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Presented by the American Bar Association’s Law Student Division, the ABA Law Student Podcast covers issues that affect law students, law schools, and recent grads. From finals and graduation to the bar exam and finding a job, this show is your trusted resource for the next big step.
Todd Berger (00:00):
In law school, we quickly learned that the common law is actually a patchwork of 50 different jurisdictions each with its own quirks and contradictions. It can feel impossible to find a unified theory behind it all. But for the last hundred years, a prestigious group of judges and scholars has been working to do just that. On today's episode, we explore how the American Law Institute distills the collective wisdom of the legal profession into clear principles, covering everything from medical malpractice standards to the loss of chance doctrine. Whether you're a student trying to outline for finals or a future litigator looking for a winning argument, this conversation reveals why the restatement are perhaps the most influential secondary source in American law. This is the ABA Law Student Podcast. Hi, Nayeli. Hi, Eve.
Nayeli Diaz (00:59):
Hi. Hi.
Todd Berger (01:00):
Good to see you both again. How's everything going?
Nayeli Diaz (01:03):
It's going. Semester's about to start. It's exciting.
Todd Berger (01:06):
Yeah, hopefully you feel somewhat refreshed with a new semester on the way, maybe. So how are you doing, Eve?
Eve Albert (01:13):
I'm winding up for the semester, but yeah, no, I'm doing pretty good. Just getting ready.
Todd Berger (01:20):
That's great. So Springbok getting ready. I think one of the things you probably did over the break was got ready for this podcast that we have coming up. I'm excited for it. So who'd you talk to and what are we going to hear about?
Eve Albert (01:32):
Yeah, so I talked to Mark Hall. He's a professor of law at Wake Forest University. He's also the director of health law and public policy program there. For our purposes, he was the lead reporter of the Restatement Third of Torts Medical Malpractice. We're going to talk all about the restatement today. It's a big topic. There's lots of literature out there, but basically Mark Hall was the lead reporter. He's an ALI member that is the American Law Institute. And they author these restatements and they just basically summarize or restate the law, not subject to any jurisdiction. So it's just a wide overview of the law. And I am very passionate about this topic. We know that I love my secondary sources and I love my codified literature. So I'm really excited to be talking about this today.
Todd Berger (02:31):
Cool. You guys ready to get into the interview?
Eve Albert (02:34):
Absolutely. Yeah.
Todd Berger (02:35):
Let's do it.
Eve Albert (02:39):
All right. Professor Hall, first of all, thank you so much for meeting with me today.
Mark Hall (02:43):
Glad to be here.
Eve Albert (02:44):
I have a lot of questions about the restatement.
(02:47):
I'm known on the show as liking all the nitty gritty written law and statutes and codes and all that stuff. So this is very exciting for me. I love diving into the literature and getting a feel for it. And when I brought up this idea to the people at the show, I got the sense that not every school uses the restatement as frequently as I thought they did. So I thought it would be a nice idea to give law students listening a good summary of the restatement and kind of talk about the newest moves that the ALI has taken. So first of all, can you tell us what the restatement is for people that may not know?
Mark Hall (03:24):
Sure. So we'll start with what's the ALI? The American Law Institute is a very prestigious organization made up of leading judges and practitioners and academics who go through a vetting and nomination process. And it's been in existence for a hundred years. It was formed specifically to try to harmonize or synthesize common law across the states. It was felt that there was more variation than needed to be that oftentimes the best thinking wasn't being recognized right away, maybe 20 years for some good opinion to generally circulate. And so in order to sort of bring forward the collective wisdom of the bar and the judiciary and the academic community, the leaders of the American Law Institute began this process of issuing restatements. So there's not just one restatement, but there's a restatement in each of a variety of major areas of law. My work falls under the restatement of tort law, but there's a restatement of contract law and property law, criminal law, and then lots of other areas that aren't standard first year courses.
