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Tobacco Industry Influence on the
American Law Institute’s Restatements of
Torts and Implications for Its Conflict of
Interest Policies†
Elizabeth Laposata, Richard Barnes & Stanton Glantz
ABSTRACT: The American Law Institute (“ALI”) is a prestigious and
influential organization that creates treatises on the current state of the law,
including “Restatements” of case law that guide judicial decisions and
legislation. This paper uses previously secret tobacco industry documents
made available as the result of state and federal litigation against the
industry to describe how the tobacco companies, acting both indirectly
through their trade organization, the Tobacco Institute, and directly, using
influential lawyers, quietly influenced the ALI’s writing of the Restatements.
The tobacco industry’s ease of access to the ALI calls into question the
Institute’s independence, the preparation of major policy documents such as
the Restatements, as well as the Institute’s ability to monitor and control
conflicts of interest. The ALI’s conflict of interest policies lag behind
comparable organizations such as the National Academy of Sciences and the
Institute of Medicine, and are insufficient to protect Institute projects from
significant outside influence. Because of the undisclosed influence of the
tobacco industry over the ALI, courts and legislatures should not apply the
principles embodied in the Restatements in tort cases against the tobacco
companies for injuries suffered from tobacco use. Until the ALI implements
strong conflict of interest policies to ensure independence from private-
† This Article was supported by National Cancer Institute Grant CA-87472. The funding
agency played no role in the selection of the topic for this Article, the conduct of the research,
or the preparation of the manuscript.
 Tobacco Control Policy Researcher, Center for Tobacco Control Research and
Education at the University of California, San Francisco. I would like to thank Professors Reuel
Schiller at UC Hastings and Robert Proctor at Stanford University as well as all the members of
the Center for their reviews and comments on drafts of this article.
 Assistant Professor of Law, University of California, Hasting College of the Law;
Tobacco Control Policy Researcher, Center for Tobacco Control Research and Education at the
University of California, San Francisco.
 Professor of Medicine, Member of the Institute for Health Policy Studies, and Director
of the Center for Tobacco Control Research and Education at the University of California, San
Francisco. Email: glantz@medicine.ucsf.edu.
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interest manipulation, courts and legislatures should not rely on Institute
reports and recommendations as neutral scholarly summaries of the law that
should guide judicial and legislative decision-making.
INTRODUCTION .......................................................................................... 3
I. THE AMERICAN LAW INSTITUTE ................................................................ 5
II. BACKGROUND ............................................................................................ 7
A. THE RESTATEMENT (SECOND) OF TORTS ............................................... 7
B. TOBACCO IN THE 1950S AND 1960S ..................................................... 8
III. TOBACCO INDUSTRY INFLUENCE OVER THE RESTATEMENT
(SECOND) OF TORTS .................................................................................. 9
A. EARLIEST DRAFTS AND THE ORIGINAL INTENT OF SECTION 402A ........... 9
B. TENTATIVE DRAFT NO. 6: THE RESTATEMENT BEFORE TOBACCOINDUSTRY-INFLUENCED CHANGES ........................................................ 12
C. ALI 38TH ANNUAL MEETING ............................................................. 14
D. THE TOBACCO INDUSTRY ENGAGES SECTION 402A.............................. 17
E. THE TOBACCO INSTITUTE’S COMMITTEE ON LEGAL AFFAIRS ................ 19
F. THE MEETING WITH PROSSER AND SUBSEQUENT CHANGES TO
SECTION 402A................................................................................... 26
IV. TOBACCO INDUSTRY INFLUENCE OVER THE RESTATEMENT (THIRD)
OF TORTS ................................................................................................. 30
A. THE RESTATEMENT (THIRD) OF TORTS: PRODUCT LIABILITY ............... 30
B. THE STATE OF TOBACCO CONTROL IN THE EARLY 1990S .................... 31
C. ALI PARTICIPANTS’ TOBACCO INDUSTRY TIES ..................................... 33
D. THE TOBACCO INDUSTRY’S RESPONSE ................................................. 39
E. THE FINAL OUTCOME ......................................................................... 44
F. LASTING EFFECT OF THE RESTATEMENTS ............................................. 45
V. AMENDING CONFLICT OF INTEREST POLICIES.......................................... 51
A. THE ALI CONFLICT OF INTEREST POLICY ............................................ 51
B. COMPARABLE INSTITUTIONS: THE NATIONAL ACADEMIES .................... 54
C. MEDICAL JOURNAL POLICIES ............................................................... 59
D. COMPARISON OF THE ALI WITH THE NAS AND IOM RECOMMENDED
CONFLICT OF INTEREST POLICIES ........................................................ 60
E. THE TOBACCO INDUSTRY’S EFFORT TO INFLUENCE THE ALI
REFLECTS A BROADER PATTERN .......................................................... 64
F. LIMITATION ....................................................................................... 66
CONCLUSION ........................................................................................... 67
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INTRODUCTION
In December 1957, Edwin Green, Sr. sued the American Tobacco
Company for injuries he suffered from smoking American’s Lucky Strike
cigarettes.1 Two months later, Green died of lung cancer.2 The case took
over ten years to resolve as it bounced through the court system, consisting
of two trials, three appeals, and one certified question.3 In the end,
American Tobacco avoided culpability in 1969 under a theory of strict
liability for a death the jury decided was caused by smoking, in part because
of Section 402A of the American Law Institute’s (“ALI”) 1965 Restatement
(Second) of Torts,4 a treatise on tort law in the United States, which
declared that although tobacco “may cause cancer,” it is “not unreasonably
dangerous,”5 and therefore not subject to strict liability.6
In part because courts and legislatures have trusted the ALI’s
Restatements to distill and explain the current state of the law,7 and because
the Second Restatement explicitly exempted tobacco from strict liability,
tobacco companies avoided paying damages on a products liability law suit8
until 1997,9 despite the fact that smoking kills an estimated 443,000
Americans every year.10
Thirty years after the Second Restatement, in 1997, the ALI updated
the Second Restatement with the Restatement (Third) of Torts: Product
Liability; the exemption for tobacco was removed, but the Third
Restatement still benefited tobacco companies by creating nearly
insurmountable obstacles for plaintiffs to overcome to prove their case in
tobacco liability cases.11 The beneficial effects of these two Restatements for
1. Green v. Am. Tobacco Co., 391 F.2d 97, 99 (5th Cir. 1968), rev’d per curiam, 409 F.2d
1166 (5th Cir. 1969) (en banc), cert. denied, 397 U.S. 911 (1970).
2. Id.
3. See id. at 99–101.
4. RESTATEMENT (SECOND) OF TORTS § 402A (1965). See generally id. §§ 281–503.
5. Green, 391 F.2d at 110.
6. Green v. Am. Tobacco Co., 409 F.2d 1166 (reversing the earlier Fifth Circuit decision
and adopting the dissent’s approach).
7. See, e.g., Thomas C. Galligan, Jr., A Primer on Cigarette Litigation Under the Restatement
(Third) of Torts: Products Liability, 27 SW. U. L. REV. 487 (1998); Daniel Givelber, Cigarette Law, 73
IND. L.J. 867 (1998).
8. Ingrid L. Dietsch Field, No Ifs, Ands or Butts: Big Tobacco Is Fighting for Its Life Against a
New Breed of Plaintiffs Armed with Mounting Evidence, 27 U. BALT. L. REV. 99, 100–01 (1997).
9. In October 1997, the tobacco industry settled with a class of non-smoking airline
attendants for $300 million, marking the first time any tobacco company paid out on a lawsuit,
either through settlement or court decision. See ALLAN M. BRANDT, THE CIGARETTE CENTURY
409 (2007).
10. Ctrs. for Disease Control & Prevention, Vital Signs: Current Cigarette Smoking Among
Adults Aged > 18 Years—United States, 2009, MORBIDITY & MORTALITY WKLY. REP., Sept. 7, 2010,
at 1, available at ftp://ftp.cdc.gov/pub/publications/mmwr/wk/mm59e0907.pdf.
11. See Galligan, supra note 7, at 498–532.
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the tobacco industry’s legal security has been widely appreciated,12 as noted
in 1975 by the fact that a law firm representing the cigarette companies was
“trying to change language in the [Third] Restatement of Torts which was
considered damaging to the liability of cigarette manufacturers.”13 However,
the full nature and involvement of the tobacco industry in creating the
Restatements has not been so widely recognized. New understanding of the
industry’s role, based on previously secret industry documents now available
at the University of California San Francisco Legacy Tobacco Documents
Library14 (“Legacy Library”), raises serious questions about conflicts of
interest at the ALI and the reliability of its Restatements.
The documents in the Legacy Library are a unique resource revealing
the tactics of one specific industry. Through a series of lawsuits, tobacco
companies have been forced to release internal documents to the public,
providing decades of insider information on the full range of previously
undisclosed industry activities, including efforts to influence the
development of law and science. These documents allow for the
examination of the industry’s behind-the-scenes role in crafting the
Restatements. Since there is not a comparable collection for other major
industries, one cannot know with certainty whether the tobacco industry’s
manipulation of the ALI is unique or typical of broader corporate influence
over the ALI’s Restatements. However, the fact that the ALI’s lack of
meaningful conflict of interest policies allowed the tobacco industry to
12. A sampling of law review articles concerning the topic includes: Franklin E. Crawford,
Fit for Its Ordinary Purpose? Tobacco, Fast Food, and the Implied Warranty of Merchantability, 63 OHIO
ST. L.J. 1165, 1181–83 (2002); Paul G. Crist & John M. Majoras, The “New” Wave in Smoking and
Health Litigation—Is Anything Really So New?, 54 TENN. L. REV. 551, 553 (1987); Galligan, supra
note 7; Givelber, supra note 7; Tucker S. Player, After the Fall: The Cigarette Papers, the Global
Settlement, and the Future of Tobacco Litigation, 49 S.C. L. REV. 311, 314–18 (1998); Robert L.
Rabin, A Sociolegal History of the Tobacco Tort Litigation, 44 STAN. L. REV. 853, 863–64 (1992);
Marcia L. Stein, Cigarette Products Liability Law in Transition, 54 TENN. L. REV. 631, 638–46
(1987).
13. MARK J. GREEN, THE OTHER GOVERNMENT: THE UNSEEN POWER OF WASHINGTON
LAWYERS 161 (1975).
14. This paper utilizes the over 75 million pages of previously secret tobacco industry
documents contained within the Legacy Tobacco Documents Library (“LTDL”). Documents
within the LTDL are public and were obtained through a series of lawsuits. For a detailed
description of the collection and sources of the documents, see About the Library, LEGACY
TOBACCO DOCUMENTS LIBRARY, http://legacy.library.ucsf.edu/about/about_the_library.jsp
(last visited Sept. 9, 2012). Searches through the LTDL for this paper were conducted from July
through November 2010 using keyword searches of the terms “American Law Institute,” “ALI,”
and “Restatement.” These searches yielded information that led to new searches with new
information. The online legal database HeinOnline was used to retrieve drafts of the
Restatements and ALI meeting notes. For a summary of the methodology, see ROSS MACKENZIE
ET AL., CTR. ON GLOBAL CHANGE & HEALTH, THE TOBACCO INDUSTRY DOCUMENTS: AN
INTRODUCTORY HANDBOOK AND RESOURCE GUIDE FOR RESEARCHERS 18–50 (2003), available at
http://cgch.lshtm.ac.uk/tobacco/Handbook%2008.07.03.pdf; Ruth E. Malone & Edith D.
Balbach, Tobacco Industry Documents: Treasure Trove or Quagmire?, 9 TOBACCO CONTROL 334
(2000), available at http://www.jstor.org/stable/pdfplus/20747550.pdf?acceptTC=true&&.
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influence the writing of two Restatements of Torts illustrates that the ALI is
not an objective institution solely examining the status of the law, but
instead is a malleable group open to influence by well-resourced outside
interests. Until the ALI implements strong conflict of interest policies to
ensure that it becomes independent of private-interest manipulation, courts
and legislatures should not rely on ALI reports and recommendations as
neutral scholarly summaries of the law that should guide judicial and
legislative decision-making.
This Article provides a background on the ALI in Part I. Part II then
describes how Restatements are created and the mounting evidence of, and
the industry’s attempt to cover up, the dangers of smoking in the time
leading up to the Second Restatement. Part III details and explains the
tobacco industry’s successful efforts to influence the writing of the Second
Restatement to obtain an exemption from strict liability. Part IV describes
continuing tobacco industry ties with the ALI during the writing of the
Third Restatement. While the Third Restatement no longer exempts
tobacco, it is still advantageous to the industry. In addition, the effects of the
Second Restatement have persisted despite publication of the Third
Restatement. Part V analyzes the ALI’s conflict of interest policies, finding
them lacking in comparison to policies held by similarly situated scientific
and medical institutions, and recommends changes to these policies to
prevent bias or the appearance of bias. Finally, Part VI concludes that this
tobacco industry influence over the ALI is one instance that demonstrates
the ALI’s failings in its promise for objective, scholarly work, and that until
the ALI changes its policies, its Restatements cannot be viewed as unbiased
authoritative documents.
I.
THE AMERICAN LAW INSTITUTE
The American Law Institute is a prestigious independent organization
which describes itself as “producing scholarly work to clarify, modernize, and
otherwise improve the law” by creating, among other things, Restatements of
the Law.15 Created by teams of legal scholars, including many judges, the
Restatements summarize and clarify common law and its statutory elements
as they presently stand or might plausibly be stated by a court. These
influential reports cover topics such as torts, agency, property, and
contracts.16 Although regarded as a secondary source of law, courts and
legislatures across the United States have relied heavily upon the
Restatements. By 2001, over 151,000 published cases in the United States—
from every state, the District of Columbia, and Puerto Rico—had cited an
15. ALI Overview, AM. LAW INST., http://www.ali.org/index.cfm?fuseaction=about.overview
(last visited Sept. 9, 2012).
16. Membership Overview, AM. LAW INST., http://www.ali.org/index.cfm?fuseaction=membership
.membership (last visited Sept. 9, 2012).
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ALI Restatement.17 There have been 868 United States Supreme Court cases
that have cited an ALI Restatement.18 The largest portion of these citations
(63,035) were to an edition of the Restatement of Torts.19
Members are elected to the ALI by existing members based on both
professional achievement and “high character and ability.”20 Being selected
as one of the ALI’s 3000 members is an honor for a lawyer, judge, or legal
scholar. An appointment to write or advise on the ALI’s publications is even
more prestigious. The process by which a Restatement is created includes
many steps. “Reporters,” who are experts in their respective fields of law and
usually legal scholars, research and prepare initial drafts of the
Restatements.21 “Advisers,” a small group of judges, lawyers, and law
professors, who specialize in the field of concern, review drafts of the
Restatements.22 Early drafts are also reviewed by a “Members Consultative
Group” (“MCG”), a group of Institute members with a specific interest in
the Restatement topic.23 Completed “Council Drafts,” prepared by the
Reporters in consultation with the Advisors, are submitted to the ALI
Council—its volunteer board of directors—for review and approval.24 After
considering the Council’s comments, the Reporters and Advisors then
present a “tentative draft” to the entire ALI membership for review and
approval25 at the ALI annual meetings where it is discussed and approved
(sometimes with amendments) or sent back to the Reporters and Advisors
for more revisions.26 The drafting cycle continues until the Council and
general membership have approved each section of a Restatement; if
extensive changes are required, the Reporters may be asked to prepare a
Proposed Final Draft for approval by the Council and membership.27
Preliminary drafts, which are initial drafts written by the Reporters with
advice from the Advisors, and Council drafts are only released to the entire
ALI membership once the entire drafting process is completed.28 None of
17. AM. LAW INST., ANNUAL REPORTS 17 (2001). The ALI provides this data every ten
years.
18. Id.
19. Id.
20. Membership Overview, supra note 16.
21. About the American Law Institute, AM. LAW INST., http://www.ali.org/doc/thisIsALI.pdf
(last visited Sept. 9, 2012).
22. Id.
23. Id.
24. Id.; Projects: Drafting Cycle, AM. LAW INST., http://www.ali.org/index.cfm?fuseaction=
projects.drafting (last visited Sept. 9, 2011).
25. Projects: Drafting Cycle, supra note 24; About the American Law Institute, supra note 21.
26. Projects: Drafting Cycle, supra note 24; About the American Law Institute, supra note 21.
27. Projects: Drafting Cycle, supra note 24.
28. About the American Law Institute, supra note 21.
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the drafts are available outside of the ALI membership until publication of
the Restatement.29
II. BACKGROUND
A. THE RESTATEMENT (SECOND) OF TORTS
The ALI worked on the Restatement (Second) of Torts from 1955 to
1979, releasing it in four volumes from 1965 to 1979.30 The reporter was
William Prosser, Dean of Boalt Law School at the University of California,
Berkeley, the leading scholar on strict liability at the time and author of the
seminal tort law text, Handbook of the Law of Torts, informally known as
“Prosser on Torts.”31 The most influential section in the Restatement
(Second) of Torts was Section 402A, which described the burgeoning law of
strict liability for sellers of products causing harm.32 Section 402A was
controversial and went through many drafts over the six years prior to the
ALI adopting it in 1964—the same year the U.S. government published the
first Surgeon General’s report linking smoking with lung cancer and other
disease.33 Section 402A contained an exemption from strict liability for
“good tobacco,”34 requiring that injured smokers sue tobacco companies
under negligence, warranty, or some other legal theory that is much harder
to prove than strict liability.35 Section 402A effectively ended then-existing
litigation against the tobacco companies, and prevented new litigation for
almost twenty years.36
29.
30.
Id.; Projects: Drafting Cycle, supra note 24.
See RESTATEMENT (SECOND) OF TORTS §§ 1–280 (1965) (Volume 1); RESTATEMENT
(SECOND) OF TORTS §§ 281–503 (1965) (Volume 2); RESTATEMENT (SECOND) OF TORTS
§§ 504–707A (1977) (Volume 3); RESTATEMENT (SECOND) OF TORTS §§ 708–End (1979)
(Volume 4).
31. WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS (1941).
32. See George W. Conk, Punctuated Equilibrium: Why Section 402A Flourished and the Third
Restatement Languished, 26 REV. LITIG. 799, 800 (2007).
33. PUB. HEALTH SERV., U.S. DEP'T OF HEALTH, EDUC. & WELFARE, SMOKING AND HEALTH:
REPORT OF THE ADVISORY COMMITTEE TO THE SURGEON GENERAL OF THE PUBLIC HEALTH
SERVICE (1964), available at http://profiles.nlm.nih.gov/ps/access/NNBBMQ.pdf.
34. RESTATEMENT (SECOND) OF TORTS § 402A cmt. i (1965) (The ALI defined “good
tobacco” as “not unreasonably dangerous”).
35. See id. § 402A cmt. g.
36. Stein, supra note 12, at 639. No new cigarette cancer cases were brought after the
publication of Section 402A, though the existing ones continued to go through the legal
process with appeals through the rest of the sixties. The next case against the tobacco
companies for cancer was not brought until the Cippolone case in 1983.
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B. TOBACCO IN THE 1950S AND 1960S
While the Restatement (Second) of Torts was being written, the
negative health effects of tobacco use were of rising public concern.37 An
increasing number of scientific studies, dating back to the early 1940s, were
illuminating the causal link between smoking and lung cancer, and were
beginning to suggest that smoking caused heart disease and other diseases.38
The first tort cases against the tobacco companies for smoking-caused death
and injuries began in 1954.39
In 1954, in response to this increasingly challenging environment, and
on the advice of the public relations firm Hill and Knowlton, Philip Morris,
The American Tobacco Company, and other major tobacco companies ran
full-page advertisements headlined “A Frank Statement to Cigarette
Smokers.”40 The advertisement assured the public (and public-policy
makers) that “We [the tobacco companies] accept an interest in people’s
health as a basic responsibility, paramount to every other consideration in
our business,” and announced the formation of the Tobacco Industry
Research Committee (“TIRC”) to sponsor independent scientific research
on tobacco and health.41 Contrary to these public representations, the
purpose of the TIRC was to keep the “controversy” about the health effects
of smoking alive so the companies could avoid regulation that would reduce
smoking (and subsequently their sales and profits).42 The formation of the
TIRC was the beginning of a decades-long illegal racketeering “enterprise,”
in which “over the course of more than 50 years, Defendants lied,
misrepresented, and deceived the American public . . . about the devastating
health effects of smoking and environmental tobacco smoke . . . and they
abused the legal system in order to achieve their goal.”43 Another early
37. SUSAN WAGNER, CIGARETTE COUNTRY: TOBACCO IN AMERICAN HISTORY AND POLITICS,
235–48 (1971).
38. See, e.g., Alton Ochsner & Michael DeBakey, Symposium: Primary Pulmonary Malignancy:
Treatment by Total Pneumonectomy; Analysis of 79 Collected Cases and Presentation of 7 Personal Cases,
1 SURGERY, GYNECOLOGY & OBSTETRICS 109 (1999); Alton Ochsner et al., The Early Recognition of
Bronchogenic Carcinoma, 1 J. AM. GERIATRICS SOC’Y 250, 252 (1953); Ernest L. Wynder & Evarts
A. Graham, Tobacco Smoking as a Possible Etiologic Factor in Bronchogenic Carcinoma: A Study of Six
Hundred and Eighty-Four Proved Cases, 143 JAMA 329 (1950). For an overview of the studies, see
WAGNER, supra note 37, at 63–78.
39. Field, supra note 8, at 100–01.
40. STANTON A. GLANTZ ET AL., THE CIGARETTE PAPERS 33–34 (1998). For a copy of “A
Frank Statement” put out by the Tobacco Industry Research Committee, see Tobacco Indus.
Research Comm., A Frank Statement to Cigarette Smokers, LEGACY TOBACCO DOCUMENTS LIBR.,
http://legacy.library.ucsf.edu/tid/tyz46b00/pdf (last visited Sept. 9, 2012).
