Insurance Law Commons^™

The Patient Life: Can Consumers Direct Health Care?, Carl E. Schneider, Mark A. Hall

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The ultimate aim of health care policy is good care at good prices. Managed care failed to achieve this goal through influencing providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy now pressure patients to spend their own money when they select health plans, providers, and treatments. Expecting patients to choose what they need at the price they want, consumerists believe that market competition will constrain costs while optimizing quality. This classic form of consumerism is today's health policy watchword. This article evaluates consumerism and the regulatory mechanism …

(Debate) Medicare: Did The Devil Make Us Do It?, D. A. Hyman, Jill R. Horwitz

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In this lively and creative debate, Professors David Hyman and Jill Horwitz argue about the virtues and vices of the federal Medicare program. As some predict a bleak future for the American’s government’s ability (or inability) to continue paying for Medicare as the population ages, this debate shows that there is genuine disagreement about the severity of the problem. In his Opening Statement, Professor Hyman offers a satirical letter to the Devil from one of his demonic servants, describes the Medicare program through the lens of the seven deadly sins. Arguing that Medicare’s faults are represented in each sin, the …

"Acoustic Segregation" And The Hispanic Small Business Owner, Patricia S. Abril

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No abstract provided.

The Health Care Choice Act: The Individual Insurance Market And The Politics Of "Choice", Elizabeth Pendo

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The Health Care Choice Act of 2005 (HCCA) aims to reform perceived problems in the individual market, and is touted as part of the solution to the problem of the uninsured. It purports to allow individuals who are not eligible for or cannot afford group coverage to purchase an individual policy in and from any state. If passed, the HCCA would allow health insurers to offer individual policies of insurance from any state without being required to comply with the laws of the insured's own state. Its proponents claim that it would lower the cost of individual health insurance by …

Tax Law Uncertainty And The Role Of Tax Insurance, Kyle D. Logue

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In the broadest sense, this is an article about legal or regulatory uncertainty and the role that private and public insurance can play in managing it. More narrowly, the article is about tax law enforcement and the familiar if ill-defined distinctions between tax evasion, tax avoidance, and abusive tax avoidance. Most specifically, the article is about a new type of tax risk insurance policy, sometimes called tax indemnity insurance or transactional tax risk insurance that provides coverage against the risk that the Internal Revenue Service (Service) will disallow a taxpayer-insured's tax treatment of a particular transaction. The question is whether …

Coverage Of Reproductive Technologies Under Employer-Sponsored Health Care Plans, Elizabeth Pendo

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The federal courts have issued two important decisions regarding non-discriminatory insurance coverage of conditions and treatments associated with sex, disability or both, such as prescription contraception and infertility treatment. Cases like Erickson and Saks are important because, as ERISA scholars know, state law mandates regarding coverage are unlikely to lead to uniform results due to the structure of ERISA's preemption provisions, and none of the federal proposals addressing infertility treatment or prescription contraception have been enacted to date.

What I would like to do is outline the impact of ERISA in this area, and offer some thoughts on one of …

Telling Stories About Health Insurance: Using New Films In The Classroom, Elizabeth Pendo

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In keeping with the theme of "The Mass Media's Influence on Health Law and Policy," this essay is designed to share my experience using clips from three recent popular films as a method of enhancing coverage and discussion of legal and policy issues surrounding the private health insurance system, and to provide some practical advice for others interested in doing the same. It builds upon a presentation that I gave along with Professors Timothy S. Hall and Ross D. Silverman at the 2004 Health Law Teachers Conference entitled "Health Law, Policy and Media," and was inspired by Professor Paul Bergman's …

The Politics Of Infertility: Recognizing Coverage Exclusions As Discrimination, Elizabeth Pendo

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Infertility affects approximately ten percent of the reproductive-age population in the United States, and strikes people of every race, ethnicity and socio-economic level. It is recognized by the medical community as a disease, one with devastating physical, psychological, and financial effects. Nonetheless, comprehensive coverage of infertility treatments under employer-sponsored plans - where, like Jane, most Americans get health insurance - appears to be the exception rather than the rule. Can Jane sue for disability discrimination, sex discrimination, or both? While the answer - "it depends" - should not be surprising to anyone who has survived even a semester of law …

Images Of Health Insurance In Popular Film: The Dissolving Critique, Elizabeth Pendo

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Several recent films have villainized the health insurance industry as central elements of their plots. This Article examines three of those films: Critical Care, The Rainmaker, and John Q. It analyzes these films through the context of the consumer backlash against managed care that began in the 1990s and shows how these films reflect the consumer sentiment regarding health insurance companies and the cost controlling strategies they employ. In addition, the Article identifies three key premises about health insurance in the films that, although exaggerated and incomplete, have significant factual support. Ultimately, the author argues that, despite their passionately critical …

