Insurance Law Commons^™

Rethinking Erisa’S Promise Of Income Security In A World Of 401(K) Plans, Lawrence A. Frolik

Connecticut Insurance Law Journal

This article discusses the evolution of retirement income funds from defined benefit packages to 401(k) and IRA accounts and how the changing dynamic has reshaped the way retirees think about post-retirement income. The article outlines the mechanics of 401(k) accounts and rollover IRAs in the post-retirement period and presents questions about the ability of retirees to successfully address the complex issues relating to investment choices including, what entity they entrust their savings to, the volume and source of distributions, and long-term sufficiency planning. The article suggests that an increase in the use of annuities may help to resolve some of …

The Surprising Equality Of Retirement Time: Evidence From The Health And Retirement Survey, Anthony Bonen, Teresa Ghilarducci

Connecticut Insurance Law Journal

This article discusses the impact changes to the retirement age may have on the distribution of retirement time. The author investigates the length of time men and women are alive between the date of their retirement and their death, finding that the most critical factor in determining length of retirement time is and individual’s socio-economic status. As a result, the author opines that because individuals in lower economic classes tend to die earlier, increasing the retirement age will impact these individuals disproportionally and increase retirement time inequality.

Revenue Sharing In 401(K) Plans: Employers As Monitors?, Dana M. Muir

Connecticut Insurance Law Journal

This article presents a discussion of the use of revenue sharing by mutual funds and 401(k) plan service providers. The author engages in a historical exploration of how revenue sharing has been used in 401(k) plans and highlights how regulators have taken an increased interest in ensuring disclosure of fund monies diverted for revenue sharing purposes. In addition, the article discusses how the current federal regulatory framework for employee benefits has not adapted to the increased use of 401(k) plans. The author challenges how ERISA places the burden of monitoring compensation to service providers on the employers who make the …

Retirement Policies And Related Social Changes In The Lifecycle, Russell K. Osgood

Connecticut Insurance Law Journal

This Essay argues that retirement policies, including retirement income and healthcare sufficiency, should be crafted in light of demographic and lifestyle changes rather than as a means to solve a larger fiscal problem. The author studies work force demographics and life expectancy in the decades following WWII as compared to today and discusses how other nations have attempted to solve the same problems currently facing the United States. As a means of addressing the increasing fiscal demands of paying for retirement, the article proposes an “omnibus” plan that extends the retirement age, introduces “means testing” for certain benefits as well …

Nfl’S Litigation Skates Onto The Ice, Melanie A. Orphanos

Connecticut Insurance Law Journal

This article addresses the insurance implications of the pending concussion litigation between the National Hockey League and its current and former players. The author draws comparisons to similar litigation brought against the National Football League and the NFL's interactions with its insurers to forecast the obstacles the parties in the NHL litigation will face in establishing coverage by the many insurance carriers who have insured the NHL over time. The author identifies obstacles including determining the moment when coverage is “triggered” and whether certain actions by the NHL will preclude coverage and relieve the insurers of their duty to defend …

Reinsurance As Governance: Governmental Risk Management Pools As A Case Study In The Governance Role Played By Reinsurance Institutions, Marcos Antonio Mendoza

Connecticut Insurance Law Journal

Scholars have eloquently detailed the “Insurance as Governance” concept, the potential capacity for reinsurer regulatory influence on insurers, and the many aspects under which these theories may arise. This Article takes the next step in analyzing the complex reinsurer-insurer relationship through empirical research into how carriers are actually influenced by reinsurers, and what effect this has on the parties. As a case study in the governance role played by reinsurance institutions, this Article organizes survey interview responses of senior officials in the governmental entity self-insured risk management pool sector into four distinct discussion areas: (i) how reinsurers influence pools in …

The Harmonization Of European Contract Law: The Case Of Insurance Contracts, Juan Bataller Grau

Connecticut Insurance Law Journal

The harmonization of European Contract Law for consumers and businesses continues to progress; however, without some standardization of the insurance contract, it will be difficult to achieve a true single market. This Article chronicles the European Union’s activities towards this goal, including the role of the Principles of European Insurance Contract Law, which provides a set of model rules for European legislators. The Article also analyzes: (i) the appropriate legal nature of the instrument of European Contract Law; (ii) the scope of that legal instrument (e.g. whether the instrument should cover both cross-border and domestic contracts, and whether it should …

Towards A European Supervisory Authority, Javier Vercher-Moll

Connecticut Insurance Law Journal

Regulation (EU) no. 1094/2010, which established a European Insurance and Occupational Pensions Authority, may involve a major change to the management and supervision of private insurance in Spain and in the European Union. Thus, this Article analyzes the evolution from the original Insurance Committee, which boasted only advisory functions, to this new Authority, which has been given decision-making functions in addition to its advisory ones. The Article concludes by suggesting that in the future, this new Authority will be the sole supervisory body operating in all Member States, demonstrating a progression towards a new conception of supervision and regulation of …

Medical Big Data And Big Data Quality Problems, Sharona Hoffman

Connecticut Insurance Law Journal

Medical big data has generated much excitement in recent years and for good reason. It can be an invaluable resource for researchers in general and insurers in particular. This Article, however, argues that users of medical big data must proceed with caution and recognize the data’s considerable limitations and shortcomings. These include data errors, missing information, lack of standardization, record fragmentation, software problems, and other flaws. This Article analyzes a variety of data quality problems and then formulates recommendations to address these deficiencies, including data audits, workforce and technical solutions, and regulatory approaches.