(04:36):
But the restatement of tort law is probably the most successful or influential of all the restatements that the ALI has issued. Most notably, the restatement of products liability basically created the whole field of products liability. The ALI was early in recognizing this area as a new development. And so that's certainly one area where students are very familiar with. When you study products liability law, you're basically starting with the restatement because that's sort of where it emerged as a synthesis of principles that were sort of less expressed in a variety of cases that arose into the restatement. Now, not all the other restatements are that influential or law reform focus. The others basically sort of codify the basic principles and look more at the nuances. But nevertheless, yes, the restatement of torts is a very important product of the ALI along with many others.
Eve Albert (05:39):
The advantage I see to the restatement is that it's a specialized group of people summarizing the law and providing definitions and isolated cases and uncontestable cases. So I think that what I thought was that it was probably a lot easier to update the restatement than it was to change the law. But do you think that assessment is correct, that it's probably easier to update the restatement than it is to change the law or no? Well,
Mark Hall (06:10):
To some extent on the one hand, yes, updating something versus writing from scratch is definitely less of a heavy lift, but it's a significant lift even to update in large part because it typically is a couple generations since it was last done and things have changed. New topics have emerged, topics that were thought about or conceptualized one way or not conceptualized in a different way. And so you're exposed to much of this in legal education, you see the whole arc of development. I think either process is important. Now, what I want to stress is that in writing a new restatement, the term restatement is chosen quite purposefully to say that we're not looking to create new law. The product's liability is sort of the outlier because it drew from developing cases to sort of early on announced the principles more typically, and certainly with medical malpractice, the principles have been out there for ages.
(07:17):
And so you take something like, let's say the standard of care, what is the standard of care that governs physician liability? Well, loosely speaking, you can say what other physicians do, customary practice, what's regarded as acceptable, the nouns, the verbs, the adjectives can all have some variation. And so part of it is just, you could call it wordsmithing of these various articulations. Every state has its principle body of case law that the lawyers in that state practice. And I don't know how much good it does to pick one formulation versus another, but it's interesting to see that we confer and say, "Well, here is our favorite formulation." It maybe uses a verb from this state and an adjuster from that state and now from that state or whatever. And so we settled on a certain formulation, the care that's regarded as competent by similar practitioners in the field or something like that.
(08:14):
We have to look it up to get it exactly, but regarded as, but competent versus average, all these nuances that obviously courts can deliberate on.
Eve Albert (08:24):
Yeah. But that's one of the most important parts I think of, especially in litigation, and especially if it's like a issue of first impression, being able to ... You can't just pull those words out of thin air. You need somewhere to get ideas from and kind of build your argument from the ground up. And I think the restatement is a great place to start with that.
Mark Hall (08:47):
It is. Now, I think no state has unsettled or lacks case law on the standard of care because every state has a good bit of basic medical malpractice case law. And I suppose the state could refine its articulation, and that does happen from time to time. But I think where the restatements likely have more ... So academically, you could read that. So I'll just take that as sort of a more garden variety example. So if one looks at the standard of care section, one sees some discussion that the reporters wrote about what are the various ways and why pick one versus the other. And there's some discussion of what's significant here and on what's the basis of authority and the like. So it's a nice academic research resource. We tried to write in a way that's not theoretical or just, but here's ... And get great help from our law students to dig out these 50 state survey things.
(09:55):
But another example I gave you is the loss of chance doctrine, which is to say it relates to causation and you can't be certain that the negligence caused the injury. Medicine's complicated and human biology is complicated and you can't retreat the same patient and no two patients are alike, but you can conclude with a reasonable degree of confidence that the patient would've had a much better chance if things had been done properly. And so is that a recoverable theory? And so that's one where some states have not decided if the loss of chance version of causation is actionable, or there might be some divided case law. And so there, we deliberated and took a position. And then in taking a position, you say, do we take the strongest position or sort of a Goldilocks just right in the middle position or what have you. And there's multiple other examples of that in this restatement.
(10:55):
So some things that are just, I don't want to say academic exercises, but I don't think our work is going to really influence the courts much. But others where I do think we can really kind of guide the courts who are still wrestling with unsettled issues, and the idea is to give them the collective wisdom, if you will, the collective thinking anyway of this excellent group of deliberation and experience and insight, and courts will look at that. And so I think that if you think in terms of primary sources of law, which are precedent in statutes and the like, and secondary, which is sort of commentary, whatever, I tend to think at least in the common law area that restatements are the most influential, most significant secondary authority, if you will. And so that's why this merits your attention and this podcast.