41. GLANTZ ET AL., supra note 40, at 34–35.
42. Id. at 26, 36.
43. United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 851–52 (D.C.C. 2006),
aff’d in part, vacated in part, 566 F.3d 1095 (D.C. Cir. 2009), cert. denied 130 S. Ct. 3501 (2010).
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element of the enterprise was the 1958 formation of the Tobacco Institute
to act politically and publicly on behalf of the cigarette companies.44
During the mid-1950s, in the wake of mounting knowledge of the
harmful effects of cigarettes, the Federal Trade Commission (“FTC”) began
increasing its control over cigarette advertising by limiting the tobacco
companies from making explicit positive health claims in their
advertisements. In 1958, the Legal and Monetary Subcommittee of the U.S.
House of Representatives Government Operations Committee investigated
the role and responsibility of the FTC in regulating advertising claims that
filtered cigarettes were healthier than unfiltered cigarettes, and reported
that the tobacco companies had “deceived the American public”45 with their
claims of health and safety. The subcommittee concluded that filtered
cigarettes were not protective or healthier than non-filtered cigarettes, and
that the FTC had “failed in its statutory duty to ‘prevent deceptive acts or
practices’ in filter-cigarette advertising.”46
In response to public concern, in October 1962, President John F.
Kennedy appointed the Surgeon General’s Advisory Committee to review
the scientific evidence regarding the health effects of smoking. This
committee prepared the first Surgeon General’s report, Smoking and Health:
Report of the Advisory Committee to the Surgeon General, in 1964.47 The report
concluded that smoking caused lung cancer in men, and attributed
significant annual excess deaths from lung cancer, bronchitis, emphysema,
arteriosclerotic, coronary, and degenerative heart disease to smoking.48
III. TOBACCO INDUSTRY INFLUENCE OVER THE RESTATEMENT (SECOND) OF
TORTS
A. EARLIEST DRAFTS AND THE ORIGINAL INTENT OF SECTION 402A
Mounting evidence of the negative health effects of tobacco use
increased the industry’s vulnerability to tort lawsuits for injuries resulting
from smoking. Fortunately for the industry, the introduction of Section
44. Id. In her opinion, Judge Kessler deplores the Tobacco Institute as spearheading the
conspiracy to mislead and defraud the American public. She specifically found that Tobacco
Institute lawyers determined what science was conducted, published, or publicized, requiring
all results and outcomes to be pro-industry. Id. at 303; see also WAGNER, supra note 37.
45. WAGNER, supra note 37, at 87–89.
46. Id. at 89. To clarify what could be advertised, the FTC then attempted to set up
standard tar and nicotine content testing procedures for filter-tip cigarettes, but results from
different laboratories were so inconsistent that the agency decided that no reliable test existed.
The subcommittee was subsequently dissolved by Rep. William L. Dawson (D., Ill.), the
chairman of the full committee, canceling further hearings and ending any discussion of a bill
to regulate cigarette advertising. Id. at 89–90.
47. PUB. HEALTH SERV., supra note 33.
48. Id. at 25–26.
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402A in the Restatement (Second) of Torts successfully guarded the
industry from such lawsuits for decades.
Early drafts and ALI annual-meeting minutes demonstrate that the
original purpose of Section 402A was to protect consumers, especially from
products that caused substantial harm. The first draft of Section 402A that
appeared in the 1958 Preliminary Draft No. 6 of the Restatement (Second)
of Torts was not favorable to the tobacco industry. The language in this draft
would likely have subjected tobacco products—especially cigarettes—to strict
liability,49 a situation that persisted through three drafts.50 A sudden change
occurred in 1962—Section 402A was rewritten to exempt tobacco products
from strict liability.
The first two drafts of Section 402A, Preliminary Draft No. 6 in January
1958,51 and Council Draft No. 8 in November 1960,52 imposed strict liability
on sellers of food:
402A. Special Liability of Sellers of Food
One engaged in the business of selling food for human
consumption who sells such food in a condition dangerous to those
who consume it is subject to liability for physical harm thereby
caused to them, even though
(a) The seller has exercised all possible care in the preparation
and sale of the food; and
(b) The consumer has not bought the food or entered into any
contractual relation with the seller.53
The definition of “food” was “all products intended for internal human
consumption, whether or not they have nutritional value,”54 specifically
including chewing tobacco and snuff as well as candy, beverages, chewing
gum, and drugs.55 Courts could have used this broad definition, along with
the fact that chewing tobacco and snuff were explicitly included in the
definition, to include cigarettes within this definition of “food” and
therefore covered by Section 402A.
49. Strict liability, also known as absolute liability, is the imposition of liability for harms
caused regardless of the standard of care exercised. See BLACK’S LAW DICTIONARY 998 (9th ed.
2009).
50. See RESTATEMENT (SECOND) OF TORTS § 402A (Preliminary Draft No. 6, 1958);
RESTATEMENT (SECOND) OF TORTS § 402A (Council Draft No. 8, 1960); RESTATEMENT
(SECOND) OF TORTS § 402A (Tentative Draft No. 6, 1961).
51. RESTATEMENT (SECOND) OF TORTS § 402A (Preliminary Draft No. 6, 1958).
52. RESTATEMENT (SECOND) OF TORTS § 402A (Council Draft No. 8, 1960).
53. RESTATEMENT (SECOND) OF TORTS § 402A (Preliminary Draft No. 6, 1958).
54. The term “internal human consumption” was not defined in either draft.
55. RESTATEMENT (SECOND) OF TORTS § 402A cmt. a (Preliminary Draft No. 6, 1958);
RESTATEMENT (SECOND) OF TORTS § 402A cmt. c (Council Draft No. 8, 1960).
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According to Preliminary Draft No. 6, food is in a dangerous condition
when:
[T]he food is, at the time it leaves the seller’s hands, in a condition
which will in fact be dangerous to the ultimate consumer. . . .
The dangerous condition may arise . . . out of harmful
ingredients, foreign objects, or other defects in the food itself. . . .
Food is not in a dangerous condition if it is safe for normal
handling and consumption.56
Cigarettes easily meet this definition of dangerous because they “leave
the seller’s hands in a condition [in] which [they] will in fact be dangerous
to the ultimate consumer,” and because the dangerous condition arises “out
of harmful ingredients.”57 Because cigarettes are products that are unsafe for
normal use, they could have been considered dangerous and subject to strict
liability in court.58 However, due to the sudden change made in 1962, the
major cigarette companies would enjoy a much more relaxed standard than
was originally conceived.
Preliminary Draft No. 6, prepared by Prosser in 1958 and reviewed by
his advisors, includes a handwritten note that shows that they considered the
effect of the section on cigarettes when writing it. The handwritten note in
Figure 1 appears to state, “cigarette tobacco with smoke near”.59 This note
suggests that Prosser was specifically considering tobacco products when
reviewing this draft.
56.
57.
RESTATEMENT (SECOND) OF TORTS § 402A cmt. c (Preliminary Draft No. 6, 1958).
See generally U.S. DEP’T OF HEALTH & HUMAN SERVS., HOW TOBACCO SMOKE CAUSES
DISEASE: THE BIOLOGY AND BEHAVIORAL BASIS FOR SMOKING-ATTRIBUTABLE DISEASE: A REPORT
OF THE SURGEON GENERAL (2010) [hereinafter HOW TOBACCO SMOKE CAUSES DISEASE],
available at http://www.surgeongeneral.gov/library/reports/tobaccosmoke/full_report.pdf;
U.S. DEP’T OF HEALTH & HUMAN SERVS., THE HEALTH CONSEQUENCES OF SMOKING: A REPORT OF
THE SURGEON GENERAL (2004) [hereinafter THE HEALTH CONSEQUENCES OF SMOKING],
available at http://www.cdc.gov/tobacco/data_statistics/sgr/2004/complete_report/index.htm.
58. Cigarettes are dangerous to consume in their “normal handling and consumption.”
Smoking harms almost every organ of the body and reduces health generally, and there is no
safe level of smoke even for secondhand smoke. See generally HOW TOBACCO SMOKE CAUSES
DISEASE, supra note 57; THE HEALTH CONSEQUENCES OF SMOKING, supra note 57. Even by 1961,
multiple popularized studies demonstrated a causal link between smoking and lung cancer. See
WAGNER, supra note 37, at 79–115, for a summary of the state of knowledge around the time
the Second Restatement was being written.
59. See infra Figure 1.
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FIGURE 1
EDITORIAL MARKINGS ON PRELIMINARY DRAFT JANUARY 3, 1958.60
Finally, the preliminary draft described the purpose of the section as to
protect the consumer who is least capable of carrying the burden of injuries:
Its basis is that the seller, in marketing his food, has undertaken
and assumed a responsibility toward any member of the consuming
public who may be injured by it, which makes him liable when the
food he sells is in fact unfit for consumption. He becomes in effect
an insurer of his product when it is put to normal uses. . . . [T]he
consumer of food is entitled to the maximum of protection at the
hands of some one, and that the one to afford it is the person who
markets the food.61
However, subsequent and final versions of the section would not accomplish
this goal, but instead failed to protect consumers as originally intended.
B. TENTATIVE DRAFT NO. 6: THE RESTATEMENT BEFORE TOBACCO-INDUSTRYINFLUENCED CHANGES
The draft that followed Council Draft No. 8 (where very few changes
occurred) was Tentative Draft No. 6, prepared in April 1961 for review by
ALI membership at the 38th Annual ALI meeting in May 1961. The draft
still applied strict liability to food (including chewing tobacco and snuff),
but the definition of food now excluded items for “external human
consumption,” which explicitly included cigarettes and cigars as well as
clothing, hair dye, cosmetics, and soap.62 At the same time, however, Section
402A included a caveat that the ALI “expresse[d] no opinion as to whether
[strict liability] appl[ied] to articles other than food.”63 This caveat would
have left courts open to follow Section 402A and still impose strict liability
60.
61.
62.
63.
RESTATEMENT (SECOND) OF TORTS § 402A (Preliminary Draft No. 6, 1958).
Id. § 402A cmt. e.
RESTATEMENT (SECOND) OF TORTS § 402A cmt. c (Tentative Draft No. 6, 1961).
Id. § 402A caveat 1.
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on cigarettes and cigars. Indeed, the ALI stated that it was not outside the
realm of law to apply strict liability to products for external use:
It is evident that the probable development of the law will carry the
strict liability to many products other than food. There is still great
uncertainty as to whether there are any limits, and if so what. The
Advisers and the Council favor the Caveat, in the absence of any
guide as to how to state or limit the liability. The only other
possibility which the Reporter can suggest is to include all products
for intimate bodily use, but leave other products to the Caveat.64
The limitation of dangerous food was narrowed to “food in a defective
condition unreasonably dangerous to the consumer.”65 “Defective,” as
defined in comment “e” to Tentative Draft No. 6, meant:
[T]he food is, at the time it leaves the seller’s hands, in a condition
not contemplated by the ultimate consumer, which will be
unreasonably dangerous to him. The seller is not liable when he
delivers food in a safe condition, and subsequent mishandling or
other causes make it harmful by the time it is consumed. . . .
Food is not in a defective condition when it is safe for normal
handling and consumption. . . .
The defective condition may arise not only from harmful
ingredients in the food itself, or from foreign objects contained in
it, or from decay or other deterioration before sale, but also from
the way in which it is prepared or packed.66
Comment “f” explained “unreasonably dangerous”:
The rule stated in this Section applies only where the defective
condition of the food makes it unreasonably dangerous to the
consumer. Many products cannot be made entirely safe for all
consumption, and any food or drug necessarily involves some risk
of harm, if only from over-consumption. Ordinary sugar is a deadly
poison to diabetics, and castor oil found use in Italy as an
instrument of torture. That is not what is meant by “unreasonably
dangerous” in this Section. The article sold must be dangerous to
an extent beyond that which would be contemplated by the
ordinary consumer who purchases it, without special knowledge of
its characteristics.67
64. Id. § 402A note (E)(2)(B).
65. Id. § 402A.
66. Id. § 402A cmt. e.
67. Id. § 402A cmt. f. This comment also states that a warning may be necessary for certain
unreasonably dangerous food items. Id. At this time, tobacco products did not contain warnings
and might well have been subject to strict liability for failing to have such warnings. In 1965,
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These definitions of “defective” and “unreasonably dangerous” could
have proven disadvantageous to the tobacco industry. Cigarettes, as
manufactured and delivered, were, as the science of the time had proven,
not safe for normal consumption.68 In addition, at the time, most smokers
had started smoking before there was widespread public appreciation of the
dangers of smoking, and some cigarette companies had promoted their
products as safe,69 making it possible to argue that cigarettes were in a
condition not contemplated by the ultimate consumer and “dangerous to an
extent beyond that which would be contemplated by the ordinary
consumer.”70 Thus, the definition as it stood could have rendered tobacco
companies liable for producing and selling a product that was both possibly
defective and unreasonably dangerous. Unsurprisingly, this language in
Tentative Draft No. 6 drew the attention and concern of the industry.
C. ALI 38TH ANNUAL MEETING
Discussion of Section 402A occupied one day of the four-day 38th
Annual ALI Meeting in May 1961. Prosser wanted to discuss the new phrase
“defective condition unreasonably dangerous to the consumer,” which he
intended to mediate between protection of the consumer and protection of
defendants from unwarranted fault.71 In his opening remarks, he stated that:
“[U]nreasonably dangerous to the consumer” is intended to head
off liability for a product which is sold where there is nothing
wrong with the product as a product, but nevertheless it is going to
injure some people. A good many individuals are allergic to
strawberries and eggs. That doesn’t mean that there is anything
wrong with the food. There is something wrong with the individual.
“Defective condition” and “unreasonably dangerous” are
deliberately designed to protect the defendant against undue
liability.72
The phrase was aimed at products that are, in themselves, safe for the
majority of consumers, but injure some consumers due to some specific
shortly after the publication of Section 402A, Congress passed the Federal Cigarette Labeling
and Advertising Act which required warnings on cigarette packages, an act fully endorsed by the
cigarette companies and which has also aided the cigarette companies to escape liability
throughout the years. See Stein, supra note 12, at 639–46.
68. See PUB. HEALTH SERV., supra note 33, at 23031.
69. See BRANDT, supra note 9, at 159.
70. Id. at 32 (quoting RESTATEMENT (SECOND) OF TORTS § 402A (1965)).
71. William L. Prosser, Discussion of the Restatement of the Law, Second, Torts, 38 A.L.I. PROC.
55 (1961).
72. Id.
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susceptibility of the consumer, and not through fault of the defendant’s
actions.73
Further discussions seem to clarify that the section was designed with
the intent of protecting the consumer, an atypical position for the ALI,
which is seen as traditionally having a pro-defense orientation.74 During the
meeting, the members discussed whether only the manufacturers should be
liable or if retailers and wholesalers should also be included.75 In that
discussion, Prosser responded that “[i]f the purpose of this thing is—as it
obviously is—to afford the maximum of protection to the injured consumer
at the hands of somebody, there are good reasons for letting him sue and
recover against both the retailer and the wholesaler.”76 Later, when
discussing whether notice to the defendant should be required as it was with
warranty cases, Prosser made some other plaintiff-friendly remarks:
There are . . . some products which are unfit for any kind of use, no
matter what kind of notice you give—at least for any use likely to be
made of them. If somebody sells a biscuit full of potassium
cyanide,77 I don’t think any court in the country has ever held or
ever will hold that he can escape liability by putting on the box,
“Don’t eat these.” . . .
On the other hand, many things which involve recognizable
dangers are reasonably safe if properly used: castor oil, the
maximum dose—that kind of thing. Still other things are
reasonably safe for certain types of people. Others are allergic to
the product.78
There was some argument over whether “unreasonably dangerous” was
sufficient to encompass the idea of “defective.” Prosser had originally
73. With tobacco products, people do not become ill or die because they are overly
susceptible or sensitive to the product; it is the product itself that is at fault. When a product
causes the death of over 50% of its long-term users, not to mention the illnesses that it causes,
then there is something “wrong with the food.” However, tobacco companies have historically
argued, and as of 2011 were still arguing, that illnesses widely accepted as being caused by
smoking by medical authorities are more attributable to genetics, diet, and lifestyle choices than
to smoking. See United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 91011 (D.D.C.
2006); HOW TOBACCO SMOKE CAUSES DISEASE, supra note 57, at 79.
74. See Givelber, supra note 7, at 879.
75. Prosser, supra note 71, at 6566.
76. Id. at 66.
77. Cigarettes are more like the biscuit with potassium cyanide than castor oil for two
reasons: (1) there is no safe dose of cigarette smoke, and (2) the analogy is more apt than Dean
Prosser would have known, as cyanide is a poisonous chemical with many forms—potassium
cyanide is one, and another form is hydrogen cyanide, which is present in cigarette smoke. See
HOW TOBACCO SMOKE CAUSES DISEASE, supra note 57, at 31; Facts About Cyanide, CTRS. FOR
DISEASE CONTROL & PREVENTION, http://www.bt.cdc.gov/agent/cyanide/basics/facts.asp (last
updated Jan. 27, 2004).
78. Prosser, supra note 71, at 68 (footnotes not in original).
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believed that the addition of the word “defective” was unnecessary alongside
“unreasonably dangerous,” and explained his changed position on the
necessity of adding “defective”:
The Council [raised] the question of a number of products which,
even though not defective, are in fact dangerous to the
consumer—whiskey, for example [laughter]; cigarettes, which
cause lung cancer; various types of drugs which can be
administered with safety up to a point but may be dangerous if
carried beyond that—and they raised the question whether
“unreasonably dangerous” was sufficient to protect the defendant
against possible liability in such cases.
Therefore, they suggested that there [sic] something must be
wrong with the product itself, and hence the word “defective” was
put in; but the fact that the product itself is dangerous or even
unreasonably dangerous, to people who consume it is not enough
[to establish liability]. There has to be something wrong with the
product.79
Prosser and the Council were concerned about protecting companies that
made products—like cigarettes—that were unreasonably dangerous even
when manufactured as intended.80 However, the language that they created
to cure the problem as they saw it still would have allowed for the
application of strict liability to cigarettes. The plain language of Section
402A contradicts Prosser’s stated intentions in the meeting. One member of
the Council, who previously agreed to add “defective,” became confused and
concerned about the differing discussions of the use of “defective.” He
stated:
Now that we have extended this to hair dye, soap, and detergents, I
am afraid of “defective.” Suppose the hair dye is allergic to most
people, or the detergent is allergic to most people. It may be made
exactly the way the manufacturer intended that it be made, and it
seems to me that he is in a position to claim that it is not defective
as long as it is made the way he intended it to be made. It seems to
me this [the word “defective”] ought to come out.81
Regardless of discussions about “unreasonably dangerous” and “defective,”
the ALI membership seemed to understand that tobacco, along with all
products consumed internally, would be included as a product subject to
strict liability under Section 402A along with food items and items for
external use. When discussing Section 402B (which dealt with the
misrepresentation of goods through advertising, labels, and the like) later in
79.
80.
81.
Id. at 87–88.
Id.
Id. at 89.
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the meeting, a member remarked, without any rebuttal, that “[i]t seems to
me that salt substitutes, permanent wave sets, tobacco, boneless chicken, all
come within 402A.”82 The tobacco industry would not let this situation
remain for long.
D. THE TOBACCO INDUSTRY ENGAGES SECTION 402A
The first indication of tobacco industry awareness and concern about
the Second Restatement came just a month after the ALI’s 38th Annual
Meeting discussing Tentative Draft No. 6.83 A letter dated June 29, 1961,
from Jack Johnston of the law firm White and Case, long-time tobacco
industry counsel, to Addison Yeaman, general counsel for Brown and
Williamson Tobacco, transmitted a memorandum which Johnston wrote for
Lowell Wadmond, counsel at White and Case for Brown and Williamson,
pertaining “to an Amendment to the Restatement of Torts which could
possibly have adverse affects on our cigarette-cancer suits.”84
82. Id.
83. See infra Table 1.
84. Letter from Jack Johnston, Attorney, White & Case, to Addison Yeaman, Brown &
Williamson Tobacco Corp. (June 29, 1961), available at http://legacy.library.ucsf.edu/tid/
iui33f00/pdf.
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TABLE 1
TIMELINE OF TOBACCO INDUSTRY EFFORTS AND THE EVOLUTION OF
SECTION 402A
January 3, 1958
Preliminary Draft No. 6—First appearance of 402A.
November 1, 1960
Council Draft No. 8 with 402A. Only concerns food.
April 7, 1961
Tentative Draft No. 6.
May 17–20, 1961
ALI 38th Annual Meeting to discuss the Tentative
Draft No. 6.
September 28, 1961
The Tobacco Institute's Committee on Legal Affairs
meets and discusses Draft No. 6.
September 28, 1961
The Committee on Legal Affairs writes memo on the
potential impact on the tobacco industry of Draft No.
6.
December 6, 1961
The Committee on Legal Affairs meets to discuss
proposed changes to the Restatement (Second) of
Torts.
December 8, 1961
The Committee on Legal Affairs releases “Suggestions
for Revision to Comment f.”
Week of December 7, 1961
Austern's subcommittee meets with Dean Prosser to
discuss proposed changes to “certain sections” of the
Restatement.
March 1, 1962
ALI releases Council Draft No. 11, “good tobacco”
exemption appears for first time.
April 16, 1962
Tentative Draft No. 7, published; “good tobacco”
exemption remains; check marks next to unreasonably
dangerous and defective definitions appear in Philip
Morris copy of draft.
May 23–26, 1962
ALI 39th Annual Meeting to discuss Tentative Draft
No. 7. Section 402A adopted without discussion of new
“good tobacco” exemption.
