State legislatures, including Indiana’s General Assembly, are moving to protect themselves from an emerging version of legal “alternative facts” as yet another venerable American institution erodes its own credibility.
This week, Indiana legislators are scheduled to consider a resolution warning that the work of the American Law Institute — an organization formed to clarify and simplify the court-fashioned standards that form the guardrails of the rule of law — may no longer be completely trustworthy. This is a fight that, if lost, could ensnare all of us in a world where rules are less important than feelings — particularly so where the rules at issue are those by which we govern ourselves.
For nearly a century, the ALI has provided a valuable service to the legal community, both bar and bench, by aggregating and summarizing the court-developed common law. These “restatements” of law, as they are known, are critical in a court system where precedent governs outcomes. Law professors, students, attorneys, judges and everybody else engaged in the legal system study and cite these restatements as evidence of what the law is.
Yet increasingly, some have begun to complain that the ALI’s restatements of certain laws — most notably in the area of liability and insurance — are inaccurate. Put simply, the ALI has been accused of endorsing summaries of the law that do not reflect what the law says, but instead what the ALI wants it to say. In his 2015 dissenting opinion in Kansas v. Nebraska, the late Justice Antonin Scalia warned of this development when he observed 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 the law ought to be.”
Now, legislators are pushing back.
Last year, neighboring Ohio recognized this development and passed legislation rejecting the ALI’s “Restatement of the Law, Liability Insurance,” becoming the first state to do so. North Dakota enacted similar legislation just last month, and Kentucky passed a resolution last session rejecting the ALI’s insurance restatement by a vote of 90 to 0.
The Indiana resolution is to be introduced by House Majority Floor Leader Matt Lehman. Lehman also happens to be the incoming chair of the National Conference of Insurance Legislators, a 50-year -old institution that allows lawmakers with extensive authority over the insurance industry to gather and compare notes during the year.
In the middle of this pushback, new reports have emerged charging that the ALI has engaged in unprecedented and questionable practices to help win back its authority. Reports state that the organization persuaded a couple of federal judges in Houston to host a free lunch as the first stop in the ALI’s road trip across the nation to explain its recently adopted liability and insurance restatement to the legal community. Whether it is appropriate to have sitting judges host an event designed as an endorsement of ALI’s work is up for debate, but the fact that it occurred has only doubled down on the controversy surrounding the organization’s restatements.
If anything ever made sense as public policy, it is to avoid giving lawyers any kind free rein to degrade the system that we have worked so hard to create, improve and balance over centuries. This is especially so when it involves insurance coverage for millions of Americans.