Insurance Law Commons^™

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

Faculty Publications By Year

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. …

Insurance Law Principles In An International Context: Compensating Losses Caused By Climate Change, Sara Seck, Craig Brown

Articles, Book Chapters, & Popular Press

This article examines the challenges of paying for loss caused by climate change. It discusses how weather-related harms might become uninsurable by private companies in the future as the adverse effects of climate change increase in severity. Additionally, this article recognizes the difficulty in imposing civil liability on wrongdoers for climate-related harms, and explores options for state-sponsored or state-subsidized insurance. Finally, the authors examine possibilities for an international insurance fund, but eventually conclude that such a fund would unlikely be endorsed at the international level and would not benefit Canadians.

How Insurance Substitutes For Regulation, Omri Ben-Shahar, Kyle D. Logue

Articles

Legal regulation of behavior requires information. Acquiring information about the regulated party's conduct, setting benchmarks by which that conduct is measured, and establishing the correct scale of payoffs for violating or following regulation are costly and require expertise and motivation. Thus, economic theories of rulemaking are often based on the relative information advantages that different regulatory bodies have and how that information can be harnessed to enhance incentives and thereby improve welfare. Government regulators, on average, do not have informational advantages. They are not paid for performance and thus may lack adequate incentives. They are not disciplined by market forces …

A Supreme Court Ruling That's About Way More Than Preemption, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Improving Retirement Savings Options For Employees, James Kwak

Faculty Articles and Papers

Americans do not save enough for retirement. One reason is that our retirement savings accounts — whether employer-sponsored defined-contribution plans such as 401(k) plans or individual retirement accounts — are heavily invested in actively managed mutual funds that siphon off tens of billions of dollars in fees every year yet deliver returns that trail the overall market. Under existing law, as interpreted by the courts, mutual funds may charge high fees to investors, and companies may offer expensive, active funds to their employees. This paper argues that the Employee Retirement Income Security Act should be reinterpreted, in light of basic …

Review, From Industrial To Legal Standardization, 1871-1914: Transnational Insurance Law And The Great San Francisco Earthquake, Sachin Pandya

Faculty Articles and Papers

No abstract provided.

Distinguishing Probability Weighting From Risk Misperceptions In Field Data, Levon Barseghyan, Francesca Molinari, Ted O'Donoghue, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

The paper outlines a strategy for distinguishing rank-dependent probability weighting from systematic risk misperceptions in field data. Our strategy relies on singling out a field environment with two key properties: (i) the objects of choice are money lotteries with more than two outcomes and (ii) the ranking of outcomes differs across lotteries. We first present an abstract model of risky choice that elucidates the identification problem and our strategy. The model has numerous applications, including insurance choices and gambling. We then consider the application of insurance deductible choices and illustrate our strategy using simulated data.

No Small Feat: Who Won The Health Care Case (And Why Did So Many Law Professors Miss The Boat)?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this essay, prepared as the basis for the 2013 Dunwody Distinguished Lecture in Law at the Fredric G. Levin College of Law, University of Florida, I describe five aspects of the Supreme Court’s decision in NFIB v. Sebelius that are sometimes overlooked or misunderstood. (1) The Court held that imposing economic mandates on the people was unconstitutional under the Commerce and Necessary and Proper Clauses; (2) Whether viewed from a formalist or realist perspective, Chief Justice Roberts’ reasoning was the holding in the case; (3) The Court did not uphold the constitutionality of the individual insurance mandate under the …

Surrogacy And Insurance: The Call For Statutory Reform In Ohio, Sasha M. Swoveland

Journal of Law and Health

This Note examines the practice of excluding maternity services for surrogate mothers under insurance plans that cover maternity services. This Note also introduces two different surrogate arrangements and illustrates the different familial situations that may necessitate the use of a surrogate. Part II defines surrogacy and offers a general overview of the surrogacy process. Part III demonstrates that surrogates need insurance for pregnancy related services. It also argues that the exclusion of coverage for surrogates is pregnancy discrimination. Part IV explains why current legal remedies are insufficient to make surrogates whole. Part V analyzes the state of surrogacy examining Ohio …

Health Care Sharing Ministries: Scam Or Solution?, Benjamin Boyd

Journal of Law and Health

Health Care Share Ministries (HCSMs) provide “a health care cost sharing arrangement among persons of similar and sincerely held beliefs.” HCSMs are not-for-profit religious organizations that act as clearinghouses for “those who have medical expenses and those who desire to share the burden of those medical expenses. This Article begins with a survey of the general regulatory landscape for HCSMs. Following that, four key questions about HCSMs structure the rest of this Article. The first question asks, what are HCSMs? To answer that question, this Article examines the basic aspects of the Medi-Share program and the Christian Brotherhood Newsletter. Second, …

County Care: A Step Forward For Adequate Health Insurance For Undocumented Immigrants?, Alisha Howell

Public Interest Law Reporter

No abstract provided.

