The below is the abstract of “Hard Battles over Soft Law: The Troubling Implications of Insurance Industry Attacks on the American Law Institute Restatement of the Law of Liability Insurance,” featured in the Cleveland State Law Review.
ALI Restatements of the Law have traditionally exerted significant influence over court decisions and the development of the common law. During the past two decades, however, the ALI has seen an upsurge in interest group activity designed to shape or even thwart aspects of the Institute’s work. Most recently, the Restatement of the Law of Liability Insurance (RLLI) has been the focus of not only criticism of particular provisions but a concerted effort by members of the insurance industry to demonize the project as a whole and bar use of the document by courts.
The vehemence of insurer opposition seems odd in that the RLLI is a mainstream document that leans in favor of insurers on several important issues. Why have insurers been so vehemently opposed to the RLLI? Have previously non-partisan law reform efforts now become afflicted with the same interest group muscle flexing that pervades modern electoral politics? And if so, what are the implications for the future of this aspect of American law? This Article examines not only the background of and debate over the RLLI but also addresses the evolution of special interest group interaction with law reform organizations in order to offer an explanation for the increasing politicization of what historically has been largely non-partisan creation of “soft law.”