Insurance Law Commons^™

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Panelist, Who Will Pay: The Public & Private Insurance Implications Of Climate Change's Drastic Challenges, Patricia Mccoy

Patricia A. McCoy

Case Comment: Smyth V. Szep Unsettling Settlements: Of Unconscionability And Other Things, David Vaver

David Vaver

The recent decision of the British Columbia Court of Appeal in Smyth v. Szep once again canvasses the validity of releases signed by injured victims in favour of insurance companies and once again plunges into the murky waters of contractual unconscionability. Both issues have become more or less permanent squatters on judicial calendars throughout North America, and it seems worthwhile to consider why this is so and whether something can be done to reduce their tenure at least in Canada.

Predicting The Fallout From King V. Burwell - Exchanges And The Aca, Nicholas Bagley, David K. Jones, Timothy Stoltzfus Jost

Timothy S. Jost

The U.S. Supreme Court's surprise announcement on November 7 that it would hear King v. Burwell struck fear in the hearts of supporters of the Affordable Cara Act (ACA). At stake is the legality of an Internal Revenue Service (IRS) rule extending tax credits to the 4.5 million people who bought their health plans in the 34 states that declined to establish their own health insurance exchanges under the ACA. The case hinges on enigmatic statutory language that seems to link the amount of tax credits to a health plan purchased "through an Exchange established by the State." According to …

Catastrophic Risk And Governance After Hurricane Katrina: A Postscript To Terrorism Risk In A Post-9/11 Economy, Robert J. Rhee

Robert Rhee

This essay inquires into the political economy and system of governance that have made catastrophes more frequent and severe. The system of governance that is designed to mitigate risk and respond to catastrophes can be ineffective, or worse, increase the risk of harm through unintended consequences. Human influence must be considered a source of collateral risk, the kind that leads to a systemic crisis or exacerbates one. This essay concludes with some brief proposals, discussion topics more than completed ideas, which may facilitate further academic and political dialogue on effective governance and public risk management. They include a catastrophe tax, …

The Aca, Provider Mergers And Hospital Pricing: Experimenting With Smart, Lower-Cost Health Insurance Options, Susan A. Channick

Susan A. Channick

This paper addresses the issue of whether the recent significant uptick in provider mergers and the implementation of the Affordable Care Act have a particularly adverse effect on provider pricing in the commercial insurance market. Uncompetitive provider markets exacerbate already existing high cost issues such as lack of transparency in provider pricing, patient behavior that conflates reputation and quality, and payers’ inability, or at least reluctance, to exclude high-price providers from their networks. The ACA’s incentives for providers to coordinate patient care and hospitals’ revenue losses from reductions in Medicare reimbursement create further rationales for consolidation. The burden of finding …

Climate Change, Catastrophe Risk And Government Responsibilities, Qihao He

Qihao He

Due to climate change and an increasing concentration of the world’s population in vulnerable areas, how to manage catastrophe risk efficiently and cover disaster losses fairly is still a universal dilemma. Under the current political-economy configuration of “socialism with Chinese characteristics”, China’s mechanism for managing catastrophic disaster risk demands for the participation of private insurance. This article starts a broader discussion about government responsibilities for developing catastrophe insurance in China and may provide insights for other transitional nations. I propose a catastrophe insurance market-enhancing framework which marries the merits of both market and government to manage catastrophe risks. There are …

The Macroprudential Turn: From Institutional 'Safety And Soundness' To Systematic 'Financial Stability' In Financial Supervision, Robert C. Hockett

Robert C. Hockett

Since the global financial dramas of 2008-09, authorities on financial regulation have come increasingly to counsel the inclusion of macroprudential policy instruments in the standard ‘toolkit’ of finance-regulatory measures employed by financial supervisors. The hallmark of this perspective is its focus not simply on the safety and soundness of individual financial institutions, as is characteristic of the traditional ‘microprudential’ perspective, but also on certain structural features of financial systems that can imperil such systems as wholes. Systemic ‘financial stability’ thus comes to supplement, though not to supplant, institutional ‘safety and soundness’ as a regulatory desideratum. The move from primarily micro- …

