On May 22, 2018, after many years of debate, the American Law Institute adopted the Restatement of the Law on Liability Insurance. Lawyers likely remember learning about restatements in law school. The volumes were learned tomes presenting summaries of the law on a particular subject, prepared by judges, academics and distinguished attorneys. Their mission was “to present an orderly statement of the general common law.” Courts regarded them as authoritative, and professors told their students to regard them with reverence. No longer. In 2015, in a dissent in Kansas v. Nebraska, 135 S. Ct. 1042, 1064 (2015), the late Justice Scalia wrote “… modern Restatements … are of questionable value, and must be used with caution …”
This probably will be the fate of the RLLI, which has encountered a storm of controversy. This article does not take a side on whether the RLLI is right or wrong but discusses why there is a controversy and how Texas—and some other states—are likely to deal with the RLLI.
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