Redistributing Optimally: Of Tax Rules, Legal Rules, And Insurance, Kyle D. Logue, Ronen Avraham

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From the beginning of the law and economics movement, normative legal economists have focused almost exclusively on evaluating the efficiency of alternative legal rules. The distributional consequences of legal rules, therefore, have largely been ignored. It is tempting to conclude that legal economists are hostile or indifferent to concerns of distributional fairness. In fact, however, the discipline of economics has a great deal to say about distributional policy. The normative branch of economics, known as welfare economics, has always been deeply concerned with distributional issues. It is not that welfare economists purport to know a priori the "right" or "optimal" …

Insuring Against Terrorism -- And Crime, Saul Levmore, Kyle D. Logue

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The attacks of September 11th produced staggering losses of life and property. They also brought forth substantial private-insurance payouts, as well as federal relief for the City of New York and for the families of individuals who perished on that day. The losses suffered during and after the attacks, and the structure of the relief effort, have raised questions about the availability of insurance against terrorism, the role of government in providing for, subsidizing, or ensuring the presence of such insurance, as well as the interaction between relief and the incentives for taking precautions against similar losses in the future. …

The Genie And The Bottle: Collateral Sources Under The September 11th Victim Compensation Fund, Kenneth S. Abraham, Kyle D. Logue

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The September 11th Victim Compensation Fund of 2001 (the Fund) was part of legislation enacted just eleven days after the terrorist attacks of September 11th in the wake of extraordinary national loss. It is possible, therefore, that the Fund will always be considered an urgent and unique response to the unprecedented events of September 11th. On that view, the character of the Fund will have little longterm policy significance. It is equally possible, however, that the enactment of the Fund will prove to be a seminal moment in the history of tort and compensation law. The Fund adopts a new …

The Current Life Insurance Crisis: How The Law Should Respond, Kyle D. Logue

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This article explores some of the issues raised by the new evidence of underinsurance. Part I explores the initial theoretical question: why do people buy life insurance? Put differently, what function does life insurance serve? Part II provides some background on the life insurance market as it currently exists. Thus, Part II summarizes the major types of life insurance that are currently offered and summarizes the main elements of the current regulatory regime for life insurance companies. Part III then provides support for the claim that households tend to drastically underconsume life insurance. Section A of that Part summarizes the …

The Earmarking Defense To Voidable Preference Liability: A Reconceptualization, William H. Widen, David Gray Carlson

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No abstract provided.

Tax Consequences Of Assigning Life Insurance - Time For Another Look, Douglas A. Kahn, Lawrence W. Waggoner

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The Taxpayer Relief Act of 1997 furnishes the courts and the Internal Revenue Service an opportunity to close certain loopholes in the federal tax consequences of assigning life insurance. About twenty years ago, we published an article arguing that the tax consequences of assigning life insurance affords taxpayers unwarranted opportunities for tax avoidance. Since then, developments in the case law and Internal Revenue Service rulings have broadened the loopholes. In the update of our article, we show how the new tax law supports our original position.

Voidable Preferences And Proceeds: A Reconceptualization, David G. Carlson

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The article examines the complexities surrounding voidable preferences and proceeds in bankruptcy law, particularly when a secured creditor holds a floating lien on a debtor's assets. It argues that payments made by the debtor to unsecured creditors using encumbered funds can be recovered by the bankruptcy trustee as voidable preferences, provided the creditor cannot trace the funds back to their trust property. The analysis critiques existing case law and proposes that the voidable preference right is never part of the debtor's estate, instead being held by the trustee. The article also challenges the notion that good faith purchasers should retain …

Russia, Joel H. Samuels

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No abstract provided.

Toward A Tax-Based Explanation Of The Liability Insurance Crisis, Kyle D. Logue

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The so-called liability insurance crisis of 1985 and 1986 transformed the way we think about tort law and about liability insurance markets. The crisis phenomena, which first appeared in late 1984 and lasted until mid-1986, consisted of enormous increases in liability insurance premiums and alarming reductions in the availability of certain types of liability coverage. In the two principal liability lines of insurance (Other Liability and Medical Malpractice), premiums increased by hundreds (in some cases thousands) of percentage points in a matter of months. At the same time, the availability of liability insurance contracted sharply. The liability policies that were …

