How Private Insurers Regulate Public Police

IF 3.5 2区 社会学 Q1 LAW Harvard Law Review Pub Date : 2016-02-15 DOI:10.2139/SSRN.2733783
John Rappaport
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引用次数: 28

Abstract

A string of deadly police-citizen encounters, made public on an unprecedented scale, has thrust American policing into the crucible of political conflict. New social movements have taken to the streets, while legislators have introduced a wide array of reform proposals. Optimism is elusive, though, as the police are notoriously difficult to change. One powerful policy lever, however, has been overlooked: police liability insurance. Based on primary sources new to legal literature and interviews with nearly thirty insurance industry representatives, civil rights litigators, municipal attorneys, and consultants, this Article shows how liability insurers are capable of effecting meaningful change within the agencies they insure — a majority of police agencies nationwide. The Article is the first to describe and assess the contemporary market for liability insurance in the policing context; in particular, the effects of insurance on police behavior. While not ignoring the familiar (and potentially serious) problem of moral hazard, the Article focuses on the ways in which insurers perform a traditionally governmental “regulatory” role as they work to manage risk. Insurers get police agencies to adopt or amend written departmental policies on subjects like the use of force and strip searches, to change the way they train their officers, and even to fire problem officers, from the beat up to the chief. One implication of these findings is that the state might regulate the police by regulating insurers. In this spirit, the Article considers several unconventional legal reforms that could reduce police misconduct, including a mandate that all municipalities purchase insurance coverage, a ban on “first-dollar” (no-deductible) policies that may reduce municipal care, and a requirement that small municipalities pool their risks and resources before buying insurance on the commercial market. At bottom, the Article establishes that liability insurance has profound significance to any comprehensive program of police reform. The Article also makes three important theoretical contributions to legal scholarship. First, it inverts the ordinary model of governance as public regulation of private action, observing that here, private insurers regulate public police. Second, it illustrates how insurers not only enforce the Constitution, but also construct its meaning. Among other things, in the hands of insurers, liability for constitutional violations and other police misconduct becomes “loss” to the police agency, which must be “controlled.” Perhaps surprisingly, by denaturing the law in this way and stripping it of its moral valence, insurers may actually advance the law’s aims. Finally, the Article helps to pry open the black box of deterrence. In fact, given widespread indemnification of both individual and entity liability for constitutional torts committed by police, an understanding of how insurers manage police risk is essential to any persuasive theory of civil deterrence of police misconduct.
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私营保险公司如何监管公共警察
一系列警察与公民之间的致命冲突,以前所未有的规模被公开,将美国警察推入了政治冲突的熔炉。新的社会运动已经走上街头,而立法者则提出了一系列广泛的改革建议。然而乐观是难以捉摸的,因为警察是出了名的难以改变。然而,一个强有力的政策杠杆却被忽视了:警察责任保险。本文基于法律文献的第一手资料和对近30位保险业代表、民权诉讼律师、市政律师和顾问的采访,展示了责任保险公司如何能够在其承保的机构(全国大多数警察机构)内实现有意义的变革。本文首次对警务背景下的当代责任保险市场进行了描述和评估;特别是保险对警察行为的影响。虽然没有忽视熟悉的(潜在严重的)道德风险问题,但文章重点关注保险公司在管理风险时扮演传统政府“监管”角色的方式。保险公司要求警察机构采纳或修改有关使用武力和脱衣搜查等问题的书面部门政策,改变他们培训警官的方式,甚至解雇问题警官,从殴打到局长。这些发现的一个暗示是,国家可能通过监管保险公司来监管警察。本着这一精神,本文考虑了几项可以减少警察不当行为的非常规法律改革,包括要求所有市政当局购买保险,禁止可能减少市政保健的“第一美元”(无免赔额)政策,以及要求小市政当局在商业市场上购买保险之前集中风险和资源。文章最后指出,责任保险对于任何一项综合性的公安改革方案都具有深远的意义。本文还对法学研究做出了三个重要的理论贡献。首先,它将普通的治理模式颠倒为公共对私人行为的监管,观察到在这里,私人保险公司监管公共警察。其次,它说明了保险公司不仅如何执行宪法,而且如何构建宪法的含义。除此之外,在保险公司手中,违反宪法和其他警察不当行为的责任成为警察机构的“损失”,必须“控制”。也许令人惊讶的是,通过以这种方式改变法律并剥离其道德价值,保险公司实际上可能会推进法律的目标。最后,本文有助于撬开威慑的黑盒子。事实上,鉴于对警察犯下的宪法侵权行为的个人和实体责任的广泛赔偿,了解保险公司如何管理警察风险对于任何有说服力的警察不当行为民事威慑理论都是至关重要的。
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来源期刊
CiteScore
2.90
自引率
11.80%
发文量
1
期刊介绍: The Harvard Law Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The Review comes out monthly from November through June and has roughly 2,500 pages per volume. The organization is formally independent of the Harvard Law School. Student editors make all editorial and organizational decisions and, together with a professional business staff of three, carry out day-to-day operations. Aside from serving as an important academic forum for legal scholarship, the Review has two other goals. First, the journal is designed to be an effective research tool for practicing lawyers and students of the law. Second, it provides opportunities for Review members to develop their own editing and writing skills. Accordingly, each issue contains pieces by student editors as well as outside authors. The Review publishes articles by professors, judges, and practitioners and solicits reviews of important recent books from recognized experts. All articles — even those by the most respected authorities — are subjected to a rigorous editorial process designed to sharpen and strengthen substance and tone.
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