In his contribution to Wake Forest Law School’s 2009 Symposium on the Restatement (Third) of Torts, Professor Kenneth Abraham starts with two propositions, one descriptive, the other normative. The descriptive claim is that “tort law . . . is mature and largely stable,” and that “[o]ver time, the law of different states will converge.” As he points out, “The formation of the American Law Institute (“ALI”) itself, and the project of restating the law that the ALI . . . undertook” depends on these premises.
The project of restating the law also depends on a normative premise, namely that “mov[ing] that process along” is a worthy goal. The idea that the private law should be the same in all fifty states certainly seems preferable to anyone who has coped with the difficulties of working with variations among states on issues of tort law. Convergence not only avoids arbitrary differences in the way similarly situated litigants are treated, but also offers a solution to the many practical difficulties that arise when a given transaction crosses state lines. In any event, adherence to this norm may be a matter of existential necessity for the ALI. Otherwise, one is hard put to justify the resources that are expended in producing the Restatements. The descriptive and normative claims are related in that the value of moving the process along is greater or lesser depending on how successful the project is likely to be.
Whether Professor Abraham subscribes to these propositions is not entirely clear from his article. Since his project was to identify “stable divisions of authority” within the tort system, the premise of unity serves merely to highlight those divisions. My aim here is not to find fault with anything in his article, but rather to examine the notion that tort law does and should move toward unity. For convenience, I will call these descriptive and normative claims the “convergence thesis.”
Professor Abraham’s article addresses a problem for the descriptive side of this thesis. He acknowledges that “[t]here are . . . areas of doctrine over which the states have what seems to be permanent or at least long-term disagreement.” For the most part, he argues, these areas can be pigeonholed into three categories: “(1) developmental dead ends, (2) fundamental clashes of values, and (3) concerns about consistency of administration.” If I understand Professor Abraham correctly, his point is that areas of disagreement do not necessarily pose a challenge to the general tendency toward convergence. But Abraham seems to assure us that the divisions are discrete, limited, and themselves “stable.” His point is well taken, for no general description of a system as large and complex as American private law can hope to account for its every feature. Nonetheless, in this Article, I will raise questions about both the descriptive and normative claims of the convergence thesis.
Wells, Michael, "Time and Change in Judge-Made Law: Convergence, Divisions of Authority, and the Restatement" (2011). Scholarly Works. Paper 828.