Eve Albert (11:49):
Well, and I think that I agree with the estimation of the court's influence specifically for medical malpractice, but when you read case law, there's so many mentions to the restatement, especially in the most influential cases. So I think that it is a good tool for law students to consider taking the way that the courts have used the restatement
(12:14):
And letting it shape the way that they study and the way that they understand complex legal concepts, which was what I wanted to get into next. I have found personally that classes that are guided by some sort of writing or law or code are the easiest for me to understand. So I just finished up evidence. Obviously, having the federal rules of evidence guide the course makes it a lot more seamless than torts where you are looking at a bunch of different moving parts and trying to understand concepts based on a specific jurisdiction or based on various different understandings of a concept. So I think that that is a good way that the restatement supplements in a lot of those courses that don't have a code or like the model penal code, for example, that guides criminal law. But for torts, you don't really have that advantage as a student.
(13:13):
So I think that the restatement comes in really well to be kind of like a guiding light for your outline. You know what I mean?
Mark Hall (13:22):
Yes. No, I think that's right. It can give structure. And so concepts that are difficult to wrestle with like negligence and proximate cause and the like, I think could really be helpful to read, to see what the restatement has to say about that because it's like this group, this multilayer layer group is looking at these things. It's not just some article that some professor says, "I think this other professor has some good insights and you don't know if anybody agrees with them or doesn't agree with them." And maybe it's very theoretical and whatever. It could be interesting, but it doesn't necessarily give you a competence. You're really getting the full picture. And I think that's certainly the case with, you can either read a bunch of cases and yourself that there's only going to be a smattering or read an article, but it's only written by one person.
(14:20):
But this is sort of a full picture of all the strands of thinking in an area of law that synthesize. And then they're going to take you at 18 different directions and say, "Well, maybe this and maybe that, whatever." There's a boil it down, here's the best. And I do think it also is a good way to think about the nuances. Nuances that you wouldn't necessarily have occurred to you that could be very helpful in really scoring points on an exam impress the, "Oh, well, some courts say this, but other courts say that. Oh, this person really knows what they're talking about. "
Eve Albert (14:53):
No, but you're laughing, but that's what law students care about.
Mark Hall (14:57):
I know
Eve Albert (14:57):
Grades are so important. We want to know where we can look to get those extra points.
Mark Hall (15:02):
Yeah. I certainly would be impressed even before I got involved with the ALI. Not just that they went the extra mile, but they see this complexity and nuances at play in this area, but also just for your own edification to see, well, how is it ... When you have a case for court and you have to think, well, how do courts think about these things as they look at precedents in other states and how malleable is the position? And so it takes something like loss of chance and a litigant who either wants to advance that or oppose that has to have with their hands, not just what the differing courts are out there, but what are the pros and cons, the doctrinal and public policy arguments that give credence to eat both sides. And typically those are fleshed out nicely in the restatement work. I
Eve Albert (16:01):
Think that that's very interesting because loss of chance, even in states that don't have that adopted, the restatement lays out, like you said, it's perks. And that way, even if it's not adopted in your state, you can still make an argument for it because in briefs to the court, you're going to want to throw everything you can out there within reason.
(16:24):
So if you do want to have a hand in updating the law or making a good legal argument for the adoption of something, I think that having a resource that kind of lays out that argument for you is really great. On that subject, I also think that for law students specifically, using the restatement as a legal research tool is really great because if you just have an issue and that's it, or like a fact pattern and an area of law that isn't codified, let's say, there are cases and cases included in the restatement that go through the nuances and target different issues and modifications. I think that that's something that is one of my first steps when I am writing a brief or researching a subject, I look at if it is included in the restatement in one of the restatements, I look at the cases that are listed and see if any of the situations in those cases reflect mine, and then I'm able to go from there.
(17:26):
So I think that that's something that law students should be aware of.