It is not surprising that the tobacco companies were aware of the
Restatement (Second) of Torts and specifically Section 402A. The 1961 and
1962 membership of the ALI included many prominent lawyers from
tobacco industry law firms.85 As members of the ALI, these lawyers would
have received Tentative Drafts of the Restatement (Second) of Torts for
review at the ALI annual meetings. None of the industry lawyers were,
however, members of the ALI Council or Advisory Committee, and none
85.
See infra Table 2.
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were listed as attending the 38th and 39th Annual Meetings of the ALI in
1961 and 1962.86
TABLE 2
TOBACCO INDUSTRY LAWYERS & MEMBERS OF ALI, 196187
Covington & Burling
H. Thomas Austern
Dean G. Acheson
Edward Burling
Arnold &
Porter
Shook,
Hardy &
Bacon
Thurman
Arnold
David Ross
Hardy
Liggett &
Myers
Philip Morris
Francis H.
Horan
(general
counsel)
Paul D. Smith
(vice president
and general
counsel)
W. Graham Claytor, Jr.
Hugh B. Cox
Gerhard A. Gesell
Daniel M. Gribbon
Don Victor Harris, Jr.
James H. McGlothlin
John Lord O’Brian
John T. Sapienza
E. THE TOBACCO INSTITUTE’S COMMITTEE ON LEGAL AFFAIRS
In September 1961, three months after the memo to Lowell Wadmond,
the Tobacco Institute’s Committee on Legal Affairs—which consisted of
lawyers from the major tobacco companies and the major law firms that
represented the companies—discussed Section 402A from Tentative Draft
No. 6.88 The Committee was concerned about the probable negative effects
the section would have on the tobacco industry if it was published. Although
three Committee on Legal Affairs members were ALI members (its chair H.
Thomas Austern89 from Covington & Burling and members Francis H.
86. Registration List of Elected Members, Ex-Officio Members, and Specifically Invited Guests, 38
A.L.I. PROC. 1–18 (1961); Registration List of Elected Members, Ex-Officio Members, and Specifically
Invited Guests, 39 A.L.I. PROC. 1–18 (1962).
87. Appendix D: Members of the American Law Institute, 38 A.L.I. PROC. 581–604 (1961).
88. Memorandum from John Vance Hewitt to the Committee on Legal Affairs, The
Tobacco Inst., Inc. (Sept 28, 1961), available at http://legacy.library.ucsf.edu/tid/jxq88d00.
89. On April 13, 1975, the Washington Post published an article about Covington &
Burling titled The Covington Culture. The article highlighted Austern, quoting subordinates and
partners in the firm who compared him to legendary Green Bay Packers football coach Vince
Lombardi, described Austern as someone who “eats [new lawyers] for breakfast,” and suggested
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Horan, Liggett & Myers general counsel, and Paul D. Smith, Philip Morris
vice president and general counsel),90 the Committee’s disapproval of the
section extended to the ALI as well:
[The Restatement (Second) of Torts Section 402A] was a matter to
which members of the Committee had given a great deal of study
in defending cancer cases. The American Law Institute purports to
exist to unify and clarify the law. However, the proposed changes
show very clearly an attempt not to state the law but on the contrary
to state what the draftsman desires the law to be.91
The Committee expressed concern that, although Section 402A applied
only to food, the caveats left room for interpretation:
[Section 402A] is set up in form to indicate that only the purveyors
of food for human consumption are covered by the proposed
section. However, in almost every statement of the law there is a
caveat stating that the Law Institute expresses no opinion as to
whether the rules stated in this section may apply, etc., the statute
leaving for interpretation substantially all of the difficult or
doubtful problems.92
The Committee felt that Tentative Draft No. 6 was unacceptable as written
and would be very harmful for the future of the tobacco industry. “The
effect of the proposed section would be substantially the same as if the
American Law Institute should file a brief in behalf of the plaintiffs and
against the defendants in the cancer cases.”93
Chairman H. Thomas Austern then noted during the meeting that the
Committee had solely focused on problems with the section, and not how to
that “[h]e [was] perhaps the most important partner” at Covington & Burling. Mark Green, The
Covington Culture: Law at the Top, WASH. POST, Apr. 13, 1975, at 10 [hereinafter Green,
Covington
Culture]
(internal
quotation
marks
omitted),
available
at
http://legacy.library.ucsf.edu/tid/zrx61f00. The Washington Post called him “the doyen of the
food-and-drug bar in [D.C.]” Id. Of his tactics, others said that he was “a lawyer’s lawyer who will
give you advice on what is legal, not what is moral or good policy for the public.” Id. (internal
quotation marks omitted). He worked for the Tobacco Institute for so long that one author
noted: “Austern and the Tobacco Institute; the Tobacco Institute and Austern. Like the animals
and men in the last line of Animal Farm, they have grown so alike it is difficult to distinguish one
from the other.” GREEN, supra note 13, at 162. He smoked two packs a day, and even eleven
years after the 1964 Surgeon General’s report, he firmly defended the Tobacco Industry’s
public stance that smoking was not dangerous. See id. at 148. He even controlled a Tobacco
Industry computer that stored “everything ever written on why smoking is not dangerous” so
that he could “claim it as his confidential ‘work product’ to keep the computer data from being
legally ‘discovered’ by an opposing party in litigation.” Green, Covington Culture, supra, at 10.
90. TOBACCO INST., REPORT ON TOBACCO INSTITUTE INCORPORATION 1019, 1020 (1963),
available at http://legacy.library.ucsf.edu/tid/eko93f00/pdf.
91. Memorandum from John Vance Hewitt, supra note 88, at 3–4.
92. Id. at 4.
93. Id.
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change the language of the section to be a benefit rather than a detriment
to the industry.94 The Committee on Legal Affairs decided to establish a
subcommittee headed by Austern to discuss the problems with Section 402A
and develop beneficial language.95 The Committee also decided that it
should not follow the traditional, formal routes through the ALI to submit
suggested changes.96 Rather, according to the meeting minutes, “[i]t was
decided that it would be a mistake of strategy to submit to the American Law
Institute a formal argument in opposition to the section.”97
The Committee on Legal Affairs and Austern’s subcommittee met
several times during the following months, but meeting minutes and three
other documents pertaining to the Committee’s work on the Restatement
(Second) of Torts have been withheld on various privilege claims.98
94.
95.
96.
97.
98.
Id.
Id.
Id.
Id.
See infra Table 3.
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TABLE 3
RESTATEMENT (SECOND) PRIVILEGED DOCUMENTS
Title
(Privilege Claim*)
Memorandum from Tobacco
Institute Outside Litigation
Counsel to Joint Defense
Counsel Regarding Potential
Impact on Tobacco Industry of
Proposed Amendments to the
Restatement (Second) of Torts.
(3A, OWP, FWP)
Date
Sept. ??,
1961
Author
Importance/Expected
Contents
Covington
& Burling
This memorandum is early
in their process of reviewing
the Restatement. It may
include early impressions
and possibly lay out a
detailed plan of action to
change the Restatement.
Covington
& Burling
This may be another copy of
the above memo, or it may
be different, but again it is a
discussion of the industry’s
early impressions of the
Second Restatement with
advice on how to affect it.
Covington
& Burling
This memorandum was
prepared for the committee
meeting where they decided
to form Austern’s
subcommittee and so it may
give more details as to what
they expected to discuss
about the Restatement.
Stanley
Temko
Notes for the document
mention the American Law
Institute. Although notes for
the December 6, 1961,
committee meeting are
privileged, the Restatement
was discussed at the meeting
and this document may
provide more information
regarding the conclusions of
Austern’s subcommittee in
advance of the meeting.
http://legacy.library.ucsf.edu/
tid/lhq88d00
Memorandum Prepared by
Tobacco Institute Outside
Counsel Requesting Industry
Counsel’s Advice and Comments
Regarding Proposed Section of
the Restatement of Torts. (AC,
WP, JD)
Sept. ??,
1961
http://legacy.library.ucsf.edu/
tid/ogr41i00
Memorandum Prepared by
Outside Counsel for the Tobacco
Institute Regarding Issues To Be
Discussed at September 28,
1961, Meeting of Counsel for
American and Other Tobacco
Companies Including the
Restatement of Torts. (AC, WP,
JD)
Sept. 28,
1961
http://legacy.library.ucsf.edu/
tid/her41i00
Memorandum from Outside
Counsel for the Tobacco
Institute to Industry Counsel
Containing Tobacco Institute
Outside Counsel’s Comments
and Thoughts Regarding Issues
To Be Discussed at December 6,
1961, Meeting of Industry
Counsel. (AC, WP, JD)
http:// legacy.library.
ucsf.edu/tid/flq41i00
Nov. 27,
1961
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Title
(Privilege Claim*)
Minutes of Meeting of the
Committee on Legal Affairs
Concerning Potential Liability
for Statements Made by Persons
Purporting To Act for the
Institute and Proposed Changes
to Restatement of Torts. (1C, 3A,
OWP)
Date
Dec. 6,
1961
23
Author
Importance/Expected
Contents
JV Hewitt
Previous known meeting
discussing the Restatement
was three months prior.
This meeting may have
discussed progress made on
suggested language and
plan for moving forward.
Cyril F.
Hetsko
Like previous meetings, this
meeting of the Committee
on Legal Affairs discussed
the Restatement and most
likely strategies
surrounding the
Restatement.
Cyril F.
Hetsko
Additional information
about this privileged
document shows that they
discussed Prosser in the
notes about the Committee
meeting. These notes
probably discuss plans to
talk with Prosser and steps
moving forward with the
Restatement.
H. Thomas
Austern
A key document, this letter
probably details the
conversation that the
Subcommittee had with
Prosser, reviewing what
suggestions the
Subcommittee made and
their reasoning and how
Prosser responded.
http://legacy.library.ucsf.edu/
tid/lxq88d00
Notes Prepared by American
Tobacco’s Outside Counsel
Containing Thoughts and
Impressions of December 6,
1961, Meeting of Industry
Counsel and Describing Industry
Counsel’s Advice, Opinions, and
Analysis Regarding Various
Issues, Including the
Restatement of Torts. (AC, WP,
JD)
Dec. 6,
1961
http://legacy.library.ucsf.edu/
tid/wsc41i00
Notes Prepared by American
Outside Counsel Describing
Industry Counsel’s Thought
Processes, Strategies and
Opinions Regarding Meeting of
Industry Counsel on December
6, 1961, Involving Pending
Health Litigation. (AC, WP, JD)
Dec. 6,
1961
http://legacy.library.ucsf.edu/
tid/dmp41i00
Letter from Tobacco Institute
Outside Litigation Counsel to
Joint Defense In-House Counsel
Memorializing Meeting of SubCommittee with Dean Prosser To
Discuss Proposed Changes to
Certain Sections in the
Restatement (Second) of Torts.
(3A, OWP, FWP)
http://legacy.library.ucsf.edu/
tid/kxq88d00
Dec. 14,
1961
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Title
(Privilege Claim*)
Communication from Outside
Counsel for the Tobacco Institute
Containing Outside Counsel’s
Thoughts and Analysis Regarding
December 13, 1961, Meeting with
Dean William Prosser, the
Reporter for the ALI on the
Restatement (Second) Torts
Section 402A Regarding Product
Liability Issues. (AC, WP, JD)
Date
Dec. 14,
1961
[Vol. 98:1
Author
Importance/Expected
Contents
H.
Thomas
Austern
This may or may not be
another copy of the above
document. It probably
describes the meeting with
Prosser and probably
explains their thoughts
about the meeting and
steps forward.
JS Koch
This memo comes two
weeks after the production
of the Council Draft No. 11
intended for discussion at a
meeting of the Council
from March 15th through
the 17th in 1962 and which
introduced the “good
tobacco” exemption. This
memo shows that the
lawyers in the Committee
on Legal Affairs received
the Council Draft before
the Council reviewed it
even though none of them
were members of the
Council and should reveal
what the committee
thought of the new
changes.
JS Koch
Dated after the release of
Tentative Draft No. 7, this
letter may discuss the
tobacco industry's new
opinions about the
Restatement and possibly
reflect on the Committee’s
successes.
http://legacy.library.ucsf.edu/
tid/yiq41i00
Memorandum from Outside
Counsel for the Tobacco Institute
Containing Thoughts, Analysis
and Advice Regarding Draft
Section 402A of the ALI’s
Restatement of the Law, Second,
Torts—Council Draft No. 11
Regarding Product Liability
Issues. (AC, WP, JD)
http://legacy.library.ucsf.edu/
tid/jbq41i00
Letter from Joint Defense Counsel
to Philip Morris Counsel and Joint
Defense Counsel Regarding ALI
Restatement on Torts. (3A, FWP)
http://legacy.library.ucsf.edu/tid
/dcs12a00
Mar. 14,
1962
May 3,
1962
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TOBACCO INDUSTRY INFLUENCE
Title
(Privilege Claim*)
Memorandum from Outside
Counsel for the Tobacco Institute
Containing Comments and
Analysis Regarding Tentative
Draft No. 7 of the ALI’s
Restatement of Law, Second,
Torts Regarding Products Liability
Issues. (AC, WP, JD)
Date
May 3,
1962
25
Author
Importance/Expected
Contents
JS Koch
This is likely another copy
of the above document and
should reveal the
committee’s opinions
about the Tentative Draft
No. 7.
JS Koch
Dated after the 39th
Annual ALI Meeting where
Section 402A was accepted
by the general
membership.
http://legacy.library.ucsf.edu/tid
/feq41i00
Communication from Outside
Counsel for the Tobacco Institute
Containing Thoughts and Analysis
Regarding Section 402A of the
Restatement of Law, Second,
Torts Regarding Products
Liability. (AC, WP, JD)
May 28,
1961
http://legacy.library.ucsf.edu/tid
/ncw41i00
1C:
Attorney–Client Privilege; confidential communications between Philip Morris
USA, Inc. counsel.
3A:
Joint Defense; legal advice prepared in anticipation of litigation concerning
confidential communications between counsel with common legal interest.
3B:
Joint Defense; legal advice prepared in anticipation of litigation concerning
confidential communications between employees and counsel with common legal
interest.
OWP:
Work Product; opinion work product containing counsel's mental impressions,
opinions, conclusions, or legal theories prepared in anticipation of litigation.
FWP:
Work Product: fact work product containing facts obtained by counsel or at the
request of counsel in anticipation of litigation.
AC:
Attorney–Client; confidential communications exchanged between or among inhouse or outside attorneys representing company and employees or consultants of
the company for the purpose of seeking or rendering legal advice or providing
confidential information in order to assist in the rendering of legal advice.
WP:
Work Product; documents containing or reflecting analysis, summaries, mental
impressions, conclusions, or opinion prepared in anticipation of or in connections
with litigation.
JD:
Joint Defense; work product documents or documents containing
communications between in-house or outside attorneys for the company and
entities with which it shared a common legal interest.
For full descriptions of the privileged document codes see Univ. of Cal., S.F., Privileged
Document Codes, LEGACY TOBACCO DOCUMENTS LIBR., http://legacy.library.ucsf.edu/help/
privcodes.jsp (last visited Aug. 20, 2012).
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THE MEETING WITH PROSSER AND SUBSEQUENT CHANGES TO SECTION 402A
Two days after the December 6, 1961 meeting, the Committee on Legal
Affairs circulated to its members “Suggestions for Revision of Comment f” of
Section 402A of the Tentative Draft No. 6 detailing specific changes that the
Committee wanted, indicated through a redline format.99 The suggested
changes put the onus on the consumer rather than the product
manufacturer by not requiring warnings for products that are known to be
dangerous or are only dangerous if consumed “habitually.”100 Due to
increasing knowledge at the time of the dangers of smoking and the
addictive nature of tobacco leading to habitual use, these changes would
have allowed the tobacco companies to escape the labels of “defective” and
“unreasonably dangerous” due to a lack of warning labels. The relevant
changes to the comment the Committee suggested were:
This means that the seller may be required to give directions or
warning, on the container, as to the use of the product. The seller
may reasonably assume that those with common allergies, as for
example to eggs or strawberries, will be aware of them and he is not
required to warn against them. Where, however, the product
contains an ingredient to which a substantial number of the
population is allergic, and the ingredient is one whose danger is
not generally known or which the consumer would reasonably not
expect to find in the product, the seller is required to give warning
against it. if he has knowledge, or upon the application of
developed human skill and foresight could have knowledge, of the
presence of the ingredient. Likewise A seller has a like duty to warn
in the case of poisonous drugs, or those unduly dangerous for
other reasons. , warning as to use is required, But a seller is not
required to warn with respect to products, or ingredients of
products, other than drugs, which are only dangerous, or possibly
dangerous, when consumed habitually or over a substantial period
of time, and where such danger, or possibility of danger, is
generally recognized. Examples of such products are alcohol and
foods containing such substances as saturated fats. But when When
such warning is called for, and not given, the product is in a
defective condition, and is unreasonably dangerous.101
Some time during the next week (between December 7 and 14, 1961)
Austern’s subcommittee met with Prosser to discuss the Restatement.102 The
99. Suggestions for Revisions of Comment f from the Commission on Legal Affairs (Dec.
8, 1961), available at http://legacy.library.ucsf.edu/tid/xmh45d00/pdf.
100. Id.
101. Id. (underline and strikeout in original).
102. See supra Table 3 (the third document, dated September 28, 1961, is the specific
document pertaining to the meeting between Austern and Prosser).
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next draft of Section 402A appeared in Council Draft No. 11, released
March 1, 1962, three months after Prosser’s meeting with the Austern
subcommittee.103 The changes between the new draft and Tentative Draft
No. 6 were substantial. The new “comment j. Directions or warning”
contained almost the exact language the Tobacco Institute Committee on
Legal Affairs developed the previous December. A few words were changed,
some more beneficial to the tobacco industry (excessive quantity instead of
habitual), and very few of the suggested changes were rejected or modified
(such as rejecting removal of “warning as to use is required” and changing
“possibly” to “potentially”). The new comment read, with language from
Austern’s subcommittee italicized:
Where, however, the product contains an ingredient to which a
substantial number of the population are allergic, and the
ingredient is one whose danger is not generally known, or which
the consumer would reasonably not expect to find in the product,
the seller is required to give warning against it, if he has knowledge, or
by the application of developed human skill and foresight should have
knowledge, of the presence of the ingredient and the danger. Likewise, in
the case of poisonous drugs, or those unduly dangerous for other
reasons, warning as to use is required.
But a seller is not required to warn with respect to products, or ingredients
in them, which are only dangerous, or potentially so, when consumed in
excessive quantity, or over a long period of time, when the danger, or
possibility of danger, is generally known and recognized. Again the dangers
of alcoholic beverages are an example, as are also those of foods containing
such substances as saturated fats, which may over a period of time have a
deleterious effect upon the human heart.104
Perhaps more importantly, a specific exemption for “good tobacco” was
added to the comment defining “unreasonably dangerous”:
Ordinary sugar is a deadly poison to diabetics, and castor oil found
use in Italy as an instrument of torture. That is not what is meant by
“unreasonably dangerous” in this Section. The article sold must be
dangerous to an extent beyond that which would be contemplated
103. RESTATEMENT (SECOND) OF TORTS §§ 402A, 433A (Council Draft No. 11, 1962).
104. Id. § 402A cmt. j (emphasis added). It should be noted that this Section was made
irrelevant by the Cigarette Labeling Act in 1967, mandating health warnings on all cigarette
packaging. Federal Cigarette Labeling and Advertising Act of 1965, Pub. L. No. 89-92, 79 Stat.
282 (codified as amended at 15 U.S.C. §§ 1331–1340). Even though this comment in the
Restatement did not have long lasting effects, it demonstrates the influence of the tobacco
industry on the ALI and the Restatement (Second) of Torts.
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by the ordinary consumer who purchases it,105 with the ordinary
knowledge common to the community as to its characteristics.
Good whiskey is not unreasonably dangerous merely because it will
make some people drunk, and is especially dangerous to alcoholics;
but bad whiskey, containing a dangerous amount of fusel oil, is
unreasonably dangerous. Good tobacco is not unreasonably dangerous
because, as is generally recognized, the effects of smoking are
harmful; but tobacco containing something like marijuana may
be.106
The Council approved adding “good tobacco” at its March 1962 meeting;
the ALI Council meeting notes do not describe any discussion about the
change, just that it was accepted.107
On April 16, 1962, the ALI released Tentative Draft No. 7 to all its
members, with small, but important, changes from the last Council draft to
both the “defective” and “unreasonably dangerous” requirements.108 The
“defective” requirement changed so that the defect must come from
something not characteristic of the product itself, and the statement “the
effects of smoking are harmful” in the “good tobacco” exemption was
changed to provide that smoking “may be harmful.”109
105. Codifying the consumer expectations test. See Judicial Council of California Civil Jury
Instructions (CACI) § 1203. See generally Jerry J. Phillips, Consumer Expectations, 53 S.C. L. REV.
1047 (2002).
106. RESTATEMENT (SECOND) OF TORTS § 402A cmt. i (Council Draft No. 11, 1962)
(emphasis added).
107. See Minutes of the One Hundred and Fifteenth Meeting of the Council, American Law
Institute (Mar. 15–17, 1962). The Council meeting minutes do mention the fact that Judge
Minor Wisdom, a judge on the U.S. Court of Appeals for the Fifth Circuit, present at the
meeting, did not participate in the “discussion concerning cigarette manufacturers’ liability.”
Less than a year earlier, Judge Wisdom had ruled on the appeal of Lartigue v. R.J. Reynolds
Tobacco Co., a cigarette cancer case decided by a jury and on appeal in favor of the defendant
cigarette companies. Lartigue v. R.J. Reynolds Tobacco Co., 317 F.2d 19 (5th Cir. 1963).
