Law Commons^™

Drowsy Driving Considerations In Non-Commercial Drivers For The Sleep Physician, Ann Marie Marciarille, Anand Bhat, David Ingram, Damien Stevens

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The sleep physician faces many challenges in the assessment of drowsy driving. The following article reviews current clinical evaluation methods and legal considerations at the state level in the United States.

Why Police Should Protect Complainant Autonomy, Randall K. Johnson

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This Essay does its work in, at least, three ways. First, it encourages better use of scarce public sector resources by calling for reform of the police complaint intake process. Next, this Essay identifies the causes of police complaint inefficiencies by critically-assessing how intake is done by the Chicago Police Department (CPD). Lastly, it provides guidance about how to achieve CPD intake reform by better protecting complainant autonomy. Complainant autonomy, at least in this Essay, is defined as a real party in interest’s (i.e. an injured citizen’s) right to control how its allegations are framed by a nominal plaintiff (i.e. …

Terrorism Risk Insurance Act: Time To Renew . . . Or Rethink?, Jeffrey E. Thomas

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This paper summarizes the U.S. program for terrorism insurance, outlines its advantages and disadvantages, and describes the current proposals for extension of the program. The program, generally referred to as a “Federal Backstop,” functions in some ways that are similar to reinsurance, but it does not require participants to pay premiums ex ante. Instead uses an ex post recoupment mechanism to recover some or all of the Federal payments made under the program. This approach has the advantage of reducing the cost and increasing the availability of terrorism insurance. Some have criticized the program for its interference in market mechanisms, …

Benefits Of The U.S. Program For Terrorism Insurance From A Comparative Perspective, Jeffrey E. Thomas

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This article summarizes the U.S. program for terrorism insurance and outlines its advantages as compared to similar programs in other developed countries. The program, while similar to reinsurance, does not require participants to pay premiums but instead uses an ex post recoupment mechanism. Consequently, it is generally referred to as a Federal “backstop.” This approach requires less capital investment and makes “pricing” more accurate than a reinsurance approach. The program also requires insurers to maintain significant amounts of exposure through insurer deductibles and copayments, which creates market demand for the development of terrorism reinsurance in the private market. The current …

Extra-Contractual Liability In The Restatement Of The Law, Liability Insurance: Breach Of The Duty To Settle Or Bad Faith?, Jeffrey E. Thomas

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This paper focuses on the Restatement’s treatment of an insurer’s duty to settle and the duty of an insurer to act in good faith in handling liability claims. The duty to settle is framed as an objective “duty to the insured to make reasonable settlement decisions.” At the same time, however, a separate claim is retained for an insurer’s “bad faith” breach of its duties (including the duty to settle). Further, a subjective element is adopted for the bad faith standard. To be liable for “bad faith,” an insurer must act “without a reasonable basis for its conduct” and must …

The Standard For Breach Of Liability Insurer's Duty To Make Reasonable Settlement Decisions: Exploring The Alternatives, Jeffrey E. Thomas

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This Article considers the standard to be applied to determine whether an insurer has breached its duty to make reasonable settlement decisions. It focuses primarily on two standards: the disregard the limits (“DTL”) standard endorsed by section 24 of the Restatement of the Law of Liability Insurance (hereinafter “Restatement” or “Discussion Draft”), and the equal consideration (“EC”) standard, which I consider to be the primary competitor to DTL. The DTL standard says an insurer’s behavior is evaluated from the standpoint of a person who faces the full exposure of potential liability from a claim; to do this, the insurer (and …

Good Faith And Breach Of The Duty To Settle: Perspectives From The American Law Institute Principles/Restatement Project On Liability Insurance, Jeffrey E. Thomas

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This paper addresses the standard of good faith to be applied to the duty to settle. All insurance policies contain an implied covenant of good faith and fair dealing. This implied covenant has been applied by U.S. courts to an implied duty to settle contained in most liability insurance policies. The implied duty to settle arises from the insurers’ right to settle cases under terms of most liability policies. Because insurers have the duty to defend and the right to settle, courts have found that insurers have an obligation to act in good faith when considering a settlement offer within …

Report: The Need To Renew Tria Aba Tips Task Force On Federal Involvement In Insurance Regulation Modernization, Jeffrey E. Thomas

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This Report support’s the position by the ABA TIPS Task Force on Federal Involvement in Insurance Regulation Modernization that the Terrorism Risk Insurance Act (TRIA) should be renewed. Although the market for terrorism insurance has developed with the support of TRIA, the fundamental nature of terrorism risk has not changed and continues to require the Federal backstop. Because of the unpredictability of terrorism risk, without a Federal backstop many insurers will withdraw from the terrorism market, the price of terrorism insurance will rise and take-up rates will fall. Other countries facing terrorism risk, in some cases substantially less risk than …

Book Review: Lawless Capitalism: The Subprime Crisis And The Case For An Economic Rule Of Law, William K. Black

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No abstract provided.