Mark Hall (17:29):
Yeah, I agree. And I found this out trial and error, so to speak, just clerking for a court and then being a lawyer writing briefs and then an early stage academic, trying to make reasoned arguments that duh, if you think about it, this sort of collective body of thinking and insight and experience speaking on a topic has got to be more influential than one academic or one court in one state or what have you. There's annotations of the law that collect a bunch of stuff. There's treatises, but again, you don't know how, I won't say idiosyncratic, but how thoroughly, how carefully and a treatise, again, is just typically written by one person. There isn't this assemblage of inside thought that goes into it. And so not only is the actual quality of the work likely to be higher, but it's recognized and I think courts recognize it as being an important and therefore perhaps very persuasive source of analysis and thinking about what's the better course to take it in any given situation.
(18:46):
We'll be right back.
Eve Albert (18:54):
Do you see ... Okay, I'm going to answer from the law student's perspective, and then I would love for you to answer from the actual building of the restatement perspective. Do you see the lack of jurisdiction having to incorporate all 50 different states as a positive or a negative? I think that in terms of the law student, it can be a little bit of both. It's definitely frustrating to really resonate with the legal concept and think, "Yeah, this makes sense." And then your state doesn't apply it. But at the same time, it's beneficial for the more theoretical classes where you need to get the idea generally and you can't cling too tightly to one legal ruling or one legal concept because you have to consider a bunch of them, especially when there's so much nuance in different subjects. So I think that it's a positive for some classes, but it can be a little frustrating for others.
(19:55):
Do you want to provide some insight on the ALI end of that?
Mark Hall (20:00):
Well, I certainly agree with you that it does make life more difficult to feel like you're really learning what you need to go out and practice. But larger scale, I think it's a positive to have this variation because you call it the laboratory of the states, different ideas are tried out, different thinkers come to slightly either opposing or alternative conclusions about how something should be addressed. And so that generates, I think, a very rich and longer lasting body of principles in many areas. And one reason that I think American law on a lot of these topics has emerged like our language is this mishmash of Latin and Germanic and what have you. And now it's the common language of, I don't want to say our law governance things, but there is a productive aspect to this variety and this uncertainty and this knocking ideas around for decades before we get settled and sometimes never get settled.
(21:06):
So I think it's worth it that to put students through that. The other thing is, if you thought about it, if we had sort of settled codes in each state, and to some extent, medical malpractice is an interesting example of this because most states in response to what was seen as a medical malpractice crisis of cost of liability, threatening the ability to doctors to practice medicine where they felt that they should be able to, or adding to the cost of healthcare, states began to adopt codification of malpractice principles on the basic ones of informed consent and the standard of care and sometime statute of limitations and things like that. And so when that happens, you see kind of a little bit more of an ossifying of the case law. I mean, it takes some issues off the table and there's always other things to argue about and what have you, but that ... Well, sorry, to double back on my first thought, it is that if law was sort of codified in all these main areas, would there be any purpose to go to law school out of state?
(22:20):
Everybody who knew where they wanted to practice would go to this one state. And then if you didn't know where you wanted to practice, what did the national law schools do? And so there's that to think about as well. So in a sense,
(22:33):
Sort of our whole ecosystem of legal practice, legal education, legal principles, depends on this variety and variation. And so you have to suffer through that, yes.
Eve Albert (22:47):
Yeah. No, I hadn't thought of it like that, but no, that's a very good point. Well, and
Mark Hall (22:52):
Frankly, I hadn't either until you asked the question, "What's the point of all this? " And you could just say, "Well, that's just the way it is. " But anyway, you try to find ... But I think you were asking in that context, does the restatement have special value? And I think so. I mean, I think that's why the American Law Institute was created because of that. And I think you can look to see, well, there isn't a similarly, I think, important influential organization in other ... I say that, maybe there are, but I think it's given birth to really outstanding institutions, both in terms of law schools, but also in terms of the uniform commercial code, the model penal code, all those kinds of products I think emanate from this basic landscape.
Eve Albert (23:43):
And that absolutely makes sense because when you have big distinctions in the law between states that raises additional issues such as disputes between states, and we generally try to avoid those as I've inferred. So I think that that's- Because that's a really great
Mark Hall (24:02):
Point. Otherwise, you have to take conflicts of law, and that's really something that I didn't want to do, so good luck to you.
