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Abstract:
The magnitude of the Harry Potter phenomenon alone would make it worthy of consideration; the fact that it is children's literature, and thus may play a significant part in forming a future generation's attitudes toward law and legal institutions, makes it even more so. The various contributions to this article explore various aspects of law and culture as presented in or viewed through the Harry Potter stories. The contributions of James Charles Smith and Danaya Wright address the depiction of families in the narratives and the limited role and development of family law. Benjamin H. Barton's contribution considers the failings of the formal source of legal authority in Harry's world, the deeply-flawed Ministry of Magic. Particular flaws are examined in the two subsequent contributions: Aaron Schwabach looks at the operation of the legal system through the lens of the unforgivable curses and contends that they show an arbitrariness contrary to the rule of law, while Joel Fishman explores the arbitrariness of punishment in the narratives. James Charles Smith's contribution explores ambiguities in the legal status and wizarding conventions applicable to house-elves, while Daniel Austin Green's contribution uses the narratives to explore the roles of excuse and justification in their relationship with legal authority and rule of law.

Timothy S. Hall's contribution shows how the rule used to free Dobby the house elf can be used as a pedagogical tool to illustrate the importance of intent in contract law, while Jeffrey E. Thomas's contribution suggests that the negative and satirical depictions of law and legal institutions helps readers to focus on the importance of individual accountability in making moral decisions. Andrew Morriss's contribution addresses the centrality of individual moral choice to the Harry Potter novels, particularly The Prisoner of Azkaban and The Goblet of Fire. The final entry, also by Timothy S. Hall, compares the Harry Potter narratives to the Dick Whittington story, showing an interesting cultural evolution from Tudor to modern times.

Children's literature, cultural studies, Harry Potter, humor, humorous, interdisciplinary, fantasy, law & literature, law & popular culture

Abstract:
The "first principle of insurance law" is that ambiguities in an insurance policy must be construed in favor of the policyholder. In general, if a policy provision is found to be ambiguous, the policyholder prevails; if the provision is found to be unambiguous, the insurer prevails. The purpose of this monograph is to describe and analyze the role of ambiguity in insurance policy interpretation. It identifies a "broad" version of the rule supported in the majority of courts, and a "narrow" version that is a minority rule. The broad version generally provides that a provision is ambiguous when it is susceptible to more than one reasonable interpretation. The narrow version of the rule provides that a provision is ambiguous only if the rules of interpretation cannot resolve the purported ambiguity. In other words, a provision is ambiguous only if the two proffered interpretations are equally likely based on the language of the policy and the applicable circumstances. The monograph argues that the narrow version of the rule is superior to the broad version because it will result in more consistent judgments, is consistent with linguistic practices, and improves the likelihood the policy will be interpreted consistently with the expectations of the policyholder and the insurer.

insurance policy, insurance contract, ambiguous, ambiguity, unambiguous, interpretation, policyholder, rules of construction, contra proferentum, insurers, adhesion, coverage, contractual language, exclusions, sudden, accidental, consistency, expectations

Abstract:
Crisci v. Security Insurance Co. typifies the doctrine of "bad faith," one of the most interesting and important contributions of insurance law to the general body of law. It "typifies" the doctrine with its classic, if somewhat extreme, fact pattern, and with its reliance on the implied covenant of good faith and fair dealing for the recognition of a cause of action that sounds in tort. Yet it also represents a potential for bad faith law that has not yet been fulfilled: the promise of emotional distress damages for an insurer's failure to settle.

This article explores both what Crisci has contributed and what it may still contribute. It begins with a brief overview of the case itself, followed by an analysis of its historical contribution to bad faith law generally. It then turns to the issue of emotional distress to describe how courts have responded to Crisci on that issue, and to make a normative argument that emotional distress damages should be routinely available in bad faith cases.