Unique Coverage Issues In Flood Losses, Wayne D. Taylor, Arthur J. Park, Sean O'Brien

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No abstract provided.

Let Fifty Flowers Bloom: Health Care Federalism After National Federation Of Independent Business V. Sebelius, Ann Marie Marciarille

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Conventional wisdom is that the American public does not want to think too long or too hard about Medicaid. Medicaid’s reputation has long been big, complicated, and widely misunderstood. The 2012 presidential election campaign has been much about Medicaid, but Medicaid is a subject we love to talk around. Yet, our next president will be compelled to think and speak explicitly and fluently about Medicaid because Medicaid is the budget-buster of government funded health insurance. Its budget busting propensities are most pronounced at the intersection of Medicaid and the government-funded health insurance program we do love to discuss: Medicare.

This …

Consequences Of An Insurer's Breach Of The Duty To Defend: Columbia Casualty Co. V. Hiar Holdings, Llc In The Context Of The Ali Restatement Of The Law Of Liability Insurance, Jeffrey E. Thomas

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An insurer's duty to defend in connection with liability insurance policies is well-established and reasonably well understood. The consequences for the breach of that duty, however, are much less clear. On one hand, one might argue that this duty is a contractual duty giving rise to contractual remedies. The insured provides its own defense and, if the insurer wrongfully failed to provide a defense, the insured is entitled to reimbursement of its defense costs. On the other hand, this remedy seems insufficient; the value on an insurer's participation in the defense of a case goes beyond well merely paying the …

Insurance And Cultural Perspectives On Katrina, Jeffrey E. Thomas

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No abstract provided.

Derivatives: A Twenty-First Century Understanding, Timothy E. Lynch

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Derivatives are commonly defined as some variation of the following: a financial instrument whose value is derived from the performance of a secondary source such as an underlying bond, commodity or index. But this definition is both over-inclusive and under-inclusive. Thus, not surprisingly, derivatives are largely misunderstood, including by many policy makers, regulators and legal analysts. It is important for interested parties such as policy makers to understand derivatives, because the types and uses of derivatives have exploded in the last few decades, and because these financial instruments can provide both social benefits and cause social harms. This Article presents …

Gambling By Another Name; The Challenge Of Purely Speculative Derivatives, Timothy E. Lynch

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Derivatives contracts can be used to hedge pre-existing risks, but they can also be used to speculate. This Article focuses on derivatives contracts in which both counterparties are speculators. These “purely speculative derivatives (PSD) contracts” have become increasingly common over the last several years and have notably resulted in the transfer of many tens of billions of dollars from institutions that had invested in the US subprime housing market to a handful of speculators who foresaw the market’s collapse, as well as many billions of dollars in fees to PSD brokers.

PSD contracts are problematic. PSD contracts are less-than-zero-sum transactions …

The Terrorism Risk Insurance Act: An Industry-Government Partnership, Jeffrey E. Thomas

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No abstract provided.

Government Support For Terrorism Insurance, Thomas Russell, Jeffrey E. Thomas

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Federal government support for the terrorism insurance industry has a very brief history. Prior to 9/11, insurers did not take terrorist-related losses into account when underwriting risks. The industry did not even conceive of an attack that could generate such significant losses. The dramatic shift in perception since then has caused many to suggest that terrorism risks are uninsurable. The notion that terrorism risk was uninsurable was part of the rationale advanced for government intervention. When the initial efforts at legislation failed, the industry began to withdraw from the market by adding exclusions for terrorism-related losses to their policies. Reinsurers …

Financial Services In The 21st Century: The Perspective Of Insurance, Jeffrey E. Thomas

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No abstract provided.

An Interdisciplinary Critique Of The Reasonable Expectations Doctrine, Jeffrey E. Thomas

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No abstract provided.

Case Study Of Bad Faith Refusal To Settle: Doctrinal, Normative And Practical Analysis Of Missouri Law, Jeffrey E. Thomas

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No abstract provided.

The Savings And Loan Debacle Of The 1980s: White-Collar Crime Or Risky Business, William K. Black, Calavita Kitty, Pontell N. Henry

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This paper examines the role of white-collar crime in the savings and loan crisis. Noting economists' assertions that crime was only a minor ingredient in the crisis, we compare the explanatory power of this "minimal fraud" model to that of its "material fraud" alternative. Bringing together evidence from every major study of thrifts in the 1980s, we argue that only the material fraud hypothesis can make sense of these data. This study demonstrates the utility of deductive reasoning in distinguishing between white-collar crime and ordinary business transactions, thereby potentially contributing to prosecutorial efforts, and helping resolve long-standing methodological dilemmas confront­ing …