Introduction
In A Bridge Too Far: Practice Guidelines in the New ALI Medical Malpractice Restatement,Footnote 1 Larry Stewart and Robert Peck, two highly respected members of the American Law Institute (ALI), mount a forceful and sustained critique of a provision in the recently adopted Medical Malpractice RestatementFootnote 2 that addresses defensive use of authoritative medical practice guidelines. This provision, Section 6(b), in what is expected to be the final version, states:
Evidence that the provider complied with a relevant and authoritative practice guideline may be: (1) used to rebut the plaintiff’s claim that the provider breached the standard of care … ; or (2) sufficient to find that the provider met an acceptable alternative standard of care … .Footnote 3
Stewart and Peck argue vociferously that caselaw does not support this provision, that it is unsound public policy, and that the provision is unfair because it does not afford the same prima facie proof status to plaintiffs’ use of practice guidelines.Footnote 4
Stewart is an emeritus member of ALI’s Governing Council and an invited adviser to the Malpractice Restatement Project, and Peck was active in that same project as part of the Members’ Consultative Group.Footnote 5 Although both Stewart and Peck had expressed concerns about the Project’s treatment of authoritative practice guidelines — concerns that led to significant discussion and substantial revisions — no motions were made to amend or reject this portion of the Restatement (which is Section 6(b) and its Comment f).Footnote 6 In 2022, ALI’s Council approved an earlier version of this provision, and in 2024 ALI’s membership approved the Project as a whole,Footnote 7 including this provision.Footnote 8 Both approvals occurred without significant voting dissent, and without any strong objection during the ALI’s several deliberative stages prior to final votes.Footnote 9
It is therefore with some surprise that I read Stewart and Peck’s article advocating at some length that courts reject this provision adopted by the ALI following substantial attention.Footnote 10 However, Stewart and Peck are nationally esteemed members of the plaintiff’s bar,Footnote 11 and so their concerns and arguments should be taken seriously. Thoughtful inspection and reflection reveal, though, that their position is not well-founded, in large part because they misstate what this provision does and mischaracterize its support.
Motivations: Professional versus Jury-Determined Standards
Before delving into those specifics, I step back to reflect on why Stewart and Peck appear this concerned about a provision that, by most accounts, addresses a technical issue of only modest significance. I believe their primary motivation is revealed in the article’s Section V.C., which argues that the provision would impermissibly allow physicians “to devise medical standards of care, thus affording the medical profession opportunities to enact its own standard of care to justify practices that would otherwise be deemed substandard.”Footnote 12
Elsewhere in ALI deliberations of this Restatement, Mr. Stewart pressed the argument that juries should remain the ultimate arbiter of what constitutes reasonable medical care, rather than deferring to professional norms of competent care.Footnote 13 Stewart and Peck’s article advances the same position — that professional standards have no greater force in medical liability cases than industry standards have in general negligence cases.Footnote 14 They write, for instance, that the “medical profession can never set the medical standard of care,”Footnote 15 quoting Judge Learned Hand who famously ruled in The T.J. Hooper that “a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages.”Footnote 16
That foundational motivating position, however, is fundamentally at odds with the primary governing principles of professional liability. This Restatement’s Section 5, for instance, states that medical professionals are judged by the standard of care “regarded as competent among similar medical providers in the same or similar circumstances."Footnote 17 Its Comment c “recognizes that the governing standard … ultimately, consists of what other professionals regard as competent.”Footnote 18 In agreement, for instance, is a case the authors cite as favoring their position, but which clearly states that “[g]enerally, the standard of care for a physician is one established by the profession itself.”Footnote 19
The ALI recently approved the same position (without dissent) in provisions addressing professional liability more broadly than just medicine.Footnote 20 The relevant Comment e explains that the “reasonable professional” standard governing professional liability
displaces the ordinary rule with regard to the role of the jury in assessing breach. Generally in tort law, a jury is free to substitute its own judgment for the judgment of those within a particular business or vocation. See … The T.J. Hooper … (explaining that “a whole calling” may “never may set its own tests” as “there are precautions so imperative that even their universal disregard will not excuse their omission”).
