Planet of the insurers: How insurers shape and influence law and impact access to justice

Abstract

Applying a New Legal Realist framework, this chapter uses the insurance field as a pathway for exploring how insurance institutions shape law in formal and informal settings. Consistent with new institutional organizational sociology studies that highlight how organizations influence the meaning of compliance, I show how the insurance field, largely through a lens anchored around risk, filters and mediates what law means through a risk-based logic. I begin by explaining how insurance exerts a regulatory force over its subjects and acts as a form of governance beyond the state. Next, I show how the presence of liability insurance often shapes how civil lawsuits are structured. I then pivot to the criminal justice system where risk assessment and actuarial techniques increasingly are used to categorize criminals with varying degrees of dangerousness. I then show how risk management now permeates and influences how many judges operate in various problem-solving courts. Finally, I reveal the processes and mechanisms through which insurer risk management techniques influence how organizations understand law and compliance. I conclude this chapter by noting that the insurance field’s shaping of law in formal and informal settings can have both positive and negative impacts for achieving access to justice.