes, as defined on page 68, and the examples used in the Comment on pages 77 and 78 and whether some of its examples required clarification.

Reporters’ Note to Comment f — The first sentence of this Reporters’ Note will be conformed to whatever changes are made to § 28, Comment c.

§ 28

(b) — Consideration will be given to substituting "on the issue of factual causation as to each individual defendant is shifted to that defendant" for "on factual causation is shifted to the defendants," in lines 8 and 9. It was suggested that the use of the word "all" in line 1 is unnecessary and not reflective of what the courts have done.

Comment c — See § 27, Reporters’ Note to Comment f. The Comment provoked prolonged controversy both about whether the Restatement should be dealing so extensively with evidentiary matters and about whether its description of how courts evaluate scientific evidence of this nature was accurate. It was suggested by some that it is premature to attempt to state controlling legal principles when there is so much uncertainty in this area.

A series of motions aimed at revising the Comment (see motions of Larry S. Stewart at www.ali.org) was eventually withdrawn when the Reporters agreed to reconsider and rework the Comment in light of the criticisms received and to bring the result back for further review. A voice vote seeking to determine whether or not the scope of the Comment should be restricted in such a way as to limit its treatment of the admissibility of scientific evidence, while retaining the same basic framework for discussion, showed a house closely divided on the question.

Comment c(3) — It was suggested that the fifth and sixth sentences of the first full paragraph on page 104 should be reexamined to assure their scientific accuracy. It was also suggested that there be more explicit acknowledgment here about the way the law has focused on epidemiology to the exclusion, until very recently, of considering how science addresses causation in the absence of epidemiology.

Comment c(4) — Consideration will be given to inserting here, from the Reporters’ Note, the second sentence of the first full paragraph on page 152, and to adding an Illustration that deals with something less than a 2.0 relative risk.

Illustration 1 — Consideration will be given to stating that, in the absence of individualized evidence, the relative risk of 1.75 is insufficient to permit a factfinder to find that either brion or choron was a cause of Abby’s myeplopia.

Illustration 11 — There was a suggestion that it be indicated here that both David’s and Diana’s careless acts were occurring in the vicinity of the plaintiff.

Comment o — It was suggested that a precautionary note should be added, at the top of page 133, stating that legislation has also not been especially successful in developing market-share systems.

Reporters’ Note to Comment c(3) — It was suggested that the first sentence of the last paragraph on page 149 was in need of qualification.

§ 29

See § 6(b).

Comment q — Consideration will be given to breaking out this Comment into a separate black-letter provision.

Subject to the discussion at the meeting and to editorial revisions, §§ 6, 7, 26, 27, and all of § 28, except Comment c, "Toxic substances and disease," of the draft were tentatively approved. Comment c will be reconsidered in light of the discussion and resubmitted.

International Jurisdiction and Judgments Project
Discussion Draft

Reporters: Andreas F. Lowenfeld,
Linda J. Silberman

The draft was extensively discussed through § 5, but as planned, no decisive votes were taken. A nonbinding, sense-of-the-house vote, taken at the conclusion of the discussion, was overwhelmingly in favor of approving the inclusion in § 5 of a provision requiring reciprocity as a condition for enforcing the judgments of a foreign state, with the details to be worked out by the Reporters.