When it comes to professionals, by contrast, “… [i]f professionals agree that something should be done a certain way to meet the standard of care, then the jury may not second-guess that determination.”Footnote 21
Stewart and Peck’s motivating stance is contrary to these and several other Restatement provisions.Footnote 22 The idea that the T.J. Hooper principle should apply fully to professional liability is at the root of Stewart and Peck’s pitched resistance to permitting authoritative practice guidelines serving as direct evidence of the governing standard of care. However, if courts are to follow the long-standing, thoroughly established, and widely recognized position that professional standards determine professional negligence, then Stewart and Peck are wrong. Relevant practice guidelines that speak with authority for a relevant segment of medical professionals do merit special legal attention.
An Illustration
I now turn to what attention guidelines merit, and how that attention might sensibly differ somewhat for plaintiffs and defendants. At the outset, the following scenario illustrates the core logic of this Restatement provision:Footnote 23
The U.S. Preventive Services Task Force, created by the Department of Health and Human Services, “is an independent group of national experts in prevention and evidence-based medicine that … [makes] evidence-based recommendations about clinical preventive services” such as screenings and preventive medications.Footnote 24 Federal law requires health insurers to follow the task force’s leading recommendations.Footnote 25 The appointed members are mostly primary care clinicians across a range of relevant practice areas. Members “must have no substantial conflicts of interest that could impair the integrity of the work of the Task Force.”Footnote 26 Its recommendations “are based on a rigorous review of existing peer reviewed evidence” and, in evaluating the “effectiveness of a service,” the “Task Force does not explicitly consider costs.”Footnote 27
One Task Force recommendation is that women with no indication of elevated breast cancer risk do not need a screening mammography more often than every two years.Footnote 28 Suppose a physician advises a low-risk patient (after discussing the pros and cons) that annual mammographies are not necessary, but 20 months after her last screening she is found to have stage 3 breast cancer. Suppose further that the patient sues the doctor, supported by an expert witness who says that annual testing is preferred, which would have caught the cancer at an earlier, more treatable stage. In this scenario, the Restatement section provides that the doctor does not need a rebuttal witness to create a triable issue over whether the doctor complied with the standard of care.Footnote 29 Stated another way, the defendant can survive summary judgment simply by presenting evidence of complying with this relevant, authoritative guideline.
Suppose instead that, instead of having a standard of care expert, the patient presents admissible evidence (perhaps by cross examining the defendant) that the American Cancer Society recommends annual screening mammograms. That recommendation could well be relevant evidence, but the Restatement section’s Comment f provides that, “unsupported by expert opinion on breach of the standard of care, the guideline is not sufficient for a factfinder to conclude that [the doctor] was negligent. Accordingly, … without more, [the patient] fail[s] to satisfy her burden of production on breach of the standard of care.”Footnote 30
Stewart and Peck strongly object to both of these legal outcomes.Footnote 31 They do not think the defending doctor should be able to avoid the need for a supporting expert on the standard of care by pointing to relevant practice guidelines, even if they are authoritative.Footnote 32 And, they are especially adamant that it is unfair to give guidelines greater legal significance when used defensively than when used offensively.Footnote 33
The straightforward logic of the Restatement’s position, however, is fairly apparent. First, a guideline that is this authoritative, relevant, and unambiguous should be sufficient to support a jury finding of non-negligence for a doctor who complies.Footnote 34 Second, the same conclusion does not apply when a plaintiff presents a single guideline that a physician failed to follow, for the simple reason that, as the authors thoroughly document, it is often the case that more than one approach can reasonably apply to a given clinical situation.Footnote 35 Thus, failure to take one particular approach, standing alone, is insufficient evidence to support a finding of negligence.Footnote 36
Hearsay
Why then the vehemence of Stewart and Peck’s opposition to this relatively uncontroversial Restatement provision? Principally, the core of their position is a mischaracterization of the provision’s legal effect. Repeatedly, they claim that the Restatement “would change the hearsay rules of evidence, since the new rule would authorize what is undeniably hearsay to be used as substantive non-hearsay evidence.”Footnote 37 This extrapolation is not justified. As the Reporters’ Note underscores, “this Section conveys substantive legal principles rather than rules of evidence.”Footnote 38 Thus, the provision says nothing about whether or how practice guidelines can be introduced or who qualifies as an expert; instead, it speaks only to whether, if introduced by defense, practice guidelines sometimes avoid the substantive rule that usually requires expert testimony on compliance with the standard of care.
