Credibility is hard to earn and easy to lose – just ask any public figure who has been attached to a scandal, regardless of whether they were guilty of any wrongdoing.
Witness the American Law Institute, a Philadelphia-based group founded in 1923 with the noble goal of providing guidance to judges faced with complicated issues. Its works, known as “Restatements,” are helpful but not legally binding.
The reputation built during the 20th century is why judges have followed the ALI’s advice. But that reputation is in danger of being undone by a recent shift in philosophy by leadership who seem to prefer creating new laws rather than restating existing ones.
Many think the ALI botched aspects of an eight-year-long project involving insurance law – and we’re not just talking about industry officials and corporate lawyers.
In Ohio, lawmakers issued a first-of-its-kind rejection of the ALI. Three months after the group passed the insurance law Restatement, Gov. John Kasich in August signed into law a bill that specifically warned that the ALI’s views do not “constitute the public policy of Ohio.”
And in September, a Kansas federal judge rejected a plaintiff’s use of the Restatement to prove his bad faith case, writing that she was “not inclined to use a non-binding Restatement as a means to overturn or expand Kansas law.”
The ALI now is pushing forward with its next “troubling” project. If it continues to stray from its original mission, members will need to consider whether they want to preserve the credibility earned by their predecessors.
Because without that credibility, the ALI will be nothing more than a group of attorneys longing for the days when they had influence.