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Doctors, Hmos, Erisa, And The Public Interest After Pegram V. Herdrich, Jeffrey W. Stempel, Nadia Von Magdenko

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The Employee Retirement Income Security Act of 1974 was enacted in the wake of highly publicized pension disasters in order to protect employee pension rights. Born as a piece of pro-worker legislation, it initially was criticized by business groups as a cause of bureaucratic arteriosclerosis that was worse than the disease of pension failures. Even worse, it prompted many employers to consider dispensing with pension plans altogether rather than struggle with the administrative and financial obligations of ERISA. Business, labor, and the public all complained about the law's complexity. It even became something of a national joke as regulators took …

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance Law in the years 2000 and 2001.

Politics And Sociology In Federal Civil Rulemaking: Errors Of Scope, Jeffrey W. Stempel

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In April 2000 the United States Supreme Court promulgated a package of Proposed Amendments to the Federal Rules of Civil Procedure that took effect on December 1, 2000, without Congressional intervention. As one commentator observed, “(a)ll of (the proposed amendments) promise to have a significant effect on discovery practice.” One Proposed Amendment--narrowing the scope of discovery available pursuant to Rule 26(b)(1)--was particularly controversial before both the Advisory Committee, the Standing Committee, and the Judicial Conference. Nonetheless, the Proposed Amended Rule narrowing scope proceeded from the Court to finality with no intervention by Congress. Proponents of the change minimized criticism by …

Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel

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One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One …

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance Law in the years 2000 and 2001.

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance Law in the years 1999 and 2000.

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel

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Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …

The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel

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The problem with viewing facilitation as the only legitimate form of mediation, of course, is that it borders on tautology: mediation is nonevaluative, therefore any evaluation in mediation must be impermissible. Although this view remains strongly held in many quarters, it appears to be in retreat, both within the mediation community and in the legal community at large. Courts and commentators have shown increasing favor toward some evaluative or advising component of mediation. More important, the eclectic style appears to be what takes place in the metaphorical trenches of mediation practice (although sound empirical data is necessarily hard to obtain …

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance Law in the years 1999 and 2000.

Judge-Made Insurance That Was Not On The Menu: Schmidt V. Smith And The Confluence Of Text, Expectation, And Public Policy In The Realm Of Employment Practices Liability, Jeffrey W. Stempel

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In Schmidt v. Smith, the New Jersey Supreme Court caught more than a few observers by surprise. New Jersey courts have generally issued opinions regarded as pro-claimant and pro-policyholders. But everyone's taste for recompense and coverage has limits. In Schmidt, the court exceeded those limits for many observers by holding that despite what it regarded as clear contract language in an exclusion, an insurer providing Employers’ Liability (“EL”) coverage along with Workers' Compensation (“WC”) insurance for the employer was required to provide coverage in a case of blatant sexual harassment bordering on criminal assault. In doing so, the Schmidt court, …

A Mixed Bag For Chicken Little: Analyzing Year 2000 Claims And Insurance Coverage, Jeffrey W. Stempel

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A visitor from another planet reading the popular and insurance trade press would probably conclude that the world stands on the abyss of a business, tort, and insurance crisis of unprecedented proportion. Media coverage of an impending Year 2000 “crisis” has reached a fevered pitch, with predictions of both a gigantic volume of Year 2000 claims and a correspondingly large amount of insurance coverage litigation. Many predict that the Year 2000 problem (also known as the “Y2K” or “Millennium Bug” problem) will create coverage controversies and costs dwarfing major insurance battles of the late twentieth century such as those concerning …

Domtar Baby: Misplaced Notions Of Equitable Apportionment Create A Thicket Of Potential Unfairness For Insurance Policyholders, Jeffrey W. Stempel

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Minnesota has an enduring reputation as a progressive, even liberal state hospitable to the underdog and concerned for fairness. This is hardly a surprise for the home state of prominent liberal politicians such as Hubert Humphrey, Walter Mondale, Eugene McCarthy and Paul Wellstone. The perception of Minnesota liberalism, populism, or pro-plaintiff sympathies extends to the technical legal realm as well. Lawyers know about prominent Minnesota cases favoring claimants. Many are reprinted in casebooks or otherwise disproportionately well-known. Most recently, Minnesota was again in the news as the state unwilling to join in a proposed national settlement of claims against the …

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance law in the year 1998-1999.

