Restatement (Second) of Torts on Risk-Utility Balancing

Tort law is, for the most part, state law. Consequently, tort doctrines vary from state to state. In this course, we will read judicial decisions that illustrate core concepts in the law of torts, with the understanding that the rules stated in the cases may not apply in all jurisdictions. The Restatement of Torts is a multi-volume work that seeks to distill general principles of tort law and formulate them into model doctrines. The restatement rules are not themselves law, but judges do generally consider them persuasive authority. Sometimes courts will adopt the restatement rule into state law.

The Restatement is sponsored by the American Law Insitute (ALI), a membership organization of distinguished legal scholars, attorneys, and judges founded in 1923. The ALI sponsors restatements for many areas of law. It appoints members to serve as "reporters" for a restatement, and all ALI members are afforded an opportunity to provide input on preliminary drafts, which are eventually adopted by a vote of the members and approval by the ALI governing council. Here is how the ALI describes these influential works:

Restatements are primarily addressed to courts and aim at clear formulations of common law and its statutory elements, and reflect the law as it presently stands or might appropriately be stated by a court. Although Restatements aspire toward the precision of statutory language, they are also intended to reflect the flexibility and capacity for development and growth of the common law. That is why they are phrased in the descriptive terms of a judge announcing the law to be applied in a given case rather than in the mandatory terms of a statute.

The Restatement of Torts has been updated twice. Although the Restatement (Third) of Torts, which is still in the process of being completed, is the most current edition, the Restatement (Second) of Torts remains authoritative. Throughout the course, we will consult both of these restatements.

You can find all of the restatements of torts on Westlaw here. (You must be logged into Westlaw for this link to work.)

You can find more information about the ALI restatment drafting process here.