Actually, Courts Love the Third Restatement: A Response to Listwa

Image by beasternchen from Pixabay

Every author knows the mixture of excitement and trepidation that follows publication as you wait for the reviews to roll in. For Reporters of Restatements, the sentiment is perhaps more acute: there is one audience that is particularly important, judges, and one question that matters: will they find the Restatement helpful? It is gratifying whenever courts cite a Restatement, and Reporters will do whatever they can to help courts decide whether a new Restatement is worth following.

Or at least that’s true for me. (As I will suggest, assuming that other people share our concerns is not always warranted.) But for my part, I was delighted to see the Washington Court of Appeals cite some sections of the current draft in Erickson v. Pharmacia LLC.

Primarily, the Court of Appeals observed that the draft endorsed “[c]onsidering the statute of repose as part and parcel of the liability claim.” It noted that the draft’s rules were consistent with its decision on punitive damages, and products liability. The Court of Appeals also described the aim of the Third Restatement as “draw[ing] on the experience of courts applying the Restatement Second … to extend the insights of the Restatement Second and articulate them in the form of rules rather than an open-ended balancing of factors.”

The Washington Court of Appeals is far from the only court to cite to the Third Restatement. To date, it has also been cited by the Second Circuit, the Tenth Circuit, the Southern District of New York (twice); the District of New Jersey (three times), the Southern District of Texas the Tennessee Court of Appeals, the Eastern District of Louisiana, the Southern District of California, and the Central District of California.

When Erickson went up to the Washington Supreme Court, I filed an amicus brief suggesting that applying the rules of the Third Restatement offered an easy path to the correct outcomes. The Court was unconvinced; it mentioned my brief only once, to observe that I agreed with Pharmacia and the Court of Appeals that “a statute of repose does not present an issue distinct from the underlying claim; it is part of the definition of the claim in much the same way as an element of a tort.” And it disagreed on that issue.

Fair enough; the connection between the statute of repose and the underlying claim is a question of statutory interpretation, and the Supreme Court of Washington is the ultimate authority on the meaning of Washington statutes. I found the dissent’s reading of the statute persuasive, but different people have different views. As for the draft Third Restatement, the Court mentioned it not at all. That too makes some sense to me; the draft is of course still a draft, and many sections remain to be written. Washington did abandon lex loci delicti and adopt the Second Restatement based on a Tentative Draft and a law review article by Reporter Willis Reese, but an invitation to abandon rigid rules in favor of a multifactor balancing test is appealing to a court chafing under those rules and does not make any commitments that will bind the court down the road. Returning from the wilderness of multifactor balancing to a new set of rules might involve such commitments, and I can certainly understand that a court would want to see the finished product before making a decision.

That’s what I thought, anyway. Daniel Listwa has a different take on things. “[T]he Restatement (Third)’s theoretical framework,” he warns, “may be getting in the way of its own practical contributions.” “[T]o achieve widespread adoption,” he continues, “it may need to present its rules more explicitly as descriptive summaries of convergent judicial practice—emphasizing empirical patterns rather than theoretical frameworks.”

What is that theoretical framework? “The draft Restatement,” Listwa writes, “is heavily invested in what Roosevelt calls the ‘two-step’ approach—first determining whether conflicting laws have overlapping ‘scope,’ then using ‘priority rules’ to determine which law governs.”

Stop a moment and think about this. The lower court cited the draft Restatement’s rules, with no mention of a theoretical framework, and quoted the draft’s explicit self-description as drawing on Second Restatement decisions. My brief presented those rules, also with no mention of a theoretical framework, and likewise suggested that the draft “uses cases decided under modern approaches as data from which to derive rules.”

So, no one said a word about scope or priority, and everyone who endorsed the draft’s rules said that they were derived from modern cases. The Washington Supreme Court itself said nothing at all. But from this scenario, Listwa discerns that the Court was reluctant to adopt the Third Restatement because of its theoretical framework. That is an impressive bit of mind-reading.

Or projection. Listwa, as he acknowledges, has written a series of articles critiquing the alleged heavy theoretical investment of the draft. (If the Washington Supreme Court was aware of that issue at all, it is probably because the respondents cited Listwa several times.) I remain completely unable to understand what the purported theoretical investment is, let alone what would make it heavy.

It is true that the draft Restatement has a section entitled “Nature and Development of Choice of Law.” So did the Second Restatement, section 2. It is true that the draft describes choice of law as a two-step process. So do cases applying the Second Restatement.

It is true that the draft says courts must first decide whether a conflict exists between relevant laws, and second, if so, resolve it. So do the cases. It is true that the draft offers guidance about which laws are relevant, or potentially applicable. So does the Second Restatement—that is precisely the function of the contacts listed in Section 145.

It is true that the draft describes resolving a conflict as giving priority to one law. That word is present in the caselaw as far back as 1966. It is true that the draft uses the idea of the scope of a state law. So do the cases.

