The Risk Architecture of the Restatement (Third) of Torts
25 Pages Posted: 12 Jan 2010
Date Written: January 11, 2010
A central aim of a restatement is to clarify the law. Since it is primarily intended for the Bench and the Bar, a restatement will be self-defeating if it uses obscure or unnecessarily complex terms, if it deploys the same term in inconsistent ways, or if it uses synonyms for the same idea without clear acknowledgment. In other words, unless a restatement uses a readily comprehensible and consistent terminology, it will, at best, be avoided by many potential users and, at worst, will itself create further confusion in the law. Tort lawyers in particular do not need to look far for chilling examples of restatement provisions that fell well below this drafting standard: one of the most notorious examples is section 402A of the Restatement (Second) of Torts, which recognized a liability in relation to a “product in a defective condition unreasonably dangerous.”
This article assesses, from this terminological perspective, the fundamental architecture of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, an architecture that is expressed in terms of risk. In closely exploring the nature of this fundamental “risk” architecture across the duty, breach, factual cause and scope of liability for consequences issues, the article asks: How easy will it be to navigate the Restatement (Third)? How transparent and consistent is the terminology that has been used to communicate this “risk” architecture? Can that communication be improved? And if it is too late, what does this teach us?
JEL Classification: K13
Suggested Citation: Suggested Citation