This note contends that considering evidence of insurance within a moral hazard framework may justify another look at the blanket exclusion of Federal Rules of Evidence Rule 411. Not only does moral hazard implicate the relevance of evidence of insurance in a negligence action, but it may also reveal that the evidence is not as prejudicial as many scholars and courts had originally supposed. As a result, Rule 411 could be over-exclusive in its application, excluding not only a wholly irrelevant part of insurance evidence - the wealth or ability-to-pay implication - but also the part of insurance evidence that implies an insured’s possible subjection to moral hazard. This note will discuss how the moral hazard part of insurance evidence is relevant, and how this evidence yields sufficient probative value to overcome any potential prejudice.
{"title":"Hazard in the Courtroom: Moral Hazard's Ability to Explain an Insured's Behavior and What it Means for Federal Rules of Evidence Rule 411","authors":"Jared S. Livingston","doi":"10.2139/ssrn.1778304","DOIUrl":"https://doi.org/10.2139/ssrn.1778304","url":null,"abstract":"This note contends that considering evidence of insurance within a moral hazard framework may justify another look at the blanket exclusion of Federal Rules of Evidence Rule 411. Not only does moral hazard implicate the relevance of evidence of insurance in a negligence action, but it may also reveal that the evidence is not as prejudicial as many scholars and courts had originally supposed. As a result, Rule 411 could be over-exclusive in its application, excluding not only a wholly irrelevant part of insurance evidence - the wealth or ability-to-pay implication - but also the part of insurance evidence that implies an insured’s possible subjection to moral hazard. This note will discuss how the moral hazard part of insurance evidence is relevant, and how this evidence yields sufficient probative value to overcome any potential prejudice.","PeriodicalId":29865,"journal":{"name":"Connecticut Insurance Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2010-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80758808","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Using rockets to launch communications satellites and other spacecraft poses risks to the uninvolved public, including persons and property under the flight path of the launch vehicle. The federal government plays a pivotal technical role during the actual launch by carrying out certain risk-related procedures, thus causing third-party risk to be jointly produced by the company and the government. In addition, under the Commercial Space Launch Act, the government partially indemnifies commercial launch companies for third-party damages. We compare the indemnification policy to optimal liability rules under public-private co-production of risk. Under modest assumptions, shared liability created by the indemnification rules decreases the incentive of both parties to take care relative to the optimum. If care were observable, it would be preferable for the government to fully indemnify companies that take due care. The role of the government as an agent for third parties may qualify these findings.
{"title":"More than a Wing and a Prayer: Government Indemnification of the Commercial Space Launch Industry","authors":"Timothy Brennan, C. Kousky, M. Macauley","doi":"10.2139/ssrn.1479651","DOIUrl":"https://doi.org/10.2139/ssrn.1479651","url":null,"abstract":"Using rockets to launch communications satellites and other spacecraft poses risks to the uninvolved public, including persons and property under the flight path of the launch vehicle. The federal government plays a pivotal technical role during the actual launch by carrying out certain risk-related procedures, thus causing third-party risk to be jointly produced by the company and the government. In addition, under the Commercial Space Launch Act, the government partially indemnifies commercial launch companies for third-party damages. We compare the indemnification policy to optimal liability rules under public-private co-production of risk. Under modest assumptions, shared liability created by the indemnification rules decreases the incentive of both parties to take care relative to the optimum. If care were observable, it would be preferable for the government to fully indemnify companies that take due care. The role of the government as an agent for third parties may qualify these findings.","PeriodicalId":29865,"journal":{"name":"Connecticut Insurance Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2009-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88692943","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article questions many of the existing responses to the problem of providing access to essential medicines in developing countries, especially in the context of the continuing global HIV/AIDS pandemic. Arguing that the dominant understanding of the existing legal framework disproportionately shifts the risk of diseases and the HIV/AIDS pandemic in particular, onto those who are most vulnerable and concludes that at a minimum a reversion to a more limited intellectual property regime in the context of public health might achieve a better balance between the various national and private interests that have been the focus of the global intellectual property regime. I suggest that an alternative understanding might support the demands of a more human solidarity, that might bring hope to millions of people whose lives are indelibly marked by the burden of diseases, and who in other circumstances might be able to manage their health conditions so that they can remain valued members of their communities and productive citizens of their countries.