Fortuity Victims And The Compensation Gap: Re-Envisioning Liability Insurance Coverage For Intentional And Criminal Conduct, Erik S. Knutsen

Connecticut Insurance Law Journal

Insurance is based on the notion that only uncertain, or fortuitous, losses are insurable. There are systemic problems, however, with the consistency in which fortuity clauses are applied in the liability insurance context. Differing interpretive approaches and litigation distortions include the use of at least three interpretive perspectives and two substantive requirements to interpret the intentional act fortuity clause, and four interpretive perspectives to interpret the criminal act fortuity clause. These problems stem from the tension between the two purposes of liability insurance (wealth protection and victim compensation) coupled with a move from explanatory rhetoric about fortuity to explanatory rhetoric …

"Why Won't My Homeowners Insurance Cover My Loss?": Reassessing Property Insurance Concurrent Causation Coverage Disputes, Peter N. Swisher

Law Faculty Publications

Property insurance coverage disputes can be extremely complex cases when there are multiple concurrent causes in a causal chain of events and when some of these concurrent causes are covered under the policy language but other concurrent causes are excluded from coverage. To complicate matters enormously, there are no fewer than three different judicial approaches attempting to resolve this concurrent causation interpretive conundrum. Over the past two decades, a number of property insurance companies have attempted to address this interpretive problem contractually by inserting so-called anti-concurrent causation clauses into their property insurance policy language. But these anti-concurrent causation clauses have …

Book Review: Lawless Capitalism: The Subprime Crisis And The Case For An Economic Rule Of Law, William K. Black

Faculty Works

No abstract provided.

Report: The Need To Renew Tria Aba Tips Task Force On Federal Involvement In Insurance Regulation Modernization, Jeffrey E. Thomas

Faculty Works

This Report support’s the position by the ABA TIPS Task Force on Federal Involvement in Insurance Regulation Modernization that the Terrorism Risk Insurance Act (TRIA) should be renewed. Although the market for terrorism insurance has developed with the support of TRIA, the fundamental nature of terrorism risk has not changed and continues to require the Federal backstop. Because of the unpredictability of terrorism risk, without a Federal backstop many insurers will withdraw from the terrorism market, the price of terrorism insurance will rise and take-up rates will fall. Other countries facing terrorism risk, in some cases substantially less risk than …

Fiscal Federalism As Risk-Sharing: The Insurance Role Of Redistributive Taxation, John R. Brooks

Georgetown Law Faculty Publications and Other Works

In addition to funding government and redistributing income, a redistributive tax-and-transfer system, and a progressive income tax in particular, provides insurance against the risk of uncertain future income. By providing for high taxes for high incomes, and low taxes, exemptions, and transfers for low incomes, a progressive income tax lowers the volatility of potential after-tax income relative to a lump-sum tax. This insurance function is distinct from the redistributive function of the system, since it provides a direct risk-mitigation benefit to the taxpayer himself, rather than simply redistributing income from one taxpayer to another.

This article analyzes the question of …

Strict Products Liability At 50: Four Histories, Kyle Graham

Marquette Law Review

This Article offers four different perspectives on the strict products- liability “revolution” of a half-century ago. One of these narratives relates the predominant assessment of how this movement coalesced and spread across the states. The three alternative histories introduced by this Article view the shift toward strict products liability through populist, practical, and contingent lenses, respectively. The first of these narratives considers the contributions that plaintiffs and their counsel made toward this change in the law. The second focuses upon how a formerly common, but now moribund, type of products-liability lawsuit framed the argument for strict liability as a superior …

Reforming Consumer-Insurer Dispute Resolution In The Auto Insurance Industry, Cassandra Roeder

Student Award Winning Papers

No abstract provided.

