Law of Copyright Reinterpretation Project Steers ALI Further Off Course

copyrightIn April 2015, a WLF Legal Pulse post expressed concern with a nascent American Law Institute (ALI) project, Restatement of the Law: Copyright. Three years later, the drafting process continues in the face of increasing criticism from intellectual property scholars, ALI members, and even the federal government’s chief copyright official. Some of those critiques echo and amplify the concerns we expressed initially and have repeated in our posts on ALI’s other troubled project, the liability-insurance-law Restatement.  Simply put, the Institute’s ambition to put its own imprint on the law imperils its credibility. Continue reading “Law of Copyright Reinterpretation Project Steers ALI Further Off Course”

Restate or Rewrite?: Stark Choice Faces ALI Leaders on Liability Insurance Law Project

rockThe debate over the American Law Institute’s (ALI) still ongoing Restatement of the Law: Liability Insurance (RLLI) project the mythical struggles of Sisyphus. Since 2015, when ALI—in unprecedented fashion—shifted the venture from an aspirational “Principles Project” to a Restatement, stakeholders and a growing number of third parties concerned with the project’s direction have been pushing the proverbial rock up the hill.

Throughout the drafting process, concerns have been consistently raised that multiple RLLI sections either depart from settled insurance-liability principles or establish entirely new rules. Each time, the RLLI’s Reporters issued a new draft that was nearly identical to the last.

With the release of Council Draft No. 4 for discussion at a January 18, 2018 conclave of the ALI Council—a final step in the approval process before the group’s May annual meeting—the uphill resistance has resumed and intensified. What transpires over the next week could have a profound impact not only on the insurance liability system and its stakeholders, but on ALI itself. Continue reading “Restate or Rewrite?: Stark Choice Faces ALI Leaders on Liability Insurance Law Project”

The Latest on ALI’s Liability Insurance Restatement: Same as it Ever Was

scales of justiceWhen last we addressed the American Law Institute’s (ALI) proposed Restatement, Law of Liability Insurance, we reported that the organization decided at its May annual meeting to table final consideration of the document until 2018. One of the proposal’s chief Reporters, Professor Tom Baker, indicated that he and co-Reporter Kyle Logue would embark on a year-long listening tour and consider what they heard when looking anew at the Restatement draft.

It is quite curious then, considering Professor Baker’s statement as well as ALI’s declaration that the draft needed “another year of work,” that on August 4, the institute released Preliminary Draft No. 4—a mere 10 weeks after tabling Draft No. 3 at its meeting.  Even more remarkable are the fundamental similarities between the draft tabled on May 23 and the one released on August 4.

ALI’s haste in issuing another draft, and the Reporters’ obstinate refusal to address valid criticisms of Draft No. 3, are further evidence of an accelerating mission drift that could cause the legal community to lose respect for organization’s work. Continue reading “The Latest on ALI’s Liability Insurance Restatement: Same as it Ever Was”

Does the American Law Institute Have an Ethics Problem on Its Hands?

ethicsThe brouhaha that engulfed the final draft of the Restatement of the Law, Liability Insurance (RLLI) at last month’s American Law Institute (ALI) annual meeting drew more publicity and concern than any ALI work product that I can recall.  And for good reason.  As numerous commentators observed—including Washington Legal Foundation’s Glenn Lammi and Mintz Levin’s Kim Marrkand—several provisions of the Restatement draft presented at the annual meeting deviated from the current legal rule in a majority or plurality of states.  Simply put, this “Restatement” does a lot less restating and a lot more revising than ought to be seen in something traveling under this banner. Continue reading “Does the American Law Institute Have an Ethics Problem on Its Hands?”

Heeding Criticism from Many Corners, ALI Pulls Liability Insurance Restatement Before Membership Vote

white flagEarlier this month in Insurance Liability Project Exemplifies American Law Institute’s Mission Drift, we discussed an especially troubling instance of where the American Law Institute (ALI), a private organization known for its “Restatements” of common law in areas such as torts, products liability, and contracts, was instead revising the law. On Tuesday, May 23, ALI announced at its annual meeting that rather than hold a final vote on the Restatement of Law, Liability Insurance as scheduled, the draft’s Reporters (i.e. authors) “agreed that another year of work” was needed on the project. Continue reading “Heeding Criticism from Many Corners, ALI Pulls Liability Insurance Restatement Before Membership Vote”

Insurance Liability Project Exemplifies American Law Institute’s Mission Drift

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scales of justiceIn an April 28, 2015 post, Will the American Law Institute “Restate” or Try to Rewrite U.S. Copyright Law?, we questioned whether ALI had strayed from its mission of summarizing and clarifying specific areas of common law. Two years later, concerns over ALI’s drift toward lawmaking have grown. Not only has ALI continued to develop a wayward “Restatement of the Law, Copyright,” it is also taking an ambitious, aspirational approach in addressing other critical areas of common law. With its May 22 annual meeting rapidly approaching, now is the time for ALI’s members and the main consumers of its work—judges—to assess how the organization’s recent penchant for rewrites, rather than Restatements, is tainting its brand. Continue reading “Insurance Liability Project Exemplifies American Law Institute’s Mission Drift”

Will the American Law Institute “Restate” or Try to Rewrite U.S. Copyright Law?

copyrightOn April 24, 2013, House Judiciary Committee Chairman Bob Goodlatte announced that the committee would be undertaking “a wide review of our nation’s copyright laws and related enforcement mechanisms.” Five months later, UC Berkeley School of Law Professor Pamela Samuelson formally requested that the American Law Institute (ALI) prepare a restatement of copyright law. It might seem odd that a prestigious institution like ALI would devote time and resources to restating the “law of copyright” when the U.S. House of Representatives is taking steps to possibly amend the federal Copyright Act. But it is going forward with a Restatement of the Law, Copyright project. Continue reading “Will the American Law Institute “Restate” or Try to Rewrite U.S. Copyright Law?”