Accordingly, the section is entirely compatible with courts continuing to regard practice guidelines as hearsay. As such, the authors are correct that guidelines would need to fall under a hearsay exception, such as judicial notice or to corroborate a witness’s testimony.Footnote 39 Nothing in the section says, or even intimates, the contrary. Nor does this section prevent or reduce plaintiffs’ ability to challenge a guideline’s accuracy and integrity. Although recognizing a hearsay exception forecloses cross-examining a guideline’s actual drafter, plaintiffs can still call their own experts to attack or minimize a guideline. Thus, defensive guidelines remain fully rebuttable.Footnote 40
Sometimes, it will be possible to meet a standard hearsay exception without calling an authenticating expert — such as by taking judicial notice or if an opposing witness concedes the guideline’s authenticity and status.Footnote 41 Often, however, the authors are correct that expert testimony will be needed to establish whether a guideline is admissible and meets the section’s criteria of relevance and authoritativeness.Footnote 42 In fact, Comment f states this explicitly:
As is likely clear, … some expert testimony will usually be needed to: (1) establish that the guideline, in fact, satisfies the three threshold prerequisites outlined above; (2) understand how, exactly, the guideline applies to a specific case; or (3) establish whether, in fact, the provider complied with, or deviated from, the guideline.Footnote 43
For these reasons, the section does not convert hearsay into non-hearsay. Rather, it provides only that, in some circumstances, when practice guidelines are admissible, they can be prima facie evidence of compliance with the standard of care.
Mischaracterizations and Exaggerations
The Restatement states simply that a practice guideline that satisfies the section’s prerequisites, “while not conclusive, may be sufficient to support a finding that the defendant-provider did not breach [the] standard of care.”Footnote 44 The emphasized language just quoted points to another element of misdirection the article employs by repeatedly characterizing this section as having much stronger legal effect than this. For instance, the authors state incorrectly that this section creates a defensive “safe harbor”Footnote 45 or “shield,”Footnote 46 and they suggest that the section contemplates practice guidelines “conclus[ively]” “establishing” the standard of care.Footnote 47 Explicitly to the contrary, however, Comment f states that this section “does not declare that guidelines are conclusive.”Footnote 48 Nor, as the authors seem to claim, does the Restatement “believe any guideline is more authoritative than expert testimony.”Footnote 49
Similarly unconvincing is the authors’ claim that the section will permit inappropriate (“through the back door”) resurrection of a now-rejected locality focus in the standard of care by encouraging the adoption of guidelines that give greater recognition to the diversity of practice norms in varying circumstances across the country.Footnote 50 Here too, the authors’ claim finds no basis in the Restatement’s actual provisions, and its reasoning does not stand up to scrutiny. The authors harken to a time several generations ago when strictly local standards defined medical negligence.Footnote 51 They correctly note that courts have overwhelmingly rejected that strict-locality position, but the authors fail to note that locality characteristics remain potentially highly pertinent in determining the relevant circumstances of a particular case.Footnote 52
If relevant circumstances vary by location, then guidelines that account for those circumstances are justified. If locally focused guidelines are not based on relevant factors, then they are not sufficiently relevant to a case to meet the section’s criteria for enhanced legal recognition.Footnote 53
Exaggerated versions of the Restatement’s position, bordering on hyperbolic, are sprinkled throughout the article. The authors state, for instance, that this Restatement provision is a “controversial and problematic experiment”Footnote 54 that “would allow the introduction of potentially dispositive evidence without any opportunity for cross-examination.”Footnote 55 They suggest that defensive clinical guidelines become “irrebuttable,”Footnote 56 thus “chang[ing] the character of documents based on which party offers them, making the rule one-sided, limiting cross-examination, and tilting the scales of justice,”Footnote 57 which is “an astonishing proposition that is inconsistent with fundamental trial fairness”Footnote 58 and “would unquestionably be major innovations that would embark into uncharted jurisprudence.”Footnote 59
By overstating the section’s legal significance in these ways,Footnote 60 Stewart and Peck set up two lines of argument that appear much more formidable than is justified. First, they argue that caselaw does not support, and perhaps outright rejects, the substantive effect they claim (incorrectly) the Restatement gives to authoritative defensive guidelines.Footnote 61 Second, they reason that the section’s differential treatment of plaintiffs and defense is grossly unfair.Footnote 62 They develop these arguments in a classic “straw man” fashion, by attacking a distorted, wrongly imagined version of the rule that the Restatement does not actually embrace.