From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy L. Meyer

Scholarly Works

The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism’s retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states — often rising or reluctant powers such as China and the United States — without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the …

None Of The Laws But One, Neil S. Siegel

Faculty Scholarship

This Symposium contribution explores differences in how congressional Republicans responded to Medicare and how they responded to the Patient Protection and Affordable Care Act (ACA). Given the narrowness of the constitutional challenges to the ACA that congressional Republicans promoted and the many federal taxes, expenditures, and regulations that they support, this Article rejects the suggestion that today's Republicans in Congress generally possess a narrow view of the constitutional scope of federal power. The Article instead argues that congressional Republicans then and now-and the two parties in Congress today-fracture less over the constitutional expanse of congressional authority and more over the …

Nondiscrimination In Insurance: The Next Chapter, Mary L. Heen

Georgia Law Review

For nearly 150 years, American insurance companies have engaged in race and gender pricing practices that would be illegal if followed today by any other major commercial enterprise. The insurance industry has defended its long-standing practices, first for race and now for gender, based on ideas about insurance "equity" developed in the nineteenth century. The continued application of these ideas, and the practices that have resulted from them, conflict with fundamental civil rights principles and should not be tolerated as exceptions to our national civil rights laws. As that history shows, classifications used by insurers to determine rates and benefits …

Measuring The Transplantation Of English Commercial Law In A Small Jurisdiction: An Empirical Study Of Singapore’S Insurance Judgments Between 1965 And 2012, Christopher Chen

Research Collection Yong Pung How School Of Law

This article seeks to measure the development of law after transplanting common law and statutes from another country by conducting an empirical study of the citation of precedents and demography of disputes of insurance cases in Singapore. This article recognizes that there are justifications for Singapore to transplant English insurance law. However, this research shows that the transplantation of English commercial law into a small jurisdiction, even within the common law family, may cause the law to be in a static state if courts do not have enough cases to maintain the development of law or to consider new development …

Success And Failure In Adr: A Dialogue Between Partners, Lela P. Love, Joseph B. Stulberg

Articles

Love and Stulberg critically discuss policy, scholarly, and practice developments in four areas of program development in the area historically referenced as alternative dispute resolution (ADR): the range of process options; the impact of court procedures on ADR program development and practice; the nature of ADR scholarship and training; and the general public's receptiveness to or rejection of the normative principles that structure ADR collaborative processes. Their concluding remarks suggest that the promise of ADR, particularly of the mediation process, remains inspiring to many, even if its effective implementation remains uneven.

Why The Buffett-Gates Giving Pledge Requires Limitation Of The Estate Tax Charitable Deduction, Edward A. Zelinsky

Articles

The Buffett-Gates Giving Pledge, under which wealthy individuals promise to leave a majority of their assets to charity, is an admirable effort to encourage philanthropy. However, the Pledge requires us to confront the paradox that the federal estate tax charitable deduction is unlimited while the federal income tax charitable deduction is capped. If a Giving Pledger leaves his wealth to charity, the federal fisc loses significant revenue since the Pledger thereby avoids federal estate taxation as charitable bequests are deductible without limit for federal estate tax purposes. Despite its laudable qualities, the Giving Pledge is a systematic (albeit inadvertent) threat …

Employer-Based Health Care Insurance: Not So Exceptional After All, David Orentlicher

Scholarly Works

No abstract provided.

Mandatory Rules And Default Rules In Insurance Contracts, Tom Baker, Kyle D. Logue

Law & Economics Working Papers

The economic analysis of contract law can organized around two general questions: (1) what are the efficient or welfare-maximizing substantive rules of contract law; and (2) once those rules have been identified, when if ever should they be made mandatory and when should they be merely “default rules” that the parties can contract around if they wish? Much of contract theory over the past twenty years has been devoted to developing answers to those two questions. The same two questions can be posed with respect to the rules of insurance law. Although previous scholars have examined particular substantive doctrines of …

Insurance, Dean A. Calloway

Mercer Law Review

This survey period, from June 1, 2012 through May 31, 2013, proved eventful. Over the past year, state and federal courts in Georgia had occasion to interpret key provisions of Georgia's Insurance Code, address novel issues of first impression, and resolve disputes with significant policy implications for Georgia's insurance industry.

The following are among the more notable developments: (1) the Georgia Supreme Court formally extended application of the rule in State Farm Mutual Automobile Insurance Co. v. Mabry (the Mabry rule), which is the requirement that an insurer compensate an insured for his vehicle's diminished value resulting from an automobile …

The Undersigned Attorney Hereby Certifies -- The Washington Supreme Court Rule On Standards And Its Implications, Justice Sheryl Gordon Mccloud, Justice Susan Owens, Marc Boman, Joanne Moore

Seattle Journal for Social Justice

No abstract provided.

G Forces: Gideon V. Wainwright And Matthew Adler's Move Beyond Cost-Benefit Analysis, Janet Moore

Seattle Journal for Social Justice

No abstract provided.

Dark Medicine: How The National Research Act Has Failed To Address Racist Practices In Biomedical Experiments Targeting The African-American Community, Anietie Maureen-Ann Akpan

Seattle Journal for Social Justice

No abstract provided.

Do We Have It Right This Time? An Analysis Of The Accomplishments And Shortcomings Of Washington's Indian Child Welfare Act, Karen Gray Young

Seattle Journal for Social Justice

No abstract provided.

Securing Food Justice, Sovereignty & Sustainability In The Face Of The Food Safety Modernization Act (Fsma), Eve Kerber

Seattle Journal for Social Justice

No abstract provided.