ALI Restatement Misstates Law On Long-Tail Harm Claims

By David Cox and Gerald Konkel (March 29, 2018, 1:22 PM EDT) -- A restatement of the law is "primarily addressed to courts" with an "aim" to provide a "clear formulation[] of common law and its statutory elements or variations and reflect the law as it presently stands or might appropriately be stated by a court."[1] A restatement's articulation of black-letter legal rules is "expected to aspire toward the precision of statutory language," while also "reflecting the flexibility and capacity for development and growth of the common law."[2]

The current draft of the first Restatement of the Law on Liability Insurance is faithful to these principles in many respects; however, the draft section on...

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