Keating on the Restatement Third of Torts: Products Liability

Greg Keating has posted to SSRN a piece he presented at Southwestern law year, Is the Restatement of Design Defect a Defective Product?.  The abstract provides:

The American Law Institute’s Restatements of the Law present themselves as attempts to summarize and organize existing case law; to provide the most sensible and persuasive justifications for extant doctrine; and to state the law as it is in an intellectually coherent way. Restatements purport to reshape the law only by organizing and clarifying it, thereby “working it pure.” The justification for restating—not remaking—the law is evident enough. The American Law Institute is neither a legislature nor a common law court. The only authority that the Institute can claim is the authority of the law that it restates. But because Restatements are committed to the enterprise of restating law, they must often confront a basic predicament. How do you extract the law from the decisions of courts when those courts are deeply divided over the matters that you are restating? The problem is vividly illustrated by the Restatement, Third of Products Liability’s treatment of design defect. On its surface, the law that the Third Restatement restated was (and is still) sharply divided between two tests of design defect, namely, the risk-utility and consumer expectation tests. Beneath the surface, the law was (and is still) divided between negligence and enterprise liability conceptions of responsibility. Faced with deeply divided law, the Third Restatement embraced a negligence conception of the basis of design defect liability, and a single risk-utility test as the doctrinal expression of that conception. Unpersuasively—and unsuccessfully, too—the Restatement, Third presented that choice as a summarization of existing law, not as a normatively driven decision to prefer one possible product liability regime over another. Consequently, the Third Restatement of design defect is a defective incarnation of the basic Restatement project. Its failure invites us to ask if the Restatement project can succeed in the face of conflicting case law, and if we can imagine Restatements pursuing a different project. Might Restatements frankly acknowledge and illuminate conflicts in our law? Rather than claiming that the law speaks with a single voice when it does not, might Restatements work pure the competing voices of our law by presenting them to us in their most compelling and coherent incarnations?