Vanderbilt Law Review


Keith N. Hylton

First Page



Though at times a source of controversy, the American Law Institute performs an enormous public service through its Restatement projects. One of the initial hurdles any such project confronts is whether it should aim to clarify and illuminate the law, or to push the law in a certain direction. I think the Restatement project is most productive when it aims to clarify and illuminate rather than guide or control the development of legal doctrine. Efforts to guide and control risk producing questionable interpretations of the aw, undermining the value of the Restatement in the long run. Fortunately, the Restatement of Torts comes across largely as an effort to clarify and illuminate.

I will argue below that this clarification function can be improved by adopting, developing, and integrating a positive theoretical framework. A positive theory of tort doctrine can reveal connections between rules that initially seem initially to be unrelated, suggest functions for rules that seem difficult to justify on doctrinal grounds, help the researcher predict the eventual tort rules adopted by courts in novel areas of the law, and give us greater confidence in our interpretations of the case law. I hope to demonstrate that a detailed positive framework can improve the Restatement and similar efforts to clarify tort doctrine, and should be a central part of the Restatement project.

In order to be useful to the Restatement project, a positive theory of tort law has to have detailed implications for tort doctrine. The lack of detailed implications and general failure to come to grips with important features of tort doctrine have been substantial shortcomings in the dominant positive framework, that of Holmes and Posner. I extend the dominant framework below to enable it to justify various intentional tort doctrines, and the specific form and allocation of strict liability rules within tort law. After developing the positive framework, I apply it to the Restatement (Third) of Torts. The framework explains many of the detailed provisions and commentary of the Restatement, and identifies one area in which the Restatement (Third) seems inconsistent with tort doctrine. In the penultimate section I return to the value of positive theory as a part of the Restatement project.

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Torts Commons