The Antitrust Implications of Collaborative Standard Setting by Insurers Regarding the Use of Genetic Information in Life Insurance Underwriting

Whenever two or more market participants collaborate to restrain trade, the potential applicability of federal and state antitrust laws must be considered. When the collaborating parties are insurance companies, a further layer of analysis may be necessary to determine whether the activity is exempt from federal antitrust regulation. Even if the activity enjoys an exemption, state antitrust law may have different things to say about the activity. Embedded in each of these levels of analysis are many difficult and complex subsidiary questions. In short, the law of insurance antitrust is not a subject for the faint of heart. Antitrust law often has implications in situations where its relevance is least expected. For example, with respect to whether insurers should surrender their option to use genetic information in life insurance underwriting, a seemingly reasonable, innocuous suggestion might be made: Life insurers should voluntarily agree to place a moratorium on the use of genetic information in underwriting. Presently, no insurer makes use of such information, so now is the time to forge such an agreement, before some insurers begin to use the information and then become unwilling to forego the practice. But such a moratorium is essentially an agreement among competing insurers to fix one determinant of the product\u27s price, and this restraint of trade calls into question the possible applicability of federal and state antitrust law (as well as the relevance of possible exemptions under federal or state law, or both). This Article discusses the antitrust issues that would accompany the articulation and implementation of such restrictions

May Harvey Rest in Peace: \u3ci\u3eLakin v. Postal Life and Casualty Company\u3c/i\u3e

There is a case that has piqued my interest in recent years. Lakin v. Postal Life & Casualty Co., is a relatively simple story of two men whose paths crossed in Kansas City, Missouri, more than forty years ago. One was a down-in-the-luck drifter, and the other a con-artist who made his living by taking advantage of others. These two men would be long forgotten but for the fact that their final interactions during a hunting trip near Pleasant Hill, Missouri, raised some insurance law issues that ultimately made their way to the Missouri Supreme Court. Lakin stands for the unremarkable proposition that the legal relationship of one partner to another is not, by itself, sufficient to establish an insurable interest. If one partner takes out insurance on the life of the other partner in circumstances where the partner cestui que vie has neither capital nor skills to contribute to the partnership, it does not automatically follow that the partner who owns the policy on the other\u27s life has an insurable interest sufficient to support the policy

A Brief Exploration of Space: Some Observations on Law School Architecture

The nature of the space in which we work, teach, and study is important. The design of our surroundings affects our attitudes, moods, self-esteem, efficiency, and sense of community. For our students, space makes a difference in the quality of the learning experience. It is possible to teach and learn in deficient space, but it is easier to teach and learn when both faculty and students are comfortable, happy, and not distracted by the inconveniences and annoyances of a poorly designed environment. Inadequate space prevents us from achieving all of which we are capable, thereby diminishing our productivity, creativity, and accomplishments. If deficient space limits our future, then good space can expand it. Ultimately, the space around us helps define who we are and what we can achieve

Leadership and Followership

Whether our interest is business, government. education, or almost any other entity that organizes humans in some way, it seems that we are perpetually in need of more individuals who can lead organizations effectively. But we also live in an era when we need institutions - i.e., the organizations that have formed, and that we have formed, to regulate and improve our lives - that are willing and able to be led. I have long felt, and have been heard to say from time to time, that the dean can cause problems all by himself, but the dean by himself cannot make progress happen. More recently, I have connected this comment to this idea: just as there are characteristics and behaviors that a leader must have if he or she is to be effective in creating the conditions for and facilitating progress, there are also characteristics and behaviors that constituents in organizations must have if the organization itself is to be susceptible to being led by an effective leader. Discussion about leadership characteristics and behaviors is common; discussion about followership characteristics and behaviors is much less so

New Developments in Kansas Insurance Law

Since 1959 the Kansas Law Review has encouraged commentary on recent developments in Kansas insurance law. This article continues this tradition, examining developments that have occurred during the last five years

Insurance, Terrorism, and 9/11

The question of whether 9/11 has changed the insurance world cannot be answered simply. In some respects, nothing is different, but it is difficult to be sanguine about this assessment. Terrorism is less predictable in terms of magnitude and frequency of loss, and this raises doubts about the capacity of the industry with respect to future events. Until the uncertainty with respect to the terrorism risk abates and markets stabilize, problems of cost and availability will persist. This, of course, has been true in other insurance sectors in the past, and temporary dislocations do not necessarily justify government intervention. If, however, terrorism is different enough to prevent the market from developing affordable, available coverage, then a government role is appropriate

Health Insurer\u27s Use of Genetic Information: A Missouri Perspective on a Changing Regulatory Landscape

At the dawn of the new millennium, the mysteries of the human genome\u27 are being revealed: A working draft of ninety percent of the human genome sequence is expected to be completed by mid-2000, five years ahead of schedule.2 Few endeavors in human history have promised so much while causing so much concern

Insurance, Contract, and the Doctrine of Reasonable Expectations

This article examines the connections between the doctrine of reasonable expectations and the law of contract. Judge Keeton urged in his 1970 article that protecting the insured\u27s reasonable expectations is a better justification for results in many reported cases than the rationales offered by judges! Without disagreeing with that point, it can be claimed, as this article does, that insurance law\u27s efforts to explain outcomes that contradict the plain language of contractual text are appropriately viewed as a subset of a larger effort to rationalize contract law with the challenges presented by the widespread use of standardized forms in consumer transactions. When viewed from this different perspective, Judge Keeton\u27s 1970 article was important not only for what it said about the contours of insurance law but also for what it suggested about the stance insurance law should take in an ongoing-and still continuing -battle for the soul of contract law

Leadership and Followership

“[B]etter followers beget better leaders.” Through the years, I have been fond of a set of expressions I sometimes use to underscore the importance of an idea or a cause I believe important and worthy of personal or institutional investment, or both. The expressions fit together like this: our society has a particular problem that needs attention; our colleges and universities, being institutions broadly representative of our society, also have this problem (as we should expect); we need to work on this problem in our colleges and universities; if we cannot solve this problem in our institutions of higher learning, then I have little hope that our society will be able to solve it; our law school needs to set an example for the rest of the university as to how we can work together to solve the problem. When I articulate this message in a speech, conversation, essay, or dean’s column, my goal is invariably to persuade the listeners or readers to action—not just to join me in supporting a cause, but to join together to make change happen in our own community, with the hope that when we improve ourselves, our example will spread outside our immediate community and influence even broader change. On most occasions when I present this message, I direct my comments toward the importance of valuing diversity, respecting others and rejecting intolerance, and preserving and promoting human rights and dignity. In that context, the implications of the appeal are obvious: promoting these values in our community makes us better, which is important in its own right; however, it is even more important that our society make progress on these values, too. If our institutions of higher learning are unable to progress, then it is hard to imagine how our larger society will find a way to improve. This message is appropriate in many other contexts as well, simply because many issues to be addressed within a law school community are also present in the broader university and the larger society outside it

A Brief Exploration of Space: Some Observations on Law School Architecture

The nature of the space in which we work, teach, and study is important. The design of our surroundings affects our attitudes, moods, self-esteem, efficiency, and sense of community. For our students, space makes a difference in the quality of the learning experience. It is possible to teach and learn in deficient space, but it is easier to teach and learn when both faculty and students are comfortable, happy, and not distracted by the inconveniences and annoyances of a poorly designed environment. Inadequate space prevents us from achieving all of which we are capable, thereby diminishing our productivity, creativity, and accomplishments. If deficient space limits our future, then good space can expand it. Ultimately, the space around us helps define who we are and what we can achieve