Vanderbilt Law Review

First Page



John Wade was a master of the craft of restating the law. The American Law Institute ("ALI") benefitted especially from his distinctive service during development of the Restatement (Second) of Torts. It is fitting that we use, as a vehicle for honoring his service, an inquiry into a segment of tort law that was first considered in the decades just after the Institute was founded and remains, even today, among the most difficult areas of law to restate. This segment of tort law concerns the general theory of strict liability and the extent that it applies to nuisance cases.

To set the stage for this inquiry, let us imagine that we are participants in a third ALI effort to restate this segment of tort law. We are convened for a discussion, and perhaps a vote, in the year two- thousand-something-or-other. I would hesitate to predict the precise year, but hesitate not at all to predict this time will come during the lifetime of most of the younger readers of this Article.

Before us is a draft of the proposed blackletter of Restatement (Third) of Torts Section 822. Our hypothetical drafter appreciates the constructive purposes that ambiguity may serve in some contexts. But our drafter dislikes ambiguity in the statement of a legal test that must be used daily by lawyers and judges in contexts where clarity and precision have special value. These contexts include, for example, use of the legal test: (1) by lawyers when preparing to advise clients about their rights and about risks they may incur by a chosen course of conduct; (2) by judges when deciding whether a case will be allowed to go to a jury; and (3) by trial lawyers and trial judges when drafting instructions to a jury on mixed law-fact questions submitted to them.

Our hypothetical drafter presents to us options aimed at encouraging us to make immediately, rather than defer to other decision makers at some later time, the hard choices that someone must make sooner or later. Making those choices wisely and immediately might be the first step toward resolving longstanding ambiguities in the way that many, perhaps most, writers (of judicial opinions as well as texts, articles, and comments) have stated the legal tests for deciding nuisance and strict liability cases.