Removing Emotional Harm from the Core of Tort Law

My commentary is directed to one important feature of the new Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft")-the decision to remove liability for emotional harm from the core of tort law. As a Torts professor, I am very attracted to the Discussion Draft because to a large extent it tracks the way I structure and teach torts to first year students. It reflects what Professors Jack Balkin and Sanford Levinson describe as the pedagogical canon in torts, by highlighting those topics and subtopics that most professors emphasize in their scaled- down Torts course and including the material that most agree every beginning law student should know. I am not so sure that the Discussion Draft responds as well to the needs of practitioners and judges who have already passed the course in Torts.

For me, one test of a Restatement is whether it will help lawyers and judges argue and decide the non-routine case, where precedent is scarce and the stakes seem high. An irony of the Restatement process is that a Restatement is needed to provide some guidance for legal actors in cases where the boundaries and categories are contested and everyone agrees that simply stating or restating what purports to be the prevailing legal doctrine is not enough. Thus, it is critically important that the framework of a Restatement to alert practitioners and judges to the areas of confusion and contest and pay attention to those lively and dynamic areas of the law where there are no clear trends. For this reason, I have always thought that the best parts of the Restatement were the Caveats.