{"title":"Risking Health: Failing to Balance Access to Essential Medicines and the Protection of Intellectual Property in Developing Countries Facing a Continuing HIV/AIDS Disaster","authors":"H. Klug","doi":"10.2139/SSRN.1462400","DOIUrl":"https://doi.org/10.2139/SSRN.1462400","url":null,"abstract":"This article questions many of the existing responses to the problem of providing access to essential medicines in developing countries, especially in the context of the continuing global HIV/AIDS pandemic. Arguing that the dominant understanding of the existing legal framework disproportionately shifts the risk of diseases and the HIV/AIDS pandemic in particular, onto those who are most vulnerable and concludes that at a minimum a reversion to a more limited intellectual property regime in the context of public health might achieve a better balance between the various national and private interests that have been the focus of the global intellectual property regime. I suggest that an alternative understanding might support the demands of a more human solidarity, that might bring hope to millions of people whose lives are indelibly marked by the burden of diseases, and who in other circumstances might be able to manage their health conditions so that they can remain valued members of their communities and productive citizens of their countries.","PeriodicalId":29865,"journal":{"name":"Connecticut Insurance Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2009-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88941886","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2009-05-13DOI: 10.36646/mjlr.43.3.crisis
B. Liang
College-aged adults are an overrepresented group in the uninsured population of the United States, and traditionally underserved minorities are disproportionately affected. Students with private health insurance are often functionally uninsured as well, since most schools refuse to accept this traditionally elite calling card on campus. Consequently, the large uninsured and functionally uninsured populations often rely on school-sponsored health insurance plans for access to care. These plans have uneven coverage, limited benefits, exclusions and high co-pays and deductibles, and provide little health care security for their beneficiaries. Further, schools and insurance companies have profited substantially from these student plans, raising the possibility of a conflict of interest, with school-sponsored plans that may be focused on financial benefits to schools rather than the health of students. In addition, these plans may violate public policy and consumer protection laws by charging those who do not enroll in school-sponsored plans higher prices and by disingenuously claiming "competitive" rates when advertising to students. Public efforts at a student mandate, such as in Massachusetts, although successful in increasing the number of students with health insurance, have failed to provide adequate access to care. A focused policy must be put into place to ensure that students can effectively and efficiently access needed health care services on campus. In support of this effort, a proposed statute is provided herein. This bill would amend the Higher Education Opportunity Act to create a student health insurance mandate. School-sponsored plans, as well as private plans with comparable coverage, would be required to fulfill a minimum standard benefits plan. Reasonable exclusions and limitations would be allowed, based on standard practices in commercial health insurance plans. The statute would require a minimum percentage of premiums to be spent on health care, with any excess rebated to students. It would also require schools to accept a student's private health insurance for campus services to avoid forcing students to pay more than once for care. As part of this mandate, a portion of the surplus retained by schools billing private insurers would be allocated to create health insurance scholarships for uninsured students. Finally, the definition of "cost of attendance" would be adjusted to ensure that financial aid calculations take into account health insurance premiums.
{"title":"Crisis on Campus: Student Access to Health Care","authors":"B. Liang","doi":"10.36646/mjlr.43.3.crisis","DOIUrl":"https://doi.org/10.36646/mjlr.43.3.crisis","url":null,"abstract":"College-aged adults are an overrepresented group in the uninsured population of the United States, and traditionally underserved minorities are disproportionately affected. Students with private health insurance are often functionally uninsured as well, since most schools refuse to accept this traditionally elite calling card on campus. Consequently, the large uninsured and functionally uninsured populations often rely on school-sponsored health insurance plans for access to care. These plans have uneven coverage, limited benefits, exclusions and high co-pays and deductibles, and provide little health care security for their beneficiaries. Further, schools and insurance companies have profited substantially from these student plans, raising the possibility of a conflict of interest, with school-sponsored plans that may be focused on financial benefits to schools rather than the health of students. In addition, these plans may violate public policy and consumer protection laws by charging those who do not enroll in school-sponsored plans higher prices and by disingenuously claiming \"competitive\" rates when advertising to students. Public efforts at a student mandate, such as in Massachusetts, although successful in increasing the number of students with health insurance, have failed to provide adequate access to care. A focused policy must be put into place to ensure that students can effectively and efficiently access needed health care services on campus. In support of this effort, a proposed statute is provided herein. This bill would amend the Higher Education Opportunity Act to create a student health insurance mandate. School-sponsored plans, as well as private plans with comparable coverage, would be required to fulfill a minimum standard benefits plan. Reasonable exclusions and limitations would be allowed, based on standard practices in commercial health insurance plans. The statute would require a minimum percentage of premiums to be spent on health care, with any excess rebated to students. It would also require schools to accept a student's private health insurance for campus services to avoid forcing students to pay more than once for care. As part of this mandate, a portion of the surplus retained by schools billing private insurers would be allocated to create health insurance scholarships for uninsured students. Finally, the definition of \"cost of attendance\" would be adjusted to ensure that financial aid calculations take into account health insurance premiums.","PeriodicalId":29865,"journal":{"name":"Connecticut Insurance Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2009-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85609108","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Employment-based health insurance is the Rodney Dangerfield of U.S. health policy: it gets no respect from anyone. Employment-based coverage ("EBC") may not get much respect, but it covers roughly 177 million people - and it appears to have considerable staying power - even if the principal explanation for that staying power is nothing more compelling than inertia. Given the likely prevalence of EBC for the foreseeable future, it is worth emphasizing four important points about EBC and universal coverage. What these points have in common is that they are myths - most people believe they are true, even though they are not. The four "myths" are these:* Employers pay for EBC;* There are 45.7 million uninsured Americans; * Universal coverage means everyone will have access to high quality care;* Universal coverage will solve the cost problems of American health care. The paper explains why each of these points are "things people know that aren't so." It then highlights the budgetary and collective action problems with trying to get to universal coverage without relying on EBC, at least for the foreseeable future.
