Controlling the future of the common law by restatement

This chapter considers, from the perspective of future users, an intriguing aspect of the architecture that the Reporters of the American Law Institute have chosen for the current Draft Restatement (Third) of Torts: Liability for Physical Harm. In restating legal principles currently applied in the United States, the ALI also must preserve the constitutionally vital phenomenon of judicial lawmaking by which the common law will continue to develop in the future. It is faced with stark political choices. The first concerns how welcoming a restatement text is to, say, the future expansion of liability beyond the current case law precedents. The second concerns what is the appropriate future balance of lawmaking power among trial judge, jury, and appellate court. These choices are the –ghosts at the feast— of restatement. This chapter argues that the otherwise puzzling, polarized treatment of the duty of care within the architecture of the Draft Restatement reflects choices made by the Reporters as to how much future common law development there should be and what is the most appropriate institutional location for it to take place. A consideration of those choices highlights a deep fracture in United States tort law between the loud rhetoric in support of jury decision making and the many, typically covert, maneuvers made to prevent issues from reaching the jury.