Our common law developed from unwritten English law, which was based on tradition and custom. English common law is the foundation of our federal law and the law of all states, except Louisiana (which is based on French civil law). The most important characteristic of common law is that it is judge-made, rather than statutory or constitutional law. Under the common law system, current cases are decided using the precedents established by past judicial decisions.
American Law Institute and the Restatements of Law
The American Law Institute (ALI) is an organization that was started in 1923. It is made up of judges, law professors and lawyers. The purpose of the ALI is to take common law principles found in case law and put them into general rules of law. The ALI analyzes case law, extracts the legal principles presented in the cases, and writes general rules of common law. These general rules are published in treatises called Restatements of Law. The Restatements cover broad legal topics such as contracts, property, torts and trusts. Each Restatement rule is followed by comments from the ALI and examples that help explain the application of the rule. The Restatements of Law are not primary legal authority, but they are considered persuasive authority by the courts. Restatements can become primary law if the courts or legislature adopt them.
Restatement (Third) of Torts: Products Liability
In 1998, the ALI adopted the Restatement (Third) of Torts: Products Liability. The Third Restatement explains the legal principles found in products liability cases. It contains several controversial changes from the Restatement (Second). First, the Restatement (Third) eliminates the consumer expectations test, which was one standard used to determine if the product was defectively designed. If the product did not perform as an ordinary consumer might have expected, the product was considered defective. The consumer’s expectation is now just one of several factors to be weighed in deciding if the product is defective.
Second, the Restatement (Third) provides that in order to find that a product is defectively designed, it is necessary to show that the risk of harm presented by the product could have been reduced by adopting a reasonable alternative design. The Restatement (Third) thus requires the plaintiff to show that a reasonable alternative design for the product exists and that it is superior to the allegedly defective product. This places a significant burden on the plaintiff. While courts are not required to follow the Restatements of Law, the Restatement rules are very persuasive and can impact the future of products liability law.
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