Faculty Spotlight - Kyle D. Logue, Kyle D. Logue

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Most of my teaching and research efforts are currently spent in two general fields of law - taxation and insurance. Which raises an interesting question: Why would a rational person decide to devote a good portion of his academic career to areas of law that many people - lawyers and nonlawyers alike - find painfully boring and unreasonably complicated? The ta and insurance lawyers in the audience, of course, already know the answer - that ta ation and insuran e are e ceptionally interesting topics and that, if one wants to understand how the real world works (in particular, the …

Solving The Judgment-Proof Problem, Kyle D. Logue

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A tortfeasor who cannot fully pay for the harms that it causes is said to be "judgment proof." Commentators have long recognized that the existence of judgment-proof tortfeasors seriously undermines the deterrence and insurance goals of tort law. The deterrence goal is undermined because, irrespective of the liability rule, judgment-proof tortfeasors will not fully internalize the costs of the accidents they cause. The insurance goal will be undermined to the extent that the judgment-proof tortfeasor will not be able to compensate fully its victims and that first-party insurance markets do not provide an adequate response. Liability insurance can ameliorate these …

Qualified Plans And Identifying Tax Expenditures: A Rejoinder To Professor Stein, Edward A. Zelinsky

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No abstract provided.

The First-Party Insurance Externality: An Economic Justification For Enterprise Liability, Jon D. Hanson, Kyle D. Logue

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This Article explores the insurance and deterrence implications of important and long overlooked facts. Consumers are insured through first-party mechanisms against most of the risks of product accidents. However, first-party insurers rarely and imperfectly adjust premiums according to an individual consumer's decisions concerning exactly what products she will purchase, how many of those products she will purchase, and how carefully she will consume them. Such consumer decisions we refer to as "consumption choices. " This failure by first-party insurers to adjust premiums according to consumption choices gives rise to a first-party insurance externality. Based on this insight, this Article offers …

Future Nonadvance Obligations Under Article 9 Of The Ucc: Legitimate Priority Or Unwarranted Squeeze-Out?, Jeanne L. Schroeder, David G. Carlson

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The article critiques the Second Circuit's decision in Dick Warner Cargo Handling Corp. v. Aetna Business Credit, Inc., arguing that it unfairly prioritizes revolving credit financiers over lien creditors by reviving the unitary theory of security interests under Article 9 of the UCC. The authors defend the multiple theory, asserting that security interests for advances and nonadvance obligations should be treated separately, and that the court's ruling undermines the balance intended by the 1972 UCC amendments.

Insurance, Pensions And The Internal Revenue Code: An Analysis, Edward A. Zelinsky

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No abstract provided.

Federal Taxation Of The Assignment Of Life Insurance, Douglas A. Kahn, Lawrence W. Waggoner

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The most litigated estate tax issue concerning life insurance is whether the proceeds should be included in the insured's gross estate. This question usually is governed by section 2042 of the Internal Revenue Code of 1954, the estate tax provision directed specifically at life insurance. While the Tax Reform Act of 1976 wrought enormous changes in many areas of estate taxation, Congress did not change section 2042. Thus the several unresolved questions concerning the interpretation of that section remain unsettled. But the question of the includability of life insurance proceeds in the gross estate of the insured is not always …

Recovery Of Life Insurance When Insured Died In Military Service, Ralph W. Aigler

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A group of very recent cases, representative no doubt of many others pending, involve an interesting and important question as to the construction of military and naval service clauses in life insurance policies. These clauses which have been common in policies, at least in those issued in the last few years, while varying in wording-and these variations may be vitally important,-provide in general that if the insured meets death while engaged in military or naval service the liability of the insurer shall be limited to the premiums paid, unless permission to engage in such service shall have been obtained from …

Insurance Policies As Assets In Bankruptcy, Evans Holbrook

Articles

The Supreme Court of the United States, in the recent case of Cohen v. Samuels, 38 Sup. Ct. 36, has put an end to a method, approved by some of the lower Federal Courts, whereby a person could create a fund which would be completely under his control but which would nevertheless be protected against any claim on the part of his trustee in bankruptcy. The circumstances in the principal case were as follows: Samuels had taken out ordinary life insurance policies, with the usual provisions as to loan and surrender values, payable to certain of his relatives as beneficiaries, …

Lake Superior Mining Co. V. Catharine Erickson, Thomas M. Cooley

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"Where a mining company let a contract for taking out a certain quantity of ore, but employed persons of supposed skill to watch for dangers from loosened rocks, and in other ways retained a control over the mode of mining, and a servant of the contractors was killed by the falling of a rock, the danger from which ought to have been detected and guarded against: Held, that the mining company was responsible."