108. RESTATEMENT (SECOND) OF TORTS § 402A cmt. i (Tentative Draft No. 7, 1962).
109. Id. In 1993, before the tobacco industry documents were available, Robert Rabin and
Gary Schwartz attributed the “good tobacco” exemption to the Third Circuit Court of Appeals
Judge Herbert F. Goodrich, who in the early 1960s was also Director of the ALI. Robert L.
Rabin, Institutional and Historical Perspectives on Tobacco Tort Liability, in SMOKING POLICY: LAW,
POLITICS, AND CULTURE 117 (Robert L. Rabin & Stephen D. Sugarman eds., 1993). A few
months after the 1961 ALI Annual Meeting Goodrich was a member of a three-judge panel that
unanimously overturned a directed verdict in favor of Liggett & Myers Tobacco Company in a
tobacco cancer case. Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292, 301 (1961)
(Goodrich, J., concurring). Judge Goodrich’s October 1961 concurring opinion stated that the
case should be returned to the trial court to determine whether Liggett & Myers knew cigarettes
caused cancer, but stated that he did not believe that Liggett & Myers should be liable simply
because tobacco is harmful. Id. at 301–02. While not using the term “good tobacco,” he did
write: “If a man buys whiskey and drinks too much of it and gets some liver trouble as a result I
do not think the manufacturer is liable unless (1) the manufacturer tells the customer the
whiskey will not hurt him or (2) the whiskey is adulterated whiskey . . . .” Id. at 302. Goodrich
presages Tentative Draft No. 6 of the Restatement (Second) of Torts, which had been discussed
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After the release of Tentative Draft No. 7, but before the next ALI
annual meeting, John S. Koch, a lawyer at Covington & Burling LLP and
frequent attendee of the Committee on Legal Affairs meetings, wrote a
letter to the Committee on Legal Affairs discussing the Restatement. The
May 3, 1962, letter in the Philip Morris documents describing the discussion
has been withheld as privileged.110 A copy of sections of Tentative Draft No.
7 immediately follows the privileged document by Bates number111
(suggesting that it was attached to the privileged letter), with check marks
next to the “good tobacco” exemption, suggesting satisfaction with the
changes.112
FIGURE 2
EDITORIAL MARK ON TENTATIVE DRAFT NO. 7113
The ALI discussed Tentative Draft No. 7 at its Annual Meeting in May
of 1962. Neither Prosser nor the membership made any mention of the
at the 1961 ALI Annual Meeting (that did not include the “good tobacco” exemption), simply
saying that there were no claims in the case that the cigarettes were not made of commercially
acceptable tobacco. Id. at 302. Rabin and Schwartz concluded that since Goodrich was the ALI
Director and used language similar to that found in the good-tobacco exemption about seven
months before it first appeared in Council Draft 11, Goodrich was responsible for the language.
Rabin, supra, at 117; Gary T. Schwartz, Tobacco Liability in the Courts, in SMOKING POLICY: LAW,
POLITICS, AND CULTURE, supra, at 146–47. The tobacco industry documents show that the
industry had started working on changing the Restatement by June 1961, before the Goodrich
concurring opinion was delivered, and began actively lobbying Prosser in December 1961.
Letter from Jack Johnston, supra note 84. Because Restatements are supposed to reflect the
current state of the law, a concurring opinion in a decision on a continuing case is an unlikely
source for legal authority, particularly now that information on the tobacco industry’s lobbying
efforts to influence the Restatement is available. See Rabin, supra, at 110; Schwartz, supra, at 131.
110. Letter from John S. Koch, Def. Counsel, Covington & Burling LLP, to the Tobacco
Institute Committee on Legal Affairs and the Philip Morris Legal Department (May 3, 1962),
available at http://legacy.library.ucsf.edu/tid/dcs12a00 (this document is privileged).
111. Bates numbers are unique numbers given by the tobacco company to each individual
page of a document. See Malone & Balbach, supra note 14, at 334. Sequential Bates numbers
suggest that the documents were filed in order following one another. See id.
112. See infra Figure 2.
113. RESTATEMENT (SECOND) OF TORTS § 402A cmt. i (Tentative Draft No. 7, 1962)
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addition, origins of, or reasoning behind the “good tobacco” exemption or
of the new section on warnings suggested by the Tobacco Institute Legal
Affairs Subcommittee. Section 402A was approved with a caveat for some
unrelated changes, very little discussion, and no discussion of the new
language that specifically benefited the tobacco industry. The Restatement
went through one more drafting cycle, expanding strict liability to all
products but retaining tobacco-relevant language,114 before acceptance and
release in 1964.115
IV. TOBACCO INDUSTRY INFLUENCE OVER THE RESTATEMENT (THIRD) OF
TORTS
A. THE RESTATEMENT (THIRD) OF TORTS: PRODUCT LIABILITY
In 1991, twenty-six years after Section 402A of the Restatement
(Second) of Torts was published, the ALI began planning for the next
Restatement.116 The Third Restatement on products liability took seven
years and sixteen drafts, with the Restatement (Third) of Torts: Products
Liability published in 1998. During the decades following the Second
Restatement, the law of products liability became far more complicated.
Instead of devoting one section of the Restatement to products liability, the
topic took up an entire book in the Third Restatement. The Restatement
(Third) of Torts: Products Liability is an extensive expansion of the original
doctrine.
The main concept remained the same—a manufacturer or seller of a
defective product is liable for harm caused by the defect—but the Third
Restatement created three classifications for “defective”: manufacturing
defect, design defect, and warning defect.117 A manufacturing defect occurs
when the product does not conform to its intended design.118 A design
defect occurs when foreseeable risks could have been reduced or avoided by
a reasonable alternative design.119 A warning defect occurs when foreseeable
risks associated with the product could have been avoided or reduced by the
presence of reasonable warnings or instructions to the consumer.120 This
classification scheme sets a substantial hurdle for injured plaintiffs in
tobacco cases because basing a tobacco lawsuit on a manufacturing defect or
114. RESTATEMENT (SECOND) OF TORTS § 402A cmt. i (Tentative Draft No. 10, 1964).
115. RESTATEMENT (SECOND) OF TORTS §§ 281–503 (1965) (adopted and promulgated in
1963 and 1964).
116. Statement of the Council: RE: Restatement of the Law Third, Torts: Products Liability, A.L.I.
REP., Oct. 1991, at 1.
117. RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 2 (1997).
118. Id.
119. Id.
120. Id.
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warning defect is not viable,121 and the requirement to prove a reduced risk
by an alternative design requires that the plaintiff prove the existence of a
better alternative design and that the tobacco companies acted negligently
in not adopting that design—far too high of a hurdle for most plaintiffs to
cross.122
The iconic Prosser died in 1972, and in May 1992 the ALI split the task
of writing the Restatement (Third) between two tort-law professors—Aaron
Twerski from Brooklyn Law School and James A. Henderson from Cornell
University.123 Both had authored several books and articles individually and
together on products liability.124 At the time the ALI chose them as
Reporters for the Third Restatement they were publishing an article on their
proposed revision of Section 402A.125
B. THE STATE OF TOBACCO CONTROL IN THE EARLY 1990S
Twenty-five years after the first Surgeon General’s report on smoking,
the early 1990s were marked by strong political movements supporting
tobacco control. In 1992, Congress passed the Synar Amendment requiring
states to enact and enforce laws prohibiting the sale or distribution of
tobacco products to minors,126 and the U.S. Environmental Protection
Agency released a 525-page report, Respiratory Health Effects of Passive
Smoking: Lung Cancer and Other Disorders, declaring cigarette smoke to be a
Group A (proven human) carcinogen,127 which reinforced the Surgeon
General’s 1986 conclusion that secondhand smoke caused lung cancer;128
121. See Green v. R.J. Reynolds Tobacco Co., 274 F.3d 263, 268–69 (5th Cir. 2001); see also
Galligan, supra note 7, at 498–500.
122. See Galligan, supra note 7, at 500–03.
123. Henderson and Twerski Named Reporters for Products Liability Restatement, A.L.I. REP., July
1992, at 4 [hereinafter Henderson and Twerski Named Reporters].
124. JAMES A. HENDERSON, JR. & AARON D. TWERSKI, PRODUCTS LIABILITY: PROBLEMS AND
PROCESS (Aspen Publishers, Inc. ed., 6th ed. 2008); James A. Henderson, Jr. & Aaron D.
Twerski, A Proposed Revision of Section 402A of the Restatement (Second) of Torts, 77 CORNELL L. REV.
1512 (1992); James A. Henderson, Jr. & Aaron D. Twerski, Closing the American Products Liability
Frontier: The Rejection of Liability Without Defect, 66 N.Y.U. L. REV. 1263 (1991); James A.
Henderson, Jr. & Aaron D. Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of
Failure To Warn, 65 N.Y.U. L. REV. 265 (1990); James A. Henderson, Jr. & Aaron D. Twerski,
Commentary, Stargazing: The Future of American Products Liability Law, 66 N.Y.U. L. REV. 1332
(1991).
125. Henderson & Twerski, A Proposed Revision of Section 402A of the Restatement (Second) of
Torts, supra note 124.
126. ADAMHA Reorganization Act, Pub. L. No. 102-321, § 1926, 106 Stat. 323, 394–95
(1992) (codified at 42 U.S.C. § 300x-26 (2006)).
127. U.S. ENVTL. PROT. AGENCY, RESPIRATORY HEALTH EFFECTS OF PASSIVE SMOKING: LUNG
CANCER AND OTHER DISORDERS 1–2 (1992), available at http://cfpub2.epa.gov/ncea/cfm/
recordisplay.cfm?deid=2835.
128. U.S. DEP’T OF HEALTH & HUMAN SERVS., THE HEALTH CONSEQUENCES OF INVOLUNTARY
SMOKING: A REPORT OF THE SURGEON GENERAL 7 (1986), available at http://profiles.nlm.nih.
gov/ps/access/NNBCPM.pdf.
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the two reports together accelerated passage of laws restricting where people
could smoke. As he entered his presidency in 1993, Bill Clinton declared
the White House smoke-free.129 Also, in 1994, the Occupational Safety and
Health Administration (“OSHA”) proposed a rule prohibiting smoking in
the workplace.130 In 1995, the Food and Drug Administration, led by
Commissioner David Kessler, announced plans to regulate cigarettes as
drug-delivery devices.131 Passage of local restrictions on smoking was
accelerating,132 and in 1994 California passed a state law (A.B. 13) making
all workplaces, including restaurants and bars, smoke-free.133
Tort litigation against the tobacco companies for injuries caused by
smoking cigarettes started up again in the early 1990s, a resurgence known
as the “third wave” of tobacco litigation, including both private and public
actions.134 The first large class-action suit, filed in 1991, was brought by a
group of nonsmoking flight attendants suffering from illnesses caused by
secondhand smoke exposure at work.135 In 1994, a consortium of major law
129. Marian Burros, Hillary Clinton’s New Home: Broccoli’s In, Smoking’s Out, N.Y. TIMES (Feb.
2, 1993), http://www.nytimes.com/1993/02/02/us/hillary-clinton-s-new-home-broccoli-s-in-smoking-sout.html.
130. Indoor Air Quality, 59 Fed. Reg. 15,967 (Apr. 5, 1994). OSHA withdrew the proposed
regulation in 2001. Indoor Air Quality, 66 Fed. Reg. 64,946 (Dec. 17, 2001). The withdrawal
occurred after a lawsuit filed by Action on Smoking and Health seeking a court order to require
the agency to act, and after receiving over 110,000 public comments predominately
orchestrated by the tobacco industry, including 5000 pages of text filed by Philip Morris on the
last day of public comments. See Matthew A. Swartz, Note, Snuffing Out Tobacco: The City of St.
Cloud’s Attempt To Ban Tobacco Use in the Name of Healthcare Reform; Can Everything Be a Special
Need?, 20 J. CONTEMP. HEALTH L. & POL’Y 181, 208–10 (2003); see also Melissa A. Vallone, Note,
Employer Liability for Workplace Environmental Tobacco Smoke: Get Out of the Fog, 30 VAL. U. L. REV.
811, 819 (1996). The tobacco industry played a pivotal role in weakening and eventually
defeating the proposed OSHA rule by influencing the scientific, political, and comment
procedures and the media. See Katherine Bryan-Jones & Lisa A. Bero, Tobacco Industry Efforts To
Defeat the Occupational Safety and Health Administration Indoor Air Quality Rule, 93 AM. J. PUB.
HEALTH 585, 585–90 (2003).
131. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 127 (2000) (declaring that
the FDA’s assertion of jurisdiction over tobacco products was impermissible); Analysis
Regarding the Food and Drug Administration’s Jurisdiction Over Nicotine-Containing
Cigarettes and Smokeless Tobacco Products, 60 Fed. Reg. 41,453 (Aug. 11, 1995); Regulations
Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco Products To Protect
Children and Adolescents, 60 Fed. Reg. 41,314 (proposed Aug. 11, 1995); see also David A.
Kessler et al., The Food and Drug Administration’s Regulation of Tobacco Products, 335 NEW ENG. J.
MED. 988, 988 (1996) (describing the FDA’s law regulating cigarettes).
132. See AM. NONSMOKERS’ RIGHTS FOUND., CHRONOLOGICAL TABLE OF U.S. POPULATION
PROTECTED BY 100% SMOKEFREE STATE OR LOCAL LAWS, (2012), www.no-smoke.org/pdf/
EffectivePopulationList.pdf.
133. CAL. LAB. CODE § 6404.5 (West 2010).
134. Robert L. Rabin, The Third Wave of Tobacco Tort Litigation, in REGULATING TOBACCO
176, 176–79 (Robert L. Rabin & Stephen D. Sugarman eds., 2001).
135. HAROLD V. CORDRY, TOBACCO: A REFERENCE HANDBOOK 19 (2001). The flight
attendants settled with four cigarette company defendants in 1997 for $300 million, which was
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firms filed another class-action suit, Castano v. American Tobacco, “on behalf
of ‘all nicotine-dependent persons in the U.S.’ and their families and
heirs.”136 Also in 1994, the Attorney General of Mississippi, followed by
Minnesota, West Virginia, Florida, and Massachusetts by the end of 1995,
brought suit against the tobacco companies for reimbursement of state
Medicaid costs incurred treating people for smoking-related illnesses and for
injunctive relief to restrain cigarette-company marketing practices.137
Aiding lawsuits against the tobacco companies, an informant, known
only as Mr. Butts, sent a box of confidential internal-industry documents
from the Brown and Williamson Tobacco Company and its parent British
American Tobacco to Dr. Stanton Glantz at the University of California, San
Francisco, and to major news outlets in 1994.138 In short, at the time work
on the Third Restatement was proceeding, the tobacco industry was under
substantial political and legal pressure on many fronts.
C. ALI PARTICIPANTS’ TOBACCO INDUSTRY TIES
By the time the effort to prepare the Third Restatement started,
tobacco industry lawyers had thirty years of experience using the
Restatement (Second) of Torts to their advantage,139 so the tobacco
used to create the Flight Attendant Medical Research Institute. See BRANDT, supra note 9, at
409, 563 n.23.
136. MARY-JANE SCHNEIDER, INTRODUCTION TO PUBLIC HEALTH 262 (2d ed. 2006). Liggett
& Meyers settled with the group in March 1996, and then a federal appeals court in New
Orleans dismissed the suit in 1996, stating that the class was too large and unwieldy to manage.
See CORDRY, supra note 135, at 19.
137. Gregory W. Traylor, Big Tobacco, Medicaid-Covered Smokers, and the Substance of the Master
Settlement Agreement, 63 VAND. L. REV. 1081, 1093 (2010); see also BRANDT, supra note 9, at 415.
In 1996, Florida, Mississippi, Texas, and Minnesota settled with the tobacco companies; in
November 1998, the remaining forty-six states settled with the four major tobacco companies by
creating the Master Settlement Agreement, which compensated the states for their medical
expenses in the future as long as the defendants remain in business. See NAT’L ASSOC. OF
ATTORNEYS
GENERAL,
MASTER
SETTLEMENT
AGREEMENT
(2008),
available
at
http://www.naag.org/backpages/naag/tobacco/msa/msa-pdf/MSA%20with%20Sig%20Pages%
20and%20Exhibits.pdf/download; Steven A. Schroeder, Tobacco Control in the Wake of the 1998
Master Settlement Agreement, 350 NEW ENG. J. MED. 293, 293–94 (2004); see also Tobacco Control
Archives: State Lawsuits, UNIV. OF CAL. S.F. LIBR., http://www.library.ucsf.edu/tobacco/
litigation/states (last visited Sept. 9, 2012).
138. John Wiener, The Cigarette Papers, NATION, Jan. 1, 1996, at 11, available at
http://legacy.library.ucsf.edu/tid/pxb29h00/pdf. This collection of about 8000 pages of
documents subsequently grew into the Legacy Tobacco Documents Library, upon which this
paper is based.
139. In the thirty years since the publication of Section 402A, the tobacco companies
successfully lobbied states to adopt this section. See infra Table 5 for a list of states continuing
to include Section 402A language in legislation. Many judges referred to Section 402A when
deciding for the defendant cigarette companies. See, e.g., Rogers v. R.J. Reynolds Tobacco Co.,
557 N.E.2d 1045, 1053 (Ind. Ct. App. 1990); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420,
426 (Tex. 1997). Rogers and Grinnell are only two of the many cases where a tobacco company
escaped liability through analysis of the phrase “defective condition unreasonably dangerous.”
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companies were well-positioned when the ALI proposed the Third
Restatement of Torts. Both Reporters, James Henderson and Aaron Twerski,
an Advisor, Victor Schwartz, and two members of the Members Consultative
Group (“MCG”), Stanley Temko and Sam Witt, had been or were working
with the tobacco companies.140
Victor Schwartz, an Advisor to the Reporters and a well-respected and
well-known tort law scholar, succeeded Prosser as editor of Prosser, Wade and
Schwartz’s Torts: Cases and Materials.141 He was also a longstanding partner at
Crowell and Moring,142 a law firm that represented tobacco companies.143
The tobacco industry followed Schwartz’s work in the early 1980s on
asbestos liability very closely. Tobacco industry members attended meetings
where Schwartz spoke on asbestos liability,144 and circulated amongst
themselves both memos he wrote to industry committees concerned with
tort reform145 and speeches he gave on asbestos and products liability
140. There may have been more Advisors or members of the MCG working on the project
with ties to the tobacco companies; however, by the 1990s the law firms representing the
tobacco companies did not list partners’ names on their letterheads. Comparison of documents
from the Tobacco Institute’s Tort Reform Policy Committee and Ad Hoc Tort Reform
Committee to lists of ALI Advisors and members of the MCG provided the names of three
people, Advisor Victor Schwartz (Crowell & Moring), Stanley L. Temko (Tobacco Institute
Committee of Counsel and Covington & Burling), and Samuel Brown Witt (R.J. Reynolds), who
were on the MCG for the Third Restatement, working directly for the tobacco industry while
serving on ALI boards.
141. See WILLIAM LLOYD, JOHN W. WADE & VICTOR E. SCHWARTZ, CASES AND MATERIALS ON
TORTS (1976). Prosser was involved as recently as 2010. VICTOR E. SCHWARTZ, KATHRYN KELLY
& DAVID F. PARTLETT, PROSSER, WADE & SCHWARTZ’S TORTS: CASES AND MATERIALS (12th ed.
2010).
142. V.E. SCHWARTZ, VICTOR E. SCHWARTZ BIOGRAPHICAL SKETCH (1993), available at
http://legacy.library.ucsf.edu/tid/nkz02a00/pdf.
143. Victor Schwartz is mentioned in over 350 documents in the Legacy Library from 1992
to 1997—the period the ALI created the Third Restatement. These documents include: a 1997
letter from Schwartz to Philip Morris’ Senior Vice President of Litigation, Charles Wall, offering
to speak with anyone in Miami on Philip Morris’ behalf and extending an open invitation to
Wall to stay in Schwartz’s Florida home; and a 1993 memo from Samuel Chilcote, President of
the Tobacco Institute, to the members of the Tobacco Institute’s Executive Committee,
summarizing Victor Schwartz’s contribution to the Tobacco Institute’s recent National
Environmental Tobacco Smoke Conference where he explained why a plaintiff would not
succeed suing the tobacco industry for injuries from secondhand smoke. See Memorandum
from Samuel D. Chilcote, Jr., Tobacco Inst., to Members of the Executive Committee (Dec. 22,
1993), available at http://legacy.library.ucsf.edu/tid/dao45b00/pdf; Letter from Victor
Schwartz, Crowell & Moring, to Charles Wall, Senior Vice President of Litig., Philip Morris
(June 6, 1997), available at http://legacy.library.ucsf.edu/tid/sfd05a00/pdf.
144. Letter from Horace R. Kornegay, Chairman, The Tobacco Inst., to Committee of
Counsel (May 6, 1981), available at http://legacy.library.ucsf.edu/tid/lnp99d00/pdf (discussing
the National Association of Manufacturers Occupational Disease Subcommittee Meeting).
145. Memorandum from Richard F. Kingham, Covington & Burling, to Committee of
Counsel (Feb. 3, 1982), available at http://legacy.library.ucsf.edu/tid/kgu09a00/pdf (circulating
a memorandum by Victor Schwartz on asbestos compensation claims).
