Volume 161, Issue 3 
February 2013

Four Conceptions of Insurance

Kenneth S. Abraham

This Article identifies four conceptions of insurance that have operated in the debates about insurance law in recent decades, analyzes these conceptions, and examines the normative agendas that drive them. These are the contract, public utility/regulated industry, product, and governance conceptions. Although these conceptions adopt very different perspectives, each is a way of struggling with the two fundamental questions that modern insurance law has continually faced. The first question involves the extent to which the language of an insurance policy should determine its legal effect. This is the insurance law version of the age-old question concerning the validity of one-sided provisions in contracts of adhesion. Because virtually all insurance policies, including high-end corporate insurance policies, are standard-forms, it is a question at the core, not the periphery, of insurance law. The second question involves the proper influence of what are sometimes called “public law” values on the scope of private insurance coverage. This is a question with which much of modern private law struggles. To what extent should private law be about doing justice between two contracting parties, and to what extent should it also be concerned with other, more nearly public law matters? Public law matters such as the impact of litigation outcomes on the future behavior of other parties or the equal treatment of similarly situated policyholders. Ultimately, the Article argues, adopting a particular conception of insurance is no substitute for making or rejecting the normative choices that each conception entails. It is not our concepts, but our political, economic, and social values that underlie and underwrite legal doctrines and practices. Nonetheless, sometimes we do not see through our conceptual structures but instead are led around by them. This is part of what is taking place in the contests among different conceptions of insurance. In such circumstances, the kind of critical analysis this Article undertakes is required to expose the normative agendas that are doing the actual work within each conceptual structure.

Reducing Crime by Shaping the Built Environment with Zoning: An Empirical Study of Los Angeles

James M. Anderson, John M. MacDonald, Ricky Bluthenthal & J. Scott Ashwood

The idea of using law to change the built environment in ways that reduce opportunities to commit crimes has a long history. Unfortunately, this idea has received relatively little attention in the legal academy and only limited rigorous empirical scrutiny. In this Article, we review the considerable literature on the relationship between zoning, the built environment, and crime. We then report the results of two empirical studies on these relationships. First, we conducted a study of the effect of zoning on crime using 205 blocks selected in eight different relatively high crime neighborhoods in Los Angeles that have similar demographic characteristics but different forms of zoned land use. We find that mixed commercial- and residential-zoned areas are associated with lower crime than are commercial-only zoned areas. Second, we matched neighborhoods undergoing zoning changes between 2006 and 2010 with neighborhoods that underwent no zoning changes during this period but had similar preexisting crime trajectories between 1994 and 2005. The primary zoning change in these neighborhoods was to convert parcels to residential uses. We find that neighborhoods in which there was a zoning change experienced a significant decline in crime. Our results suggest that mixing residential-only zoning into commercial blocks may be a promising means of reducing crime.

Soul of A Woman: The Sex Stereotyping Prohibition at Work

Kimberly A. Yuracko

In 1989, the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited form of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend Title VII’s coverage and to protect groups that were previously excluded. Astonishingly, however, the contours, dimensions, and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate and reject the interpretations most often offered by scholars—namely that the prohibition requires either freedom of gender expression or sex-blind neutrality. I argue that the prohibition reflects not a coherent antidiscrimination principle but a pragmatic burden-shifting framework that turns on the compliance costs for the worker. I conclude by arguing that the sex stereotyping prohibition has not lived up to its rhetorical promise. Indeed, the implications of the prohibition are both dangerous and ironic in ways that scholars have yet to recognize. While the prohibition has extended Title VII’s protection to new classes of workers, it has done so by relying on and reinforcing traditional gender categories. The result is that the prohibition protects some individuals at the expense of the class whose subordination— stemming from socially salient gender norms—remains intact.


Up for Grabs: A Workable System for the Unilateral Acquisition of Chattels

Matt Corriel

This paper is about the everyday occurrence of coming across an object in the world and evaluating whether or not it is up for grabs. My project explores the shared space at the precipice of the laws of finders, abandonment, destruction, and conversion: a space we often inhabit, but wherein our rights in relation to an object are indiscernible ex ante under current law. I propose a system by which actors and courts may evaluate the reasonableness of a person’s actions from the moment he or she chooses to acquire a chattel unilaterally. My system derives from the signals chattels convey to us—signals that have everything to do with context and little or nothing to do with value.

Delay in Considering the Constitutionality of Inordinate Delay: The Death Row Phenomenon and the Eighth Amendment

Kara Sharkey

The Supreme Court has repeatedly declined to address the validity of the unconstitutional delay claim raised by Valle and other death row inmates before him. The issue first came to the Court’s attention over fifteen years ago, in Lackey v. Texas. Justice Stevens issued a memorandum respecting the Court’s denial of certiorari in which he acknowledged that although “the importance and novelty of the question . . . are sufficient to warrant review by this Court, those factors also provide a principled basis for postponing consideration of the issue until after it has been addressed by other courts.” Justice Stevens emphasized that denial of certiorari provided an important opportunity for state and lower federal courts to “serve as laboratories in which the issue receives further study before it is addressed by this Court.” Since Lackey, the Supreme Court has denied certiorari to every petitioner asserting this argument (hereinafter referred to as a “Lackey claim”), including Manuel Valle, and thus has not ruled on whether—or when—executions after inordinate delays on death row constitute cruel and unusual punishment.

. . .

Notwithstanding the benefits of the highest court’s resolution of the issue, the Supreme Court is unlikely to take a Lackey case in the near future. Since Justice Stevens issued the Lackey memorandum over fifteen years ago, procedural roadblocks have emerged that have prevented lower courts from addressing the merits of Lackey claims. I argue that in certain circumstances, execution after lengthy confinement on death row does violate the Eighth Amendment and the “evolving standards of decency” by which the Amendment is measured. Therefore, states must implement workable solutions that are carefully calibrated to address both the Lackey claim and the countervailing policy considerations.

Part I of this paper summarizes the bedrock principles that guide the Court in analyzing capital sentences challenged on Eighth Amendment grounds. Part II describes the substance of the Lackey claim and focuses on the causes of delay on death row and the psychological effect of this delay, known as the “death row phenomenon.” Part III traces the ongoing debate over the Lackey claim among the Justices of the United States Supreme Court. Then, Part IV assesses the experiment taking place in the “laboratories” of lower state and federal courts, and concludes that it has been lackluster, mostly because of the procedural issues that have limited courts’ opportunities to address the merits of Lackey claims. Finally, in recognition that the Court is unlikely to grant certiorari and rule on the validity of Lackey claims, Part V focuses on alternative solutions to the problem of inordinate death row delays.

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