Misdirected Arguments: Caselaw
While acknowledging that this section “is based more on general principles than on extensive case law,” the Reporters’ Note does cite and quote credible caselaw support.Footnote 63 In Arpin v. United States,Footnote 64 Judge Posner (writing for the 7th Circuit applying Illinois law) held that a Medicare payment rule set a rebuttable standard of care with which the defendant complied.Footnote 65 The issue arose in the context of whether a “preceptor” training physician failed to supervise a resident physician adequately.Footnote 66 The District Court found “that it is the duty of a resident physician’s preceptor … personally to examine a patient who has already been examined by the resident … .”Footnote 67 The core reason the Court gave for rejecting this ruling was that the trial judge “based this finding entirely on testimony by the plaintiff’s expert witness,” whose opinion was contradicted by “Medicare reimbursement rules … that excuse an attending physician from routinely having to examine or otherwise observe a resident’s patient.”Footnote 68
Because the Arpin Court ultimately sustained the trial judge’s finding of negligence on a different basis, Stewart and Peck argue that this full paragraph analysis is only “a passing comment,” and that it speaks only to an expert witness’s qualifications without directly supporting the Restatement’s position.Footnote 69 Careful reading shows, however, that this part of Judge Posner’s opinion embodies the Restatement’s position by holding as a matter of law that, where an authoritative practice guideline established a relevant standard of care, it became conclusive when not effectively rebutted by the plaintiff.Footnote 70
The other cases the Reporters’ Note cite are not as directly on point but nevertheless endorse in some manner heightened significance for compliance with an authoritative practice guideline.Footnote 71 The Reporters, however, were careful not to overstate the significance of this supportive caselaw. The same cannot be said for the authors’ analysis of opposing caselaw, considering that much of it is not nearly as oppositional as the authors portray.Footnote 72
For instance, Adams v. Laboratory Corporation of America,Footnote 73 which the authors cite several times,Footnote 74 rejects exculpatory use of a particular set of guidelines but does not reject defensive guidelines as a general matter.Footnote 75 Instead, the court concluded the guidelines in question were especially untrustworthy because they “moved away from disinterested scientific inquiry and into litigation policy to serve their members’ own interests.”Footnote 76 Similarly Jewett v. Our Lady of Mercy Hosp. of Mariemont Footnote 77 held only that a defensive guideline was not conclusive and so did not warrant summary judgment for the physicians, considering the rebuttal evidence from the plaintiff’s expert. That holding is also entirely consistent with this Restatement section. Yi v. New York State Bd. for Pro. Med. Conduct,Footnote 78 which the authors cite,Footnote 79 addressed inculpatory use of guidelines (against a physician in a medical licensure case) rather than defensive use, and it found that the particular guidelines “do not purport to define an authoritative standard of care.”Footnote 80 Even then, the court took judicial notice of the guidelines and gave them a great deal of credence in ruling against the physicians.Footnote 81
Misdirected Arguments: Differential Effects
Turning then to the section’s differential impact on plaintiffs and defense, the authors employ a favorite rhetorical flourish used by ALI members when opposing a Restatement provision they disfavor, by claiming that it will “tilt the scales of justice.”Footnote 82 This attack also misstates or overstates the Restatement’s position. The authors claim, for instance, that “the Restatement does not cite a single case to support the limitation … that would prevent plaintiffs from also using practice guidelines in an inculpatory manner,”Footnote 83 and they suggest that, under the Restatement, “the use of practice guidelines as standard of care evidence [is] restricted in all cases to just defendant providers” and “that plaintiffs [are] banned from also using [guidelines] in an inculpatory manner.”Footnote 84
As I have already emphasized, however, the Restatement does not in any way restrict plaintiff’s use of practice guidelines, nor does it elevate the status of exculpatory guidelines to a “safe harbor” that conclusively establishes the standard of care, even when applicable guidelines are “authoritative.” Instead, the Restatement merely states that such guidelines can provide prima facie evidence of compliance with the standard of care.Footnote 85
Nevertheless, Stewart and Peck level much of their attack on positions the Restatement does not embrace. They recount history from several decades past when “litigation critics and special interest groups sought to convert [practice guidelines] into defensive tools that would provide safe harbors for medical defendants.”Footnote 86 More troubling, a few states that experimented with legislation creating a type of malpractice immunity for complying with official practice guidelines barred plaintiffs from presenting evidence of noncompliance.Footnote 87 As the Reporters’ Note observes, it is this much more extreme version of bifurcated legal effect — barred from plaintiff’s evidence vs. irrefutably conclusive for defense — that commentators have roundly criticized.Footnote 88
Even though this intellectual history is almost entirely off point, the authors cite and quote this history as if it were principally on point.Footnote 89 What would be much more relevant, however, is whether it is fundamentally unjust to give similar evidence modestly different substantive status when presented by plaintiffs versus defendants.