What's Half A Lung Worth? Civil Jurors' Accounts Of Their Award Decision Making, Nicole L. Mott, Valerie P. Hans, Lindsay Simpson

Valerie P. Hans

Jury awards are often criticized as being arbitrary and excessive. This paper speaks to that controversy, reporting data from interviews with civil jurors' accounts of the strategies that juries use and the factors that they consider in arriving at a collective award. Jurors reported difficulty in deciding on awards, describing it as "the hardest part" of jury service and were surprised the court did not provide more guidance to them. Relatively few jurors entered the jury deliberation room with a specified award figure in mind. Once in the deliberation room, however, they reported discussing a variety of relevant factors such …

Inside The Black Box: Comment On Diamond And Vidmar, Valerie P. Hans

Valerie P. Hans

It is an honor to be invited to comment on the first publication of the Arizona Jury Project, a study of Arizona juries that includes videotaping and analysis of jury room discussions and deliberations. It is a remarkable and unique project, made possible by an unusual confluence of people, places, and events. In an insightful opinion some years ago, United States Supreme Court Justice Louis Brandeis observed that "[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments …

Whipped By Whiplash? The Challenges Of Jury Communication In Lawsuits Involving Connective Tissue Injury, Valerie P. Hans, Nicole Vadino

Valerie P. Hans

No abstract provided.

Dixon V. Providential Life Insurance, James Seckinger

James H. Seckinger

No abstract provided.

Dixon V. Providential Life Insurance Co.: Technology Case File, James Seckinger, Frank Rothschild, Edward Stein

James H. Seckinger

No abstract provided.

Dixon V. Providential Life Insurance Co.: Case File, James Seckinger, Edward Stein

James H. Seckinger

No abstract provided.

Amicus Brief Of Scholars Of Insurance Regulation In Metlife V. Fsoc

Patricia A. McCoy

This Amicus Brief of Scholars of Insurance Regulation involves MetLife's challenge to the Financial Stability Oversight Council’s ("FSOC") determination that material financial distress at the company could pose a threat to U.S. financial stability. The brief focuses on one central element of MetLife’s challenge -- that FSOC failed to adequately consider the strength of the state insurance regulatory system in designating MetLife as a systemically significant nonbank financial company. The amicus brief argues that FSOC’s designation of MetLife fairly accounts for state insurance regulation’s focus on protecting policyholders rather than mitigating systemic risk. It argues that advancing these two regulatory …

Compensation Of The Driver As A Motor Accident Victim In Cameroon: A Critical Appraisal Of The Cima Code, Abue Ako Scott Eke

abue ako scott eke Mr.

In Cameroon, the law that governs the compensation of motor accident victims is the CIMA Code. This law fully recognizes the driver as being a victim that is liable to compensation in case he suffers from a motor accident. Equally at the same time, the law has put in place special modalities which the driver must fulfill in order to receive complete or partial compensation. This is particularly important because the same law provides for a different regime of compensation when it comes to the case of victims non-driver. A driver could therefore be described as a victim sui generis. …

Insuring Floods: The Most Common And Devastating Natural Catastrophies In America, Christopher French

Christopher C. French

“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Michael C. Dorf, Neil S. Siegel

Michael C. Dorf

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States reaches the merits of the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has mostly turned on the fraught and complex question of whether the ACA’s exaction for being …

The Family Llc: A New Approach To Insuring Dynastic Wealth, Evan M. Purcell

Evan M Purcell

No abstract provided.

