Thursday, January 14, 2016
Jay Feinman has posted to SSRN The Restatement of the Law of Liability Insurance as a Restatement. The abstract provides:
This is an Introduction to volume 68, issue 1 of the Rutgers University Law Review which published papers from a conference on the American Law Institute’s Restatement of the Law of Liability Insurance held on February 27, 2015 at Rutgers Law School in Camden, New Jersey. Sponsored by the Rutgers Center for Risk and Responsibility and co-sponsored by the Institute for Professional Education, the conference engaged academics and practicing lawyers in a discussion of the issues raised by the Restatement.
This Introduction first describes the articles in the symposium, the topics into which they fall, and the papers of other speakers who participated in the conference. Because only a few months prior to the conference the ALI Council had changed the project from a Principles project into a Restatement, many participants framed their analysis in light of the project’s new status as a Restatement. Part II of the Introduction highlights this feature of the articles and discusses the nature of a Restatement and the ALI process that produces Restatements.
The concept of “Restating” the law with a capital “R” has always been controversial, in concept and in application. This Introduction offers four propositions about Restatements, using the Restatement of the Law of Liability Insurance as an illustration: A. Restatements address easy cases and hard cases; B. Precedent matters for a Restatement; C. A Restatement is about weighing, not counting; D. A Restatement is a product of the ALI process.