Eve Albert (24:12):
Totally understandable. Last question for you, and this is the one I've been sitting on this whole time. You are a professor and you teach in the health law area. Are you going to use your own work and the work of the other ALI reporters and drafters for this restatement to guide future curriculums?
Mark Hall (24:32):
Oh, so no. Yes and no. So that's a great question. Let me think for a second. Certainly-
Eve Albert (24:43):
Because-
Mark Hall (24:43):
Yeah, go ahead. Yeah. The casebook that I edit will make more reference to the restatement, but it's not going to be like taking a commercial topic that sort of begins and ends with the UCC. Well, and I guess I have to pause to ask why in my own mind, I guess it's just sort of what we've gotten used to. That's not the way, but it's a tick and A. We didn't do it before because we didn't have restatement now we do. I'm going to have to reflect on that. Well,
Eve Albert (25:21):
Because you put so much time in putting it together, time I'm sure that you've taken away from your professor duties. So I don't know. I think my first interaction with the restatement was my torts course, my one all year and the class, really my torts professor adores the restatement. I actually had a preliminary meeting with him before recording this podcast because he knows the most about it, but I was talking to him about how curriculum might be influenced by the restatement, and especially for torts, I think because it's so well settled, we're on our third edition, he talked about how for him, using the restatement to guide how he forms his curriculum is really helpful. And especially for what we said before, it's easier for some students to learn difficult concepts when they see it all laid out in one place and they can kind of take it chronologically.
(26:21):
So that's why I was wondering if you're going to
Mark Hall (26:24):
Use the newest- Well, there's a certain inertia in professors in their curriculum and it takes maybe a little prodding to even get the casebook authors to really sort of recognize this opportunity. So I'm going to take that under advisement and confirm-
Eve Albert (26:44):
You can get back to me.
Mark Hall (26:50):
Yeah, I'm not coming up with a strong reason not to do it, and I'm thinking of some many good reasons to do it. Yeah, I think part of it is just we're used to teaching, starting with a case. And so when you pick a case, you pick a case because it has fun facts or memorable or because it says something outrageous or it leads to good discussion, but there's no reason you can't pair the two and just say, "Well, here's the restatement and here's the case and whatever and et cetera." So I love that last question.
Eve Albert (27:21):
If you do implement it, you can just cite me on your syllabus.
Mark Hall (27:24):
Indeed.
Eve Albert (27:24):
Right at the beginning of the year. No, I'm just
Todd Berger (27:26):
Kidding.
Mark Hall (27:29):
We'll be right back.
Todd Berger (27:38):
So Eve, great interview. Nayeli, you listened to it. What did you think of the interview? What were your big takeaways, things that you hadn't thought about before, things that interested you? Any restatements that made you want to go and read?
Nayeli Diaz (27:51):
Yeah, actually, this is something that you proposed when we first met and I was one of the people who was like, "I don't really know what that is. I vaguely remember what that is. I probably should know. " And so I was actually really excited for her to get to dive into it and explain to our listeners and explain to me really why it's important and why we should be looking into it. And so I really liked hearing about the ways in which it's applicable. And I especially liked hearing about how Eve talked about how she uses it in research to write briefs. I thought that was super helpful, particularly when she said that she starts researching for briefs, starting from the restatements and working kind of backwards, which ended up being perfect timing for my life actually because I've been in the midst of writing a brief.
(28:39):
I was researching and I found my way, as she said, and as our guest said, their restatements are often noted in opinions. And so I was going back in my research and I ended up at a restatement and then I scrolled down and I saw that the restatement tells you all the rules and all the important cases. And I was like, oh, I could have probably just started here and I don't know how many briefs I've written and it's taken me about two and a half years of law school to come to that conclusion. And so hopefully you guys are listening to this early and you can take Eve's advice and maybe start from there because that's super helpful. So I
Eve Albert (29:12):
Thought that was great. One thing that I didn't even realize until I was really flipping around through it, but there's case illustrations for every topic. So if you have a general topic that you need, you already have cases to jump off from. They might not be fact applicable, but they're a good way to get an understanding. And then from those cases, you find other cases that might be fact applicable. So it's great.
