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In the wake of the 2017 ALI Annual Meeting and approaching the May 2018 Annual Meeting, insurers continued to flex political muscle. Perhaps the most dramatic example is the previously discussed gubernatorial letter described at the outset of this article72. The gubernatorial letter was part of comprehensive lobbying, that included letters to the Chief Justices of each U.S. State that sought their involvement in aiding insurers73 or opposing the RLLI as well as threats to legislatively “overrule” the RLLI before it could be used by courts74.

Second, insurers themselves weighed in, although through their attorneys in firms for which the insurers’ business was a significant portion of law firm revenue. Third, organizations that were not specifically composed of insurance companies, lobbied to change or block the RLLI. Perhaps the best example of this sort of anti-RLLI activist, which presents itself as an organization of concerned legislators but in operation operates much more like a front group supporting insurer interests was NCOIL, which consistently has sided with insurers rather than policyholders, something that should seem odd if the organization were genuinely concerned with the public interest surrounding insurance rather than the fiscal health of insurance companies75.

As part of its campaign against the RLLI, NCOIL adopted a model “Resolution Encouraging the American Law Institutes to Materially Change the Proposed Restatement of the Law of Liability Insurance” that it has suggested be introduced in all state legislatures if NCOIL’s demands are not met by the ALI. The model resolution states that NCOIL urges the ALI to effect meaningful change to the proposed Restatement so that it is consistent with well-established insurance law and respectful of the role of state legislators in establishing insurance legal standards and practice; and

Should such meaningful change not occur prior to its final approval, NCOIL urges that the Restatement of the Law of Liability Insurance should not be afforded recognition by courts as an authoritative reference regarding established rules and principles of insurance law, as Restatements traditionally have been afforded; and

Urg[ing] legislators across the country to adopt resolutions declaring that this Restatement should not be afforded such recognition by court; and

NCOIL shall develop and promulgate, as appropriate, model legislation intended to maintain the viability, predictability and optimal functionality of the insurance market and its practices76.

The model resolution also expressed

NCOIL’s concern that the Restatement does not afford proper respect to the expertise and jurisdiction of state insurance legislators and that the Restatement of the Law of Liability Insurance should not be afforded recognition as an authoritative reference, shall be sent to state chief justices, state legislative leaders and members of the committees with jurisdiction over insurance public policy, as well as to all state insurance regulators77.

An arguable distinction between the 2018 anti-RLLI lobbying and prior such efforts is that insurers appear not only to have themselves weighed in but to have leaned on their lawyers to oppose the RLLI or to seek pro-insurer changes78. The large number of submissions making the same “talking points” against the same RLLI provisions –including the veritable “dead give-away” of so many submissions quoting Justice Scalia’s criticism of Restatements in a single concurring opinion79– supports the inference of a coordinated lobbying effort rather than a serendipitous organic uprising by concerned attorneys.

It is unlikely that attorneys became this organized due to personal ideological commitment. The more likely scenario is that insurers and interest groups got organized and brought counsel along. To the extent that this took place, it should be disturbing not only to the Institute but to the entire American legal profession, which prides itself on its commitment to independent thinking and ability to support the public good when not zealously advocating for clients. A core premise of organizations like the ALI is that decisions will be made based on independent collective judgment of the Institute’s membership regarding the merits of issues under consideration rather than based on pressure from outside interests.

Although there is of course some room for debate, many of the arguments against sections of the RLLI disliked by insurers have bordered on the disingenuous, and sometimes crossed the line. This appears to be the opinion held by insurance experts in the legal academy. The nation’s insurance law professors have supported the RLLI project with virtual unanimity80. Although this group may not agree regarding every provision of the RLLI, all appear to support the project as a whole and none have publicly supported insurer-led criticisms.

With one exception, I am not aware of any full-time law professor teaching insurance law who opposes the RLLI or agrees with insurer critique in any significant way81. This is a telling, perhaps even conclusive piece of evidence. If the RLLI were as bad as purported by insurers, one would expect a significant proportion of the professoriate to agree82. But this has not occurred. Essentially, no one in the legal academy agrees with the broad insurer critique alleging that the RLLI is radical, lawless, or lopsidedly pro-policyholder83. To be sure, there are select aspects with which some full time law professors disagree84, but this is a far cry from the sweeping, overblown opposition to the RLLI express by insurers and their allies.

