Copyright (c) 2009 Wake Forest Law Review Association, Inc.
Wake Forest Law Review
THIRD RESTATEMENT OF TORTS: ISSUE ONE: ARTICLE: CAUSATION IN THE RESTATEMENT (THIRD) OF TORTS: THREE ARGUABLE MISTAKES
WAKE FOREST LAW REVIEW
44 Wake Forest L. Rev. 1007
David W. Robertson*
This Article focuses narrowly on three respects in which I disagree with the Restatement (Third) of Torts' treatment of causation. 1 These three disagreements are explained in Parts II, III, and IV. Part I provides essential background.
A. Posited Constraints on Legal Scholarship
A scholar who sets out to describe, explain, justify, or criticize a body of existing law must ultimately ground the work in "actual legal practices." 2 The scholar is free to propose as many alternative views as her creativity can conjure up, but proposals should not be masked as description. When the subject of study is a body of court decisions, the scholar must try to distinguish between "what judges do as fate-or culture-determined creatures [and] what judges do when they are at their best, acting consciously and explaining rationally their decisions." 3 That distinction is real, it is necessary, and it is drawn by conscientious scholars (and not just by losing lawyers) on an everyday basis. But "conscientious" is the watchword: individual decisions cannot be set aside as bad law without articulated, principled justification; sizeable bodies of jurisprudence cannot be ignored merely because they are disagreeable; and novel ideas - ideas that have no demonstrable judicial or legislative pedigree - cannot properly be proclaimed as existing law.
It seems to follow that a "Restatement" of a body of court decisions should capture, explain, and enhance the best available judicial views, but that it should not offer up as something visible ...
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