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legislation.146 In 1982, Wilson Wyatt, corporate affairs and communications
manager for Brown and Williamson Tobacco Company,147 met privately with
Schwartz to discuss the possible implications of a new federal products
liability bill for the tobacco industry.148 In late 1984, William Adams, the
Tobacco Institute’s controller,149 provided tickets to several influential
Washingtonians, including Schwartz and his wife, to accompany Adams and
his wife to the National Symphony Ball that President Ronald Reagan and
the First Lady would attend.150
In August 1985, Schwartz and Twerski appeared on CNN’s Newsmaker
Sunday to discuss cigarette liability with John Banzhaf, an attorney from the
anti-smoking organization Action on Smoking and Health.151 The second
wave of tobacco litigation had just begun with the filing of Cipollone v. Liggett
Group Inc., the first new case in nearly twenty years against tobacco
companies for injuries sustained from the use of their product.152 CNN
wanted opinions from both sides of the issue, as well as legal experts, on the
likely outcome of the case and what it could mean for the industry.153 In the
broadcast, there was no mention of Schwartz’s connections with the tobacco
industry, which had declined to participate in the debate.154 Indeed, at the
beginning of the program, the moderator said, “The cigarette industry was
unable to provide a spokesman to be on this program and CNN regrets the
tobacco industry’s absence and any effect it might have on balance and
perspective which are hallmarks of this program.”155 Schwartz, introduced as
a products liability expert and author of leading tort textbooks, was reserved
and made the general arguments against liability for cigarettes: people know
146. Letter from Robert E. Northrip, Shook, Hardy & Bacon, to Arthur J. Stevens, Vice
President and General Counsel, Lorillard (May 12, 1980), available at http://legacy.library.
ucsf.edu/tid/ulo61e00/pdf.
147. Wyatt, Wilson W., Jr., TOBACCO DOCUMENTS ONLINE, http://tobaccodocuments.org/
profiles/people/wyatt_wilson_w_jr.html (last visited Sept. 8, 2012) (containing a profile of
Wilson W. Wyatt, Jr.).
148. See Letter to Wilson Wyatt (Oct. 12, 1982), available at http://legacy.library.ucsf.
edu/tid/btg04f00/pdf; see also Memorandum from J. K. Wells III to E. Pepples, (Feb. 29,
1984), available at http://legacy.library.ucsf.edu/tid/ljy95a00/pdf.
149. Adams, William A., TOBACCO DOCUMENTS ONLINE, http://tobaccodocuments.org/
profiles/people/adams_william_a.html (last visited Sept. 8, 2012) (containing a profile of
William A. Adams).
150. Letter from William A. Adams, Controller, The Tobacco Inst., to Victor Schwartz,
Crowell & Moring (Dec. 6, 1984), available at http://legacy.library.ucsf.edu/tid/uwu73b00/
pdf.
151. Newsmaker Sunday (CNN television broadcast Aug. 18, 1985), available at http://
legacy.library.ucsf.edu/tid/ofj24f00/pdf.
152. Cipollone v. Liggett Grp. Inc., 106 F.R.D. 573 (D.N.J. 1985), rev’d, 785 F.2d 1108
(1986).
153. See Newsmaker Sunday, supra note 151.
154. Id.
155. Id.
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the dangers of cigarette use, so the lawsuits have no basis in court and are
just a way for plaintiff lawyers to get rich.156
The Legacy Library documents do not show a relationship between
Twerski and the tobacco industry at or before the time of the broadcast in
August 1985,157 but Twerski was emphatic in criticizing smoking and health
lawsuits:
I believe that the [cigarette cancer] suits are basically illegitimate. I
believe that the cigarette cancer cases are really a test of whether or
not American courts are going to have the good sense to stay out of
deciding a debate which has been . . . raged on the national scene
for the last 40 years. And I believe that these cases are basically
non-justiciable. . . . I think that basically the cases are going to be
tried under a negligence formula . . . and that that standard of care
is going to be as difficult to prove as it was many years ago.158
By 1986, Twerski was working for the tobacco industry.159 In 1985, the
Tobacco Institute formed its Ad Hoc Committee on Tort Reform, beginning
its campaign to change state tort laws to the benefit of the tobacco
industry.160 Covington & Burling supported the Committee, and in
September 1987 billed the Tobacco Institute $12,548 to pay Aaron Twerski
as a consultant for their tort reform work in New Jersey for the previous
fiscal year.161 Two years later, in February 1989, Covington & Burling paid
Twerski $11,839.50 for two months of consulting work on Lorillard
Tobacco’s product liability reform projects.162 An American Tobacco
Company budget lists Twerski and James A. Henderson as legal consultants
on tort reform issues to be paid $26,592 and $25,188, respectively, between
June 1990 and December 1991.163 In 1990, American Tobacco Company
156. Id.
157. The tobacco industry followed Twerski for a decade before the CNN broadcast. A
search of “Twerski” in the Legacy Library produces over 245 results dating back to the 1970s.
Every “Twerski” document dated earlier than the CNN broadcast either mentions or is a copy of
one of Twerski’s law review articles. See generally Search, LEGACY TOBACCO DOCUMENTS LIBRARY,
http://legacy.library.ucsf.edu/action/search/basic (last visited Sept. 9, 2012).
158. Newsmaker Sunday, supra note 151, at 2.
159. Memorandum from Richard F. Kingham, Covington & Burling, to Committee of
Counsel (Sept. 16, 1987), available at http://legacy.library.ucsf.edu/tid/qhk23b00/pdf.
160. Id.; R.J. Reynolds Tobacco Co., Tort Reform, LEGACY TOBACCO DOCUMENTS LIBR. 2–3,
http://legacy.library.ucsf.edu/tid/qee94i00/pdf.
161. Memorandum from Richard F. Kingham, supra note 158.
162. Memorandum from Covington & Burling to Lorillard (Feb. 17, 1989), available at
http://legacy.library.ucsf.edu/tid/zad60e00/pdf.
163. Am. Tobacco Co., New York Budget Projections, June Through October 1990, January
Through December 1991, LEGACY TOBACCO DOCUMENTS LIBR. 2 (Oct. 4, 1990), http://legacy.
library.ucsf.edu/tid/daz41a00/pdf.
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paid Twerski an additional $8671 for tort reform coalition building164 and
$20,000 for work on mass torts,165 for a total of $55,263.
In 1991, while working as consultants for American Tobacco Company,
Twerski and Henderson wrote the law review article Closing the American
Products Liability Frontier: The Rejection of Liability Without Defect, arguing that
courts have not and should not impose, nor are they capable of imposing,
strict liability on “risky products, such as handguns, cigarettes, and alcoholic
beverages” because courts would not be able to handle the influx of
litigation and because markets and legislatures are better suited to manage
use of such products.166 They noted that many courts had rejected such
categorical liability for these products, and that “[i]t may take time to
educate the few who are inclined to think otherwise.”167 They also stated
that:
[I]t is frequently difficult to see where the relevant markets have
failed in any ordinary sense of the term. Americans may smoke and
drink too much; but in substantial measure that is probably
because many Americans who do so prefer to engage in those
activities knowing of the relevant risks. Those who would prohibit
outright or via a crushing liability tax the routine commercial
distribution of unavoidably unsafe products may be reacting not so
much to society’s ignorance of the relevant risks as to society’s
indifference to them.168
In 1993, after being appointed as a Reporter for the Restatement,
Twerski informed Covington & Burling that he would no longer be able to
work as a consultant, or continue testifying in favor of pro-tobacco
legislation for the Tobacco Institute’s Ad Hoc Committee on Tort
Reform.169
164. Id.
165. Am. Tobacco Co., Other Expenditures Budget Projections, June Through December 1990,
January Through December 1991, LEGACY TOBACCO DOCUMENTS LIBR. 2 (Oct. 4, 1990), http://
legacy.library.ucsf.edu/tid/whb51a00/pdf.
166. Henderson & Twerski, Closing the American Products Liability Frontier: The Rejection of
Liability Without Defect, supra note 124, at 1329–30.
167. Id. at 1329.
168. Id. at 1330.
169. See Memorandum from Keith A. Teel, Attorney, Covington & Burling, to the
Covington & Burling Tort Reform Policy Committee 5 (Mar. 5, 1993), available at http://
legacy.library.ucsf.edu/tid/bog65b00/pdf; see also Joint Statement of Professors James A.
Henderson, Jr. and Aaron D. Twerski (May 25, 1989, revised Sept. 29, 1989), available at
http://legacy.library.ucsf.edu/tid/dka88b00/pdf (containting the full statement given to New
York’s Senate Standing Committee on Codes on May 25, 1989 and revised for distribution on
September 29, 1989). Memorandum from David H. Remes, Covington & Burling, to the New
York Working Group (Oct. 11, 1989), available at http://legacy.library.ucsf.edu/tid/
hka88b00/pdf; Memorandum from Lester M. Shulklapper, Attorney, to R. Christopher
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Twerski did not, however, completely sever his connections with the
tobacco industry. In 1996, the year before ALI published the Third
Restatement, Twerski was a keynote speaker at an Arnold & Porter
conference entitled Limiting Products and Toxic Tort Liability in the Nineties:
Strategies and Solutions. Arnold & Porter, another major tobacco industry law
firm, invited Senior Vice President of Philip Morris, Denise F. Keane, to the
conference,170 where Twerski spoke on the Restatement.171
Schwartz’s connection and work for the tobacco companies continued
through the 1990s while he was an Advisor to the Restatement. In
September 1993, over a year after his May 1992 acceptance of the ALI’s
offer of appointment as Advisor,172 Covington & Burling budgeted $85,000
to Schwartz for “general support in a variety of ways to the tort reform
effort” in 1994, in addition to the $100,000 (out of a budgeted $150,000)
for 1993.173
In 1993, Schwartz testified on behalf of the tobacco industry as a legal
scholar before the Maryland Legislature’s House of Delegates’
Environmental Matters Committee on secondhand smoke issues.174 He is
also listed as a paid expert witness for the Tobacco Institute for hearings in
the U.S. House of Representatives on Representative Henry Waxman’s (DCA) “smoking ban bill” in 1994 for approximately $3,000.175 In May 1995,
he spoke on Liability Reform in the 1990s: “Can it Happen and Can it Help?” at a
Philip Morris conference exploring important legal topics for their legal
department.176
McCormick, Jr. (Sept. 29, 1989), available at http://legacy.library.ucsf.edu/tid/gka88b00/pdf
(discussing the Volker/Robach Product Liability Reform Bill).
170. Letter from David R. Kentoff, Arnold & Porter, to Denise F. Keane, Senior Vice
President and Gen. Counsel, Philip Morris USA (Mar. 13, 1996), available at http://
legacy.library.ucsf.edu/tid/rch27d00/pdf.
171. See ARNOLD & PORTER, LIMITING PRODUCTS AND TOXIC TORT LIABILITY IN THE
NINETIES: STRATEGIES AND SOLUTIONS: TENTATIVE AGENDA (1996), available at http://
legacy.library.ucsf.edu/tid/tbh27d00/pdf. No documents in the Legacy Library record
payment to any of the speakers, so it is unclear whether Arnold & Porter paid Twerski to speak.
172. Henderson and Twerski Named Reporters, supra note 123, at 3.
173. Memorandum from Keith A. Teel, Attorney, Covington & Burling, to the Covington &
Burling Tort Reform Policy Committee 5 (Sept. 20, 1993), available at http://legacy.library.
ucsf.edu/tid/zwf65b00/pdf.
174. See Memorandum from Diana Avedon, The Tobacco Inst., to Gio Gori et al. (Sept. 1,
1993), available at http://legacy.library.ucsf.edu/tid/gvz92b00 (discussing the Maryland
Environmental Tobacco Smoke Hearing scheduled for September 7); Press Release, The
Tobacco Inst., EPA Report Criticized in Annapolis Hearing 2 (Sept. 7, 1993), available at
http://legacy.library.ucsf.edu/tid/nvq30c00/pdf.
175. See TOBACCO INST., 1994 PROJECTED EXPERT WITNESS NEEDS (1994), available at
http://legacy.library.ucsf.edu/tid/xka89b00/pdf.
176. PHILIP MORRIS COS., LEGAL CONFERENCE: BERMUDA, MAY 7–11 1995 (1995), available
at http://legacy.library.ucsf.edu/tid/sxb05a00/pdf (indicating that the majority of speakers
came from within Philip Morris, with the exception of the guest speaker, Colin Powell).
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Schwartz also worked closely with the Tobacco Institute’s Tort Reform
Policy Committee during his time as Advisor. Covington & Burling listed
Schwartz as an individual who could communicate pro-tobacco messages to
various audiences in an April 1995 public relations response plan prepared
for Philip Morris to counter public attitudes concerning mounting tobacco
litigation.177 Schwartz attempted to bill Philip Morris for at least some of the
time he devoted to his duties as an Advisor. In May 1993, Charles Wall, Vice
President of Philip Morris Companies Inc., wrote Schwartz concerning his
latest bill:
Dear Victor,
I have approved your November bill for products liability work. I
do not think you should bill us for any ALI work, except for
discussions with us regarding the work being done.
Attendance at ALI meetings, discussions with ALI members, and
work on the Restatement do not seem to me to be appropriate for
billing.178
D. THE TOBACCO INDUSTRY’S RESPONSE
The ALI began work on the Third Restatement in April 1992.179 The
first tobacco document referring to the Restatement in the Legacy Library is
a Tobacco Institute update regarding Institute efforts on federal products
liability issues dated December 14, 1992.180 The memorandum states that
Schwartz would brief the Tobacco Institute’s Tort Reform Policy Committee
(“TRPC”)181 on the status of the ALI’s project to prepare a Restatement of
products liability law.182
The Restatement is listed in the TRPC agendas from June 10, 1993, to
January 27, 1995.183
177. COVINGTON & BURLING, TOBACCO LITIGATION: PUBLIC ATTITUDES: PR RESPONSE
(1995), available at http://legacy.library.ucsf.edu/tid/ibf77a00/pdf.
178. Letter from Charles R. Wall, Vice President and Assoc. Gen. Counsel, Philip Morris, to
Victor E. Schwartz, Crowell & Moring (Feb. 18, 1993), available at http://legacy.library.
ucsf.edu/tid/vnn80c00/pdf.
179. See RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. (Preliminary Materials 1992).
180. Memorandum, Tobacco Inst., Federal Products Liability (Dec. 14, 1992), available at
http://legacy.library.ucsf.edu/tid/zjw35b00/pdf.
181. The TRPC, headed by Keith Teel, a lawyer at Covington & Burling, worked to change
tort laws around the country to benefit the tobacco industry. The TRPC helped fund and direct
tort reform around the country to tobacco’s benefit. CARL DEAL & JOANNE DOROSHOW, THE
CTR. FOR JUSTICE & DEMOCRACY AND PUB. CITIZEN, THE CALA FILES: THE SECRET CAMPAIGN BY
BIG TOBACCO AND OTHER MAJOR INDUSTRIES TO TAKE AWAY YOUR RIGHTS (2000), available at
http://centerjd.org/content/cala-files-secret-campaign-big-tobacco-and-other-major-industriestake-away-your-rights.
182. Federal Products Liability, supra note 180.
183. See Memorandum from Keith A. Teel, Attorney, Covington & Burling, to the Tort
Reform Policy Committee 3 (June 10, 1993), available at http://legacy.library.ucsf.edu/tid/
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In January 1994, Keith Teel, the Covington & Burling lawyer who
chaired TRPC, wrote TRPC committee members addressing what he saw as
problems with ALI Council Draft No. 1A of the new Restatement. He stated
that new language in the Restatement would undermine the “unreasonably
dangerous” principles of the Restatement (Second) of Torts.184 Council
Draft No. 1A stated that plaintiffs must show that an alternative design
would have prevented or reduced injury even if the plaintiff alleged that the
category of product was so dangerous that it should not have been sold at
all.185 The draft continued to say that some courts “have suggested that some
product categories have such a high degree of danger and such low social
utility that liability should attach even if the plaintiff is unable to establish a
reasonable alternative design.”186
Teel’s memo suggested some possible next steps that could be used to
counter this new language about products with low social utility and high
danger:
We should urge that this language be deleted. I understand that
Victor Schwartz has already been at work on this, and he will
continue his efforts. We can also provide ALI reporter Aaron
Twerski with comments, and we will do so unless any of you object.
All of us should speak with ALI members with whom we have
contacts about this issue, and particularly with those who are on the
advisory committee for the Restatement . . . .187
The TRPC met on February 8, 1994, to discuss Council Draft No. 1A.
Before the meeting, Teel wrote TRPC members detailing the current status
of many of the Committee’s ongoing tort reform projects, including the
Restatement (Third) of Torts.188 Teel reiterated his concern about language
concerning products of low social utility and high danger, reported his
actions, and suggested a plan to move forward:
hng65b00/pdf; Memorandum from Keith A. Teel, Attorney, Covington & Burling, to the Tort
Reform Policy Committee 13 (June 14, 1993), available at http://legacy.library.ucsf.edu/tid/
rmg65b00/pdf; Agenda, Covington & Burling, Policy Commission Meeting 1 (Feb. 8, 1994),
available at http://legacy.library.ucsf.edu/tid/qsl47b00/pdf; Agenda, Covington & Burling,
Tort Reform Policy Commission Meeting (Jan. 27, 1995), available at http://legacy.library.
ucsf.edu/tid/yff37c00/pdf.
184. Memorandum from Keith A. Teel, Attorney, Covington & Burling, to Messrs.
Donahue, Oechler, Pepples, Simeonidis & Wall 1 (Jan. 14, 1994), available at http://legacy.
library.ucsf.edu/tid/tft04c00/pdf.
185. RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 2 cmt. c (Council Draft No. 1A,
1994).
186. Id.
187. Memorandum from Keith A. Teel, supra note 184, at 1.
188. Memorandum from Keith A. Teel, Attorney, Covington & Burling, to the Tort Reform
Policy Committee (Feb. 3, 1994), available at http://legacy.library.ucsf.edu/tid/evm60e00/pdf.
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I have discussed this matter with several of the lawyers on the [Tort
Reform] Policy Committee, and the level of concern seems to be
great. Since sending my memorandum I have also spoken with
Victor Schwartz and have encouraged him to continue his efforts to
have the offensive language deleted. Victor believes this provision is
intended to appease the trial lawyers. I asked him if he thought
there would be a problem if we were to send a set of comments and
a letter directly to Aaron Twersky [sic], and he indicated that he
thought this might be useful.189
In Lorillard’s copy of the memorandum is a handwritten note that appears
to state, “we will fund [illegible] to write to the drafters.”190
The ALI released Tentative Draft No. 1 to the ALI general membership
on April 12, 1994, in preparation for the May 1994 ALI Annual Meeting.191
The offending language, opening ground for courts to find the
manufacturers of products with high danger and low social utility liable for
injuries caused by these products, had been removed and replaced with:
Whether tort liability should be imposed for categories of products
that are generally available and widely used and consumed, but are
considered socially undesirable by some segments of society,
should not be resolved by the courts. That issue is better suited to
resolution by legislatures and administrative agencies, which can
more appropriately consider whether distribution of such product
categories should be prohibited.192
The Council received the next Council Draft in September 1994,
accommodating comments from the May 1994 ALI Annual Meeting. This
draft kept the language that legislatures—not courts—should decide liability
for socially undesirable products but, due to comments of the ALI general
membership, also reinstated the language that several courts have suggested
for liability for products of high danger and low social utility, now also
calling them “manifestly unreasonable” products.193 On January 19, 1995,
the TRPC again discussed the Restatement. In a memo to the TRPC in
preparation for the meeting, Teel addressed continuing problems with the
Restatement, and the return of language they had previously succeeded in
removing. Though parts of the memo were redacted, several comments on
the Restatement remained:
A proposed Restatement (Third) of Torts concerning product
liability is close to completion. The black-letter law in the current
189.
190.
191.
192.
193.
Id. at 10.
Id.
RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB., at i (Tentative Draft No. 1, 1994).
Id. § 2 cmt. c.
RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 2 cmt. c (Council Draft No. 2, 1994).
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draft is fine, but some of the commentary is unfavorable. For
example, the draft comments contain a favorable “comment i”
provision, but they also contain a provision that would allow
liability to be imposed on certain rather ill-defined products that a
jury finds pose a great risk without any corresponding social utility.
Such a provision may eventually undercut the rationale of
comment i, at least for some products. This unfavorable
commentary was deleted from the draft prior to its consideration at
the American Law Institute’s annual meeting in May 1994, but it
was reinserted following a floor vote. We need to try again to excise
this commentary. We should also have several industry lawyers
carefully examine the draft to identify other sources of concern.
This must happen within the next six weeks so we can prepare a plan
to correct any deficiencies.194
The TRPC met again on January 27, 1995, with “American Law
Institute Restatement Project” listed on its agenda,195 but neither notes nor
preparatory memos are available. With two years left before the completion
of the Third Restatement, this is the last tobacco document concerning the
Restatement. However, the successful experiences from the Second and
Third Restatements were important to the tobacco industry; a September
1996 review of litigation from R.J. Reynolds’ Vice President of State
Government Relations, Roger Mozingo,196 lists several tort reform goals,
including a desire to “[i]nfluence development of tort law through groups
like the American Law Institute.”197
As was the case during the drafting of the Restatement (Second) of
Torts, there are several documents for which privilege is claimed that may
give insight into the tobacco industry’s plans to change certain elements of
the Restatement and its impressions of the effects of the Restatement on the
future of tobacco litigation.198
194. COVINGTON & BURLING, PROPOSED 1995 TORT REFORM OBJECTIVES 3–4 (1995),
available at http://legacy.library.ucsf.edu/tid/phd32a00/pdf (emphasis added).
195. Agenda, Covington & Burling, Tort Reform Policy Committee Meeting (Jan. 27,
1995), available at http://legacy.library.ucsf.edu/tid/tlp22a00/pdf.
196. Roger Mozingo worked in state and local level lobbying for the tobacco industry. He
“[w]as [a] Vice President at [the Tobacco Institute] in the State Activities Division in the 1970’s
& 1980’s” and Vice President of State Government Relations at R.J. Reynolds in 1994. Mozingo,
Roger L., TOBACCO DOCUMENTS ONLINE, http://tobaccodocuments.org/profiles/people/
mozingo_roger_l.html (last visited Sept. 9 2012) (containing a profile of Roger L. Mozingo).
197. R.J. REYNOLDS, LITIGATION OVERVIEW 5 (1996), available at http://legacy.library.ucsf.
edu/tid/avj30d00/pdf.