Critics of the RLLI tend to misstate the nature of soft law. By its very essence, soft law attempts to provide a guiding code or model or doctrine, something that will be seen as useful and therefore adopted (e.g., in choice of law clauses) or applied (as a source of analysis for disputes before a tribunal). But as the name implies “soft” law is not coercive. Individual courts or judicial systems follow soft law only if persuaded.

For that reason, critiques like that of NCOIL are overstated to the point of absurdity. What is coercive, however, is the type of response advocated by NCOIL – a law or legislative resolution forbidding or discouraging use of Restatements. If the RLLI is as bad as asserted by critics, one would expect the RLLI to have only minimal following. Why then, one may ask, are groups like NCOIL entertaining coercive action against soft law that is supposedly so bad that no one would follow it? Answering the question requires one to at least consider the depressing possibility that NCOIL –a supposedly neutral organization that operates more in the nature of a mouthpiece for the insurance industry– recognizes that the RLLI is persuasive and therefore must be throttled by insurers seeking to profit from the application of inferior insurance doctrine.

In addition to outward attacks on the RLLI, insurers and their allies were actively participating in the internal ALI process during the 2017-2018 review and revision period, insurer advocates were not quiet. In addition to comments directly from the industry or trade groups85 and corporate America86, there was a continued stream of commentary criticizing aspects of the RLLI deemed too favorable to policyholders came from insurer attorneys87 (and one letter submitted on behalf of the plaintiff/policyholder aligned America Association for Justice (AAJ)88. To the extent this represented the actual personal views of the commentators, this is advocacy consistent with the ALI’s “check your clients at the door” ethical standard. But the frequency with which some insurer counsel submitted comments suggests either that they were being compensated to lobby the Institute or that their law firms had made an institutional commitment to seeking revisions of the RLLI as part of law firm “client development” – attempting to win the favor of insurers in hopes that they would send more business to the firm or become clients of the firm.

To some extent, the aggressiveness of some insurer counsel or groups could be described as merely an extension of traditional advocacy by attorneys who cared deeply about jurisprudential issues. But even if this is assumed and attorney advocates were not billing insurer clients or marketing their services, the lobbying approaching the 2018 Annual Meeting was different in quality and kind from traditional ALI advocacy. The campaign against the RLLI involved considerable trade association advocacy that was different in kind and magnitude from the sort of doctrinal discussion that accompanies most Restatements. Organizations specifically of insurers or aligned with insurers as well as lawyers for these groups registered their objections to RLLI drafts and sought pro-insurer changes. This is different than hearing from members of the Institute who, through representation of insurers, were aware of industry concerns. Rather, it was industry trade organizations themselves that weighed in on the RLLI.

In addition, commentary was directed not solely to the Reporters or to the ALI as a deliberative body but to ALI leadership in an attempt to induce the leadership to adopt positions that had been rejected by the Reporters after –and I cannot stress this enough– years of ongoing consultation with a balanced group of Advisers, a largely pro-insurer Members Consultative Group, the ALI Council, and the insurance and legal community in general. In effect, the pro-insurer interest groups sought to defeat the RLLI as it would legislation in the political arena –not only in committee and on the floor of the legislative body, even with floor amendments or riders to appropriates bills as well as seeking an executive veto– rather than being confined to making arguments on the merits in the normal course of the deliberative process.

Also notable in addition to NCOIL’s clout (how many organizations can get six governors to sign a letter at their behest?) is NCOIL’s sense of entitlement. It had expected the ALI to accord it the deference it apparently gets from state legislators and some governors. When the RLLI was not changed to its liking, NCOIL expressed pique that its concerns “have gone largely ignored”89 and stated that “[s]hould there not be meaningful change in the Proposed Restatement, NCOIL will be forced to oppose the proposed Restatement project as a misrepresentation of the law of liability insurance and as a usurpation of lawmaking authority form State insurance legislators90”.