Insurance Perspectives On Federal Financial Regulatory Reform: Addressing Misunderstandings And Providing A View From A Different Paradigm, 2010 Villanova University Charles Widger School of Law
Insurance Perspectives On Federal Financial Regulatory Reform: Addressing Misunderstandings And Providing A View From A Different Paradigm, Jeffrey E. Thomas
Villanova Law Review
The article discusses the insurance regulation in the U.S. and its role in the financial crisis. It states that the collapse of American International Group (AIG) was not an insurance regulatory failure. It describes the scope and approach to state insurance regulation and the development and functioning of the National Association of Insurance Commissioners (NAIC). The role played by the courts in insurance regulation is also addressed.
The Mccarran-Ferguson Act's Intersection With Foreign Insurance Companies, 2010 Cleveland State University
The Mccarran-Ferguson Act's Intersection With Foreign Insurance Companies, Angela D. Krupar
Cleveland State Law Review
This Note is designed to answer a simple question: must insurance companies incorporated in foreign countries follow the same rules as their competitors incorporated in this country? More specifically, it addresses whether the McCarran-Ferguson Act should reach foreign insurance companies and foreign commerce.
Anything But A Breeze: Moving Forward Without Nfip Wind Coverage, 2010 Boston College Law School
Anything But A Breeze: Moving Forward Without Nfip Wind Coverage, Michael A. Brown
Boston College Environmental Affairs Law Review
The storm season of 2005, with the indelible images of Hurricane Katrina stuck in our minds forever, left much of the Gulf Coast devastated. The aftermath of the storm also caused serious damage to the National Flood Insurance Program (NFIP or the Program), which provides federally subsidized flood insurance to communities participating in the Program. Following the storms of 2005, many home and building owners and insurance companies began to disagree about the terms of their agreements and the cause of damage upon these structures. The main point of dispute was whether damage could be attributed strictly to flooding, to ...
Are You Covered? The Need For Improvement In Insurance Coverage For Autism Spectrum Disorder, 44 J. Marshall L. Rev. 291 (2010), Marissa Mazza
The John Marshall Law Review
No abstract provided.
Erisa & Uncertainty, 2010 Oklahoma City University School of Law
Erisa & Uncertainty, Brendan S. Maher, Peter K. Stris
Washington University Law Review
In the United States, retirement income and health insurance are largely provided through private promises made incident to employment. These “benefit promises” are governed by a statute called ERISA, which many health care and pension scholars argue is the cause of fundamental problems with our nation’s health and retirement policy. Inevitably, however, they advance narrowly tailored proposals to amend the statute. This occurs because of the widely held view that reform should leave undisturbed the underlying core of the statute. This Article develops a theory of ERISA designed to illustrate the unavoidable need for structural reform.
Consent To Settle? A New Twist In The Tri-Partite Relationship, 2010 Barry University School of Law
Consent To Settle? A New Twist In The Tri-Partite Relationship, David F. Tavella
Barry Law Review
This article discusses the tri-partite relationship in litigation between insurers, the insured, and retained counsel. This article further discusses the complications for plaintiffs who wish to settle a case with defense counsel retained by the insurance carrier, and the ethical considerations that may arise under the Model Rules of Professional conduct when settlement is at the direction of the insurance carrier.
The Insurance Policy As Statute, 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law
The Insurance Policy As Statute, Jeffrey W. Stempel
Insurance policies are classified as a subspecies of contract. Although the taxonomy is correct, rigid adherence to this classification system limits the legal system's ability to deal with some of the most problematic and frequently litigated questions of insurance coverage. Restricting conception of insurance policies to the contract model unduly limits analysis of the meaning and function of the policies. In addition, restricting characterization of insurance as a matter of “contract” does not necessarily produce swift, inexpensive, efficient, or uniform decisions (to say nothing about accuracy, justice, or fairness). Within contract law, scholars, and courts differ over the respective ...
Cost Containment And The Patient Protection And Affordable Care Act, 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law
Cost Containment And The Patient Protection And Affordable Care Act, David Orentlicher
In this article, Professor Orentlicher discusses the need for containing costs, as well as increasing access, for health case in the United States. He argues that for decades, the U.S. health care system has grappled with two key problems - inadequate access to coverage and increasingly unaffordable health care costs. During the debate that led to the enactment of the Patient Protection and Affordable Care Act, public officials recognized the need to address the problems of both access and cost, but in the end, the Act does far more about increasing access than it does about cutting costs. Professor Orentlicher ...
The Insurance Policy As Social Instrument And Social Institution, 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law
The Insurance Policy As Social Instrument And Social Institution, Jeffrey W. Stempel
Insurance policies are classified as a species of contract. Although this characterization is correct, it is unduly narrow if used as the exclusive lens for assessing insurance policies, which are not merely contracts but also are designed to perform particular risk management, deterrence, and compensation functions important to economic and social ordering. Recognizing this has significant implications regarding the manner in which insurance policies are construed in coverage disputes and suggests that policy construction can be improved by not only performing traditional contract analysis of disputed policies but also by appreciating the particular function of the insurance policy in question ...