198. See infra Table 4. There are currently no straightforward methods for obtaining
documents which have been withheld on questionable privilege claims. We rely upon lawyers
engaged in tobacco litigation to request these documents through discovery. As of publication,
there are no cases in which a lawyer has requested and obtained these documents.
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TABLE 4
RESTATEMENT (THIRD) PRIVILEGED DOCUMENTS
Title
(Privilege Claim*)
Memorandum . . . providing legal
analysis of tort reform issues. (3A,
3B)
Date
Feb. 3,
1994
Author
Importance/Expected
Contents
Keith
Teel
This document is probably
a privileged version of
Teel’s (head of TRPC)
memo of the same date.
However, one of the several
privileged copies may
contain missing
attachments including a
prior memo on the
Restatement and a timeline
of approval of the
Restatement.
GD
Slaiman
This document follows an
agenda for a Tort Reform
Policy Committee meeting
where the ALI’s
Restatement (Third) of
Torts was listed and may
discuss interests and goals
concerning the
Restatement.
Keith
Teel
This document is possibly
an unredacted copy of
Teel’s (head of TRPC)
memo addressing the
return of unfavorable
language to the Third
Restatement.
http://legacy.library.ucsf.edu/
tid/njn12a00
Memorandum . . . summarizing and
providing legal suggestions
concerning tort reform proposals.
(1B, 1C)
Jan. 12,
1995
http://legacy.library.ucsf.edu/
tid/vlp22a00
Memorandum . . . reflecting legal
advice and proposed joint defense
strategy concerning potential impact
of proposed state or federal
legislation and amendments to
federal rules of civil procedure and
amendments to the Third
Restatement of Torts on smoking
and health litigation. (3A, 3B)
Jan. 19,
1995
http://legacy.library.ucsf.edu/
tid/phd32a00; and
http://legacy.library.ucsf.edu/
tid/wqv12i00
Memorandum . . . providing
counsel’s analysis of proposed
amendments to the Restatement of
the Law of Torts and its affect (sic)
on federal product liability
legislation. (1C)
http://legacy .library.ucsf.edu/
tid/uwn22a00
May 4,
1995
Victor
Schwartz
Schwartz, Advisor to the
Reporters, discusses the
longer term effects of the
Restatement on federal
legislation, and may discuss
past or future plans to
change the Restatement.
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Title
(Privilege Claim*)
Memorandum . . . providing
counsel’s legal analysis of proposed
amendments to the Restatement of
the Law of Torts and strategic advice
regarding the same. (1A)
[Vol. 98:1
Date
Author
Importance/Expected
Contents
May 9,
1995
Victor
Schwartz
Schwartz, an advisor to the
Reporters, discusses past or
future plans to change the
Restatement.
http://legacy.library.ucsf.edu/
tid/twn22a00
1B:
Attorney–Client Privilege; confidential communications between Philip Morris
USA, Inc. counsel and its employees.
1C:
Attorney–Client Privilege; confidential communications between Philip Morris
USA, Inc. counsel.
3A:
Joint Defense; legal advice prepared in anticipation of litigation concerning
confidential communications between counsel with common legal interest.
3B:
Joint Defense; legal advice prepared in anticipation of litigation concerning
confidential communications between employees and counsel with common legal
interest.
E. THE FINAL OUTCOME
The draft of the Third Restatement presented to the ALI membership
for approval at its 1997 meeting included the exemption for tobacco, as well
as for alcohol, firearms, and above-ground swimming pools.199 The draft
exempted these products because they are generally available and widely
used and consumed even though they pose a substantial risk of harm, and
therefore manufacturers should not be automatically liable for the injuries
they cause.200 During the discussion, Professor Jay Dratler from the
University of Hawaii requested that tobacco be removed from the list of
products not subject to strict liability.201 He argued that tobacco is unlike
firearms, above-ground swimming pools, and alcohol because “[i]t is the
only one of those four items that has been admitted, by at least one major
producer, [to be] addictive.”202 Dratler also argued that the law on tobacco
199. American Law Institute: 74th Annual Meeting, 74 A.L.I. PROC. 169, 210 (1997)
[hereinafter 74th Annual Meeting]. There are no comparable document databases for the
alcohol, above-ground swimming pool, or firearm industries, so it is not possible to know
whether the industries pressured the ALI to include them in this list or whether this was the
result of the tobacco industry suggesting to include them to deemphasize the tobacco industry’s
role in influencing the Restatement. See, e.g., The Documents, DRUG INDUS. DOCUMENT ARCHIVE,
http://dida.library.ucsf.edu/documents.jsp (last visited Sept. 18, 2012) (containing a
collection of documents pertaining to the pharmaceutical drug industry, but the included
documents generally relate only to specific litigation and the collection is not nearly as
comprehensive as the Legacy Tobacco Documents Library).
200. 74th Annual Meeting, supra note 199, at 210.
201. Id. at 209–11.
202. Id. at 210.
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in products liability was still developing in 1997, and that the ALI should not
be creating such a “blanket exemption” when, as he believed, the case law in
the Reporter’s notes did not support such an exemption.203 Twerski
responded by arguing that there was sufficient case law in support of the
exemption.204 Claiming time constraints, the ALI president put the
amendment to remove tobacco from the exemption to a vote without
further discussion.205 Through a “chorus of ayes,” a “chorus of noes,” and a
“showing of hands” for both sides, the director and president decided that
the “ayes” carried the day—that the removal of the tobacco exemption was
passed by the membership.206
Although the blanket exemption for tobacco was removed from the
Third Restatement, the final document is still advantageous to the tobacco
companies and presents a major hurdle for any plaintiff. Under the Third
Restatement, because plaintiffs can rarely claim manufacturing or warning
defects, plaintiffs have to make a design defect claim.207 Even though
tobacco products could, in theory, be subject to strict liability because the
ALI removed the exemption, in reality, because of the requirements to
prove a design defect claim, plaintiffs have to show negligence on the part of
the defendant manufacturer.208 To claim that the product has a bad design,
the plaintiff has to present a reasonable, safe, alternative design, the
omission of which rendered the product not reasonably safe—a high order
for a plaintiff in a cigarette case.209
F.
LASTING EFFECT OF THE RESTATEMENTS
Section 402A of the Restatement (Second) of Torts was widely adopted
by state legislatures and courts and had a powerful impact on legal
scholarship.210 It set a standard for consumer protection and clarified a new
203. Id.
204. Id.
205. Id. at 211.
206. Id.
207. Galligan, supra note 7, at 499–501.
208. Id. at 501.
209. Id. at 501–02. However, the Third Restatement also addresses products of manifestly
unreasonably design, suggesting liability without the need for evidence of a safe, alternative
design, but this category is so limited that it is unclear if tobacco would fit. Id. at 501–03. What
facts and evidence a plaintiff needs to establish under the Third Restatement to prove liability
on the part of the tobacco manufacturers is not clear. Id. at 502–03; David G. Owen, The Puzzle
of Comment j, 55 HASTINGS L.J. 1377, 1386–89 (2004).
210. Both Restatements of Torts have had a powerful impact on judicial reasoning and
legal scholarship. They are benchmarks of comparison widely used and respected across the
country and applied to every possible product. There are papers published in nearly every state
that either compare their state law to the Third Restatement of Torts or suggest adoption of the
Restatement. See, e.g., Robert D. Klein, A Comparison of the Restatement (Third) of Torts: Products
Liability and the Maryland Law of Products Liability, 30 U. BALT. L. REV. 273 (2001); Peter Nash
Swisher, Products Liability Tort Reform: Why Virginia Should Adopt the Henderson-Twerski Proposed
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area of law that swept the country. By 1971, seven years after its publication
in 1965, over half of the states had adopted the principles of Section 402A
by legislation or judicial decision.211 State legislatures and courts relied on
Section 402A’s “good tobacco” exemption to keep personal-injury tobacco
lawsuits out of court. Over time, the principles of product liability law
became more complicated, combining ideas of design and manufacturing
defects with the basic concept of defectiveness.212
The Third Restatement addressed these newer ideas, and some states
combined the language of the design and manufacturing defect concepts of
the Third Restatement with the “defective condition unreasonably
dangerous” standard of the Second Restatement.213 Nevertheless, in 2011,
thirteen years after the ALI published the Restatement (Third) of Torts that
deleted the “good tobacco” exemption, laws referencing Section 402A from
the Restatement (Second) of Torts remained in effect in at least twenty-four
states, and courts continued to treat Section 402A as good law, providing
ongoing benefits to the tobacco industry.214
Revision of Section 402A, Restatement (Second) of Torts, 27 U. RICH. L. REV. 857 (1993); Patrick R.
Buckler, Comment, State of the Art Evidence in Products Liability Suits in Maryland, 28 U. BALT. L.
REV. 117 (1998); among hundreds of others. Legal scholars have relied on both Restatements
of Torts in analyzing the way in which products liability law applies to products in nearly every
industry, including fast food, airbags, pharmaceuticals, an AIDS Vaccine, used products, pets as
products, and genetically modified bentgrass. See, e.g., Charles E. Cantù, Fattening Foods: Under
Products Liability Litigation Is the Big Mac Defective?, 1 J. FOOD L. & POL’Y 165 (2005); Antonio J.
Senagore, The Benefits of Limiting Strict Liability for Used-Product Sellers, 30 N. ILL. U. L. REV. 349
(2010); Michael J. Wagner & Laura L. Peterson, The New Restatement (Third) of Torts—Shelter from
the Product Liability Storm for Pharmaceutical Companies and Medical Device Manufacturers, 53 FOOD
& DRUG L.J. 225 (1998); Kelley E. Cash, Note, The New Restatement (Third) of Torts: Is It the Cure
for the AIDS Vaccine Ailment?, 16 REV. LITIG. 413 (1997); Brady L. Montalbano, Comment, It’s
Not Easy Being Green—Holding Manufacturers of Genetically Modified Bentgrass Liable Under Strict
Products Liability, 14 PENN ST. ENVTL. L. REV. 111 (2005); Patrick J. Norton, Note, What Happens
When Air Bags Kill: Automobile Manufacturers’ Liability for Injuries Caused by Air Bags, 48 CASE W.
RES. L. REV. 659 (1998); Jason Parent, Comment, Every Dog Can Have Its Day: Extending Liability
Beyond the Seller by Defining Pets as “Products” Under Products Liability Theory, 12 ANIMAL L. 241
(2006); Jeffrey D. Winchester, Note, Section 8(C) of the Proposed Restatement (Third) of Torts: Is It
Really What the Doctor Ordered?, 82 CORNELL L. REV. 644, 648–53 (1997).
211. Conk, supra note 32, at 810.
212. David G. Owen, Design Defects, 73 MO. L. REV. 291, 295–96 (2008).
213. See infra Table 5.
214. See infra Table 5.
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TABLE 5
STATES USING LANGUAGE OR INTENT OF RESTATEMENT (SECOND) OF TORTS SECTION
402A AS OF FEBRUARY 2011
Use
State
Oregon
Specifically references Section
402A including Comment’s
“good tobacco” exemption
South Carolina
Texas
Arkansas
OR. REV. STAT. ANN. § 30.920
(West 2011)
S.C. CODE ANN.
§§ 15-73-10, -30 (2005)
TEX. CIV. PRAC. & REM. CODE
ANN. § 82.004
(West Supp. IV 2010)
ARK. CODE ANN.
§ 16-116-102
(West Supp. I 2012)
Illinois
735 ILL. COMP. STAT. ANN.
5/2-2106.5 (West 2003)
Indiana
IND. CODE ANN.
§§ 34-6-2-146, -20-2-1, -20-2-3
(West 2011)
Iowa
Adopts the intent/language of
Section 402A but does not
explicitly adopt the “good
tobacco” exemption
Statute (West 2010)/Case
IOWA CODE ANN.
§ 668.12 (West 1998)
Kansas
Messer v. Amway Corp., 210 F.
Supp. 2d 1217, 1232–33 (D.
Kan. 2002).
Kentucky
KY. REV. STAT. ANN. § 411.340
(West 2006)
Maine
ME. REV. STAT. ANN. tit. 14,
§ 221 (2003)
Michigan
MICH. COMP. LAWS ANN.
§ 600.2947 (West 2010)
Minnesota
Russo v. NCS Pearson, Inc.,
462 F. Supp. 2d 981, 996 (D.
Minn. 2006)
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Use
Adopts the intent/language of
Section 402A but does not
explicitly adopt the “good
tobacco” exemption
Adopts the intent/language of
Section 402A but explicitly
does not exempt tobacco
Adopts the intent/language of
“Defective Condition
Unreasonably Dangerous”
standard in combination with
Restatement (Third) Torts
principles
State
Statute (West 2010)/Case
Missouri
MO. ANN. STAT. § 537.760
(West 2008)
Nebraska
NEB. REV. STAT. ANN.
§§ 25-21, -181 (2009)
New Mexico
N.M. STAT. ANN. §§ 13-1406,
-1407, -1419 (2011)
North Dakota
N.D. CENT. CODE
§§ 28-01.3-01, -01.3-05
(2006)
South Dakota
S.D. CODIFIED LAWS
§ 20-9-9 (2004)
Utah
UTAH CODE ANN.
§ 78B-6-702 (West 2008)
California
CAL. CIV. CODE § 1714.45
(West 2009)
Mississippi
MISS. CODE ANN. § 11-1-63
(West 2008)
Montana
MONT. CODE ANN.
§ 27-1-719 (2009)
New Jersey
N.J. REV. STAT. § 2A:58C-3
(2000)
Oklahoma
OKLA. STAT. ANN. tit. 76, § 57
(West 2002)
Tennessee
TENN. CODE ANN.
§ 29-28-105 (West 2002)
The tobacco companies used Comment i from the Second Restatement
to push state legislatures and courts to adopt the language. A search for
“Comment i” in the Legacy Library reveals more than 4500 documents
discussing or referring to the Section.215 For example, in 1987, at a dinner
hosted by then California Assembly Speaker Willie Brown, the tobacco
companies brokered a deal between the tobacco industry, trial lawyers, the
California Medical Association, and the insurance companies to enact tort
reform legislation that exempted tobacco from tort liability using “Comment
I” language.216 Willie Brown received $635,000 of tobacco industry
215. In order to remove results that would include phrases such as “a comment I remarked
about,” the exact search in the database was for “‘comment i’ AND (bill OR language OR tort).”
Results current as of August 2011.
216. The meeting was held at Frank Fat’s, a Chinese restaurant in the state capital of
Sacramento, and the deal was written on a napkin, leading to its moniker, “The Napkin Deal.”
The deal became emblematic of special interest domination of the policy-making process in
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campaign contributions between 1976 and 1996—three times the amount
of any other legislator at the time.217 The legislation was pushed through at
the very end of the legislative session, bypassing most normal processes,218
and remained in force until 1997 when it was amended to allow tort lawsuits
against the tobacco industry219 in response to the wave of anti-tobacco
litigation that was sweeping the country.220
There is a stark difference in tobacco litigation between states that,
judicially or legislatively, adopted the tobacco exemption of Section 402A
and those that did not. In 1993, the Texas legislature adopted Section
82.004 of the Civil Practice & Remedies Code, codifying Section 402A
Comment i.221 The Texas judiciary applied the law as a complete bar to any
products liability suit against the tobacco companies for injuries incurred
from tobacco use, including suits alleging breach of implied warranty,
conspiracy, and battery.222 In Mississippi, the legislature adopted Section
402A in 1993, but did not codify comment i.223 State courts, however,
assumed legislative intent to adopt comment i, and applied the goodtobacco exemption, at first barring product liability suits against tobacco
companies,224 then deciding that the statute does not preclude recovery in
such cases but instead provides a defense.225 Tobacco products liability suits
California. (The napkin is framed and on the wall at Frank Fat’s.) See STANTON A. GLANTZ &
EDITH D. BALBACH, TOBACCO WAR: INSIDE THE CALIFORNIA BATTLES 47–49 (2000) (describing
the Frank Fat’s deal); Paul Glastris, Frank Fat’s Napkin: How the Trial Lawyers (and the Doctors!) Sold
Out to the Tobacco Companies, WASH. MONTHLY, Dec. 1987, at 19, available at http://www.unz.
org/Pub/WashingtonMonthly-1987dec-00019 (same). For a description of the events from the
tobacco industry’s perspective, see David Zelkowitz, Draft Remarks for David Zelkowitz Before
the PM Board of Directors 8 (Dec. 11, 1987), available at http://legacy.library.ucsf.edu/tid/
vrl46e00/pdf.
217. See EDITH D. BALBACH ET AL., CTR. FOR TOBACCO CONTROL RESEARCH & EDUC., UNIV.
OF CAL. S.F., HOLDING GOVERNMENT ACCOUNTABLE: TOBACCO POLICY MAKING IN CALIFORNIA,
1995–1997, at 37 (1997), available at http://escholarship.org/uc/item/621854v5#page-1; see
also MICHAEL EVANS BEGAY, MICHAEL TRAYNOR & STANTON A. GLANTZ, INST. FOR HEALTH POLICY
STUDIES, UNIV. OF CAL. S.F., EXTINGUISHING PROPOSITION 99: POLITICAL EXPENDITURES BY THE
TOBACCO INDUSTRY IN CALIFORNIA POLITICS IN 1991-1992 (1992), available at http://legacy.
library.ucsf.edu/tid/csq61d00/pdf.
218. Glastris, supra note 216, at 19.
219. Act of June 12, 1997, 1997 Cal. Stat. 333 (codified as amended at CAL. CIV. CODE §
1714.45 (West 2009)).
220. Id.
221. Act of Mar. 4, 1993, 1993 Tex. Gen. Laws 13–14 (codified as amended at TEX. CIV.
PRAC. & REM. CODE ANN. § 82.004 (West 2011)).
222. Poindexter v. R.J. Reynolds Tobacco Co., 237 F.3d 630, at *1–3 (5th Cir. 2000)
(unpublished table decision); Sanchez v. Liggett & Myers, Inc., 187 F.3d 486, 490–91 (5th Cir.
1999).
223. 1993 Miss. Laws 302 (codified at MISS. CODE ANN. § 11-1-63 (2008)).
224. Lane v. R.J. Reynolds Tobacco Co., 2001-CA-00384-SCT, 2001-CA-1032-SCT (¶¶ 17–
28) (Miss. 2003), overruled by R. J. Reynolds Tobacco Co. v. King, 2004-IA-01170-SCT (Miss.
2006).
225. R.J. Reynolds Tobacco Co., 2004-IA-01170-SCT (¶¶ 1–30).
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in Mississippi halted after these decisions. In other states, where courts have
adopted Section 402A, such as Oregon, the good-tobacco exemption has
not proven to be a complete bar to tobacco product liability suits, and
injured persons have won substantial lawsuits against tobacco companies.226
These states can be compared to Florida, where neither the legislature
nor the courts adopted the good-tobacco exemption of 402A. Florida is
home to the largest class-action lawsuit against tobacco companies for
injuries incurred from tobacco use. A pediatrician, Dr. Howard Engle,
represented the class in 1994, defined by “all [Florida] citizens and
residents, and their survivors, who have suffered, presently suffer or have
died from diseases and medical conditions caused by their addiction to
cigarettes that contain nicotine.”227 All members of the class could not quit
smoking because of their addiction to nicotine. In 1999, the tobacco
companies were found liable for damages to the class.228 In 2006, the
Florida Supreme Court, after certifying the class early in the proceedings,
decertified it, and applied the finding of tobacco industry liability to all suits
originating out of the class leaving only the issue of damages to be litigated
in each suit.229 As of 2011, there was the possibility of over 9500 lawsuits
stemming from the Engle class and relying on the liability verdict.230 From
February 2009 to March 2012, there were sixty verdicts in these Engle
Progeny cases, with forty-one resulting in verdicts for the plaintiffs (with only
one such verdict overturned on appeal), sometimes with substantial
monetary damages.231 Without the restrictions of Section 402A, and
specifically the good-tobacco exemption, plaintiffs in tobacco product
liability suits have a chance of winning in substantial enough numbers to
impact the industry. Florida is the nightmare situation that the industry
successfully avoided for decades with the implementation of Section 402A.
226. Estate of Schwarz v. Philip Morris Inc., 135 P.3d 409, 436–38 (Or. Ct. App. 2006),
aff’d in part, rev’d in part, 235 P.3d 668 (Or. 2010); Aimee Green, Salem Woman’s Family Wins $25
Million in Lawsuit over Low-Tar Cigarettes from Philip Morris, OR. LIVE (Feb. 17, 2012), http://
www.oregonlive.com/portland/index.ssf/2012/02/salem_womans_family_wins_25_mi.html;
Chris Lehman, Oregon Court Reaffirms Judgment in Tobacco Lawsuit, OR. PUB. BROADCASTING (Jan.
31, 2008), http://news.opb.org/article/oregon-court-reaffirms-judgment-tobacco-lawsuit/.
227. R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39, 40 (Fla. Dist. Ct. App. 1996). The
court replaced the words “United States” with “Florida.” Id. at 42.
228. Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1256–57 (Fla. 2006).
229. Id. at 1269.
230. ALLISON KENNEDY ET AL., TOBACCO CONTROL IN FLORIDA 1999-2011: THE GOOD, THE
BAD, AND THE UGLY 47–55 (2011), available at http://escholarship.org/uc/item/9rq720x1.
231. Edward L. Sweda, Jr., Jury in Miami Assesses $25 Million in Punitive Damages Against
Tobacco Firm in an Engle Progeny Trial, PUB. HEALTH ADVOC. INST. (Mar. 6, 2012),
http://www.phaionline.org/2012/03/06/jury-in-miami-assesses-25-million-in-punitivedamages-against-tobacco-firm-in-an-engle-progeny-trial/.
