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Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance law in the year 1998.

Reassessing The Sophisticated Policyholder Defense In Insurance Coverage Litigation, Jeffrey W. Stempel

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Insurance law often is ironically regarded as both consistent and confusing. However, the 1980s saw significant flowering in the development of an insurance coverage interpretation doctrine that, although seriously flawed in its present form, offers the as yet untapped potential of substantial improvement in judicial construction of commercial insurance policies through seemingly inconsistent treatment of insurance coverage disputes.

During the past two decades, in response to the prodding of lawyers representing insurers, courts have increasingly noted that not all insurance policyholders are equal. Some have more money and bargaining clout than others. Some have more sophistication and understanding about the …

The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel

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No one theory or school of thought consistently dominates judicial application of statutes, but the basic methodology employed by courts seems well-established if not always well-defined. Most mainstream judges and lawyers faced with a statutory construction task will look at (although with varying emphasis) the text of the statute, the legislative history of the provision, the context of the enactment, evident congressional purpose, and applicable agency interpretations, often employing the canons of construction for assistance. Although orthodox judicial thought suggests that the judge's role is confined to discerning textual meaning or directives of the enacting legislature, courts also often examine …

Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel

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As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs' view of public policy …