{"title":"Employment-Based Health Insurance and Universal Coverage: Four Things People Know That Aren't So","authors":"D. Hyman","doi":"10.2139/ssrn.1371965","DOIUrl":"https://doi.org/10.2139/ssrn.1371965","url":null,"abstract":"Employment-based health insurance is the Rodney Dangerfield of U.S. health policy: it gets no respect from anyone. Employment-based coverage (\"EBC\") may not get much respect, but it covers roughly 177 million people - and it appears to have considerable staying power - even if the principal explanation for that staying power is nothing more compelling than inertia. Given the likely prevalence of EBC for the foreseeable future, it is worth emphasizing four important points about EBC and universal coverage. What these points have in common is that they are myths - most people believe they are true, even though they are not. The four \"myths\" are these:* Employers pay for EBC;* There are 45.7 million uninsured Americans; * Universal coverage means everyone will have access to high quality care;* Universal coverage will solve the cost problems of American health care. The paper explains why each of these points are \"things people know that aren't so.\" It then highlights the budgetary and collective action problems with trying to get to universal coverage without relying on EBC, at least for the foreseeable future.","PeriodicalId":29865,"journal":{"name":"Connecticut Insurance Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2009-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81120445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Insurances know a large development and a permanent diversity in the world and in Romania,so the role of specialized intermediaries in such operations became a very important one. That's why, we consider very useful this comparative study of juridical regime applicable to the insurance intermediaries from different national legislation, such as: French or Italian legislation. Although the insurance intermediaries are not parts of insurance contract, they have an important role in conclusion and even in the distaining of insurance contract.
{"title":"Aspects of Comparative Law Regarding Insurance Intermediaries","authors":"Cristina Popa Nistorescu","doi":"10.2139/ssrn.1354003","DOIUrl":"https://doi.org/10.2139/ssrn.1354003","url":null,"abstract":"Insurances know a large development and a permanent diversity in the world and in Romania,so the role of specialized intermediaries in such operations became a very important one. That's why, we consider very useful this comparative study of juridical regime applicable to the insurance intermediaries from different national legislation, such as: French or Italian legislation. Although the insurance intermediaries are not parts of insurance contract, they have an important role in conclusion and even in the distaining of insurance contract.","PeriodicalId":29865,"journal":{"name":"Connecticut Insurance Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2009-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72803802","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The tontine, with its underlying premise that the living participants benefit from the death of their fellows, does not deserve its shadowy reputation. It had some success in its original purpose, as a means of government fund raising. It was most successful as a means of private development and investment from around 1780 through the 1850's. However, it was used as a gimmick in the selling of life insurance and as a cover for outright fraud in the latter part of the 19th Century. It was also subject to attack from writers who found the notion of gambling on other people's deaths unseemly. The tontine developed an aura of shadiness, and was eventually abandoned. If re-developed as a form of insurance for the long-lived, it may be worth rehabilitation as an investment tool.
{"title":"A Short History of Tontines","authors":"Kenneth J. McKeever","doi":"10.7916/D8CR5SBX","DOIUrl":"https://doi.org/10.7916/D8CR5SBX","url":null,"abstract":"The tontine, with its underlying premise that the living participants benefit from the death of their fellows, does not deserve its shadowy reputation. It had some success in its original purpose, as a means of government fund raising. It was most successful as a means of private development and investment from around 1780 through the 1850's. However, it was used as a gimmick in the selling of life insurance and as a cover for outright fraud in the latter part of the 19th Century. It was also subject to attack from writers who found the notion of gambling on other people's deaths unseemly. The tontine developed an aura of shadiness, and was eventually abandoned. If re-developed as a form of insurance for the long-lived, it may be worth rehabilitation as an investment tool.","PeriodicalId":29865,"journal":{"name":"Connecticut Insurance Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2009-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81886329","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
"Seaworthiness" in a vessel (ship) is the ability or inability of a vessel to stand the perils of the sea for the purpose of conveying the cargo (goods), that the vessel was hired to do. This relates to the vessel's fitness in order to perform this function across the sea or waterways. The term also means the vessel's being equipped for the purpose of conveying a particular kind of cargo. For example, a ship intended for the purpose of conveying cars must be equipped with the facilities of securing the vehicles into place onto the ship in such a way that the cars cannot move about with the movement of the ship in the sea during storm, leading the cars to become damaged.This work examines the extent of the warranty on the ship and cargo as seen by maritime law in the United States courts, as compared to the legal position under South African Marine Insurance Law. This work explores the differences and similarities of the legal positions under the two Maritime jurisdictions, and offers suggestions.
