Mandates, Markets, and Risk: Auto Insurance and the Affordable Care Act

Now that the Affordable Care Act (ACA) individual health insurance mandate has been upheld by the United States Supreme Court, it is an opportune time to examine precedents for the individual mandate that were not considered in the legislative debate or litigation about the ACA’s constitutionality, particularly auto insurance mandates. Although opponents’ arguments were cast largely as Commerce Clause claims, the arguments have a deeper foundation as claims about liberty and coercion which go far beyond the Commerce Clause. Although auto insurance mandates are obviously different, particularly in that they are state rather than federal, auto insurance mandates can help us understand what Congress was doing, and why, when it enacted the ACA reforms and the individual mandate. Auto insurance mandates are relevant because they are a ubiquitous example of risk-spreading through a combination of private markets and public regulation, which is the same broad approach taken by the ACA individual mandate. This article shows that auto insurance mandates are an important precedent for the ACA individual mandate, and have four significant parallels with the ACA provision. First, both arose from challenging situations where there are compelling reasons for mandates. Second, both types of mandate order that people insure themselves against risks they might want to bear themselves. Both types require that risks be transferred and spread, which is an essential aspect of what insurance does. Last, both require people to buy something from a private seller. Both mandates are similar policy responses to important public policy dilemmas involving physical harm or illness and how to finance needed redress or treatment. The article turns to the common rejoinder that auto insurance mandates are fundamentally different because driving is a choice and so regulation is acceptable, in contrast to the ACA mandate which regulates living itself, not an acceptable thing for government to do. This argument is specious for at least three reasons. First, driving is not always a choice. Second, the Supreme Court’s decision shows that the ACA mandate actually does create a choice. Third, auto insurance mandates actually are far more coercive than the ACA individual mandate. Finally, the article unearths and highlights pertinent aspects of the history of auto insurance mandates. Opponents fought mandates for six decades using arguments about freedom and American values to oppose them, much as ACA mandate opponents do today. Doubts about and challenges to the constitutionality of mandates were consistently resolved in their favor particularly in light of the public welfare aspects of insurance. “Freedom” arguments have faded over time and auto insurance mandates have proven themselves a workable, widely accepted, very American way of dealing with risk

Domestic Violence Torts

The Article systematically looks at domestic violence as a torts issue and also critiques how tort theory prioritizes accidents over intentional torts. After showing how domestic violence fits within the categories of intentional torts including battery, assault, false imprisonment and intentional infliction of emotional distress, the article highlights the disjunction between the prevalence of domestic violence and the virtual absence of tort suits seeking compensation for domestic violence injuries. The article analyzes the reasons for that absence and finds a range of explanations. Some of the explanations are practical, such as the ‘intentional acts exclusion’ in liability insurance and short statutes of limitations for intentional torts, which together with other factors guarantee that there will be little litigation in this area. This in turn means that the torts system is not serving deterrence or compensation functions and is leaving domestic violence unaddressed. More broadly, the torts system considers intentional torts more serious than negligence, but promotes compensation for negligence rather than intentional torts. The article calls for creative responses to the problem of domestic violence torts, and proposes a revised approach to auto insurance which would include a required minimum coverage for domestic violence torts, spreading the costs rather than letting them fall solely on the victims. Finally, the article critiques the accident-centered focus of twentieth-century tort law, calling for a focus that includes a broader range of harms

Youth Cohorts, Population Growth and Political Outcomes

This working paper, written by a distinguished political scientist of Columbia University, was presented at a IIASA conference in Sopron, Hungary, October 18-21, 1988. It has been the subject of correspondence with us at IIASA since and has been extensively revised. As it stands it represents as good thought as is now available on a vitally important subject: the politics of youth. The restlessness of youth has been long talked about but the present demographic conjuncture gives it special saliency. In most of the more developed countries (MDCs) the postwar baby boom led to large numbers of youth -- large in relation to the older population of the time -- during the late 1960s, and this demographic fact coincided with an explosion of protest around the world. In due course that explosion was contained, and most of the youth in question settled into middle class jobs. Only in countries of exceptionally rigid labor markets is there a residue of youth unable to insert itself into stable employment. For the less developed countries (LDCs) the baby boom has been later, and was due more to the fall in death rates, especially infant mortality, than to a rise in births. In fact birth rates did rise in some places; elsewhere they remained constant or fell, but not enough to offset the fall in deaths. Youth cohorts of the LDCs at the present time are even larger in relation to the numbers of their elders than they were in the MDCs in the late 1960s. Howard Wriggins writes from his knowledge of a number of Asian and African countries, showing the political effect of large youth cohorts, in the context of multi-cultural societies, with newly raised standards of education, where economic progress is indeed occurring but not fast enough to satisfy aspirations