Reason And Pollution: Construing The "Absolute" Pollution Exclusion In Context And In Light Of Its Purpose And Party Expectations, Jeffrey W. Stempel

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Responding to the flurry of environmental coverage litigation over the application of the “sudden and accidental” pollution exclusion, the insurance industry during the mid-1980s largely adopted new standard pollution exclusion language for commercial general liability (CGL) policies. Since the mid-1980s, the standard form CGL has included the so-called absolute pollution exclusion, which provides that the insurance does not apply to bodily injury or property damage “arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release, or escape of pollutants.” A “pollutant” is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, …

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance law in the year 1998.

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance Law in years 1998 and 1999.

Transcript Of The Florida Tobacco Litigation Symposium - Fact, Law, Policy And Significance, Jeffrey W. Stempel, Jean R. Sternlight

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On November 17, 1997, Professors Jeffrey W. Stempel and Jean R. Sternlight joined a group of colleagues specializing in litigation at the Florida State University College of Law Review's Symposium on the tobacco litigation settlement reached between the State of Florida and five leading tobacco manufacturers that same year. The professors appeared on a panel to discuss the the relationship among the legal system, public health concerns, and tobacco. This is a transcript of those preceedings.

Symposium, The Florida Tobacco Litigation -- Fact, Law, Policy, And Significance, Jeffrey W. Stempel

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This is the transcript of the Florida tobacco litigation symposium, discussing the s$11.3 billion settlement concerning tobacco in the state of Florida. Jeffrey W. Stempel served as co-chair and moderator of the symposium.

Unreason In Action: A Case Study In The Wrong Approach To Construing The Liability Insurance Pollution Exclusion, Jeffrey W. Stempel

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For more than twenty-five years, a significant component of the scholarly commentary on insurance law has focused on the so-called “reasonable expectations doctrine” enunciated by then-Professor (now Judge) Robert Keeton in his justly celebrated 1970 article. The reasonable expectations principle made a seemingly sudden emergence with the appearance of Keeton's article and has held particular attraction to academics while simultaneously prompting resistance from elements of the bench and bar, and particularly from the insurance industry. The doctrine's life to date can be described as one of early growth followed by subsequent retreat and dilution, with continuing controversy.

However, despite the …

A More Complete Look At Complexity, Jeffrey W. Stempel

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The ability of courts to successfully resolve complex cases has been a matter of contentious debate, not only for the last quarter-century, but for most of the twentieth century. This debate has been part of the legal landscape at least since Judge Jerome Frank's polemic book from which this Symposium derives its title, and probably since Roscoe Pound's famous address to the American Bar Association. During the 1980s and 1990s in particular, the battlelines of the pro-and anti-court debate have been brightly drawn. Some commentators, most reliably successful plaintiffs' counsel and politically liberal academics, defend the judicial track record in …

Beyond Formalism And False Dichotomies: The Need For Institutionalizing A Flexible Concept Of The Mediator's Role, Jeffrey W. Stempel

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Related to the problem of the false dichotomy is the formalist application of the either/or construct. If, for example, one adopts as a first premise the view that mediation is by definition non-evaluative, and then rigidly applies this premise to issues of appropriate mediator behavior, the result is a formalist system that permits mediators little or no leeway to depart from the non-evaluative style. This sort of regulatory regimen may satisfy the non-evaluative ethos of some mediation scholars, but it does so at the risk of becoming a rigid system that prevents mediators from taking practical actions most appropriate to …

Scientific Testing & Proof Of Paternity: Some Controversy And Key Issues For Family Law Counsel, Christopher L. Blakesley

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Blood and tissue testing, especially DNA matching, have become important elements of both criminal and paternity or maternity litigation. Such scientific testing has become so important that it has taken on aspects that may cause it to benefit or to do harm to the judicial process or to any given case. This article focuses on the value and the dangers surrounding this interesting subject.

