The Restatement of Torts and the Courts

Primarily through tort law the courts compensate those injured by others. Secondary aspects of our work such as deterrence or forcing tortfeasors to pay the full social costs of their activities are minor and collateral. For jurors focusing on compensation, tort law has only two operative elements: damage and cause. It is the law professor and the judge, through decisions on motions and instructions, who are the main Restatement consumers. Emphasizing mass torts, I will make three points relevant to those considering the health of tort law. First: Tort law in its least inhibitory principle is useful be- cause of its flexibility in solving new problems, particularly in the area of mass torts and public nuisances. Trial judges and juries see the people who suffer from asbestos, breast implants, DES, herbicides, tobacco, guns, tainted blood, dangerous pharmaceuticals, tires, security frauds and other products and activities. Those injured need the law\u27s help. Second: There has been an attenuation of our reliance on tort law in many areas. Increased statutory interventions on the state and national levels have imposed substantive and procedural limits. The growing role of administrative, executive, and criminal enforcement branches of government in providing compensation for derelicts presents problems in coordination with judicially enforced tort law. Third: It is more difficult for us to deal with multistate or multinational torts in an integrated and efficient way in view of the loss of principled court-made ruling law. State and federal statutes and decisions creating fifty-one different tort laws reduce effective administration of mass tort actions. In considering the impact of tort law and the Restatement, we must recognize that it is the procedural-substantive balance, not theory alone, that controls what the courts can do for the injured. It is not clear whether a Restatement of Torts can or should integrate procedure and substance. Professor Arthur R. Miller\u27s ALI study and suggestions for handling procedures for complex litigation are useful.\u2