Law frequently, and uncontroversially, gives differential advantage to one party over the other, in the form of burdens of proof, burdens of production, burdens of persuasion, logical or legal presumptions that require rebuttal, and the like. How fair such rules are depends (at least in part) on their justification for differential impact. Here, the justification is simply that plaintiffs bear the burden of proof, and that finding professional negligence requires showing that the defendant failed to comply with any acceptable standard of care.Footnote 90 By simple logic, it follows that proof of compliance with just one acceptable standard of care has more legal significance than proof of noncompliance with a single standard.
This is well illustrated by litigation over FDA drug “labeling” or “package insert” standards. If a doctor complies with the FDA’s approved instructions and indications for how and when a drug should be used, that obviously constitutes prima facie (albeit not conclusive) proof of non-negligence.Footnote 91 If a plaintiff, however, simply shows that a physician deviated from the FDA-approved instructions and indications, although that information can support expert testimony of negligence, it does not by itself establish a prima facie case.Footnote 92 The reason is that FDA labeling does not foreclose alternative standards of care reflected in physicians’ reasonable decisions to prescribe drugs “off-label.”Footnote 93
The same logic applies to compliance versus deviation from an authoritative practice guideline. Denying prima facie status to drug label noncompliance is not thought to be fundamentally unfair to plaintiffs,Footnote 94 nor should the same be true for practice guidelines. Thus, expert testimony is needed to determine whether off-label deviation is reasonable.
Public Policy Considerations: The Quality of Guidelines
Having addressed the authors’ primary legal arguments, I now turn to briefly consider their public policy arguments. Principally, they describe many ways in which guidelines can be deficient.Footnote 95 However, this kind of argument is a classic example of the “nirvana fallacy,” rejecting a proposal because of its flaws without considering the imperfections of its alternatives.Footnote 96
Here, the alternative to authoritative practice guidelines is individualized expert testimony. The same claims the authors make about guideline deficiencies can also plausibly be made about hand-picked adversarial experts. Consider, for instance, these passages from their article, edited to replace their target (guidelines) with the alternative (experts):
In the present-day proliferation of [expert witnesses], there are many objectivity and credibility issues, resulting in severe criticism of [expert testimony] within the profession. Many [experts] offer inconsistent and conflicting recommendations, contain inherent conflicts of interest and mixed purposes, and some are even blatant attempts to tilt the playing field in favor of defendants … .Footnote 97
Different [experts] addressing the same topic provide inconsistent and conflicting blueprints for diagnosis and treatment because there is no “centralized authority to coordinate, vet, approve, and catalog [expert opinions],” and there is “an absence of a universal methodology to create [expert testimony].” Each [expert] that chooses to promulgate [an opinion] “decides freely which, if any, framework they will use to construct [their opinion],” and the [opinions] produced remain “susceptibl[e] to bias and conflicts of interest,” while they also often “suffer from a lack of rigor and applicability.”Footnote 98
To bring more sharply into focus the plausibility that practice guidelines should sometimes be allowed to stand in for expert testimony, it helps to understand what it is that standard of care experts testify to. “The standard of reasonable medical care is the care, skill, and knowledge regarded as competent among similar medical providers in the same or similar circumstances.”Footnote 99 In other words, experts address what other professionals would think about the situation. But how do experts know this? Often, they have little more to go on than personal experience.Footnote 100 Of significance, the Daubert standard for expert opinion admissibilityFootnote 101 does not generally require anything more for testimony on the medical standard of care.Footnote 102
From a perspective of methodological rigor, relevant authoritative practice guidelines can be not just equivalent to expert testimony, they can be a far superior way to document “what other professionals regard as competent,”Footnote 103 because authoritative guidelines are developed through a process that directly reflects actual consensus within a relevant portion of the profession.Footnote 104 Guideline development is based on direct engagement with a range of relevant practitioners.Footnote 105 More than this, guidelines are also based on available scientific evidence about documented treatment outcomes.Footnote 106 As one judge explained:
