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Judicial Rationales In Insurance Law: Dusting Off The Formal For The Function, Peter N. Swisher

Law Faculty Publications

The purpose of this Article is to demonstrate that there is indeed a great deal of method within this apparent judicial 'hiadness" if one properly understands and appreciates the two competing theories of Judicial Formalism versus Judicial Functionalism in an insurance law context. And with a proper understanding of these two competing judicial theories, numerous apparent inconsistencies in insurance law decisions may be reconciled within each particular theoretical framework.

Accordingly, this Article will present a general overview of these two competing theories of American jurisprudence, and then discuss their conflicting applications in various insurance law decisions by utilizing a number …