{"title":"Implied Warranty of Seaworthiness Under United States Maritime Law: The Differences and Similarities to South African Marine Insurance Law","authors":"Robert Ongom Cwinya-ai","doi":"10.2139/SSRN.1319064","DOIUrl":"https://doi.org/10.2139/SSRN.1319064","url":null,"abstract":"\"Seaworthiness\" in a vessel (ship) is the ability or inability of a vessel to stand the perils of the sea for the purpose of conveying the cargo (goods), that the vessel was hired to do. This relates to the vessel's fitness in order to perform this function across the sea or waterways. The term also means the vessel's being equipped for the purpose of conveying a particular kind of cargo. For example, a ship intended for the purpose of conveying cars must be equipped with the facilities of securing the vehicles into place onto the ship in such a way that the cars cannot move about with the movement of the ship in the sea during storm, leading the cars to become damaged.This work examines the extent of the warranty on the ship and cargo as seen by maritime law in the United States courts, as compared to the legal position under South African Marine Insurance Law. This work explores the differences and similarities of the legal positions under the two Maritime jurisdictions, and offers suggestions.","PeriodicalId":29865,"journal":{"name":"Connecticut Insurance Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2008-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83244558","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We study an insurance model characterized by a continuum of risk types, private information and a competitive supply side. We investigate the contestability clause in the policy: when a claim is filed, the insurer may dispute it on grounds of the information provided by the insuree. Smoking in life insurance is our leading example: there are different rates for smokers and non-smokers. We compare the aggregate utility in a two contracts economy with a one, non-contestable contract economy. Having two contracts alleviates adverse selection, but increases the risk in the smokers pool. The negative effect dominates: contestability decreases welfare.
{"title":"The Welfare Effects of Contestability in Insurance","authors":"Rob van der Noll, F. Paolucci","doi":"10.2139/ssrn.907279","DOIUrl":"https://doi.org/10.2139/ssrn.907279","url":null,"abstract":"We study an insurance model characterized by a continuum of risk types, private information and a competitive supply side. We investigate the contestability clause in the policy: when a claim is filed, the insurer may dispute it on grounds of the information provided by the insuree. Smoking in life insurance is our leading example: there are different rates for smokers and non-smokers. We compare the aggregate utility in a two contracts economy with a one, non-contestable contract economy. Having two contracts alleviates adverse selection, but increases the risk in the smokers pool. The negative effect dominates: contestability decreases welfare.","PeriodicalId":29865,"journal":{"name":"Connecticut Insurance Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2008-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77888272","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The U.S. insurance industry is primarily regulated by the states. This is in contrast to the regulatory structure for other financial intermediaries which have a federal regulator. Banks, for example, may choose to be regulated by either the federal government or by the states. Recent legislation proposes to provide a similar optional federal chartering (OFC) system for insurers. Given the proposed legislation we make two contributions to the discussion. First, we examine the case for optional federal charters focusing on the costs and benefits of regulation at the federal versus the state level and conclude that and optional federal chartering system dominates the status quo. Second, we add to the discussion by describing what additional issues need to be addressed if we adopt an insurance OFC system. While the merits of OFC have been much debated, comparatively little consideration has been given to the matter of how such a system should function if enacted.
{"title":"Optional Federal Chartering of Insurance: Rationale and Design of a Regulatory Structure","authors":"Martin Grace, H. Scott","doi":"10.2139/ssrn.1175104","DOIUrl":"https://doi.org/10.2139/ssrn.1175104","url":null,"abstract":"The U.S. insurance industry is primarily regulated by the states. This is in contrast to the regulatory structure for other financial intermediaries which have a federal regulator. Banks, for example, may choose to be regulated by either the federal government or by the states. Recent legislation proposes to provide a similar optional federal chartering (OFC) system for insurers. Given the proposed legislation we make two contributions to the discussion. First, we examine the case for optional federal charters focusing on the costs and benefits of regulation at the federal versus the state level and conclude that and optional federal chartering system dominates the status quo. Second, we add to the discussion by describing what additional issues need to be addressed if we adopt an insurance OFC system. While the merits of OFC have been much debated, comparatively little consideration has been given to the matter of how such a system should function if enacted.","PeriodicalId":29865,"journal":{"name":"Connecticut Insurance Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2008-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82770270","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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