An Assessment of Alternative Strategies for Increasing Access to Legal Services

Since the late 1930s, lawyers have argued that their services are not used to the fullest advantage by a large segment of the population. More recently, other concerned groups such as trade unions and consumer organizations also have become convinced that there is an underutilization of lawyers\u27 services, and that it is important to increase access to such services. As a result, attempts have been made to develop alternatives to the traditional methods of providing legal services that to date have proved inadequate in meeting the legal needs of the public. Legal clinics have proliferated, prepaid legal services plans have been inaugurated on a wide scale, and the organized bar has attempted to revitalize its lawyer referral services. All of this has been done, however, without a complete understanding of why people do or do not use lawyers. This Project examines factors said to affect utilization of legal services by analyzing the results of a national survey conducted between 1973 and 1974 by the Special Committee to Survey Legal Needs of the American Bar Association and the American Bar Foundation (ABA-ABF Survey). This analysis reveals that lawyer use depends principally upon three factors—the number of times a person has experienced a legal problem, whether a person owns real property, and whether a person has personal contacts with a lawyer. These findings are then used to evaluate the potential of several alternative legal delivery systems for increasing lawyer use. The Project concludes that closed-panel prepaid plans and legal clinics have the greatest potential for increasing lawyer use, though both may have only a limited impact

What is the Meaning of Plain Meaning

The American approach to construing texts (statutes, regulations, contracts and documents generally) stresses decision through determining the “plain meaning” of the document based on the court’s reading of the text. Where the court finds plain meaning on the face of text, it generally refuses to consider additional contextual information or extrinsic evidence of meaning. Notwithstanding its status as the dominant approach to interpretation, the plain meaning concept has not been well defined or operationalized. Despite judicial confidence in the plain meaning approach, courts have wisely been willing to sidestep it and eschew the rather clear facial meaning of text when doing so would produce bad decisions that undermine the purpose underlying the written instrument or result in disproportionate forfeiture of rights. Unfortunately, these instances tend to be regarded as mere exceptions to an otherwise unquestionable rule rather than a serious indictment of the approach and a brief for reducing undue deference to text, excessive confidence in human ability to read text correctly, and resolution of disputes on the basis of document text alone

Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Shady Grove and the Potential Democracy-Enhancing Benefits of Erie Formalism

Article written as part of Symposium: Erie Under Advisement: The Doctrine After Shady Grove

A Deeper Dive into Nautilus: Differentiating Insurer Efforts to Recover Defense Costs and Assessing Recoupment in the Wake of the ALI Restatement

Insurers and Policyholder have for decades contested whether the typical general liability policy requires policyholders to reimburse insurers for defense costs where a claim is ultimately held not to be one for which a defense is required. Although a slight majority of decisions favors insurers, the recent trend has favored policyholders, as reflected in §21 of the American Law Institute Restatement of the Law, Liability Insurance (“RLLI”), one of several contested portions of the RLLI. In Nautilus Insurance v. Access Medical, the Nevada Supreme Court provided the most extensive post-RLLI analysis of the dispute, ruling in favor of the insurer and seemingly rejecting the ALI approach. As the most sophisticated post-RLLI examination of the issue, Nautilus deserves particular attention. The majority opinion, although sophisticated and reasonable, makes analytical errors that caution against unquestioning adoption of its rhetoric while the dissenting opinion, which invoked RLLI §21 favorably, remains the better analysis of the matter. Unduly overlooked to date is the degree of apparent support for the RLLI position in “mixed” actions combining covered and uncovered claims in which a single potentially covered claim. In these cases, the ALI RLLI position is logically unassailable. Insurers should not be able to recoup defense costs pursuant to policies that promise to defend “suits” and not merely “claims” and to pay “defense costs” without any limiting language that would give fair notice to a purchasing policyholder. A lawsuit where a court ultimately finds no duty to defend any aspect of the matter presents a much closer case but, as per RLLI §21 and the Nautilus Dissent, remains a situation where recoupment should be refused absent specific agreement by insurer and policyholder (rather than the vulnerable policyholder’s mere acceptance of a defense subject to reservation of rights). Nautilus is also worth attention in that its answer to a federal court’s certified question stems from a questionable underlying decision of no potential for coverage. Nautilus also illustrates the institutional advantages held by insurers and the practical problems faced by policyholders when the insurance industry deploys its disproportionate resources

Timeless and Ahead of Its Time: Lach\u27s v. Fidelity & Casualty of New York

The publication of Judge Keeton\u27s important article “inventing” the reasonable expectations doctrine in 1971 is notable for infusing a good deal of intellectual energy into the study of insurance law, particularly judicial decisions about insurance coverage. Keeton\u27s article, which deduced from cases the principle that courts tended to interpret policies to vindicate the objectively reasonable expectations of the insured, has rightly been viewed as a milestone. It clarified an area of law long seen as inconsistent or result-oriented. It spurred additional important scholarship in the area and elevated insurance caselaw from something of a backwater to at least a respectable academic discipline, even if not quite an exciting one. But as important as Keeton\u27s article was, it to some extent perhaps even understated the extent to which courts had long utilized the reasonable expectations concept without mentioning it by that name. It also tended to underplay the degree to which courts construed insurance contracts in light of their intended purpose, irrespective of whose expectations were involved. Most important for purposes of this Symposium topic, Keeton\u27s seminal article cited Lachs v. Fidelity & Casualty Co. of New York only in passing. The short treatment seems unusual in that Lachs is a most interesting case from the then-largest state in the nation, a case that utilized not only the reasonable expectations principle, but also an array of contract concepts designed to illuminate the apt meaning of the insurance policy. Furthermore, Keeton arguably mischaracterizes Lachs as a case that is straining to construe the insurance policy to provide coverage. He suggested that Lachs had “tortured” the policy language and in effect applied a sub silentio strong form of the reasonable expectations doctrine that protects policyholder expectations even in the face of clear contrary policy language. To be sure, Lachs utilized the reasonable expectations approach and did so nearly twenty years before Keeton coined the term and introduced the reasonable expectations concept to the academic world. But Lachs used other contract construction tools to appropriately find coverage and, in my view, hardly “tortured” the policy language. Rather, Lachs took a comprehensive, context-sensitive, eclectic approach to policy construction, an approach in which policyholder expectations were a part of the analysis rather than a trump card for the policyholder. Unfortunately, Lachs has long been either overlooked or treated as something of a novelty case because of its subject matter - “vending machine” or “self-service” flight insurance. On closer examination, Lachs provides not only an interesting (if tragic) fact pattern but also illustrates with understated grace the appropriate approach to resolving insurance coverage disputes with consideration to questions of text, party intent, purpose, expectations, and public policy