Todd Berger (29:41):
Yeah, I think this is a good point too, which is actually a nice practice point for practitioners. So if you're researching a topic, one thing I used to do is I used to go and just look at the cases and it depends if you're very jurisdiction specific, it may be a little bit different, but if you want to get a sense of how this might be handled more in Nationally and you try and look at the cases and reading the cases, you could scroll through a million cases. You have to pick out which ones are relevant. You have to start reading through the cases and get through a whole bunch of other stuff that's not that important. And it can take you forever. And sometimes when you find a secondary source that did a lot of that for you ... So one thing I would do is I actually started to look at law review articles, figure out if people in law review articles had effectively done the research for me.
(30:29):
And even if it wasn't the exact answer that I was looking for, at least it put me in the right direction and then I could go and explore from there. So the idea that you might have an issue you're interested in and you can go and look at the restatement as sort of a starting off point for your research. I think that's a great point. And probably one that not like a ton of practitioners necessarily thought about and they're all available on the internet or through secondary sources on Westlaw or Lexus. So it's totally accessible and kind of a nice starting off point. And I would also imagine too, when you put it in a brief, so long as the restatement backs your position, even if that's not the exact law in your jurisdiction, but you're trying to craft the law, it's probably hugely persuasive.
Eve Albert (31:11):
Absolutely. And to that point, the fact that the restatements go through so many drafts, there's years of specialized attorneys and judges looking at the laws of different states and putting together illustrations and definitions and examples, that is also encouraging for that same reason as why people go off law review or other reviewed works because it is comforting to be basing your work off of something that you know people put hard work in and a lot of time in. And the smartest people put hard work in a lot of time in. It's good to know that these things have been really considered and tested and really thought about deeply.
Todd Berger (32:03):
Sure.
Nayeli Diaz (32:03):
I think you mentioned it at some point at the beginning about how when you were polling people that there is a wide array of experience people have with restatements and with secondary sources. And I was thinking back, I thought probably my torts professor talked about it. You said your torts professor talked about it. And that probably happened at the beginning of law school. It's been a long time. There's a lot happening. And I think that may really think about how when you're starting, there's so much information that's thrown at you. And depending on, like you said, exactly how that professor teaches it, school to school, region to region, some of the other things like this might kind of get buried and it could take you longer to realize how beneficial they are. And so I was thinking that even though it's really overwhelming, I wish that I had taken some of my time during my 10 year, maybe during my break or during some point to really look at these secondary sources and see how they could be helpful.
(33:00):
Because like you said, for me realizing it later, I'm like, oh, this is helpful, especially because a lot of the work that I do is in civil law. And so it's always been there in the background, but I don't think I had ever taken a second to think about just how important it was and how I have been using it every step of the way. But I feel like at least in my experience, it's all very case driven and you do the case research first. You don't look at the secondary sources until you need a secondary thing. But like Todd mentioned, it might be good to start from this or from a law review perspective to start doing your research. And I think that is what turns law students into truly great researchers and good writers is finding ways to harness all those resources and understanding them to their fullest potential.
Eve Albert (33:44):
Yeah. That's why it's one of the first things, I mean, at least at my school, it's one of the first things they teach you how to do legal research because it's so crucial for you to be able to access different resources and different secondary sources and know how to create your own argument out of the words and the rules and opinions of others.
Nayeli Diaz (34:06):
Every law student is different, but I was certainly one that's probably a me thing less my school thing that I was just so overwhelmed. And I was like, "Okay, they told me I just need to know this, so I'm going to start with this. And then if I have time, I'll do the other stuff." But I got overwhelmed. If anybody else is very overwhelmed, just like take a breath because I probably could have used that a little bit more. But also you mentioned how I think you and I are similar in this way that things that have easily laid out rules are a bit easier to grasp. You talked about evidence. I just finished evidence and I also felt the same way. I was like, "Oh, this isn't that bad." They're all there. Sure, there's a lot and there's a lot of exceptions, but they're laid out there.
