The Restatements of the Law have played a vital role in the rationalization of American jurisprudence for nearly a century. As Justice Anthony M. Kennedy recently remarked at the ALI Annual Meeting, the Restatements and the ALI “did for the American, Anglo-American judicial process and for the law in the 1920s what Blackstone had done 150 years earlier.”
I have been a member of The American Law Institute, the “author” of the Restatements, for more than a decade, and I feel compelled to comment on some recent articles that compare the new Restatement of the Law of Liability Insurance (RLLI) to insurance coverage law in a particular state. First was a lengthy article from insurer-side coverage practitioners in Texas, who in a seemingly careful and balanced way explained where the black letter in the Restatement was consistent with Texas law and where it varied from state law in ways small and large. That sort of variation is to be expected, of course, and in fact is inherent in the nature of Restatements, which generally state majority rules in the black letter, and then in Comments and Reporters Notes discuss minority rules and the rationales for the differences in the common law of the 50 states. Still more recent articles by insurer-side coverage practitioners have tried to spin that prosaic observation into a cause for outrage, suggesting that any variation from the law in a particular state means that the RLLI must be an effort to undermine the public policy of that state. Quite simply, that makes no sense.