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V. AMENDING CONFLICT OF INTEREST POLICIES
A. THE ALI CONFLICT OF INTEREST POLICY
The ALI essentially functions as a quasi-legislative body, so it is not
surprising that the tobacco industry lobbied the ALI to influence its
decision-making. In contrast to the lobbying of true legislative bodies,
including Congress and many state legislatures, there is no requirement that
either the ALI or organizations that lobby the ALI disclose or regulate such
lobbying activities, making it easy for these activities to remain hidden—even
though these actions may have widespread effects on legislative and judicial
decisions. Parties trying to protect their special interests may attempt to
exert influence over the ALI. To restrict this, the ALI could institute a strict
conflict of interest and public disclosure policy, which would prevent secret
meetings with private interests.
The ALI created its first policy on conflicts of interest for Reporters,
Directors, Advisors, and members of the MCG in July 1994,232 created
additional policies for Council and Board members in October 2009,233 and
slightly updated the original 1994 policy in 2010.234 The ALI instituted the
first policy two years into Henderson’s and Twerski’s tenures as Reporters
and Schwartz’s appointment as Advisor, and four years before publication of
the Third Restatement. Both editions of the ALI Policy on Conflicts of
Interest for Reporters state that “[t]he Institute’s reputation for objectivity is
one of its most valuable assets. . . . The Institute’s reputation will suffer if an
accusation is made with any colorable basis that Institute texts were shaped
to aid the interests of the Institute’s Director or Reporters.”235 However,
even if the ALI conflict of interest policy in place as of 2010 had been in
place since 1963, it would not have prevented industry access to working
Reporters through closed-door meetings, appointments of Reporters and
Advisors with long-term industry ties who fail to disclose issues of possible
bias, or continuing industry relationships by Advisors and members of the
MCG that are not disclosed to the ALI general membership, the public, or
public policy makers who rely on the ALI’s recommendations when making
legislative or judicial decisions.
232. AM. LAW INST., POLICY STATEMENT AND PROCEDURES ON CONFLICTS OF INTEREST
(1994), reprinted in CAPTURING THE VOICE OF THE AMERICAN LAW INSTITUTE: A HANDBOOK FOR
ALI REPORTERS AND THOSE WHO REVIEW THEIR WORK 61 (2005) [hereinafter POLICY
STATEMENT 1994].
233. AM. LAW INST., CONFLICTS OF INTEREST POLICY (2009) [hereinafter CONFLICTS],
available at http://www.ali.org/doc/Conflicts_Policy.pdf.
234. AM. LAW INST., POLICY STATEMENT AND PROCEDURES ON CONFLICTS OF INTEREST WITH
RESPECT TO INSTITUTE PROJECTS 1 (2010) [hereinafter POLICY STATEMENT 2010], available at
http://www.ali.org/doc/conflicts.pdf.
235. POLICY STATEMENT 1994, supra note 232; POLICY STATEMENT 2010, supra note 234.
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The 2010 ALI conflict of interest policy states that “[a] risk or
appearance of a conflict of interest arises when formulation of text,
Comment, or Illustration could advance a position taken by the Director or
Reporter in another engagement on an issue within the scope of a pending
Institute project.”236 According to the ALI, conflicts of interest are most
likely to arise from “engagements that involve legal advice, opinions, expert
testimony, or participation in briefing, argument, or the development of
legal strategy.”237
In the ALI’s 1994 policy and subsequent 2010 update, the ALI requires
a potential Reporter to provide the Director with a memorandum
“identifying and explaining previous, existing, and contemplated
engagements that may cause conflict, or its appearance, with the work
proposed to be undertaken for the Institute”238 “[b]efore accepting
assignment as a Reporter.”239 The memorandum does not follow any
specified format. Further disclosure is left to the sole discretion of the
Reporter. All the ALI requires is that if the Reporter is offered another
position during his work as Reporter, and “[i]f the Reporter concludes that a
conflict or its appearance may result, the Reporter should provide a
memorandum to the Director explaining the conflict or appearance of
conflict.”240
Directors are to follow these same procedures, reporting to the
President.241 The ALI applies the conflict of interest reporting rules only to
the Reporters and ALI Directors.242 As of May 2011, there were no conflict
of interest reporting rules for Advisors or the Members Consultative Group.
As of October 2009, annual disclosures of gifts, favors, and substantial
financial interests were required of officers and members of the Council,
Audit, and Investment Committees,243 but not by Reporters, Advisors, or
members of the MCG.
Since the implementation of its first conflict of interest policy in 1994,
the ALI vests complete control over review of and decisions concerning
236. POLICY STATEMENT 1994, supra note
234.
237. POLICY STATEMENT 1994, supra note
234.
238. POLICY STATEMENT 1994, supra note
234.
239. POLICY STATEMENT 1994, supra note
234.
240. POLICY STATEMENT 1994, supra note
234 (emphasis added).
241. POLICY STATEMENT 1994, supra note
234, at 2.
242. POLICY STATEMENT 1994, supra note
234.
243. CONFLICTS, supra note 233, at 3.
232, at 62; POLICY STATEMENT 2010, supra note
232, at 62; POLICY STATEMENT 2010, supra note
232, at 62; POLICY STATEMENT 2010, supra note
232, at 62; POLICY STATEMENT 2010, supra note
232, at 62; POLICY STATEMENT 2010, supra note
232, at 63; POLICY STATEMENT 2010, supra note
232, at 61; POLICY STATEMENT 2010, supra note
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Reporters’ possible conflicts of interest in one individual: the Director.244
The ALI policy states that once a Reporter submits his memorandum on
possible conflicts of interest to the Director, the prospective Reporter and
the Director “should discuss possible solutions.”245 Upon submission of a
memo explaining Reporters’ possible conflicts of interest with new client
engagements taken during his time as Reporter, it is solely in the Director’s
judgment as to whether a conflict is likely and if a solution is possible.246
Only if the Director decides that there is a strong likelihood of such a
conflict and no satisfactory solution is apparent, should the Reporter
“decline or withdraw from the engagement.”247 If a Reporter is working in a
team, a Reporter with a potential conflict of interest should discuss with the
Director whether the Reporter can withdraw from drafting and
consideration of a particular issue, leaving the remainder of work to be
completed by the co-Reporter, and if that is not feasible, “the Director shall
take other suitable measures to protect the integrity of the project.”248 There
are no stated procedures for the Director to follow in deciding whether a
conflict exists nor stated measures to take in rectifying the problem.
The 2010 ALI policy update added some requirements for disclosure to
the ALI membership and the general public. The “Reporter should make a
statement about any engagements on issues within the scope of a project
draft presented at an annual meeting or a Council meeting where the
project draft is considered.”249
The detail required in the statement is limited in scope and “may
depend on the circumstances of the Reporter’s engagement and whether
specific issues in the draft may be perceived as being influenced by the
Reporter’s engagement.”250 It is not clear who judges the extent of
disclosure required, or which engagements would be perceived as within the
scope of the project. Limited disclosure to the public began in 2010, when
the ALI adopted the policy stating that it would
include in all drafts and the official text[s] . . . a statement that: (a)
the project’s Reporter(s) may have been involved in other
engagements on issues within the scope of the project; (b) all
244. POLICY STATEMENT 1994, supra note 232, at 61–63; POLICY STATEMENT 2010, supra
note 234.
245. POLICY STATEMENT 1994, supra note 232, at 62; POLICY STATEMENT 2010, supra note
234.
246. POLICY STATEMENT 1994, supra note 232, at 62–63; POLICY STATEMENT 2010, supra
note 234, at 2.
247. POLICY STATEMENT 1994, supra note 232, at 62; POLICY STATEMENT 2010, supra note
234, at 2.
248. POLICY STATEMENT 1994, supra note 232, at 63; POLICY STATEMENT 2010, supra note
234, at 2.
249. POLICY STATEMENT 2010, supra note 234, at 2.
250. Id.
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Reporters are asked to disclose any conflicts of interest, or their
appearance, in accord with [ALI policy]; and (c) copies of
Reporters’ written disclosures are available from the Institute upon
request; however, only disclosures provided after July 1, 2010, will
be made available and, for confidentiality reasons, parts of the
disclosures may be redacted or withheld.251
Since 1994, the ALI has required that Advisors and members of the
Members Consultative Group should “perform their responsibilities with the
objectivity expected of legal scholars [and so] must exercise sensitivity to the
risk and appearance of conflict of interest in their work for the Institute.”252
No reporting is required of Advisors or the Members Consultative Group;
instead, the ALI rules, in place since 1994, state that these individuals
should follow Rule 6.4 of the American Bar Association’s Model Rules of
Professional Conduct:
A lawyer may serve as a director, officer or member of an
organization involved in reform of the law or its administration
notwithstanding that the reform may affect the interests of a client
of the lawyer. When the lawyer knows that the interests of a client
may be materially benefitted by a decision in which the lawyer
participates, the lawyer shall disclose that fact but need not identify
the client.253
The ALI policy does not state to whom or in what form such a report should
be made.254 However, this rule was in place during the latter stages of the
development of the Third Restatement, and does not seem to have affected
the Third Restatement’s development.
B. COMPARABLE INSTITUTIONS: THE NATIONAL ACADEMIES
In form and function, the ALI is similar to the National Academies (an
organization which consists of the National Academy of Sciences (“NAS”),
the National Academy of Engineering, the Institute of Medicine (“IOM”),
and the National Research Council)—elite self-selected professional
organizations whose purpose is to provide scholarly advice to policy makers.
Originally chartered by Congress in 1863 as the National Academy of
Science, the National Academies describe their role as “produc[ing]
groundbreaking reports that have helped shape sound policies, inform
public opinion, and advance the pursuit of science, engineering, and
medicine.”255 Like the ALI’s reports, the National Academies’ reports cover
251. Id. at 2–3.
252. Id. at 1.
253. Id. at 3.
254. See generally id.
255. Who We Are, NAT’L ACADS., http://www.nationalacademies.org/about/whoweare/
index.html (last visited Sept. 9, 2012).
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a wide variety of topics—from food and nutrition, to security issues, to space
and aeronautics.256 The National Academies describe their reports as
influential because, “[o]ver many decades, the National Academy of
Sciences, National Academy of Engineering, Institute of Medicine, and
National Research Council have earned a solid reputation as the nation’s
premier source of independent, expert advice on scientific, engineering,
and medical issues.”257
To maintain this independence, the National Academies follow and
recommend strict conflict of interest policies to prevent the appearance of,
as well as actual, conflicts of interest. These detailed conflict of interest rules
(Table 6) are designed to be “objective and prophylactic” to prevent questions
of objectivity from arising and to ensure that the process of research and
writing reports is fairly balanced to protect “the individual [researcher], the
other members of the committee, the institution, and the public interest.”258
The National Academies define “conflict of interest” as “any financial or
other interest which conflicts with the service of the individual because it (1)
could significantly impair the individual’s objectivity or (2) could create an
unfair competitive advantage for any person or organization.”259
256. For a list of publications, see The National Academies Press, THE NAT’L ACADS. PRESS,
http://www.nap.edu/ (last visited Sept. 9, 2012).
257. Our Reputation, NAT’L ACADS., http://www.nationalacademies.org/about/reputation/
index.html (last visited Sept. 9, 2012).
258. NAT’L ACADS., BACKGROUND INFORMATION AND CONFIDENTIAL CONFLICT OF INTEREST
DISCLOSURE FOR STUDIES INVOLVING PROGRAM REVIEWS AND EVALUATIONS 5 (2003), available at
http://www.nationalacademies.org/coi/bi-coi_form-2.pdf.
259. NAT’L ACADS., POLICY ON COMMITTEE COMPOSITION AND BALANCE AND CONFLICTS OF
INTEREST FOR COMMITTEES USED IN THE DEVELOPMENT OF REPORTS 4 (2003), available at
http://www.nationalacademies.org/coi/bi-coi_form-0.pdf.
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TABLE 6
COMPARISON OF CONFLICT OF INTEREST POLICIES
National
Academy of
Sciences*
Institute of
Medicine**
American
Law
Institute***
Policy applies equally to all members
of committee/reviewing groupA
Yes
Yes
No
Required disclosure of conflicts of
interest of spouses and close relations
Yes
Yes
No
Disclosure of information concerning
specific relationshipsB
Yes
Yes
No
Annual disclosures of conflicts of
interestC
No
Yes
No
Additional disclosures required any
time changes in information occursD
Yes
Yes
No
Responsibility for decisions regarding
conflicts of interest
General
Counsel &
Executive
Officer
Committee
Director
Policy states that the institution will
make best efforts to ensure that no
individual appointed to a committee
has a conflict of interestE
Yes
Yes
No
*
**
***
A.
B.
C.
D.
E.
See Federal Advisory Committee Act, 5 U.S.C. app. 2 § 15 (2006); see also NAT’L
ACADS., supra note 259.
See INST. OF MED., CONFLICT OF INTEREST IN MEDICAL RESEARCH, EDUCATION, AND
PRACTICE (Bernard Lo & Marilyn J. Field eds., 2009).
See POLICY STATEMENT 1994, supra note 232, at 61–63; see also POLICY STATEMENT
2010, supra note 234.
The ALI’s policy on disclosure of conflicts of interest applies only to Reporters.
Advisors and MCG members follow American Bar Association Model Rule of
Professional Conduct 6.4, which only requires disclosure of interests of a client
who may be materially benefitted by a decision in which the Advisor or MCG
member participates.
While the NAS uses a detailed questionnaire requesting information about specific
types of conflicts of interest, and the IOM recommends that requests for disclosure
are sufficiently specific to allow others to assess the severity of the conflicts, the
ALI leaves the identification of conflicts to the Reporter, requesting only that the
Reporter deliver a memorandum explaining previous existing and contemplated
engagements that may cause conflict, or its appearance, with the work proposed to
be undertaken by the Institute.
The NAS requires disclosures whenever the disclosed information changes, but
not annually. The IOM suggests that disclosures occur annually.
The ALI asks Reporters to provide an explanatory memorandum to the Director if
the Reporter is offered another engagement during the pendency of a project and
if the Reporter decides that a conflict or the appearance of a conflict may result.
The ALI states that where, in the Director’s judgment, the likelihood of conflict or
its appearance is high and a satisfactory solution is not apparent, the Reporter
should decline or withdraw from the engagement.
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All members of NAS committees must fill out conflict of interest forms
that ask for specific information about their financial interests and
organizational affiliations upon appointment to a committee, and members
must also update these forms whenever any of their financial interests or
organizational affiliations change.260
Section 15 of the Federal Advisory Committee Act (“FACA”), which
regulates the formation of NAS committees, provides extra safeguards to
protect against experts with conflicts of interest serving on committees,
stating that the NAS must make “its best efforts to ensure that . . . no
individual appointed to serve on the committee has a conflict of interest that
is relevant to the functions to be performed, unless such conflict is promptly
and publicly disclosed and the Academy determines that the conflict is
unavoidable.”261 The FACA also attempts to ensure that committees do not
meet privately with outside individuals. Committee meetings held to gather
information from outside individuals, and all written material presented to
the committee by such individuals, must be open and available to the
public.262
The NAS also recognizes that issues of committee-member bias toward
one particular viewpoint can rise to the level of conflict of interest. The
National Academies defines bias, or a lack of objectivity, as arising from the
“close identification or association of an individual with a particular point of
view or the positions or perspectives of a particular group.”263 In situations
where “[a]n individual may have become committed to a fixed position on a
particular issue through public statements . . . , through publications . . . ,
through close identification or association with the positions or perspectives
of a particular group, or through other personal or professional activities,”264
there may be bias but not a conflict of interest. However, when a committee
member has a duty related to his or her statements, then the bias may rise to
the level of a conflict of interest.265 Such conflicts of interest arising from
bias may prevent individuals from serving on committees.
The IOM published a report in 2009 suggesting management plans for
dealing with conflict of interest issues that could arise in the creation of
clinical practice guidelines.266 Clinical practice guidelines are “systematically
260. See id.
261. Federal Advisory Committee Act, 5 U.S.C. app. 2 § 15(b)(1) (2006).
262. Id. § 15(b)(3). Certain information may be withheld for a limited list of purposes such
as national security or foreign relations, trade secret, or personal privacy. See 5 U.S.C. § 552(b).
263. NAT’L ACADS., supra note 259, at 3.
264. Id. at 5.
265. Id. at 5–6.
266. INST. OF MED., CONFLICT OF INTEREST IN MEDICAL RESEARCH, EDUCATION, AND
PRACTICE (Bernard Lo & Marilyn J. Field eds., 2009); see also supra Table 6.
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developed statements to assist practitioner and patient decisions about
appropriate health care for specific clinical circumstances.”267
These clinical practice guidelines are to the medical world what the
Restatements are to the legal world because they are meant to be
independent scholarly assessments of the state of medical knowledge, and to
heavily influence physicians’ decisions about health care, insurance
companies’ decisions about coverage, and performance assessments of
physicians and medical care institutions. These guidelines are created by
committees of highly trained, well-respected medical researchers and
practitioners and are based on formal evaluations of valid scientific evidence
and systematic reviews of research studies.268 Panels of expert healthcare
practitioners review drafts of these guidelines and issue final revisions. This
process is similar to the ALI’s process of creating the Restatements: experts
create the guidelines as the Reporters create the Restatements, then a group
of experts review and suggest changes to the guidelines, like the Advisors
and the MCG members do for the Restatements.
The IOM recommended that, at a bare minimum, guideline developers
provide systematic disclosure of the “nature, scope, duration, and monetary
value of [financial] relationships” pertinent to the subject matter of the
report to prevent undue industry influence so that the guidelines can be
viewed as “objective and trustworthy.”269 The IOM recommended that such
full disclosures be made annually both to a reviewing body and the general
public.270 The policy requiring such disclosure should be sufficiently specific,
using standardized content, format, and procedures for disclosure, and
should cover all individuals with discretion in the development of clinical
practice guidelines.271
The IOM also recommended that organizations that develop practice
guidelines create a committee to review and manage possible conflicts of
interest utilizing a wide range of remedial measures, including prohibiting
or restricting the individual’s participation, providing additional disclosure,
or eliminating the existing financial relationship.272 Such committees should
follow clear and publicized methods for reviewing possible conflicts of
interest so that the process is not so vague as to be useless, and because
informal procedures increase the opportunity for undue influence.
267. INST. OF MED., supra note 266, at 190 (quoting INST. OF MED., CLINICAL PRACTICE
GUIDELINES: DIRECTIONS FOR A NEW PROGRAM 8 (1990)).
268. Other sponsors include medical specialty societies, professional associations,
independent expert panels, academic institutions, disease-specific societies, and managed care
organizations. Id. at 197 tbl.7-2.
269. Id. at 67, 210–12.
270. INST. OF MED., supra note 266, at 90–91, 211.
271. Id. at 88–93.
272. Id. at 88–89.
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For groups creating clinical practice guidelines, the IOM recommended
that the groups exclude members with conflicts of interest altogether.273 If
members with the needed expertise and without conflicts of interest cannot
be found, the IOM recommended that guideline developers “publicly
document that they made a good-faith effort to find experts without
conflicts of interest by issuing a public call for members and other
recruitment measures,”274 and that those with conflicts of interest be
restricted to a minority on the panels and be excluded from voting,
deliberating, drafting specific sections, or chairing the panel.275
C. MEDICAL JOURNAL POLICIES
Medical journals are another source of conflict of interest policies.
When papers are submitted for publication, many medical journals require
disclosure of any conflicts of interest with the research, which are often
published along with the article.
The International Committee of Medical Journal Editors created a
standard “Form for Disclosure of Potential Conflicts of Interest,” which
many medical journals have integrated into their own guidelines (Table 7).
The form is clear, includes explanations to clarify what information should
be included, and applies to all authors.276
273. Id. at 211.
274. Id.
275. Id.
276. Unlike medical journals, few law journals require authors to disclose possible conflicts
of interest when submitting articles. Lee Epstein and Charles E. Clarke, Jr. noted that this lack
of a requirement for such disclosure creates a situation in which an author disclosing funding
sources puts herself at risk of being ignored in judicial opinions, whereas funded authors who
do not disclose their funding source do not put themselves at such risk. Such discussions
occurred in the medical community over twenty years ago, and the implementation of concise
and transparent conflict of interest policies has only aided in the trustworthiness of the
discipline. See generally Lee Epstein & Charles E. Clarke, Jr., Academic Integrity and Legal
Scholarship in the Wake of Exxon Shipping, Footnote 17, 21 STAN. L. & POL’Y REV. 33 (2010).
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TABLE 7
INFORMATION REQUESTED BY THE INTERNATIONAL COMMITTEE OF MEDICAL JOURNAL
EDITORS: “FORM FOR DISCLOSURE OF POTENTIAL CONFLICTS OF INTEREST”
Resources Received To
Help Complete Work
Submitted
Grants, Consulting Fees/Honorariums, Support for
Travel, Fees for Participation in Review Activities,
Payment for Writing or Reviewing the Manuscript,
Provision of Writing Assistance, Equipment, or
Administrative Support
Financial Relationships
That Could Be Perceived
To Influence, or Give
Appearance of Influencing,
Submitted Work*
Board Membership, Consultancy, Employment,
Expert Testimony, Grants, Payment for Lectures,
Payment for Manuscript Preparation, Payment for
Development of Educational Presentations,
Stock/Stock Options, Travel Accommodations/
Meeting Expenses, Other (err on side of full
disclosure)
Other Relationships That
Readers Could Perceive as
Having Influenced, or Give
Appearance of Influencing,
Submitted Work
Either (1) there are no other
relationships/conditions/circumstances that
present a potential conflict of interest, or (2) the
following relationships/conditions/circumstances
are present (space provided to explain)
* ICMJE requests that authors “[r]eport all sources of revenue paid . . . directly to you or your
institution on your behalf over the 36 months prior to submission of the work.” Some journals,
such as The Lancet, require authors to submit such information for three years before the
beginning of the work submitted.
