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Restating Intentional Torts: Problems of Process and Substance in the ALI's Third Restatement of Torts

32 Pages Posted: 26 Oct 2017  

Nancy J. Moore

Boston University School of Law

Date Written: October 13, 2017

Abstract

The American Law Institute’s Third Restatement of Torts was initially conceived as a series of separate projects, each with its own reporters. From 1998 through 2010, the ALI completed and published three different segments: Products Liability, Apportionment of Liability, and Liability for Physical and Emotional Harm. Initially, the ALI did not intend to restate the intentional torts, believing that the Second Restatement’s treatment of these torts was clear and largely authoritative. It was ultimately persuaded that there were numerous unresolved issues that needed to be addressed. As a result, it authorized a new project on Intentional Torts---a project that is currently ongoing. Rather than applaud or critique the specific choice the reporters are making, I have chosen to discuss two broader concerns regarding the project. The first concern is that the piecemeal nature of assembling all the separate projects of the Third Restatement of Torts (including the review and adoption of different sections within Intentional Torts) has made the Intentional Torts reporters’ task more difficult than it should have been and may contribute to an overall product that is flawed in important respects, primarily because of inconsistencies that cannot easily be corrected. The second concern is that the Intentional Torts reporters have too often lost sight of the conceptual distinctions between intentional and nonintentional torts. Although I agree that these conceptual distinctions should not have driven the basic organization of the project, as was once suggested, I argue that the reporters are making doctrinal decisions that further blur, rather than clarify, the boundaries between the intentional torts and other torts, primarily negligence.

Keywords: Torts, Intentional Torts, Battery, Assault, False Imprisonment, American Law Institute, Restatements, Restatement of Torts, Restatement of Torts Third Omissions, Intent for Battery, Single versus Dual Intent, Hierarchy of Fault, Negligent Imprisonment, Participation, Assisting

JEL Classification: K10, K13

Suggested Citation

Moore, Nancy J., Restating Intentional Torts: Problems of Process and Substance in the ALI's Third Restatement of Torts (October 13, 2017). 10 J. Tort Law ____ (2017); Boston Univ. School of Law, Public Law Research Paper No. 17-44. Available at SSRN: https://ssrn.com/abstract=3059046

Nancy Moore (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-358-0501 (Phone)

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