American Law Institute adopts restatement on products liability.

At its annual meeting in Washington, D.C., on May 20, the membership of the American Law Institute (ALI) adopted, with several modifications, the ALI's controversial new restatement on products liability. The 386-page proposed final draft consists of 21 "black letter" sections, with corresponding comments and reporters' notes by Professors Aaron Twerski of Brooklyn Law School and James Henderson Jr. of Cornell.

Historically, ALI restatements have exerted considerable influence on courts, especially the earlier Restatement (Second) of Torts, and its [section] 402A on strict liability. Yet, while the new restatement has been cited in briefs and a few court decisions, its recommendations have not been embraced universally by the courts. Its proposals have also been criticized by academic commentators and consumer-oriented practitioners as wrong as to both law and policy, harmful to consumers, and influenced by "tort reform" campaigns.

The ALI's own leadership has acknowledged an unusual level of partisan lobbying on the new restatement. Lobbying efforts on several recent projects have resulted in the adoption by the ALI Council of its first-ever written rule on conflicts of interest for members voting at meetings. The rule states that "members are expected to leave client interests at the door. . . ." (ALI Council Rule 9.04, Dec. 1996.)

The new formulation is widely regarded as "repealing" [section] 402A, which has dominated the field of products liability law for over 30 years and has been cited in at least 3,000 court decisions. The most controversial provisions of the new restatement have been its proposal that sellers and distributors of defective products be subject to liability only for harm caused by product "defects" (thus implying abolition of causes of action based in negligence or warranty) and its assertion that in most design defect cases plaintiffs be required to prove a "reasonable alternative design" that would reduce or avoid risks of harm.

The severest critics have argued that the project is not a restatement in the most commonly understood sense at all. Professor Frank Vandall of Emory University School of Law has bluntly called the project "a political statement. It is not a restatement of the law and does not rest on an evaluation of cases and policies. It exists merely because it has garnered sufficient [ALI member] votes." (Frank J. Vandall, Constructing a Roof Before the Foundation Is Prepared. The Restatement (Third) of Torts: Products Liability Section 2(b) Design Defect, 30 U. Mich. J.L. Reform 261, 279 (1997).)

Criticism that the "reasonable alternative design" requirement is not a majority viewpoint among courts received tacit acknowledgment by the ALAS president Professor Charles Alan Wright of the University of Texas, who wrote in a "President's Letter" before the debate on the proposed final draft, "The earlier discussions, and the extensive writing in the law reviews, surely should have made it clear to all of us that the cases are divided and that reasonable people disagree on how they count the cases." ALI reporter, Spring 1997, at 2 (emphasis added).)

A recent symposium on the restatement, appearing in the Spring 1997 issue of the University of Michigan Journal of Law Reform, included a moot court on the reasonable alternative design requirement based on a hypothetical case. It reprints plaintiff and defense briefs on the question whether it should be adopted by a state court. (See Larry S. Stewart [for the plaintiff], Hildy Bowbeer, and Todd A. Cavanaugh [for the defendant], Briefs in Timmy Tumble v. Cascade Bicycle Co.: A Hypothetical Case Under the Restatement (Third) Standard for Design Defect, 30 U. Mich. J. L. Reform 511 (1997).)

For a copy of the most recent version of the products liability restatement, write to the American Law Institute, 4025 Chestnut St., Philadelphia, PA 19104-3099.