Desperate Doctors And Antitrust Laws: The Best Ways For Lawmakers To Simulate Physician Collective Bargaining, 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law
Desperate Doctors And Antitrust Laws: The Best Ways For Lawmakers To Simulate Physician Collective Bargaining, Cristina Olson
Nevada Law Journal
This Note will examine the legality of bills that open up physician collective bargaining—and what kind of provisions lawmakers should include to ensure legality and good policy. Given the current economic downturn, states must look for ways to make health insurance more affordable; a low-cost adjustment of collective bargaining rules may be a good solution. Such an adjustment would not be the only, or necessarily the best, solution to the healthcare cost crisis that exists in America, but it would be worthwhile for legislators to consider. Furthermore, if lawmakers craft legislation that puts state governments in charge of actively ...
Oil And Water: Mixing Individual Mandates, Fragmented Markets, And Health Reform, 2010 University of Pennsylvania Law School
Oil And Water: Mixing Individual Mandates, Fragmented Markets, And Health Reform, Allison K. Hoffman
With momentum toward national health reform, there is wide support for legislation to include an individual mandate that would require all Americans to carry health insurance. Discussion of the individual mandate has relied largely on whether the mandate will generate universal coverage as a gauge for success. This article challenges the notion that an individual mandate is successful if it leads to universal coverage, revealing a critical problem the individual mandate will face even if all Americans were to have health insurance. To uncover this problem, this article sets out a novel framework that disentangles the three different policy objectives ...
Misclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, 2010 University of Hawaii
Misclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Hazel G. Beh, Jeffrey W. Stempel
Insurance policies are traditionally classified as unilateral or “reverse-unilateral” contracts, a characterization we find largely incorrect, with problematic consequences for adjudication of insurance coverage disputes. In addition to the general difficulties attending the unilateral classification, the concept as applied to insurance policies is not only unhelpful but incorrect. Insurance policies are more accurately viewed as bilateral contracts. In addition, the unilateral characterization of insurance policies introduces error and inconsistency into the litigation of insurance controversies. In particular, the unilateral view tends toward excessive formalism and focus on so-called “conditions” precedent to coverage, eschewing material breach analysis and encouraging needless forfeitures ...
Much Ado About Possibly Pretty Little: Mccarran-Ferguson Repeal In The Health Care Reform Effort, 2010 Cleveland State University
Much Ado About Possibly Pretty Little: Mccarran-Ferguson Repeal In The Health Care Reform Effort, Christopher L. Sagers
Law Faculty Articles and Essays
Since 1945, the McCarran-Ferguson Act (MFA) has shielded the “business of insurance” from antitrust liability, so long as the challenged conduct is “regulated by State Law” and does not constitute “boycott, coercion, or intimidation.” This law, like the dozens of other statutory antitrust exemptions that still exist for other industries, has more or less always been controversial, and efforts to repeal it date back more than thirty years. This Essay asks two questions: (1) what consequences the pending repeal measures might have if one of them becomes law; and (2) what a close examination of this effort might teach us ...
Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, 2009 University of Connecticut School of Law
Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, Sachin Pandya
Sachin S. Pandya
This paper presents a method for detecting stealth precedent erosion, i.e., when an appellate court majority deliberately writes the opinion in case y to reduce the scope of its precedent x, but does not expressly refer to precedent x in the opinion. Applying this method, the paper provides a strong basis for concluding that in Ricci v. DeStefano (2009), a United States Supreme Court case decided under Title VII of the Civil Rights Act of 1964, the Court majority eroded by stealth United Steelworkers of America v. Weber (1979), and Johnson v. Transportation Agency (1987), both cases that read ...
Insuring Understanding: The Tested Langauge Defense, 2009 George Mason University School of Law
Insuring Understanding: The Tested Langauge Defense, Michelle Boardman
No abstract provided.
Tontines For The Invincibles, 2009 university of connecticut law school
Tontines For The Invincibles, Tom Baker, Peter Siegelman
No abstract provided.
Readability, Contracts Of Recurring Use, And The Problem Of Ex Post Judicial Governance Of Health Insurance Policies, 2009 University of Connecticut
Readability, Contracts Of Recurring Use, And The Problem Of Ex Post Judicial Governance Of Health Insurance Policies, John Aloysius Cogan Jr.
John Aloysius Cogan Jr.
Managing Medical Bills On The Brink Of Bankruptcy, 2009 University of North Carolina at Chapel Hill
Managing Medical Bills On The Brink Of Bankruptcy, Melissa B. Jacoby, Mirya Holman
Melissa B. Jacoby
This paper presents original empirical evidence on financial interactions between medical providers and their patients who go bankrupt. We use a nationally representative sample of people who filed for bankruptcy in 2007 to compare two popular but hotly contested methods of measuring medical burden. By applying both methods to the same filers, we find that nearly four out of five respondents had some financial obligation for medical care not covered by insurance in the two years prior to filing as measured by the survey method. The court record method paints a different picture, with only half of the cases containing ...
Consnet To Settle? A New Twist In The Tri-Partite Relationship, 2009 Selected Works
Consnet To Settle? A New Twist In The Tri-Partite Relationship, David F. Tavella
David F. Tavella
CONSENT TO SETTLE? A NEW TWIST IN THE TRI-PARTITE RELATIONSHIP BY DAVID F. TAVELLA Abstract This article examines the ethical obligations of defense counsel retained by a party’s insurance company regarding settlement of a case. The article examines the traditional relationship between an insured and retained defense counsel. the article next examines some alternative theories to describe the relationship, and the duties and obligation with each theory. The article next looks at the relationship between the insurer and insured, particularly the insurer’s ability to settle a case without the insured’s consent. The article next discusses defense counsel ...