[Practice guidelines] consist of systematically developed statements designed to assist the practitioner and patient in making decisions about appropriate health care in specific clinical circumstances. Rather than being a mere sampling of professional opinion, these guidelines provide consensus standards of conduct that are both clearer and more rational than those currently used to identify professional negligence.Footnote 107
Naturally, many guidelines do not live up to best practice standards.Footnote 108 Nevertheless, the authors overstate the extent to which medical professionals themselves disdain practice guidelines. For instance, they point to the federal government’s closure of the National Guideline Clearinghouse as an indication that the agency in charge thought that cataloguing guidelines “no longer made sense,”Footnote 109 but in truth this closure happened due to budget cuts during the first Trump administration.Footnote 110 Since then the agency “has conducted various activities aimed at restoring what had been a highly valued resource of evidence-based clinical practice guidelines.”Footnote 111
Similarly misleading is the authors’ claim that “up to fifty percent of guidelines are considered untrustworthy within the profession.”Footnote 112 The cited support, however, is an article from the orthopedic surgery department in Barcelona Spain that makes clear this fifty percent guesstimate is based on these and other authors’ judgment of what they regard as trustworthy guidelines rather than reflecting actual views held by practicing physicians (either in the United States or in Spain).Footnote 113
Much more could be said in defense of practice guidelines, or in response to these authors’ critique. It suffices, however, to note that Stewart and Peck’s fairly one-sided dive into this extensive literature reveals the great extent to which the research and professional communities have taken seriously the need to uphold and improve standards by which medical practice guidelines are developed and implemented.Footnote 114
Public Policy Considerations: The Utility of Guidelines
The Reporters’ Note observes that one reason medical literature has given practice guidelines this much attention is the “increasing recognition of a need for greater standardization and rationalization in many areas of medical practice.”Footnote 115 In an era of rapidly increasing science skepticism, this collective professional deliberation based on credible empirical evidence takes on even more heightened importance. In this light, it is notable that the authors’ critique of guideline trustworthiness resonates in part with the anti-science sentiment currently emerging from some senior federal administrators.Footnote 116 Reputable guidance about preferred or discredited medical approaches could be especially useful in crisis situations that are sufficiently unprecedented to lack any established professional standard to guide either practice decisions or liability determinations.
Finally, the Reporters’ Note observes that defensive use of practice guidelines could help counter the well-documented phenomenon of “defensive medicine,” by which physicians engage in excessive medical practices geared more to avoiding liability than to doing what is best for patients.Footnote 117 As such, practice guidelines have the “potential to interrupt or reverse the cyclonic tendency that a custom-based approach engenders to continuously elevate the intensity of care beyond what is objectively reasonable.”Footnote 118 The Reporters explain that, to counteract this problem
professional societies have issued guidelines that recommend clinical restraint when they feel that legal pressures cause excessive treatment. See Gallardo v. United States, 752 F.3d 865, 873 (10th Cir. 2014) (applying Colorado law) (discussing such guidelines); American Board of Internal Medicine Foundation, Choosing Wisely, available at www.choosingwisely.org (referencing many such guidelines designed to counteract overuse of various costly medical procedures). But, for prudential guidelines to alleviate the defensive-liability motivation to adopt excessive medical practices, medical professionals need confidence that courts will recognize the guidelines. See, e.g., Daniel Merenstein, Winners and Losers, 291 JAMA 15 (2004) (describing a trial where the jury rejected multiple national guidelines recommending cautious use of a blood screening “PSA” test for prostate cancer) … .Footnote 119
Conclusion
As accomplished advocates, it is no surprise that Stewart and Peck have made the strongest possible case against any enhanced legal status for defensive use of exculpatory practice guidelines. If the Restatement’s position were truly as radical or poorly considered as the authors portray, however, the ALI likely would not have adopted it.Footnote 120 Closer inspection reveals that Stewart and Peck’s analysis significantly misstates or over-states the Restatement’s position, and so their attacks are mostly misdirected. Nevertheless, engaging with their argument can better elucidate reasons that courts might view the Restatement as well-considered, even if its position is one on which reasonable minds can differ.
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