Crisci, Insurance, Insurer, Bad faith, Implied covenant, Good faith, Fair dealing, Emotional distress, Failure to settle, Refusal to settle, Effort to settle, Statute of Limitations, Tort, Contract

Abstract:
Federal government support for the terrorism insurance industry has a very brief history. Prior to 9/11, insurers did not take terrorist-related losses into account when underwriting risks. The industry did not even conceive of an attack that could generate such significant losses. The dramatic shift in perception since then has caused many to suggest that terrorism risks are uninsurable. The notion that terrorism risk was uninsurable was part of the rationale advanced for government intervention. When the initial efforts at legislation failed, the industry began to withdraw from the market by adding exclusions for terrorism-related losses to their policies. Reinsurers were the first to adopt such exclusions and their withdrawal left the primary insurers at risk of insolvency in the event of a major terrorism loss. The fundamental problem of terrorism insurance is the impossibility of adequate capital following a large loss. When Congress decided that reduced availability of terrorism insurance was causing a drag on the U.S. economy, the Terrorism Risk Insurance Act (TRIA) was adopted. TRIA provides liquidity through government support to pay terrorism claims. This paper examines the essential features of the TRIA while asking how terrorism insurance could optimally be regulated. It concludes with the suggestion to extend to insurers of terrorism-related loss the same access to public capital as the Federal Reserve provides to banks in times of liquidity crises.

Terror, Terrorism, Insurance, Insurers, September 11, Terrorism-related loss, Reinsurance, Terrorism Risk Insurance Act, TRIA, CNBR

Abstract:
The September 11 attack was the largest single insured event in history. In the end, insurance companies are expected to pay approximately $50 billion to victims of the attack. In response to the perceived potential of future terrorist losses, many insurers have begun to exclude terrorist-related losses from their policies. In light of the size and uncertainty of future losses, this is understandable. In adopting this approach, however, it appears that little thought has been given to the transaction costs associated with the exclusion. One of the significant contributions of Law and Economics to legal literature has been to illuminate the importance of transaction costs in making normative and policy decisions. This Article applies that contribution to the insurance industry's response to the September 11 attack. It contends that the transaction costs associated with the terrorism exclusions will be so great that they will seriously erode, and perhaps outweigh, the benefits to be derived from the exclusion. This Article begins with a brief description of the events leading up to the adoption of the exclusion and an outline of the basic provisions of the exclusion. It then develops a simple quantitative model to illustrate and evaluate the potential transaction costs from the use of the exclusion. The final section of the Article will identify insights and conclusions that can be drawn from the model.

Terrorism, terrorist, terror, insurance, September 11, exclusion, transaction costs, single-event losses, underwriting, insurable, catastrophic, loss, Terrorism Risk Insurance Act

Abstract:
Although the indemnity principle is well-accepted, its customary meaning has not kept up with insurance practice. This paper explores the evolution of the indemnity principle in the context of property insurance in the United States. When property insurance was standardized in the 19th century, "indemnity" had a strict, financial meaning. An insured was only entitled to receive actual cash value for a loss, less depreciation. This ensured that insureds received a financial recovery equal to the value of their property prior to the loss. This approach to indemnity was developed in the context of concerns about the morality of insurance, its association with gambling, and the risk of moral hazard. In the 20th century, the financial approach for indemnity often left insureds without sufficient resources to rebuild. Courts and the insurance industry responded by providing replacement cost coverage, which became the standard in the U.S. property market by the 1960s. Replacement cost coverage, however, is inconsistent with the financial version of the indemnity principle. By replacing damaged property with new materials without regard for depreciation, the insured receives a financial benefit from the loss. This paper contends that this shift in the market represents a paradigm shift from the financial approach to a pragmatic, functional approach to indemnity. The consequences of this shift are that exclusions need to be reevaluated for their theoretical grounding, that innovative products may be more easily made consistent with the indemnity principle, and that moral hazard needs to be addressed independently of the indemnity principle.