Duty In The Litigation-Investment Agreement: The Choice Between Tort And Contract Norms When The Deal Breaks Down, Anthony J. Sebok, W. Bradley Wendel

W. Bradley Wendel

Litigation investment, which is also known as “litigation finance” or “third party litigation finance,” has grown in importance in many common law and civilian legal systems and has come to the United States as well. While many questions remain about both legality and social desirability of litigation finance, this paper starts with the assumption that the practice will become widespread in the US and explores the obligations of the parties to the litigation finance contract. The first part of the article uses an example to illustrate the risks imposed by one of the other party on the other which should …

Developing A Durable Right To Health Care, Erin C. Fuse Brown

Erin C. Fuse Brown

The Patient Protection and Affordable Care Act’s (ACA) signature accomplishment was the creation of a statutory right to health care for the uninsured. This is a momentous change in policy, addressing one of the most vexing social issues of our time and affecting millions of people and billions of dollars of the U.S. economy. This ambition and the degree of societal and political debate leading up to the Act’s passage suggests that it is a “superstatute,” a rare breed of statute that can, among other things, create rights and institutions more typically thought to be the province of constitutional undertaking. …

El Deslizamiento Del Salario Mínimo ¿Un Subsidio A La Oferta?, Fernando Castillo Cadena

Fernando Castillo Cadena

No abstract provided.

Studying Is Dangerous? Possible Federal Remedies For Study Abroad Liability, Robert J. Aalberts, Chad G. Marzen, Darren A. Prum

Chad G. Marzen

Every year, thousands of U.S. students study abroad for academic credit. Study abroad programs have traditionally garnered strong congressional support, and proponents of the programs emphasize the educational, cultural, and diplomatic benefits from study abroad experiences.

Despite the many benefits of study abroad programs, risks are incurred overseas. In the past several years, a number of incidents have resulted in which students studying abroad have not only incurred physical harm, but in some instances have died while enrolled in a study abroad program. The current liability standards governing study abroad programs are murky. This article not only discusses the various …

The Personal Liability Of Insurance Claims Adjusters For Insurance Bad Faith, Chad G. Marzen

Chad G. Marzen

One of the currents of change sweeping through the insurance industry is the rise of insurance bad faith liability. There is an emerging legal question today as to whether the individual employee adjusters of insurance companies can be subject to bad faith liability.This article examines the question of whether employee-adjusters of insurance companies can and should be held liable for insurance bad faith liability. Early reported cases involving personal liability for bad faith generally held that insurance company employee adjusters were immune from bad faith claims as they were not in privity of contract with insureds. However, three significant decisions …

Environmental Law's Heartland And Frontiers, Todd Aagaard

Todd S Aagaard

The locus of innovation moving forward is likely to be outside of the traditional domain of environmental law — in areas that are at the frontiers of environmental law, but in the heart of related fields such as energy law, corporate social responsibility, and insurance. At the same time, environmental law’s heartland will continue to dominate the regulation of environmental harms for the foreseeable future. The future of environmental law therefore will be determined by a dialectic relationship between the heartland and frontiers of environmental law; each playing its own crucial role in the development of the field, in tension …

The Uneasy Case For Food Safety Liability Insurance, John Aloysius Cogan Jr.

John Aloysius Cogan Jr.

Systemic Risk Oversight And The Shifting Balance Of State And Federal Authority Over Insurance

Patricia A. McCoy

King V. Burwell And The Rise Of The Administrative State, Ronald D. Rotunda

Ronald D. Rotunda

The Patient Protection and Affordable Care Act (ACA) is a complex law totaling nearly a thousand pages in length. The litigation now before the Supreme Court in King v. Burwell presents, on the surface, a simple issue of statutory interpretation. However, that surface has a very thin veneer. If the Court allows administrators carte blanche to change the very words of a statute, we will have come a long way towards governance by bureaucrats. Over the years, Congress has delegated many of its powers, but it has never delegated the power to raise taxes or spend tax subsidies in ways …

Climate Change And Federal Crop Insurance, Chad G. Marzen, Grant Ballard

Chad G. Marzen

The Role Of The Profit Imperative In Risk Management, Christopher French

Christopher C. French