Law Commons^™

Incentive Effect Of Liability Rules In The Presence Of Liability Insurance In The Maritime Law Context: An Economic Analysis, Muhammad Masum Billah

Dalhousie Law Journal

Incentive effect of liability law may be affected by the presence of liability insurance. Apparently when a party has liability insurance and does not have to pay directly from its own pocket, it will have less motivation to exercise proper care. This tendency of an insured is known as "moral hazard." There are many studies on the problem of "moral hazard" and on various mechanisms how to address it. Yet, there is a lack of academic discussion on comparative analysis between liability law and liability insurance in terms of their effect on creation of incentives; that is, whether liability law …

Defense Costs And Insurer Reserves In Medical Malpractice And Other Personal Injury Cases: Evidence From Texas, 1988-2004, Bernard Black, David A. Hyman, Charles Silver, William M. Sage

Faculty Scholarship

We study defense costs for commercially insured personal injury tort claims in Texas over 1988–2004, and insurer reserves for those costs. We rely on detailed case-level data on defense legal fees and expenses, and Texas state bar data on lawyers’ hourly rates. We study medical malpractice (“med mal”) cases in detail, and other types of cases in less detail. Controlling for payouts, real defense costs in med mal cases rise by 4.6 percent per year, roughly doubling over this period. The rate of increase is similar for legal fees and for other expenses. Real hourly rates for personal injury defense …

Stranger-Originated Life Insurance: How The Naic Tamed An Old Dog With A New Trick, Adam S. Flood

Adam S Flood

This paper analyzes the efficacy of the National Association of Insurance Commissioners' recent attempt to reign in the practice of Stranger-Originated Life Insurance, focusing on industry counter-arguments that the regulations abrogate an individual's property right in one's insurance policy. To wit, it suggests that the NAIC's five-year settlement prohibition should be restated as a refutable assumption that entering into a life settlement within five years of policy issuance is evidence of a wagering policy.

Insuring Corporate Crime, Miriam Hechler Baer

Indiana Law Journal

Corporate criminal liability has become an important and much-talked about topic. This Article argues that entity-based liability-particularly the manner in which it is currently applied by the federal government---creates social costs in excess of its benefits. To help companies better deter employee crime, the Article suggests the abolition of entity-wide criminal liability, and in its place, the adoption of an insurance system, whereby carriers would examine corporate compliance programs, estimate the risk that a corporation's employees would commit crimes, and then charge companies for insuring those risks. The insurance would cover civil penalties associated with the entity's employee-related criminal conduct. …

Public-Private Partnerships And Insurance Regulation, Alexander A. Boni-Saenz

All Faculty Scholarship

A public-private partnership (PPP) is an institutional arrangement that embodies a collaborative approach to policy and regulation; it is a joint venture between the government and one or more private sector entities. Joint financing partnerships link public financing and private insurance to pay for certain social goods. Where the financing for social goods is fragmented and overlapping, as it is for health and social care, joint financing PPPs may help organize existing financing streams. This piece argues that partnerships of this type also present an opportunity for consumer-protective regulation of the insurance industry if certain conditions are met. Private insurers …

A Single-License Approach To Regulating Insurance, Henry N. Butler, Larry E. Ribstein

Faculty Working Papers

State regulation of insurance companies has been criticized for many years because of the burden imposed on insurers by having to comply with the laws of many jurisdictions. These higher costs are passed on to consumers. The problems with the current regulatory structure are prompting calls for increased federal regulation of insurance. However, all proposals to federalize insurance regulation create opportunities for abuse at the hands of the federal government and fail to utilize the benefits of a federal system. This article shows how many of the problems of the current system can be addressed without resorting to a large …

The Tyranny Of The Multitude Is A Multiplied Tyranny: Is The United States Financial Regulatory Structure Undermining U.S. Competitiveness?, Elizabeth F. Brown

Elizabeth F Brown

This Article examines whether the U.S. regulatory structure undermined U.S. competitiveness with foreign financial markets, particularly the United Kingdom's markets.