(34:40):
You just have to read them and know them. And in civil law and in tort law, it's a lot more middle area, gray area and using these statements as sort of a middle ground could help people like us who prefer to have it easily laid out.
Eve Albert (34:57):
Yeah. I'm the same way. I just took evidence as well and for my personal notes for each topic or each rule, obviously that's the way that it's ordered. Every case, I had the rule in front of me next to me so I could look back and forth and point out different words or different subsections that are applicable and make sure I understood the rule. So I think having a point of reference like that, like the restatement offers is the way a lot of law students' brains work, I've noticed. So I think that that's good. Todd, I was wondering, so I talked to Professor Hall about if he, as the lead reporter, is going to use the restatement and the work that he's put together with a bunch of other professionals, if he was going to model his curriculum after this restatement because he teaches health law classes and this is the restatement of medical malpractice.
(35:59):
So what is your take on that? When you're making a curriculum, I know you've been working on a casebook as well or you've finished working on a casebook. Is the approach to putting them together something similar in theory, like do you work backwards like Nayeli and I were talking about? Do you collect things over a long period of time? Do you collaborate with others? What are some comparisons you can draw in your personal experience?
Todd Berger (36:27):
Well, I think it's interesting. So he's creating a restatement, which I guess there's usually casebooks or textbooks that you would use to teach a health law class. So I would imagine that in a health law casebook, there's a lot of discussion about the restatements in the cases themselves that you may be excerpting or maybe you have a casebook that looks a little bit more like a treatise and it's more focused on what the restatements might be. But usually you'll have some text that's geared specifically towards students. I think what's interesting about it is that he has the restatements that you create across all these industries. I don't know, they're not really geared towards students. They're geared towards the profession, they're geared towards practitioners. And then students learn these things as a way to learn the law that they're going to need to pass the bar and that they're going to need to practice.
(37:20):
But there's no doubt that what the work you do in putting together something like the restatement, I mean, it 100% has to inform how you end up teaching the class. I would say, and this is our target audience, but one danger, which I've kind of realized over time is like that maybe you've had experienced students, but you have a professor who knows something really well and they wrote an article on something or I don't know, they had some pet project, they're super into it. And if you think about the amount of time that you have in class, I don't know how long a health law class is, but a criminal procedure class is like an hour and 15 minutes. Sometimes you guys talked about evidence. I mean, evidence is a big class, but you don't actually have that much time because there's so many different rules and so many things you have to get through.
(38:06):
And then you get really into your subject because you know it's so well that it's just like you're just talking to the students about it and the student is like, "Oh my God." I cannot keep up. I can't follow any of this stuff. And it's just like any one of these topics you could get so discreet into. So I think one of the keys is it's great to have, and this gets a larger discussion about the role of scholarship and teaching. So it's great to be doing the scholarship. So you're learning the subjects in an even deeper, more meaningful way so you can teach the students at the same time, and I've kind of learned the hard way myself, you got to pull back out from a lot of that and realize that the students can only absorb so much in so little time. And so it's a good approach to know a lot, but then know that there's only so much of that you can convey to the students before it just becomes a mess.
Eve Albert (39:06):
Yeah, no, but that's what office hours is great for because there have been times where one of my professors is really excited about something and they're like, "Yeah, but we can't get into that. " And there's students that are also really excited about it and they go to office hours and they're there for an hour just talking it up. I love that.
Todd Berger (39:24):
Yeah. Yeah. And I'll tell you, that's really cool. I mean, sometimes I think nowadays, this is a whole discussion. We got nine podcasts in this podcast. It's the rushing nest. It's like the Russian nesting doll of podcasts. But it's like frequently I kind of feel like there's a lot of just like, what's going to be on the exam? I talked to my class about that. I'm like, in evidence, I'm like, "I talked to you guys about how the real world practice of law works. I talked to you about how life works and what do you guys talk to me about? " And one of the students said, "What's on the exam?"That was true. That's what he was talking about. So it's cool.
