“Is” v. “Ought,” or How I Learned To Stop Worrying and Love the Restatement
Volume 85, No. 2, Winter 2013
By V. William Scarpato

Before 1960, there was no such thing as strict liability for products. There were cases that had taken breach of warranty, a contract theory, and applied it on behalf of injured consumers without the normal prerequisite of contractual privity. But notwithstanding these rumblings in the hills, the case law was a desert for producers’ strict liability. Then, in 1965, the American Law Institute (ALI) promulgated the Restatement (Second) of Torts.

Section 402A of that Restatement, which gave a black-letter formulation of strict liability for suppliers of defective products, is probably the most obvious example of the influence a restatement can exert on the courts. William L. Prosser drafted the provision in the near-complete absence of supporting case law: “Dean Prosser could point to virtually no case authority and relatively little scholarship to tease out the application of the core concept of strict liability in tort to the variety of contexts in which products could harm consumers, let alone bystanders.” Perhaps belying the term “restatement,” the ALI dauntlessly blazed a new trail in the law.

Forty-six years later, section 402A has been cited more than any other restatement section ever published, enjoying a seismic effect in the area of products liability. State courts adopted the Restatement provision at a shocking rate, surprising even Dean Prosser, who had predicted a period of up to fifty years before it would become the dominant viewpoint. The history of section 402A shows that a restatement provision can bring about major shifts in the law, but it also illustrates how important it can be to practitioners and other stakeholders to influence the balance between stating what the law is and what it ought to be at the time of the restatement’s drafting.

When the case law is unclear or conflicting, that presentation becomes increasingly delicate. Should the draft restatement strictly present the established doctrine, or should it take a stand in describing ways the law can be revised? In the face of such tension, the ALI has made its decision of what to restate in part on what direction it determines the law will likely take in the future.

The newly propagated Restatement (Third) of Property: Servitudes presents a ready example of the degree to which a restatement can move into novel territory in the face of tangled doctrine. Academic scholars are running out of insults with which to describe traditional servitudes law, and the ALI has responded with a product containing several bold suggestions for change. This particular Restatement therefore presents a unique backdrop—it is a plainly normative source that fails to function as a strict “restatement” of the law in many circumstances, but it covers a body of doctrine for which reform has been widely recognized as desirable. What result?

This Comment will explore to what extent, if any, a restatement’s reception in courts involves the distinction between restating what the law is and restating what the law should be, using the Restatement (Third) of Property: Servitudes as a lens. Section II will begin with a brief history of the American Law Institute, the restatement project, and the ongoing concern over the encroachment of outside voices into the restatement drafting process. Section II will then give an overview of the core debate over the purpose of the restatement—whether it is, indeed, to “restate,” or if it is to reform. Section II will then consider one idea espoused by several commentators in that core debate—that a restatement would not only betray its purpose if it did not closely restate the law, it would also be ignored by future courts as a result of its adventurousness.

Section III will show that reception in courts of certain sections of the Restatement (Third) of Property: Servitudes indicates some superficial support for this idea but also demonstrates that it is a skin-deep assertion, deaf to a range of subtlety and of limited predictive value for those contemplating whether to argue along restatement lines. Ultimately, there is a vast array of potential reasons why a restatement may be followed, rejected, or ignored. Section III will conclude by reasoning that those reasons that contemplate the characteristics of courts as receivers of the restatements, rather than the content of the restatements themselves, may present the better, more flexible method of approaching these sorts of questions. Section IV will conclude.