An Insurance Structure To Encourage Investment In Preventative Health Care, Nicholas Georgakopoulos

University of Michigan Journal of Law Reform

The incentives for investments in Americans' health are poorly aligned. Health insurers are not sufficiently motivated to invest for the long term. The structure of health insurance does not compensate insurers for investments in lasting health, such as measures preventing chronic disease. If an American changes insurers, the new insurer reaps the benefits of the good health the prior insurer's investment produced. This Essay explores insurers' incentives to invest in health, illustrates how those incentives fail, explores possible improvements, and shows that subsequent insurers should have an obligation to compensate the prior insurer for the averted expenses of expected diseases …

Explaining Variation In Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Benjamin Schwarcz

Law & Economics Working Papers

Discrimination in insurance underwriting is regulated at the state level. Surprisingly, there is a great deal of variation across jurisdictions in how and the extent to which risk classification by insurers is limited. Some states expressly permit insurers to consider certain characteristics, while other characteristics are forbidden or limited in various ways. What explains this variation across states? Drawing on a unique, hand-collected data-set consisting of the laws regulating insurer risk classification in all 51 U.S. jurisdictions, this Article argues that much of the variation in state-level regulation of risk classification can in fact be explained by focusing exclusively on …

Essential Health Benefits And The Affordable Care Act: Law And Process, Nicholas Bagley, Helen Levy

Law & Economics Working Papers

Beginning in 2014, the Affordable Care Act (ACA) will require private insurance plans sold in the individual and small-group markets to cover a roster of “essential health benefits.” Precisely which benefits should count as essential, however, was left to the discretion of the Department of Health and Human Services (HHS). The matter was both important and controversial. HHS nonetheless announced its policy on essential health benefits by posting on its website a 13-page bulletin stating that it would allow each state to define essential benefits for itself by choosing a “benchmark” plan modeled on existing plans in the state. On …

Segmented Settlements Are Not The Answer: A Response To Professor Squire’S Article, How Collective Settlements Camouflage The Costs Of Shareholder Lawsuits, Christopher C. French

Faculty Scholarship

In his recent article, Professor Richard Squire offers a provocative theory in which he claims the underlying claimants in shareholder litigation against corporate policyholders are overcompensated due to what he describes as “cramdown” settlements, under which insurers are forced to settle due to the “duty to contribute” that arises under multi-layered directors and officers (“D&O”) insurance programs. He also offers a novel idea regarding how this problem could be fixed by what he refers to as “segmented” settlements in which each insurer and the policyholder would be allowed to settle separately and consider only its own interests in doing so. …

Refashioning The Right Of Publicity: Protecting The Right To Lfse Your Name After Selling A Personal Name Trademark, Francesca M. Montalvo

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Gravitational Force Of Originalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies …

Sex Matters: Considering Gender In Consumer Contracting, Amy J. Schmitz

Cardozo Journal of Equal Rights & Social Justice

We hear about the so-called "War on Women" and persisting salary gaps between men and women in the popular media, but contracts scholars and policymakers rarely discuss gender. Instead, dominant voices in the contracts field often reflect classical and economics-driven theories built on assumptions of gender neutral and economically rational actors. Furthermore, many mistakenly assume that market competition and antidiscrimination legislation address any improper biases in contracting. This Article therefore aims to shed light on gender's importance by distilling data from my own e-survey of Colorado consumers along with others' research regarding gender differences in contract outcomes, interests and behaviors. …

Stemming The Federal Tort Fountain: Why Federal Courts Should Maintain Implied Certification Limitations On Qui Tam Suits Against Nonclaimant Defendants, Dennis O. Vann Jr.

Georgia Law Review

Qui tam suits in the health-care industry increasingly
target pharmaceutical and medical-device manufacturers
rather than the medical providers who directly make
claims to federal health-insurance programs. These suits
commonly argue that the manufacturer induced the
provider to falsely certify compliance with federal and
state antifraud laws, such as the Anti-Kickback Statute.
This Note shows that suits based on such "implied
certification"of adherence to laws should not be permitted
under the Federal False Claims Act unless the
non submitting defendant is first convicted of providing a
kickback. First, this Note analyzes recent amendments to
the Anti-Kickback Statute in the Affordable Care …

California Dreaming: The California Secure Choice Retirement Savings Trust Act, Edward A. Zelinsky

Articles

Half of American workers are not covered by employer-sponsored retirement arrangements. The recently passed California Secure Choice Retirement Savings Trust Act seeks to solve this problem by mandating retirement savings arrangements for California employers, coupled with a public investment vehicle for investing these private retirement savings. The Act is important because of California’s size and status as a trendsetter for other states.

This Article is the first to examine the important legal questions the Act raises under the Internal Revenue Code and ERISA. Contrary to the drafters’ intent, the savings accounts authorized under the Act do not qualify as individual …

Reconciling The Irreconcilable Conflict In Insurance Severability Of Interests Clause Interpretation, Johnny Parker

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.