Insurance For Acts Of Terrorism, Robert J. Rhee

Faculty Scholarship

This chapter discusses insurance case law arising from acts of terrorism, including those arising from the September 11 attacks. It analyzes the Terrorism Risk Insurance Act of 2002 (TRIA), as amended by the Terrorism Risk Insurance Act of 2005 and the Terrorism Risk Insurance Program Reauthorization Act of 2007, as well as the administrative program created by the legislation. Examples are provided and NAIC Policyholder Disclosure Notice forms are included. Policy considerations surrounding TRIA are also discussed including insurance industry strategies, the difficulties of assessing terrorism risks, the effect of TRIA subsidized insurance on the market, and the benefits and …

When The "Business Of Insurance" And The State Action Doctrine Burden The Public Adjuster: Stripping Away Antitrust Immunity In The Insurance Field, Julie Galbo

Student Articles and Papers

No abstract provided.

Hurricanes Katrina And Rita: Anti-Concurrent Causation Clauses, Enforcement And Implications, Kimberly Myers

Student Articles and Papers

No abstract provided.

Nearly Blown Away: How Policyholders Affected By Hurricane Katrina May Recover Under Their Homeowner's Insurance Policies In The Face Of Anti-Concurrent Causation Language, Austen Endersby

Student Articles and Papers

No abstract provided.

Get Sick, Get Out: The Medical Causes Of Home Mortgage Foreclosures, Christopher Robertson, Richard Egelhof, Michael Hoke

Faculty Scholarship

In recent years, there has been national alarm about the rising rate of home foreclosures, which now strike one in every 92 households in America and which contribute to even broader macroeconomic effects. The "standard account" of home foreclosure attributes this spike to loose lending practices, irresponsible borrowers, a flat real estate market, and rising interest rates. Based on our study of homeowners going through foreclosures in four states, we find that the standard account fails to represent the facts and thus makes a poor guide for policy. In contrast, we find that half of all foreclosures have medical causes, …

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

Faculty Works

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 …

D&O Insurance: The Tension Between Cooperating With The Insurance Company And Protecting Privileged Information From Third Party Plaintiffs, Lindsay Fisher

Seattle University Law Review

This comment argues that states should challenge the Real ID under the federalism principles enshrined in the Tenth Amendment, although the Act's driver licensing provisions infringe on both individual and state constitutional rights. A state challenge under the Tenth Amendment is more likely than modern individual rights jurisprudence to succeed in striking down Real ID. Arguing that the federal government impermissibly coerces state action under the Act will better protect both states and individual rights and succeed in having the Act overturned. Part II of this Comment provides a historical context for the enactment of Real ID and describes its …

Adam, Martin And John: Iconography, Infrastructure, And America's Pathological Inconsistency About Medical Insurance, Jeffrey W. Stempel

Scholarly Works

Following the ongoing health care and insurance debate, which has once again moved toward center stage in American politics, one might understandably get the impression that the most important names in the area are politicians such as Hillary Clinton, Barack Obama, John Edwards, John McCain, or Mitt Romney. Similarly, public intellectuals and pundits such as David Broder, David Brooks, Paul Krugman (or at least the New York Times and Wall Street Journal editorial pages) come to mind. Alternatively, health care scholars such as the instant Symposium participants or other health policy scholars such as Uwe Reinhardt, Troyen Brennan or Theodore …

Patients As Consumers: Courts, Cotnracts, And The New Medical Marketplace, Mark A. Hall, Carl E. Schneider

Michigan Law Review

The persistent riddle of health-care policy is how to control the costs while improving the quality of care. The riddle's oncepromising answer-managed care-has been politically ravaged, and consumerist solutions are now winning favor This Article examines the legal condition of the patient-as-consumer in today's health-care market. It finds that insurers bargain with some success for rates for the people they insure. The uninsured, however, must contract to pay whatever a provider charges and then are regularly charged prices that are several times insurers'pricesa nd providers' actual costs. Perhaps because they do not understand the healthcare market, courts generally enforce these …

"Insuring" Quality: Restrictions On Legislative Control Of Partner Benefits At Kentucky's Public Universities, Jacinta Feldman Manning

Kentucky Law Journal

No abstract provided.

Risk Governance And Deliberative Democracy In Health Care, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

I argue in this article that the concept of risk-centered governance is the best theoretical paradigm for understanding health law and the health care system. Over the past 20 years, an insurance-inflected discourse has migrated from the purely financial side of the health system into the heart of traditional medicine - the doctor-patient relationship. Rather than focus on doctrinal strands, I argue that scholars should analyze the law of health care as a set of governance practices organized around managing and allocating financial, as well as clinical, risk.

Over the same period, the body of law that structures most private …