[Chicks]

What One Scrapped Opinion Might Say About Judge Barrett

https://www.law360.com/articles/1316104

James Wing, who chairs an American Bar Association section subcommittee on D&O Liability Insurance, said that the initial Emmis opinion might not have been a fluke at all. Rather, it may reflect an overzealous commitment to textualism on Judge Barrett's part.

"To me, it looked like she adopted this textualist reading of an insurance policy, with all this complexity, and said, I don't care what the rest of the arguments are as a textualist," he said.

He said that she boiled the entire case down to two words — "as reported" — and her strict reading of those words in a vacuum, apart from other established law. But it's fundamental and well-known in insurance law that if a policy is ambiguous, it is interpreted in favor of the policyholder, he and other insurance attorneys said.

"I could very easily imagine a scenario where somebody would say, 'Is this textualist, hyper-literalist interpretation the way you decide cases?'" Wing said. "That's the broader emanation from this. And it's very disturbing."