Tobacco Industry Influence on the American Law Institute's Restatements of Torts and Implications for Its Conflict of Interest Policies

Author:Elizabeth Laposata - Richard Barnes - Stanton Glantz
Position:Tobacco Control Policy Researcher, Center for Tobacco Control Research and Education at the University of California, San Francisco - 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 ...
Pages:1-68
SUMMARY

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... (see full summary)

 
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1
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, Un iversity 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 Dir ector
of the Center for Tobacco Control Research and Education at the University of California, San
Francisco. Email: glantz@medicine.ucsf.edu.
2 IOWA LAW REVIEW [Vol. 98:1
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 TOBACCO-
INDUSTRY-INFLUENCED CHANGES ........................................................ 12
C. ALI 38TH ANNUAL MEETING ............................................................. 14
D. THE TOBACCO INDUSTRY ENGAGES SECTION 402A .............................. 17
E. THE TOBACCO INSTITUTES 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 INDUSTRYS 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 INDUSTRYS EFFORT TO INFLUENCE THE ALI
REFLECTS A BROADER PATTERN .......................................................... 64
F. LIMITATION ....................................................................................... 66
CONCLUSION ........................................................................................... 67
2012] TOBACCO INDUSTRY INFLUENCE 3
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 CIGA RETTE 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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