Monday, January 28, 2013

ALI responds to criticism by Center for Tobacco Control

In Tobacco Industry Influence on the American Law Institute’s Restatements of Torts and Implications for Its Conflict of Interest Policies98 Iowa Law Review 1 (2012) Elizabeth Laposata, et al. reported lobbying by lawyers for the Tobacco Institute in the 1960's.  The industry lawyers influenced ALI Reporter William Prosser to exempt "good tobacco" and "good whiskey" from the ALI's proposed new "strict products liability" principle.  I was shocked to learn that Dean Prosser met with a group of tobacco lawyers - without disclosure.  I read the ALI's 1964 2d Restatement of Torts final draft's defense of  "good whiskey" and "good tobacco" as `good old boys' talk after hours at the bar of Washington's Mayflower Hotel where the annual meetings were held.  But the Tobacco Control Center critics mined the Tobacco Archives and showed there was a self-conscious push by industry lawyers to derail the development of doctrine adverse to the tobacco industry.

ALI President Roberta Ramo and Director Lance Liebman have posted The ALI’s Response to the Center for Tobacco Control Research & Education, 98 Iowa L. Rev. Bull 1 (2013).
 Laposata, et al. called for the ALI to adopt a policy of interest disclosure similar to that of  the National Academies: "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".

 The ALI leaders reply  
"An ALI rule [4.03] tells members to “leave our clients at the door,” and it is a point of honor among members that we state what we personally believe to be right, not what our clients want us to say. But it is equally important that we make certain that all significant points of view are represented and explained."
But lawyers don't just "leave their clients at the door".  They choose their clients as much as the clients choose them.  They develop loyalties to their clients.  The bonds are ideological as well as material.  Monroe Freedman drew attention to the problem fifteen years ago, writing  "These conflicts of interest have compromised the integrity of the ALI's Restatements of the Law to the point that no judge, scholar, or student can rely on a Restatement rule or comment as representing the objective judgment of members, unaffected by the partisanship of advocates who are creating precedents to protect their clients' and their own interests in future litigation." `Caveat Lector'...26 Hofstra L. Rev. 641 (1998)

Laposata, et al. compare the ALI unfavorably to the Congressionally-chartered National Academy of Sciences:
Unlike the NAS, the ALI does not have any policies that require a good faith effort to appoint members without conflicts of interest to serve as Reporters, Advisors, or in the M[embers] C[onsultative] G[roups],  nor does it have any policies that prevent these individuals from having a decision-making role.
The ALI conflict rules - amended in 2009 - are hortatory, a kind of gentlemen's code of honor, though they do now declare that representation of a client in "Institute proceedings"  is "good cause for termination" of membership.  As an "elected member" I speak at consultative committee meetings,  and occasionally send thoughts and observations to Reporters.  But nothing requires me to report that for  thirty years I made my living as a plaintiffs lawyer.  In the doctrinal battles of the peak years of my career as practitioner (1990 - 2007) it was plain where my loyalties lay.  I both expounded upon and criticized the Third Restatement - Product Liability.  In the Yale Law Journal (2000) and UCLA Law Review (2002) I criticized the new Restatement as pro-industry, particularly on drugs and pharmaceutical products.   But I was not required to  report in the `bios' of my academic articles whose interests I represented as a lawyer.  Among them were the Association of Trial Lawyers of America, the Industrial Union Council of the New Jersey AFL-CIO, and the  Hemophilia Society of New Jersey.  I thanked the latter in my YLJ article "Is There a Design Defect in the Third Restatement of Torts, Product Liability?"  But that was candor, not requirement. So part of the problem  is a weakness of the legal academic culture, not just the ALI.

When the ALI chose as Product Liability Restatement Reporters  Aaron Twerski and James Henderson it was plainly choosing two professors who had consulted for the defense side and whose writings made clear that they thought product liability law had gone too far.  And that it suffered from doctrinal incoherence.  They proposed, sought to, and did carry out the Product Liability Restatement  project together.  Plaintiffs lawyers and plaintiff-oriented academics criticized them in academic symposia and in the proceedings of the ALI which operates  in quasi-parliamentary fashion.  Should the ALI have picked a "balanced" team of Reporters?  I'm not ready to answer that knotty question.  But certainly disclosure of the Reporters' client list would have been preferable to the simple slogan "leave your clients at the door".

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