Kirk T. Hartley
Professor Feinman's Latest: "A User’s Guide to the Restatement of the Law, Liability Insurance"
It's most interesting and encouraging to see Professor Jay Feinman publish a new paper that frankly addresses the pressures exerted on insurance law by economic stakeholders. More specifically, Professor Feinman's latest paper focuses on some of the pressures and positions staked out by the liability insurance industry during the drafting of ALI’s Restatements of the Law, Liability Insurance. The paper is open access, online at at SSRN. The abstract is pasted below.
In my personal view, it's useful to see articles of this sort pull back the curtain on backstories behind significant legal events. As a young person, I naively thought law was about truth, justice and logic. Law school began the journey to seeing the economic and other pressures that in fact shape law. During law school and through law review, I started learning about Critical Legal Studies. When I clerked, Chief Justice Ryan sagely advised me not to take law reviews at face value, and to look instead for intellectual bents or interests at law schools, and the funding behind law schools and/or the authors of law review articles.
Practicing in and from Chicago, my learning was advanced and accelerated by the many law and economics publications from the University of Chicago, as well as the strong presence of Judges Posner and Easterbrook at the Seventh Circuit. Some of the articles and rulings gave far too much importance and sway to economic theory instead of reality, but it was interesting and educational to see open discussion of the economic theories and factors at work in the litigation industry. Later, during the Great Recession brought on by Wall Street (writ large) Judge Posner backed away from many prior positions in a ground-breaking book, A Failure of Capitalism. And, for the past decade or so, one sees more empirical legal studies. Now, Professor Feinman's new paper marks a further step in the evolution of explaining the economic factors that shape law, including stakeholder interests in the litigation industry.
Hat tip to Steve Hedley at Private Law Theory.
At its 2018 Annual Meeting, The American Law Institute completed nearly a decade’s worth of work on the Restatement of the Law, Liability Insurance. The Restatement’s approval was deferred for a year from the 2017 Annual Meeting, largely because of opposition from insurance industry interests. The Restatement attracted unusual attention from interests outside the normal ALI process, in a way that can be fairly characterized as political, in the non-pejorative sense that it involves the authoritative allocation of values.
Lawyers and judges routinely look to the ALI’s Restatements of the Law as reference works for the state of the law and for arguments and analysis about the direction the law should go. Yet the controversy reflected in the complex intellectual and political history of the RLLI is likely to continue following its final adoption, and the issues raised by the controversy about the RLLI frames its use by lawyers and judges in interesting ways. This article takes account of the issues raised in the drafting process to inform the use of the Restatement going forward. The criticisms of particular sections of the RLLI will be discussed as those sections are raised, argued, and applied in litigation.
But the criticism suggests that two general points need to be taken into account in using the RLLI: • What is a Restatement? • Whose Restatement is this?"
Feinman, Jay M, A User’s Guide to the Restatement of the Law, Liability Insurance (July 29, 2019). Connecticut Insurance Law Journal, volume 26, no 1, 2019.