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Abstract:
This Essay identifies and analyzes the problems that may arise when insurance coverage disputes are subject to mandatory, binding arbitration. We argue that arbitration often involves a form of contractual "lawlessness" that is especially undesirable in claims that involve new legal issues. This lawlessness not only adversely affects the parties to each dispute, but the legal system as a whole. As a consequence, in our view insurance policyholders should be reluctant to purchase policies that require binding arbitration of coverage disputes. In addition, since the problems that we identify are likely to arise not only in insurance, where new, cutting-edge issues have regularly emerged for decades, but also in other kinds of disputes posing new legal issues, the legal system should reconsider the highly favorable stance that it takes toward mandatory, binding arbitration in general, so as to take account of the negative effects of arbitration lawlessness. A neutral legal and judicial stance toward binding arbitration would be more appropriate.

Abstract:
Despite the extensive efforts of legal scholars to define negligence and to explore the relation between negligence and other standards of conduct, the character of negligence liability remains incompletely recognized. In this paper I argue that close examination of the negligence standard reveals that it is more troubled than its apparently central place in tort law implies. Far from being an appropriate default rule to be used when we are unsatisfied with the alternatives, the negligence standard is often flawed even in the ordinary cases involving liability for physical damage that are at its core. These same flaws render negligence an even less appropriate standard in most cases involving intangible loss, where at least until now it has been employed only in exceptional cases.

Abstract:
The September 11th Victim's Compensation Fund provides substantial payments to the families and loved ones of those who died in the 9/11 attacks. Interestingly, unlike any other form of social insurance, and unlike the tort system, the awards from the Fund are offset dollar-for-dollar by certain forms of collateral sources, including life insurance proceeds. This paper exams what function collateral sources (and the traditional rule of "collateral nonoffsets") together with subrogation rights generally play in a tort/compensation regime and why a collateral source offset rule probably make sense in the case of the 9/11 Fund. Our analysis also calls into question the traditional practice among life insurers of not retaining subrogation rights in their insurance policies or, in the absence of such subrogation rights, the traditional rule of collateral nonoffsets in wrongful death cases. The same sort of overcompensation concerns would seem to apply there as apply in the context of the 9/11 Fund.

Abstract:
For two and a half centuries of accident law's history, between about 1600 and 1850, neither the plaintiff nor the defendant in a tort suit could testify in that suit. In fact, during this period the parties could not testify in any civil suit, and the defendant could not testify in a criminal case. These prohibitions were features of a broader common law rule providing that any potential witness who had an "interest" in the outcome of a case was not competent to testify in it. It was not until statutes abolishing this evidentiary prohibition were enacted in England in the 1840s, and in the United States between the late 1840s and the 1890s, that the parties were permitted to testify in tort (and other) suits. This Essay addresses the influence of the prohibition against party testimony on the development of tort liability prior to the middle of the 19th century.

Torts, Tort Liability

Abstract:
The rule that evidence of compliance with or departure from custom is admissible to prove negligence implements the idea that recurring patterns of conduct have a bearing on what constitutes reasonable care. In contrast, evidence of the incidence of practices that are not sufficiently widespread to qualify as customs is not admissible to prove negligence. In de-emphasizing the importance of patterns of conduct that regularly recur but are not as widespread as customs, the practice rule treats each negligence case as more nearly unique, and leaves greater room for the risk-benefit and reasonable prudence conceptions of negligence to operate. In this Article, I attempt to enrich our understanding of the custom rule, including what the rule implies about the admissibility of practice evidence. I do this by examining precisely what makes custom evidence at least potentially probative of reasonable care, and by identifying two functions of custom evidence that have not been emphasized in previous work. Custom evidence is not only directly relevant to the negligence issue, but can also perform a knowledge-building, or educational function. And admitting custom evidence may help to prevent the jury from drawing unwarranted inferences from the absence of such evidence. Interestingly, there is virtually no case law addressing the admissibility or inadmissibility of the incidence of practices that are not customs. I identify the reasons for this case law vacuum, and consider the arguments for and against permitting the introduction of evidence of the incidence of such practices. Finally, precisely because negligence law permits the parties to deploy, and juries to consider, evidence and arguments based on the different perspectives that the custom and practice rules reflect, we have a conception of negligence that is often ambiguous. In a brief concluding discussion, therefore, I return to the contrast between the different sources of authority in negligence law, and try to tease out some of the broader implications of this contrast for our understanding of negligence

negligence, tort liability, custom