Source: INTERNATIONAL COMMITTEE OF MEDICAL JOURNAL EDITORS, ICMJE FORM FOR
DISCLOSURE OF POTENTIAL CONFLICTS OF INTEREST, http://www.icmje.org/coi_disclosure.
pdf.
D. COMPARISON OF THE ALI WITH THE NAS AND IOM RECOMMENDED CONFLICT OF
INTEREST POLICIES
Table 6 compares key elements of the ALI’s conflict of interest policies
with those of the NAS and those recommended by the IOM for committees
writing clinical practice guidelines. The ALI’s definition of conflict of
interest is narrower than those of the other two exemplars. In particular, the
ALI’s definition does not include possible conflicts that could arise if the
project confers a benefit to an organization with which the Director or
Reporter is not currently working, but which he worked with in the past or is
likely to work with in the future.277 This conflict of interest definition does
not reflect a concern for unfair advantages gained by outside persons or
organizations or for impairment of the Reporter’s objectivity.278 The ALI
should broaden its conflict of interest definition to more closely resemble
277.
278.
See supra Table 6.
See supra Table 6.
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that of the NAS so that the definition of conflict of interest is not limited to
simply a concern for advancing the position taken in other work within the
scope of the Restatement project, but instead protects a much more
significant commodity—objectivity. In addition, like the medical journals,
the ALI should require disclosure of relationships during the three years
prior to the beginning of a Restatement project to capture any lingering
relationships or loyalties the drafters may have.
As of 2009, the ALI policy stated that “[i]t is improper for a member to
represent a client in Institute proceedings and such conduct constitutes
good cause for termination of Institute membership.”279 This policy came
too late to affect Schwartz’s 1993 bill to Philip Morris for time spent acting
as an Advisor for the Restatement (Third) of Torts, which would have been
in direct conflict with the ALI’s 2009 rule, but did not violate any rule at the
time.280 As of 2011, however, ALI policy does not include relationships
outside of the attorney–client relationship, and only considers representation
of a client—not consulting outside an attorney–client situation or general
advocacy for concepts that would benefit an interested party.
Unlike the NAS, the ALI does not have any policies that require a goodfaith effort to appoint members without conflicts of interest to serve as
Reporters, Advisors, or in the MCG, nor does it have any policies that
prevent these individuals from having a decision-making role. With an
elected membership of 3000 and a total membership of more than 4200,281
representing only 0.35% of licensed American lawyers,282 the ALI would
seem to have access to an adequate pool of lawyers and legal scholars from
which to choose to avoid relevant conflicts of interest. The ALI does not,
however, have any such policies regarding the selection of unbiased
Reporters, Advisors, or constituents of the MCG. Had such a policy been in
place, Schwartz would likely not have been included as an Advisor on the
Third Restatement because of his bias.283
The NAS uses consistent, explicit, and detailed forms for providing
broad disclosures of possible conflicts of interest.284 The IOM recommends
that requests for disclosures be sufficiently specific and comprehensive to
allow others to assess the severity of the conflicts.285 The ALI only requests
279. AM. LAW INST., RULES OF THE COUNCIL 4.03 (2007), available at http://www.
ali.org/doc/rules_council.pdf (as adopted in May 2007).
280. See id.
281. LANCE LIEBMAN, A.L.I. ANNUAL REPORTS: REPORT OF THE DIRECTOR 1 (2010).
282. According to the American Bar Association, as of January 31, 2011, there are
1,203,097 licensed and active attorneys in the United States and its territories. AM. BAR ASSOC.,
LOCATION PERCENTAGE REPORT AS OF 31-JAN-2011 (2011). According to the ALI itself, the ALI
is searching to increase membership of public interest, government, and “legal services
lawyers.” LIEBMAN, supra note 281, at 2.
283. See supra notes 172–78 and accompanying text.
284. See supra Table 6.
285. See supra Table 6.
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that the Reporter deliver a memorandum of anything that the Reporter
views as a possible conflict.286 This procedure leaves too much room for
interpretation at the hands of the person who may have a conflict of interest,
and could leave the Director—the judge of potential conflicts—unaware of
possible conflicts of interest.
The NAS requires updates of organizational affiliations and financial
interests whenever such information changes,287 and the IOM recommends
repeated, full annual disclosures.288 The ALI falls far short of such policies; it
neither requires complete updates when something changes, nor routine
annual disclosures.289 The ALI only calls for additional disclosure when the
Reporter concludes that a conflict may result from taking another
engagement during the pendency of the Restatement.290
The NAS applies their conflict of interest reporting rules equally to all
members of the committee.291 The ALI only requires reporting from the
Reporter, and states that the Advisors and MCG members need only disclose
when a client may be materially benefited by the ALI’s work.292 Advisors and
MCG members have direct access and influence over Reporters, and it is
important that they are seen as part of the Committee that creates the
Restatements—therefore, they should also be held to rigorous conflict of
interest standards.
286. Lawyers may argue that the field faces specific and special problems that would
undermine the establishment of the policies—such as committee review and detailed public
reporting of conflicts of interest—suggested by the IOM report. Lawyers have a loyalty to their
clients and that loyalty can and does prohibit them from taking on a different client with
interest in opposition to those of their own client. Such loyalty may prevent disclosure of certain
facts about the lawyer–client relationship. See PAUL W. VAPNEK ET AL., CALIFORNIA PRACTICAL
GUIDE: PROFESSIONAL RESPONSIBILITY Ch. 4-B (2010). Since the ALI represents itself as
committed not to clients, but rather to the pursuit of impartial scholarly evaluation of laws to
guide courts and legislatures, it should disqualify any lawyer from serving as a Reporter, Advisor
or Council or MCG member if that lawyer is not free to disclose all of his or her clients.
287. See supra Table 6.
288. See supra Table 6.
289. See supra Table 6.
290. See supra Table 6.
291. See supra Table 6.
292. See supra Table 6. The ALI has firm conflict of interest policies concerning ALI
financial transactions, but the policy only applies to members of the Council and the Audit and
Investment Committees. See supra note 243 and accompanying text. As of 2009, but not in
1994, for these individuals the ALI required annual disclosures of “substantial financial
interest[s], in a transaction or arrangement to which ALI . . . is or may be a party.” See
CONFLICTS, supra note 233, at 2. These disclosures are completed through a formal process with
an annual disclosure questionnaire, but the disclosure is made to one person. If a conflict of
interest is questionable, then the question is resolved by a vote of the applicable committee—
the Council, Executive Committee, or Board of Directors—though no procedures or remedial
measures are stated in the ALI policy for such a vote. Id. Individuals with conflicts of interest are
prevented from participating in actions or considerations of the relevant “transactions.” Id.
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The IOM recommends that an independent committee review and
monitor all conflicts of interest and make final decisions regarding a
particular individual’s eligibility for participation in one of its projects.293
The ALI, however, rests all monitoring of reporting requirement
compliance with one person—the Director. Absent full public disclosure,
there is no way to know whether the Reporters are complying with broader
reporting requirements because only one individual has access to that
information.294
Nothing in current ALI policies would prevent closed-door meetings
with special interest groups like the ones that occurred between Prosser and
the Tobacco Institute. This obviously raises grave questions about the
objectivity of one of the nation’s most important legal institutions. The NAS
must follow the FACA guidelines295 and, as a similarly important and
influential institution, the ALI should adopt a similar open-meeting policy.
Such policies would at least provide the public and the ALI general
membership with information about what lobbying guided the formation of
the Restatements. Many details about the information and arguments that
the Tobacco Institute’s Committee on Legal Affairs members presented in
their meeting with Prosser are unavailable due to claims of privilege, and
therefore it is only through the implementation of an open-disclosure policy
that the public, and the legislators that serve them, will be able to
understand what interests may or may not have influenced the formulation
of the ALI’s widely respected and utilized statements of the law.
The tobacco industry was unable to win a continued exemption in the
Third Restatement—not because of ALI’s diligence, but through the bad
luck (from the tobacco industry’s perspective) of having an individual
member suggest a change from the floor at the ALI Annual Meeting. Under
the ALI’s current conflict of interest policies, many of the instances of
influence over the Second and Third Restatements could occur again. If the
policies recommended by NAS or IOM had been in place, Prosser would not
have met secretly with the tobacco industry, and there is a good chance that
Schwartz, and perhaps Twerski, would not have held their positions, which
provided easy and comfortable tobacco industry access to the creation of the
Restatements. Absent creation and enforcement of such policies, any private
interest with adequate money can follow the tobacco industry’s model by
building connections and loyalties with influential, or potentially influential,
ALI members in order to shape ALI reports. In order for the ALI to claim
293. See supra notes 266, 269–75 and accompanying text.
294. In its 2001 Annual Report, the ALI Director stated, “The Institute’s policy governing
conflicts of interest is appended to this Report. I believe that its requirements have been
observed over the past year by the Reporters and the Director.” LIEBMAN, supra note 281, at 7
(emphasis added).
295. See supra note 261 and accompanying text.
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objectivity,296 it must improve and enforce its conflict of interest policies.
Until then, all ALI projects should be viewed with skepticism as possibly
manipulated behind the scenes by private interests.
E. THE TOBACCO INDUSTRY’S EFFORT TO INFLUENCE THE ALI REFLECTS A BROADER
PATTERN
The tobacco industry’s effort to influence the ALI in its standard-setting
function is not unique. The tobacco industry understands the power and
influence of scholarly groups and individuals, the standards such scholarly
groups produce, and the importance of influencing those standards. The
industry has used seemingly impartial “third parties,” beginning with
physicians and scientists297 and followed by sociologists, economists,
philosophers, journalists, and anthropologists,298 to advance tobacco
industry arguments promoting the benefits and downplaying the health
hazards of smoking through seemingly independent books and published
papers.299 For example, the tobacco industry, working through an influential
psychiatrist, prevented a diagnosis of “tobacco dependence” from being
included in the American Psychiatric Association’s 1980 Diagnostic and
Statistical Manual of Mental Disorders III,300 which defines diagnoses for
psychiatric practice (and reimbursement). In the mid-1990s, using its
lawyers and public relations firms, the tobacco industry prevented Medicare
from adopting a diagnostic code to indicate that a medical problem was due
to secondhand smoke exposure as part of billing for services. Such a
diagnostic code would have facilitated research linking secondhand smoke
and disease.301 The tobacco industry also secured passage of the federal Data
296. See POLICY STATEMENT 2010, supra note 234, at 1.
297. See generally GLANTZ ET AL., supra note 40, at 312–38 (providing specific research
projects); Joaquin Barnoya & Stanton A. Glantz, The Tobacco Industry’s Worldwide ETS Consultants
Project: European and Asian Components, 16 EUR. J. PUB. HEALTH 69 (2006) (providing a more
global view of scientists’ role); Monique E. Muggli et al., Science for Hire: A Tobacco Industry
Strategy To Influence Public Opinion on Secondhand Smoke, 5 NICOTINE & TOBACCO RES. 303 (2003)
(identifying scientists’ role in underplaying dangers of smoking); Monique E. Muggli et al., The
Smoke You Don’t See: Uncovering Tobacco Industry Scientific Strategies Aimed Against Environmental
Tobacco Smoke Policies, 91 AM. J. PUB. HEALTH 1419 (2001) (providing analysis of newly disclosed
tobacco company documents).
298. See generally Anne Landman et al., Tobacco Industry Sociological Programs To Influence
Public Beliefs About Smoking, 66 SOC. SCI. MED. 970 (2008).
299. See Jenny White & Lisa A. Bero, Corporate Manipulation of Research: Strategies Are Similar
Across Five Industries, 21 STAN. L. & POL’Y REV. 105 (2010).
300. See generally M.D. Neuman et al., Tobacco Industry Influence on the Definition of Tobacco
Related Disorders by the American Psychiatric Association, 14 TOBACCO CONTROL 328 (2005)
(providing analysis of tobacco companies’ role in exclusion of the term “tobacco dependence”).
301. Daniel M. Cook et al., The Power of Paperwork: How Philip Morris Neutralized the Medical
Code for Secondhand Smoke, 24 HEALTH AFF. 994, 1000 (2005).
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Quality Act in the late 1990s to make it easier for industries to challenge
public health regulations.302
In 1992, the tobacco companies faced a threat when the U.S.
Environmental Protection Agency (“EPA”) released its report declaring
secondhand smoke a Class A carcinogen, and attributing 3000 lung cancer
deaths a year, as well as over 150,000 cases of bronchitis or pneumonia in
children annually, and aggravation of asthma.303 The industry tried
unsuccessfully to stop the report, and then tried to change, or to at least slow
it down, by urging the Bush Administration to impose new risk assessment
standards for federal agencies; the new standard would affect the EPA and
therefore change the conclusion of the report.304
Since the industry was unable to infiltrate the EPA and influence the
actual report or prevent its publication, the industry enlisted journalists to
write articles supporting tobacco industry positions, repeat messages from
the industry’s public relations firms on secondhand smoke, and further
question the validity of the EPA’s report.305 The industry used a public
relations firm to form the nominally independent organization, The
Advancement for Sound Science Coalition (“TASSC”), a nonprofit
“coalition advocating the use of sound science in public policy decision
making” as part of an effort to influence the scientific standards for reaching
a “causal” conclusion (analogous to “proof beyond a reasonable doubt”)
about the health effects of environmental toxins, including secondhand
smoke.306 In order to broaden the influence of TASSC and to distract people
from the true purpose of the coalition, the law firm Covington & Burling
suggested that TASSC recruit representatives from the food, plastics,
chemicals, and packaging industries into leadership positions.307 While
initiated by the tobacco industry, other industries have adopted these
strategies to create doubt about “junk science” and the need for “sound
science” (as defined by industry interests).308
302. Annamaria Baba et al., Legislating “Sound Science”: The Role of the Tobacco Industry, 95
AM. J. PUB. HEALTH S20 (2005); Suzaynn Francine Schick et al., The Tobacco Industry and the Data
Quality Act, 317 SCIENCE 898, 898 (2007).
303. U.S. ENVTL. PROT. AGENCY, supra note 127.
304. See Monique E. Muggli et al., The Tobacco Industry’s Political Efforts To Derail the EPA
Report on ETS, 26 AM. J. PREVENTIVE MED. 167 (2004) (detailing the process by which the
tobacco industry tried to interfere with the release of the EPA report).
305. Monique E. Muggli et al., Turning Free Speech into Corporate Speech: Philip Morris’ Efforts
To Influence U.S. and European Journalists Regarding the U.S. EPA Report on Secondhand Smoke, 39
PREVENTIVE MED. 568, 569–71 (2004).
306. Elisa K. Ong & Stanton A. Glantz, Constructing “Sound Science” and “Good Epidemiology”:
Tobacco, Lawyers, and Public Relations Firms, 91 AM. J. PUB. HEALTH 1749, 1749 (2001).
307. Id. at 1749–50.
308. For a description of the tactics used by the sugar industry, similar to those of the
tobacco industry, to refute World Health Organization and IOM reports suggesting limited
intake of sugar, see CHRIS MOONEY, THE REPUBLICAN WAR ON SCIENCE 125–46 (paperback ed.
2006). For a comparison of the food and tobacco industries and their tactics, see generally
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LIMITATION
While the information available in the Legacy Tobacco Documents
Library provides important insights into how the tobacco industry, acting
through its lawyers, shaped the Second and Third Restatements of Torts,
some key documents remain withheld by the cigarette companies under
privilege claims (Tables 2 and 4). The cigarette companies are required to
make internal documents produced in discovery in smoking and health
litigation publicly available through 2016 as a result of a 1998 Minnesota
settlement309 and subsequent 1998 Master Settlement Agreement310 between
the major cigarette companies and attorneys general of forty states, in
addition to the federal Racketeer Influenced and Corrupt Organizations Act
ruling against the tobacco companies.311 Philip Morris withheld the
documents in Tables 2 and 4 on the grounds that they were prepared in
anticipation of litigation, but that is not the case. Most are meeting notes or
memos concerning the writing and application of the Restatements or
discussions of long-term policy goals, not documents prepared for use in
litigation. Most important, the notes concerning the meeting of industry
lawyers with Prosser shortly before the changes advantageous to the tobacco
industry appear in the Second Restatement cannot be, by their very nature,
confidential or privileged. Such communications with third parties (i.e.,
Prosser) cannot be privileged, since the presence of third parties destroys
the confidentiality necessary for privilege to attach.312 If the public
disclosure requirements in these settlements and ruling are to achieve their
stated goals, there is a need for academic researchers to challenge such
claims. Despite this limitation, however, the available materials document
effective behind-the-scenes efforts by the cigarette companies to influence
preparation of the Second Restatement, and points to serious conflicts of
interest present during the preparation of the Third Restatement.
Kelly D. Brownell & Kenneth E. Warner, The Perils of Ignoring History: Big Tobacco Played Dirty and
Millions Died. How Similar Is Big Food?, 87 MILBANK Q. 259 (2009). For an example of tobacco
industry tactics used by the soda industry, see Lisa Baertlein & Dan Levine, Exclusive: Soda
Makers Escalate Attacks over Obesity, REUTERS (July 20, 2011), http://www.reuters.
com/article/2011/07/20/us-obesity-lobbying-idUSTRE76I6KI20110720.
309. Consent Judgment, State v. Philip Morris USA, Inc., No. C1-94-8565 (Minn. Dist. Ct.
May 8, 1998), available at http://www.library.ucsf.edu/sites/all/files/ucsf_assets/mnconsent.
pdf.
310. Master Settlement Agreement (2008) NAT’L ASS’N ATT’YS GEN: PROJECT TOBACCO,
http://www.naag.org/backpages/naag/tobacco/msa/msa-pdf/ (last visited Sept. 30, 2012).
311. United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 26–29 (D.D.C. 2006), aff’d
in part, 566 F.3d 1095 (D.C. Cir. 2009).
312. See State v. Thompson, 306 N.W.2d 841, 843 (Minn. 1981); Brown v. St. Paul City Ry.
Co., 62 N.W.2d 688, 700 (Minn. 1954) ("One of the essentials of a privileged communication is
that it be confidential.").
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CONCLUSION
The ALI continues to create new legal treatises, restatements, and
model laws that states and courts continue to adopt,313 giving this private
organization tremendous influence akin to a legislature or court.314
Although heavily cited and trusted, some have argued that the ALI no
longer restates the law, but that it instead reforms and rewrites the laws
outside of the electoral process,315 that the courts “have surrendered to the
ALI [the courts’] inherent common law judicial power to state, restate, and
reformulate the legal principles” in litigation,316 and that the ALI’s
procedures maintain the status quo and are easily influenced, or even
hijacked, by special interests,317 rather than serving the interest of the public
at large. One special interest group—the tobacco industry—had easy access
to, and quiet influence on, ALI Reporters, Advisors, and members of the
MCG during the creation of both the Second and Third Restatements. The
tobacco industry obtained direct access to Prosser, was able to sway the legal
analysis used to create Section 402A, and changed the wording of the
section to the tobacco companies’ benefit. Such actions occurred without
disclosure to the ALI membership or to the legislatures or courts that
adopted Section 402A. Affecting the Restatements allowed the tobacco
industry to change the law in practically every state to its advantage without
the need for lobbying or litigation.
State legislatures and courts need to recognize that adopting
exemptions that provide, in effect, that tobacco products are not defective
or unreasonably dangerous equates to unknowingly adopting viewpoints of
the tobacco industry quietly created through the ALI, and therefore these
policies should be reevaluated. Assuming that states relied on the ALI for a
neutral interpretation of the law, any state that employs an exemption for
tobacco products from liability under products liability law based on Section
402A should remove that exemption. Likewise, courts and legislatures
should re-examine their acceptance of the “defective condition
unreasonably dangerous” standard as it applies to tobacco and cigarettes.
Because the ALI was so skillfully manipulated by the tobacco industry in its
313. Between 2000 and 2010 ALI published restatements on agency (2006), employment
law (2009–2010), international commercial arbitration (2010), servitudes in property law
(2000), law governing lawyers (2000), and even more sections of torts such as liability for
physical and emotional harm (2009). See Publications Catalog, AM. LAW INST., http://www.
ali.org/index.cfm?fuseaction=publications.categories&parent_node=1 (last visited Sept. 9,
2012).
314. See Alex Elson, The Case for an In-Depth Study of the American Law Institute, 23 LAW & SOC.
INQUIRY 625 (1998); Alan Schwartz & Robert E. Scott, The Political Economy of Private Legislatures,
143 U. PA. L. REV. 595 (1995); Paul A. Simmons, Government by an Unaccountable Private Non
Profit Corporation, 10 N.Y.L. SCH. J. HUM. RTS. 67 (1992).
315. See Elson, supra note 314, at 625–26.
316. Simmons, supra note 314, at 89.
317. See Schwartz & Scott, supra note 314.
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creation of the Second and Third Restatements, courts should stop applying
the principles of the those Restatements to tobacco lawsuits to ensure a fair
tribunal in which individuals can find redress for injuries caused by the
tobacco industry.
The ALI needs to review not only the Restatements of Torts, but all of
its Restatements and other publications for undue influence and conflicts of
interest, and to implement policies that will give force to its claim as a
reliable source of “scholarly work to clarify, modernize, and otherwise
improve the law.”318 The ALI has an obligation to its members, the legal
profession, and the public to put unbiased analysis of the law first, carrying
out unbiased research into the current state of the law and conducting a
critical appraisal of that information, as well as serving as a role model for
professional behavior within the legal community. The influence of the
tobacco industry upon the Restatements of Torts suggests that all of the
ALI’s projects carry the burden of questionable motivation and research and
manipulation by interested parties. Until the ALI adopts and enforces
meaningful, effective, and transparent conflict of interest policies, their
work should not be taken without question as unbiased authoritative
documents worthy of reliance by our courts and legislatures.
318.
AM. LAW INST., http://ali.org (last visited Sept. 18, 2012).