The 1995 Louisiana Supreme Court decision in Pace v. State reemphasized the importance of DNA testing generally and the significance of blood and tissue genetic testing used to exclude paternity. The advances in and importance of …

Reflections Of Judicial Adr And The Multi-Door Courthouse At Twenty: Fait Accompli, Failed Overture, Or Fledgling Adulthood, Jeffrey W. Stempel

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Like any trend, ADR has its skeptics and even some opponents. Considerable debate exists regarding the degree to which the increasing ADRization of traditionally judicial activity amounts to triumph or tragedy, a point well-illustrated by the past Schwartz Lectures. In the 1993 Schwartz Lecture, Professor Laura Nader described the ADR movement as a byproduct of society's attempt to suppress or conceal uncomfortable conflicts. In the 1994 Lecture, Professor Judith Resnik essentially concluded that the modern ADR movement has brought a regrettable de facto closing of the court house (or at least raised barriers to entry) and replaced reflective decision-making about …

Bootstrapping And Slouching Toward Gomorrah: Arbitral Infatuation And The Decline Of Consent, Jeffrey W. Stempel

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The Seventh Amendment to the Constitution preserves for litigants a right to a jury trial in actions at law. The right to a jury trial does not attach for equitable actions, but in cases presenting claims for both legal and equitable relief a right to a jury trial exists for common questions of fact. Although many modern statutes and claims did not exist in 1791, the Amendment has been interpreted to require a jury trial of statutory claims seeking monetary damages, the classic form of legal relief, so long as there is a relatively apt analogy between the modern statutory …

Interpreting Insurance Policies, Jeffrey W. Stempel

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Like any other contract, an insurance policy may become the subject of a legal dispute. When disputes arise over insurance coverage, lawyers must combine their skill in contract interpretation with their knowledge of insurance law, bringing both to bear on the special problems related to this type of contract. Each dispute has unique traits, but a few basic ground rules of contract law and insurance law can help you interpret insurance policies and resolve disputes over insurance coverage.

Democratic Responses To International Terrorism, Christopher L. Blakesley

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This volume provides a multidisciplinary study of terrorism. The editor notes at the outset the difficulty of definition: "Terrorism is not a one-dimensional problem; it transcends many frontiers: political, jurisdictional, institutional, disciplinary and methodological. So approaching the problem from only one perspective may lead to only partial understanding and an incomplete strategy for developing constructive responses” (p. 3). Note the tendency of even this careful statement to assume that terrorism is always committed by others, Also, although legal definition and consideration may be implied by the terms polical, jurisdictional, institutional and disciplinary, which are indicated as various dimensions of …

Halting Devolution Or Bleak To The Future? Subrin's New-Old Procedure As A Possible Antidote To Dreyfuss's "Tolstoy Problem", Jeffrey W. Stempel

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Professors Rochelle Dreyfuss and Stephen Subrin first presented their ideas on the 1993 Amendments to the Federal Rules of Civil Procedure (Civil Rules) at the 1994 Annual Meeting of the Association of American Law Schools (AALS) in a program titled, “The 1993 Discovery Amendments: Evolution, Revolution, or Devolution?” After the program, I was left with the depressing view that the answer was devolution, which is defined as a “retrograde evolution,” or “degeneration.” Dreyfuss provides a detailed but succinct review of the changes in discovery occasioned by the new rules as well as a vantage point for assessing the social and …

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 …

Cultural Literacy And The Adversary System: The Enduring Problems Of Distrust, Misunderstanding And Narrow Perspective, Jeffrey W. Stempel

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The meandering road to discovery reform illustrates, among other things, the ineffectiveness of an atomized profession that lacks either sufficient understanding of the adversary system or the resources and forcefulness to address the practical impact of adversarialism. In some ways, lawyers reforming litigation can be characterized as poorer investigators than the sixsome who examined the elephant. The elephant sleuths were guilty of isolation and ignorance. Lawyers and policy makers not only exhibit a lack of information and empathy, but also often show an unwarranted distrust of or contempt for the elements of the profession with which they disagree. Unfortunately, however, …

New Paradigm, Normal Science, Or Crumbling Construct? Trends In Adjudicatory Procedure And Litigation Reform, Jeffrey W. Stempel

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One aspect of a possible new era is the increasing ad hoc activity of various interest groups, including the bench and the organized bar, primarily pursued through official organizations such as the Judicial Conference, the Federal Judicial Center, the American Bar Association (“ABA”), and the American Law Institute. Traditionally, of course, judges and lawyers have lobbied Congress and state legislatures for litigation change, as demonstrated by the saga of the Rules Enabling Act (“Enabling Act” or “Act”). But, the legal profession's more recent “political” activity regarding litigation reform differs from the traditional model in several ways. First, the participation of …