And it is true that the draft says that a law is not relevant if the facts of the case fall outside its scope. So do the cases. There is nothing in the draft that is not either trivially true as a descriptive matter (courts must decide if a choice of law question exists and, if so, resolve it) or drawn directly from the cases. The introductory sections are an entirely anodyne restatement of modern choice of law methodology.

But even if there were a theoretical framework that did not function as a general restatement of modern methodology, there is no reason to think that courts would pay it much attention. As anyone with litigation experience knows, courts tend to focus on the sections of Restatements that provide operative rules and the ones that the parties bring to their attention. In this case, for instance, the lower court and my amicus brief mentioned the draft rules that governed the relevant issues, because those were the only rules that suggested how a court should decide. Again, if the Washington Supreme Court thought that the draft Restatement was asking it to take some novel theoretical position, it got that idea only from Listwa’s writings.

As for Listwa’s suggestion that the rules should be presented “more explicitly as descriptive summaries of convergent practice—emphasizing empirical patterns rather than theoretical frameworks” . . . I really do not know what to say. It is hard for me to believe that he would write something like this without looking at the way the rules are presented, but it is equally hard to believe that he would write it if he had looked at them. Some selections from Tentative Draft 4 may be illuminating:

1. Section 6.01, cmt a: “This Restatement draws on the experience of courts applying the Restatement Second and other modern approaches to choice of law, as well as recent codifications, to extend the insights of the Restatement Second and articulate them in the form of rules rather than an open-ended balancing of factors. These rules capture majority practice while offering certainty and predictability to parties and simplicity and ease of application to courts.”
2. “Judicial decisions converge on which law should govern cases within those categories, and §§ 6.06–6.09 of this Restatement provide rules that track judicial practice in selecting the governing law.”
3. Section 6.07, Reporters’ Notes: “A survey of the decisions of State high courts in the 42 States that have abandoned the traditional “place of the wrong” rule found 34 that featured the Babcock Of those 34, 33 selected the law of shared domicile. See SYMEON C. SYMEONIDES, OXFORD COMMENTARIES ON AMERICAN LAW: CHOICE OF LAW 194 (2016).” The Note then lists the 33 cases.
4. “A survey of 28 reverse– Babcock cases from high courts of states that had abandoned the traditional place-of-wrong rule found that 20 of them (drawn from 16 jurisdictions) selected the law of shared domicile. See SYMEONIDES, CHOICE OF LAW at 196.” The note then lists the 20 majority and 8 minority cases.
5. Section 6.08, Reporters’ Notes: “A recent survey of cases in which the favored party was the tortfeasor found that 32 of 35 cases, drawn from 17 jurisdictions and decided under various choice-of-law approaches, select the law of the state of the tort. See SYMEON C. SYMEONIDES, OXFORD COMMENTARIES ON AMERICAN LAW: CHOICE OF LAW 206 (2016).” The note then lists the 32 majority and 3 minority cases.
6. Section 6.09, Reporters’ Notes: “For conduct-regulation issues in cross-border torts case in which the law of the state of conduct favors the victim, American courts have a strong tendency to apply that state’s law. Recent surveys concluded that over 83 percent of cases fitting this pattern apply the law of the state of conduct. See Symeon C. Symeonides, Choice of Law in Cross-Border Torts: Why Plaintiffs Win, and Should, 61 HASTINGS L.J. 337, 355–361 7 (2009) (surveying cases through 2009); SYMEON C. SYMEONIDES, OXFORD COMMENTARIES ON AMERICAN LAW: CHOICE OF LAW 238 & n.329 (2016) (updating figures for post-2009 cases).”
7. “For conduct-regulation issues in cross-border torts cases for which the law of the state of conduct favors the tortfeasor, the conflict is starker. Nonetheless, judicial practice in American courts shows an even stronger tendency to apply the victim-favoring law of the place of injury. A recent survey concludes that 87 percent of such cases apply the law of the place of injury. See Symeon C. Symeonides, Choice of Law in Cross-Border Torts: Why Plaintiffs Win and Should, HASTINGS L.J. 337, 368–374 (2009) (surveying cases); SYMEON C. SYMEONIDES, OXFORD COMMENTARIES ON AMERICAN LAW: CHOICE OF LAW 242–247 (2016).”
8. Section 6.11, products liability, acknowledges that the cases are “complex, varied, and inconsistent” But it supports its rule with citations to 29 cases, while acknowledging contrary authority.
9. Section 6.12, punitive damages, also notes that “[t]he availability of punitive damages varies from state to state, and the willingness of states to award punitive damages in multistate cases is likewise varied.” However, it supports its rule with citations to fourteen cases and two codifications.
10. The characterization of statutes of repose as part of the claim comes from Tentative Draft 5, § 5.31 comment g. It is supported by citations to eleven cases.

It is, in short, incomprehensible to me that Listwa reads the draft as doing anything other than explicitly presenting its rules as descriptive summaries of convergent judicial practice. If there is any judicial concern about a theoretical framework, it arises from commenters’ mischaracterizations rather than the draft itself.