(40:01):
If you're really into a particular subject, something really, really interests you. And hopefully, obviously the study of any given area of law within that study is vast. One little issue you can write a library about. But if you have an issue that interests you, I think your professors would love to have that kind of engagement because I think most people became professors to engage with the law in that kind of intellectual way and engage with the law in a way that allows them to teach the next generation of lawyers. I don't know anyone who became a professor because they wanted to give the final exam. So that's-
Eve Albert (40:35):
I thought that was fun for you guys.
Todd Berger (40:37):
No, it's not fun to give it. It's not fun to grade it. None of it is fun, but it is fun to get in the weeds of your subjects and
Todd Berger (40:45):
To
Todd Berger (40:45):
Really delve deeply into something like a restatement that's intellectually fun. But it's also cool too, because this is the last thing I'll say about that the restatement would talk about is practical. Oftentimes one of the criticisms of legal scholarship is it's not really practical. It's just maybe it's not supposed to be. Some of it should be, but maybe not all of it. Maybe some of it's just a discussion among scholars about intellectual ideas and some sort of more amorphous quest for the truth or something. But at the same time, the restatements, it doesn't just help you teach. It's practical. It has a real meaningful ... And allows you to engage with the materials, a real meaningful contribution to the practice of law and the way in which cases and controversies are decided, and they ultimately impact people's lives. So I think what Mark did is awesome, what everyone else did is awesome.
(41:34):
Being an LI, it's really, really prestigious, but it's also probably hugely, hugely time consuming and there's probably a lot of things you can do with your time and make other contributions. And so to do that is terrific. So it's great that he did. It's great that you were able to pull that out. And it's probably not every day that someone says, "Oh, you've wrote the restatement. I want to highlight that and platform that. " But it's cool that you were able to do that.
Eve Albert (42:02):
Yeah. No, and that's the other thing. I'm glad that you said that, Todd, because about professors wanting to further engage with the law through that means of engaging with students and creating works, I think that the restatement just can serve another purpose in that alone. I, through this podcast, was able to get in contact with someone that cares about hope law. And in the episode, we didn't talk about it, but afterwards I emailed him because he said something in passing about the amount of medical malpractice lawsuits and how it correlates to the amount of people that are entering the medical field. And that's something that's really interesting to me. And so I emailed him about it and he sent me a great article and we chatted about that a little bit. But I think that is another thing that the restatement can do for you, giving you a long list of people that have worked on specific restatements that really care about the subject and reaching out to them and seeing if they can point you in the right direction or give you something else to consider in different areas.
(43:12):
And Nayeli, don't think I forgot about you.
(43:18):
Nayeli has done a great job on this show of introducing us to federal Indian law, call back to a previous podcast. But while I was doing research for this, the restatement has the law of American Indians restatement of the law, which I didn't know about.
Nayeli Diaz (43:35):
I think it's got unfair competition is trademark law also, so it's got best of both worlds.
Todd Berger (43:43):
That's it. I'm feeling left out. I'm off to write a restatement.
Eve Albert (43:48):
Well, you know, model penal code is also ALI.
Todd Berger (43:52):
Yes. It's a version of a restatement.
Eve Albert (43:54):
So that's up your alley. There's something for everyone is what we're saying. But yeah, basically I just really love the restatement. I think it's so interesting and there's a lot that you can get out of it. So end of the day, find it online or if your library has it, crack it open. I'm sure they'd love to see you there. And just take a peek, see what's in there, see if there's a certain restatement or a certain topic that you want to know more about and do some research. I promise it's more fun than it sounds.
Todd Berger (44:30):
We'll end on that uplifting note. It's more fun than it sounds.
Eve Albert (44:34):
Wait, I didn't mean it like that.
Todd Berger (44:38):
Once again, thanks to our guest, Mark Hall for joining us for this episode. If you're looking for even more content curated just for you, head over to the ABA Law Student Division website and become a member. We want to make sure we're making the best content for you. Let us know what you'd like to learn more about by telling us in a review on Apple Podcasts or Spotify. Finally, we'd like to thank our production partners at Moraine Media and to thank the ABA Law Student Division for making this show a reality. We'll be back next month with our next episode. See you then.