Indemnity, Customary meaning, Insurance, Property insurance, Replacement cost, Depreciation, Financial loss, Catastrophe, Moral, Contracts

Abstract:
The Practice was a revolution in legal television. Although other modern serials had begun to explore some of the "realist" difficulties of the legal system, The Practice embraced and explored those dilemmas in a postmodernist way. It turned many of the conventions of legal television on their heads. The legal system was portrayed as arbitrary and subject to manipulation by the players-lawyers, judges and clients-who were shady, scheming, and in conflict with Hollywood stereotypes.

This characterization of The Practice is not a criticism - its cynicism made it interesting and unpredictable. You could never be sure of the guilt or innocence of an accused, and even if you thought you knew, that person's culpability did not govern the outcome of the narrative. To be fair, some representations were so extreme that they approached satire. Nevertheless, many of the criticisms were justified. The legal system is not perfect. Guilty people are set free, innocent people are convicted, and lawyers sometimes act unethically. While the legal system of The Practice is not very close to reality, it is certainly closer than the sterile and flawless system portrayed in the iconic Perry Mason in the 50s and 60s.

The Practice was in many respects a reaction to and the antithesis of L.A. Law, which stopped airing three years prior to The Practice's debut. David E. Kelley, the creator of The Practice, was a major creative force involved in L.A. Law. He created The Practice to contrast with the glamour of L.A. Law by showing the "nuts and bolts" of legal practice. The Practice is much different than L.A. Law's McKenzie, Brackman which was a successful civil law practice with beautiful high-rise offices and affluent attorneys. The Practice struggles to make ends meet. It is behind on its rent for a gritty, urban space where there is only one private office. The firm handles small or difficult civil cases, but its "bread and butter" is criminal defense work.

The narratives of The Practice also represent the antithesis of L.A. Law. While L.A. Law recognized some difficult legal and social issues, and occasionally left the viewer a little uncomfortable with the outcome, those were the exceptions to fairly traditional plot resolutions. With The Practice, such discomfort is often the point. Where L.A. Law touches on an issue, The Practice delves into it and puts the dubious outcome directly in the viewer's face. Their differences were also reflected by their respective titles with L.A. Law suggesting that outcomes are governed by the "law," while The Practice suggests an on-going effort to get the result that the client wanted, regardless of the law.

These general themes and their postmodern character will be explored in more detail in the following two sections. The first section will consider three illustrative narratives and the second will examine three main characters.

The Practice, L.A. Law, Legal television, Perry Mason, Legal system, Drama, Fiction, Portrayal, Law, Client

Abstract:
September 11 was a "defining moment" for this generation. The graphic images of that day will forever remain seared into people's individual and collective consciousness. Americans responded in many ways, both individually and collectively. The government, with nearly unanimous public support, immediately responded by declaring "war" on terrorism and by adopting measures to provide relief for victims of the attack.

September 11 was also a defining moment for the insurance industry. It was "the largest single insured event in history." Insurance companies are expected to pay some $50 billion to victims of the attack -more than eight times what the federal government is expected to pay through the Victims Compensation Program. This amount is also more than three times the total expected cost of the airline bailout, of which the Compensation program is a part. As one industry observer put it, "No matter how much is written about it, it is hard to overstate the significance of Sept[ember] 11 to the Insurance Industry."

This article outlines the insurance industry's response to the September 11 attack and describes its potential effect on cities. It then suggest some possible strategies that cities might use to address the insurance industry's response.

September 11, Terrorism, Terrorist, Insurance, Single-event losses, World Trade Center, Property, Liability, Coverage, Terrorism Exclusion, Contra Proferentum

Abstract:
No abstract available.

Abstract:
Professor Thomas suggests that the television series the practice breaks from tradition by portraying the law as arbitrary and subject to manipulation. On one hand, its narratives show that law may require the guilty to be set free. On the other hand, the law sometimes fails to protect the innocent. Outcomes often turn on extralegal factors such as luck, race, or heroic efforts. This portrayal is a "postmodern" depiction of the rule of law. The narratives from the practice deconstruct the traditional rule of law hierarchy by showing that the rule of man can lead to more just results. The narratives show greater public acceptance of postmodernist ideas about law, and may encourage a greater skepticism in American culture about reliance on the rule of law.