Restatement (Third) of Torts: General Principles and the Prescription of Masculine Order

Until April 1999, when it published a draft called Restatement (Third) of Torts: General Principles ("General Principles"), the American Law Institute ("ALI") had never purported to declare the "general principles" of anything.1 This lack of precedent meant a blank slate: Reporters can carry out a general-principles mandate in varying ways. One contributor to this Conference, David Owen, has spoken elsewhere of "paths taken and untaken in the Restatement (Third)" to describe choices about products liability rules.2 Professor Owen has perceived these divergences as wide and profound.3 In the General Principles, which strive to speak about all of Torts rather than just one category of doctrine, options "taken and untaken" present an even wider array. Because the General Principles are in flux, I should specify that in this Essay I address two particular publications in the ALI archive:4 the Discussion Draft of April, 1999, prepared by Professor Gary Schwartz, and Preliminary Draft No. 2, dated May 10, 2000, which in turn contains a chapter on strict liability by Professor Schwartz and a document called Supplemental Materials by Professor Harvey Perlman.5 Soon after the May publication, the General Principles project took several turns, including personnel shifts and rethinkings of the endeavor within the ALI.6 Perhaps most significant for purposes of this Essay, a new title has emerged for the project: Shortly before my final deadline, Schwartz's portion became "Liability for Physical Harm: Basic Principles."7 Despite this tempest of change and the far-from-final status of the Discussion Draft and the Supplemental Materials, these documents remain of interest. They reflect both process and result of an unprecedented endeavor to restate the general principles of Torts. And so two pieces from the General Principles collection, which lay out paths that are at the moment simultaneously "taken and untaken in the Restatement (Third)," warrant attention here. In recognition of their continuing vitality, I speak of them in this Essay using the present tense. My claim is that the General Principles look at Torts from a gendered perspective: mostly (but far from uniformly) male, an outcome consistent with the overrepresentation of men in all sectors that build the doctrine and theory of Torts. Some readers of the General Principles have reached the same conclusion by means that are different from mine. For example, one key assertion in the Discussion Draft declares emotional or dignitary injury peripheral to Torts; its corollary, that physical injury is both paradigmatic and preemptive, has troubled Martha Chamallas.8 To Professor Chamallas, principles that deny the centrality of emotion and dignity within tort law are not general after all, but exclusionary and dismissive.9 By contrast I find maleness in the formation of this compendium itself. The belief that it is desirable to describe the essence of one subject in one comprehensive, rationalist, universal, and general compilation descends from forebears of the seventeenth century who strove to penetrate what they perceived as a recumbent, mysterious, passive, and decidedly feminine wilderness of Nature. Although scholars have for centuries been calling these precedents gendered,10 writers who assert general principles usually do not see themselves as carrying a masculine torch. The endeavor regards itself as driven by observation rather than ideology, following the posture, associated with Francis Bacon, of stepping back to gaze on apparent disorder as a method of educing truth. Applied to the General Principles, the premise is that once accurately perceived, an object of gaze-for the ALI mainly decisional law, with statutes and scholarship occasionally included"will reveal its inner logic and coherence. Such a stance, I argue, misdescribes the work of restaters; in my view, they are more political intervenors than detached, neutral onlookers. In the name of disinterested examination, the prescription of masculine order suppresses alternatives, and forces that which it sees into a Procrustean framework. …