Like other judges, I am strongly influenced by the Restatement. It provides us with principles allowing escape from the suffocating flood of precedents.
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 because 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's 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 delicts 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's ALI study and suggestions for handling procedures for complex litigation are useful.1
Internationalization of industry, growth of urban populations largely disconnected from producers, distribution of dangerous products, and new communication networks have created the potential for large harms with reduced ability of lay consumers and third parties to protect themselves.
Tort Restatement principles need to protect against the tire and car manufacturers who produce tires unsafe for the conditions they meet on the road in many countries, blood that is tainted,2 tobacco that with asbestos exposure is synergistically lethal, purveyors of hate crimes, and gun distribution practices that lead to too many deaths. Government administrative regulations and criminal law cannot, I think, be trusted to do the whole job. They tend to bend to political and private forces and often lose their steam.3
III. INCREASED STATUTORY ADMINISTRATIVE AND CRIMINAL LAW INTERVENTIONS
The role of torts is being whittled away by such developments as procedural barriers, preemption, workers compensation, black lung and children's vaccine procedures, and auto accident automatic payments. The growth of restitution in the criminal law, disgorgement in administrative law, and an antipathy towards the mass plaintiffs' bar have reduced the force of common tort law in the courts.4 Statistics show that the number of civil cases resolved by trial in federal courts, a substantial number of which would formerly have resulted in tort-jury-trials has decreased dramatically over the past twenty years.5
Availability of the administrative and criminal alternatives has substantially reduced the need for punitive damages. …