Tort, Race, and the Value of Injury, 1900-1949

The Article begins a systematic examination of race and torts. Despite the barriers posed by racist exclusionary structures and violence, many African-Americans sued for and received compensation for personal injuries in the first half of the twentieth century, winning verdicts and appellate decisions in all regions. However, the fact that black plaintiffs sometimes won does not mean that they were treated equally with whites. Examples from all stages of the litigation process demonstrate that race and racism have been significant in devaluing injuries to black plaintiffs. The process of racial categorization was a significant mechanism in devaluing black plaintiffs’ claims. Powerful actors in the tort system focused on the race of black people in the course of measuring their injuries, finding that their race made their injuries from torts worth less than injuries to whites. Some judges even measured harm caused by the deaths of black family members based only on earlier cases involving deaths of blacks; in other words they used segregated precedents to measure blacks’ injuries. This categorization process was one way that decisionmakers ignored the principle that like cases should be treated alike. The torts system’s individualized focus, with no exacting requirement that results in cases be compared, gave free rein to whites’ bias and unfavorable treatment of blacks\u27 claims, and also made such bias very difficult to detect. Aggregate analysis of awards in dozens of fatality cases shows that awards to black families for the loss of a loved one were less than half of those to white families in similar situations. Tort cases both reflected and reinforced racial inequality. Going forward, although race is no longer on the surface of tort law, it is important to be mindful of the ways that different aspects of the tort system may contribute to devaluing tort claims of African-Americans and other racial minorities

How to Include Issues of Race and Racism in the 1-L Torts Course: A Call for Reform

Race and racism have always played a significant role in the U.S. tort system as research has long shown and as hundreds of published decisions demonstrate. Do torts casebooks reflect the importance of race and racism in torts? The article first surveys 23 torts casebooks published from 2016 to 2021 to see whether and to what extent they discuss race and racism. Most avoid discussions of race and racism in torts; and although they always discuss tort history, they omit the racial history of torts. Although publishers frequently issue new editions of torts casebooks, newer editions generally have not expanded their focus to include race and racism. Two notable exceptions are the new open source casebook, TORTS: A 21ST CENTURY APPROACH, by Prof. Zahr Said, and TORT LAW AND PRACTICE by Prof. Dominick Vetri and co-authors. Following the casebook survey, the article turns to this question: How can professors incorporate issues of race and racism in their torts courses? I recommend that law teachers incorporate issues of race and racism in first year torts courses in two major ways. First, law professors should teach a number of pedagogically interesting cases that deal with race and racism and that also illuminate significant doctrinal issues. This article suggests specific cases keyed to most of the important doctrinal areas in torts. These cases are less known than cases that are commonly taught, but they are also important and can convey the relevant doctrinal points equally well. Second, law professors in teaching damages should include material on the devaluation of injuries to African-Americans in torts. Important background also includes information about the unequal distribution of liability insurance – a key part of the torts system – by race. Since torts is a required first year course, and race and racism have had a significant role in the U.S. torts system, law students should gain at least a general understanding of race and racism’s role in torts. Including race and racism in torts courses strengthens the first year curriculum. While this may seem daunting for some instructors, ample materials now on offer make it very feasible. The time is certainly ripe for this essential change

Response to \u3cem\u3eKeeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law\u3c/em\u3e

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a question that is probably impossible to definitively answer but that is very important to explore: where state legislatures and courts continue to retain outmoded tort doctrines like contributory negligence, which tend to limit plaintiffs’ access to juries, is this because state legislatures and judges believe juries with large concentrations of African-Americans and low-income people will unacceptably distribute wealth to plaintiffs? The term “Bronx effect” alludes to this alleged phenomenon. No other article has rigorously tried to link the so-called Bronx effect with the perpetuation of outmoded tort doctrines. The authors use a complex interdisciplinary approach to rank states in terms of the degree to which their tort doctrines deny plaintiffs’ access to juries. Digging deep into factors that might affect a state’s ranking, they then find strong correlations between a state’s law making it difficult for plaintiffs to reach a jury, and a state’s having a large African-American population and/or being part of the South. This and other findings in the article are significant, bringing to light a race- based exclusionary pattern in the legal system. The pattern of keeping cases from black buries also likely leads to undercompensation of African-American plaintiffs, my response explains. The article deserves a place in torts scholarship generally, in critical race scholarship, and in empirical legal scholarship. While it is not surprising that definitive causal conclusions are lacking, implicit bias may shed light on the mechanisms by which these outmoded doctrines endure. The article’s calls for reform are reasonable in light of the evidence of the study and other torts scholarship

Tort, Race, and the Value of Injury, 1900-1949

The Article begins a systematic examination of race and torts. Despite the barriers posed by racist exclusionary structures and violence, many African-Americans sued for and received compensation for personal injuries in the first half of the twentieth century, winning verdicts and appellate decisions in all regions. However, the fact that black plaintiffs sometimes won does not mean that they were treated equally with whites. Examples from all stages of the litigation process demonstrate that race and racism have been significant in devaluing injuries to black plaintiffs. The process of racial categorization was a significant mechanism in devaluing black plaintiffs’ claims. Powerful actors in the tort system focused on the race of black people in the course of measuring their injuries, finding that their race made their injuries from torts worth less than injuries to whites. Some judges even measured harm caused by the deaths of black family members based only on earlier cases involving deaths of blacks; in other words they used segregated precedents to measure blacks’ injuries. This categorization process was one way that decisionmakers ignored the principle that like cases should be treated alike. The torts system’s individualized focus, with no exacting requirement that results in cases be compared, gave free rein to whites’ bias and unfavorable treatment of blacks\u27 claims, and also made such bias very difficult to detect. Aggregate analysis of awards in dozens of fatality cases shows that awards to black families for the loss of a loved one were less than half of those to white families in similar situations. Tort cases both reflected and reinforced racial inequality. Going forward, although race is no longer on the surface of tort law, it is important to be mindful of the ways that different aspects of the tort system may contribute to devaluing tort claims of African-Americans and other racial minorities