Restatement of insurance liability law raises concerns

An American Legal Institute project is working on a restatement of insurance liability law.  

Legal experts and others gathered this month to put the finishing touches on a restatement of insurance liability law, but the process of restatement, carried out by the American Legal Institute (ALI), has provoked some criticism and concern, with claims the private body’s work leads to a de facto rewriting of laws rather than simply clarifying existing court-developed common law.

The late Justice Antonin Scalia, in a February 2015 dissent, wrote: “Over time, the restatements’ authors have abandoned the mission of describing the law and have chosen instead to set forth their aspirations for what the law ought to be.”

Restatements are “clear formulations of common law and its statutory elements or variations,” reflecting “the law as it presently stands or as it might plausibly be stated by a court,” the ALI, an organization of academics, lawyers, judges and other legal professionals, said.

Reporters and legal experts charged with bringing draft proposals to the ALI, its advisers and consultants, have been working on a restatement of insurance liability law for nearly two years.

Glenn Lammi, chief counsel of the Washington Legal Foundation, has raised deep concerns over the ALI’s copyright restatement project, centered on fears it may be rewriting the law.

Lammi’s key concerns center on the fact that copyright law has its basis in a federal statute and Congress is working on legislation. That restatement process, ongoing for some years, appears stalled, with no further discussion planned until November.

“It is unclear why the ALI's copyright restatement project has seemingly stalled,” Lammi said, adding that he could not speak on the insurance law process as the foundation has not studied it in depth.

The work done so far was slated to be discussed last week at the body’s annual general meeting.

But a final restatement may not be adopted in full at the meeting, John DiMugno, a California-based insurance law expert and a member of ALI’s consultative group on the insurance project, said.

DiMugno said it is a legitimate concern the ALI process may lead to its restatements being regarded as law in courtrooms across the country, rather than clarifying what already exists.

But, DiMugno told Illinois Business Daily, “insurance law is state-based, there is significant conflict” in the law as developed in the different states.

“Most states outside of the largest commercial (insurance) states do not have a large body” of common law," DiMugno said.

Some issues related to insurance law might not even have been addressed by the courts in those smaller states, for example Maine.

In short, the ALI’s final report, in a complicated area like insurance where there may be variances across states, can be hugely helpful to courts across the country, but there can be a “tendency to think that’s the rule,” said DiMugno.

But, DiMugno said, “restatement is not just the product of just two reporters (legal experts), it’s a collaborative process.” 

ALI has advisers, consultants and, in this case, the insurance industry has plenty of input into the project. “It advocates quite vigorously,” DiMugno said.

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