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Wrong Side Of The Mountain: A Comment On Bad Faith's Unnatural History, Robert H. Jerry Ii

Faculty Publications

In this Comment, I will argue that courts have ignored bad faith's contractual heritage and have undervalued contract law's ability to respond to insurer misconduct. To draw upon Professor Powers's thoughtful analysis, I believe that courts invoked the tort paradigm before it was clear that the contract paradigm was inadequate. For lack of data, I will stop short of recommending where we should go from here, but I will suggest that our behavior in the face of bad faith liability in tort may have changed no less than the environment and that the perceived relative calm in the tort's current …