November 18, 2020 Feature

How a Broken Process, Broken Promises, and Reimagined Rules Justify the Bench and Bar’s Skepticism Regarding the Reliability of the Restatement of the Law, Liability Insurance

Kim V. Marrkand

As Justice Scalia noted, “modern Restatements . . . must be used with caution.” His warning applies equally to the Restatement of the Law, Liability Insurance.

In June 2019, the American Law Institute (ALI)1 published the final draft of the Restatement of the Law, Liability Insurance (RLLI). This was the ALI’s first foray into addressing liability insurance, and the path to final publication was a rocky one, with numerous stakeholders—including governors, legislators, regulators, insureds, and insurers—weighing in. Along the road, the ALI took the unprecedented step, two years into the project, of changing a “principles” document into a “restatement” and thereafter pulling the restatement from the agenda of its annual meeting to allow more work to be done to address the concerns that had been raised—concerns that, in significant part, were not addressed and remain today.

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