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In the United States, much of law is decentralized because of the nation’s political federalism that gives States substantial autonomy regarding their substantive law1. In an effort to improve the law and provide greater consistency, the American Law Institute (ALI), a law reform group comprised of judges, professors, and practicing attorneys formed in 1923, published its first Restatement (of the Law of Contracts) in 19312. Thereafter followed Restatements of the Law of Torts, Property, Judgments, Restitution, Conflict of Laws, and many more. During the 1960s, the ALI began preparing “Second Restatements” updating the fields. The 1990s ushered in “Third Restatements3”. For the most part, Restatements have been influential, perhaps even highly influential. They have been frequently cited by courts, commentators and legislators as either authoritative statements of the law or correct analyses of the law. But in recent years, Restatements and other ALI projects have been subjected to criticism for allegedly departing too much from settled law or having been too shaped by special interest influence.

Most recently, the Restatement of the Law of Liability Insurance 4 (hereinafter “RLLI”), approved in 2018 and published in 2019 faced substantially more, ongoing, opposition that its predecessors. Despite a quiet start, the past six years have witnessed a full court press of lobbying by the insurance industry designed to shape the RLLI in ways favorable to insurers. Notwithstanding considerable success in affecting the content of the RLLI, many insurers and their representatives continue to contend that the document unduly favors policyholders. Many insurers advocated terminating the entire RLLI project. When these efforts failed, they took the battle to state legislatures, where they have been succeeded in obtaining passage of a good deal of anti-RLLI resolutions and even statutes. Lobbying efforts have included seeking to enlist the aid of state legislators, state courts, and governors, with some success. For example, in April 2018, the governors of six states wrote to the ALI opposing adoption of the RLLI unless it was revised in favor of insurers5. The gubernatorial letter is stunning in two ways.

First, it appears to represent the first time any governors –acting in their capacity as governors rather than attorneys or ALI members– have lobbied the ALI regarding a project, much less seeking to interfere with the ALI’s normally deliberative process. The governors sought further concessions for insurers or termination of the eight-year project as well as threatening state-specific action to prohibit or reduce its use by courts.

Second, the letter largely parrots the talking points used by insurer representatives in their materials criticizing or opposing the RLLI without providing any support for assertions that the RLLI is not “offering a reliable and authoritative summary of existing law” but rather “proposes changes to established legal principles governing liability insurance contracts and disputes6”. A dead giveaway of sorts is that the gubernatorial letter quotes –as does much of the insurance industry literature against the RLLI– the late Justice Scalia’s assertion that “Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what law out to be… And it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law7”.

Whatever merit there may be to the Scalia criticism regarding the Restitution Restatement at issue in the case from which the quotation is drawn8, it is a vastly overblown assertion regarding Restatements generally9 and the RLLI in particular. But because it was said by a Supreme Court Justice –albeit a Justice frequently isolated from mainstream legal opinion– the attack on “modern” Restatements (a suggestion that in the proverbial good old days, Restatements stayed in their metaphorical lane and did not venture into law reform) garnered attention and became a useful if misleading talking point for critics of Restatements – who are also implicitly criticizing the ALI and the concept of a “think tank”/law reform organization, particularly if it on occasion embraces a jurisprudence disliked by business interests.

Despite being brief (two pages), the gubernatorial letter found time to make the truly bizarre allegation that adoption of the RLLI was an impermissible intrusion on state law – a claim that rings particularly hollow in that the topics of many prior Restatements (e.g., Torts, Contracts, Real Property, Judgments) are also legal matters generally committed to state substantive law10. More bizarre is the assertion made by the governors that

[f]rom deciding where to locate to whether to hire more employees, businesses frequently rely upon the stability of the insurance market. Thus, we are concerned that the [RLLI] could negatively affect our states’ economic development opportunities by creating uncertainty and instability in the liability insurance market [and] could potentially jeopardize the availability and affordability of liability insurance11.

Ominously, the gubernatorial letter ended with a threat, stating that “if the ALI does not significantly revise or rescind the Draft Restatement, this implicit usurpation of state authority may require legislative of executive action12”. In other words, if the RLLI is not revised to the satisfaction of the insurance industry, politicians friendly to the industry will attempt to legislate or decree contrary rules rather than permitting the states’ own courts to determine whether the RLLI is persuasive13. These governors who purport to be so concerned about federalism show considerably less respect for separation of powers14.

Recent anti-RLLI activity by some business entities, is something more than the type of vigorous debate that has often characterized the ALI drafting and decision process or the behind-the-scenes lobbying said to characterize some prior projects. In the past, the culmination of the disagreement was a vote on a challenged provision and ultimately a vote on the Restatement itself. Thereafter, those dissatisfied with the outcome of the debate vented their opposition through argument in litigation in which they urged the relevant court not to follow a Restatement rule or made lawyerly arguments that the Restatement rule should not apply in a particular case. They did not attempt to overrule or annihilate disfavored provisions or an entire Restatement through legislative, agency, or executive action.

The RLLI path to adoption demonstrates the increasing politicization of American law. The hardball politics that has characterized American electoral contests and impeachment proceedings and that also frequently appears regarding the “hard” law of statutes, agency regulation, and Supreme Court decisions now appears to have become part of the American legal landscape for soft law as well. By “soft” law, I mean recommended law or legal doctrine that is intended to have influence but is not itself enacted into positive law as is the prototypical “hard” law of statutes and codes. Enforceable executive orders and administrative agency regulations comprise a slightly less flinty version of hard law.

The realm of soft law can be further divided into a hierarchy of (1) model statues or codes such as the Model Penal Code or the American Bar Association Rules of Professional Conduct and Code of Judicial Conduct. These are drafted with the intent that state governments (e.g., legislatures or supreme courts) will use them as a template for promulgating their own statutes or rules. Then there is (2) the soft law of “black letter” provisions of the Restatements, which are perhaps in a category of their own in that they set forth a doctrinal rule that the Institute hopes courts will follow. But there is no coercion. Courts may reject Restatement black letter as they see fit. The (3) Comments to a Restatement form even softer law in that the Comments, although approved by the Institute, are less directive or prescriptive than the black letter of Restatements. Softer still are the (4) Reporters’ Notes to the Restatement provisions. They receive commentary from Institute membership but are not formally voted upon by the members. At the same time, these Notes have more authority than (5) individual treatises, which are the work of individual authors (who may even be attorneys representing clients with a position on issues addressed in the treatise), which do not receive the scrutiny of the Reporters’ Notes. Items such as (6) law review articles are softer still, having influence if deemed persuasive by individual readers (including courts) but not generally subjected to close review prior to publication.

This article addresses the important role of the ALI in U.S. law, reviewing the increasingly partisan environment in which the ALI has been forced to operate as the law itself has become more politicized. The lobbying of the ALI over the RLLI is detailed and assessed for the light it shines on the increasing insertion of special interest activity into an area that was previously treated as one of rational, studied, neutral deliberation. The article also examines the degree to which heightened controversy over the RLLI and other Restatements is peculiar to the United States and charts the implications for future efforts to provide the helpful guidance of soft law.