Planet of the Insurers: How Insurers Shape and Influence Law and Impact Access to Justice

IN: Research Handbook on Modern Legal Realism, eds S. Talesh, E. Mertz, & H. Klug, Edward Elgar, Cheltenham, UK., 2021 Forthcoming

UC Irvine School of Law Research Paper No. 2020-55

37 Pages Posted: 13 Aug 2020

See all articles by Shauhin A. Talesh

Shauhin A. Talesh

University of California, Irvine School of Law

Date Written: August 11, 2020

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.

Suggested Citation

Talesh, Shauhin A., Planet of the Insurers: How Insurers Shape and Influence Law and Impact Access to Justice (August 11, 2020). IN: Research Handbook on Modern Legal Realism, eds S. Talesh, E. Mertz, & H. Klug, Edward Elgar, Cheltenham, UK., 2021 Forthcoming, UC Irvine School of Law Research Paper No. 2020-55, Available at SSRN: https://ssrn.com/abstract=3671884

Shauhin A. Talesh (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Drive, Ste. 4800L
Irvine, CA 92697
United States
818-439-2719 (Phone)

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