The State Bar Association of North Dakota Spring 2013 Gavel Magazine | Page 32

BEYOND RESTATING THE LAW: THE AMERICAN LAW INSTITUTE by Larry L. Boschee, Attorney
doctrine of promissory estoppel. Professor Arthur Corbin, the chief advisor to the First Restatement of Contracts, and Professor Samuel Williston, the reporter, ultimately agreed upon this exception to the requirement of bargained-for consideration. In looking back on the project, Corbin wrote in a letter to the reporter for the Second Restatement of Contracts, that he and Williston “bludgeoned [the other advisors] until they seemed to be convinced.” With the Second Restatements, the ALI began to take a more active role in stating what the law should be. The most notable example in the Second Restatements is section 402A of the Torts Restatement. Dean Prosser, the reporter for the Restatement, and the advisors to the project, liked the idea of strict product liability, but had no authority to support it. Chief Justice Roger Traynor of the California Supreme Court was among the project’s advisors. While work proceeded on the Restatement Second of Torts, Yuba v. Green Power came Justice Traynor’s way. The California Supreme Court adopted strict product liability, and the ALI now had at least one case to cite for what would become section 402A. The Third Restatements also contain examples of the ALI recasting the law. Continuing with the product liability theme, section 6(c) of the Restatement Third of Torts: Products Liability presents a new way for deciding whether prescription products are defective in design. In general, under this section, a prescription product is defective only when a reasonable healthcare provider would not prescribe the product to any class of patients. The Restatement Third reporters openly acknowledged that they did not restate existing law, stating, “It is impossible to restate gibberish.” Another example of the ALI recasting the law in the Restatement Third is this Restatement’s position on a land possessor’s duty to trespassers. Most states still recognize the three common law distinctions of licensee, invitee, and trespasser. Some states, like North Dakota, have abolished the distinctions of licensee and invitee, but still recognize the trespasser distinction. In both these categories of states, the general rule is that a land possessor owes no duty to trespassers, with some exceptions. The remaining states have abolished all three distinctions, and hold that a land possessor has a general duty of reasonable care to all entrants, including trespassers. The ALI followed none of these positions, and adopted its own approach. Under the Restatement Third of Torts: Liability for Physical and Emotional Harm, a land possessor owes a duty of care to all entrants, including trespassers, except for flagrant trespassers, a term the Restatement does not define. The Restatement leaves it to the courts of the states to define the term flagrant trespasser according to the values of the particular state. The Restatement suggests that the term could range from at the low end, a trespasser who enters the property brazenly, to at the high end a trespasser who enters the property to commit a crime. Several states, North Dakota included, have already enacted proactive legislation preempting the Restatement’s position. These states have enacted statutes freezing in place their current common law governing a land possessor’s duties to trespassers. This legislation says something about the power of the Restatements. If the Restatements were not so influential, there would be no need to enact legislation of this type. This legislation also shows that when the ALI recasts the law, it is only casting its idea about what the law should be into the market place of ideas. Those with the power to make the law are free to accept or reject the ALI’s ideas as they see fit. The tension within the ALI between restating the law and recasting it is presently on display with the work-in-progress Restatement Third of Torts: Employment Law. Except by statute in Montana, at-will employment is the default rule in the United States. ALI members, however, have been seriously debating whether to state a general termination-for-cause rule. So far, at the tentative-draft stage, the at-will proponents are on top. The at-will provision in the tenta-

Larry Boschee
Attorney at Law

Larry Boschee is a partner with the Bismarck law firm of Pearce & Durick, and is an elected member of the American Law Institute. He focuses on complex civil litigation and practices primarily in the areas of product liability defense, oil and gas litigation, business litigation, and insurance defense litigation. Part Two: The term restatement in the American Law Institute’s Restatements of the Law is a misnomer. The ALI has never limited the Restatements to restating the law. Indeed, the ALI’s charter includes among the ALI’s objectives, “to promote . . . the [law’s] better adaption to social needs.” Part one of this article reviewed the framework of the ALI. This part two addresses the dynamics involved when the Restatements go beyond restating the law, and instead recast it. Professor Herbert Wechsler, noted constitutional law scholar, served as the ALI’s director from 1963 to 1984. He described the role of the ALI in preparing the Restatements by asking rhetorically, “[Is not the institute] obliged in its deliberations to give weight to all the considerations relevant to the development of the common law that our policy calls on the courts to weigh in theirs, especially courts of last resort under a proper view of the judicial function?” In the view of this long-time ALI director, the ALI’s function in preparing the Restatements is to state the law as though it were a court passing on the issue. Examples of the ALI recasting the law can be found in each of the Restatement series. Even the original Restatements, which mostly stated the law as it was, rather than as it should be, has the new-at-the-time

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The Gavel Spring 2013