Council Approves Additional Restatement Projects for Submission to Annual Meeting

At its meeting in Key Biscayne, Florida, on December 9-10, 2004, the ALI Council reviewed and approved drafts for three additional Restatement projects for the membership to consider at the Annual Meeting: Trusts, Torts: Liability for Physical Harm, and Restitution and Unjust Enrichment. These subjects join the final installments of the Agency Restatement and of Recognition and Enforcement of Foreign Judgments (formerly the International Jurisdiction and Judgments Project) on the Annual Meeting agenda.

Council Draft No. 4 of Restatement Third, Trusts, comprising Chapters 14-16 and §§ 70-89, addresses the powers and duties of trustees. The Council approved §§ 70-81, but the 470-page draft proved to contain too much material for the time allotted, and the Council did not reach §§ 83-89. The discussion of § 82 focused on whether, absent contrary trust terms or requests by beneficiaries, a trustee is under a duty to notify "fairly representative" beneficiaries of the trust and of significant developments, as in the Council Draft, or whether the duty should extend to all beneficiaries or be more limited. Reporter Edward C. Halbach, Jr., will give the section additional consideration as he revises the draft for the Annual Meeting. The Council agreed that the entire draft should go before the membership, but §§ 82-89 must, in any event, come back before the Council in the fall.

With this Annual Meeting’s submission, the Trusts Restatement is nearing completion. Professor Halbach envisions one additional volume addressing liabilities among trustees, beneficiaries, and third parties; standing and other procedural issues; and trust principal-income accounting. To assist the Reporter in completing his work on the final volume, Professors Jeffrey N. Pennell of Emory University and Randall W. Roth of the University of Hawaii have been appointed Associate Reporters.

The Torts Council Draft presented by Reporters Michael D. Green and William C. Powers, Jr., was a redline of previously approved work. The revisions on several issues generated lively discussion on such topics as the role of foreseeability in tort and whether the term "reasonable medical certainty," as it is often used in the presentation of expert evidence, is scientifically meaningful.

The Council voted to have the Torts Reporters revise Comment d to § 27 (Multiple Sufficient Causes). The Comment as drafted took no position on "whether, when one multiple sufficient act is innocent and another is tortious, the latter is a factual cause" under the section. The motion adopted by the Council directed that the draft take a position, consistent with both Restatement Second and the majority of cases, that the tortious act is indeed a "factual cause" of the harm. Council Draft No. 5 was ultimately approved as revised in accord with the discussion, with the exception of the unresolved "medical certainty" Comment and two new Comments, dealing with affirmative duty based upon the special relationship of employment, that the Council lacked time to reach. That material, after consideration by the membership, will be returned to the Council next fall.

The Torts draft that will be presented at the Annual Meeting will be in the form of a partial Proposed Final Draft. The massive Draft will consist of the four previous Tentative Drafts, as revised since their tentative approval by the membership, as well as the material in the recent Council Draft. While changes from the prior Tentative Drafts will not be shown in the printed version that members will receive in the mail, the current plan is to make a redline version available to ALI members on the Institute’s website.

The Council also approved Council Draft No. 6 of Restatement Third, Restitution and Unjust Enrichment. The approval was enthusiastic and relayed with the Council’s great appreciation for Reporter Andrew Kull’s work.

In other action, the Council elected to a Council vacancy the Institute’s first foreign national, Professor Jane Stapleton of Australia. It also approved Director Lance Liebman’s recommendation, in which the Program Committee concurred, that, even as work continues on the Green-Powers Torts project, the Institute begin the next installment of the Restatement Third of Torts addressing the subject of liability for economic harm. Professor Mark P. Gergen of the University of Texas will serve as Reporter for the new project.

While in Florida, some Council members and officers had the opportunity to meet a number of ALI’s Florida members during a reception at Council member Sherwin P. Simmons’s law firm, Steel Hector & Davis, LLP, on Wednesday evening, December 8. At the Council Dinner the following evening, new Council member and Florida native Larry S. Stewart addressed the Council, and retiring Deputy Director Michael Greenwald was lauded by all living ALI Directors and Presidents with whom he worked during his long tenure. Mr. Greenwald expressed his own deep appreciation to the Institute and its people for 26 professionally rewarding years.