Can\u27t Settle, Can\u27t Sue: How Congress Stole Tort Remedies From Medicare Beneficiaries

In this article, I show that, as amended, the MSP will likely have unforeseen consequences to the tort system. I start by reviewing the history of Medicare and the forces that led Congress to enact and amend the MSP. With illustration from the classic economic model of litigation, I then show that, not surprisingly, the MSP – as written – makes it more difficult for Medicare beneficiaries to bring and settle individual tort claims. What may be less obvious is that this amendment may have a profound impact in the area of mass tort litigation. If individual parties to a mass tort cannot settle, plaintiffs’ attorneys, who make the litigation decisions in mass torts, may determine that it is not lucrative to include Medicare beneficiaries in mass tort litigation or to bring mass tort litigation at all. This could have several consequences. First, and most obviously, if certain plaintiffs cannot bring claims, they will not be appropriately compensated for their harms. Moreover, if tortfeasors are not made to pay for their tortious conduct, they will not internalize the harms caused and will not take the proper amount of precaution to protect against future harms. Further, if there are no mass tort actions, the Secretary will not have access to the discovery done by private litigation against these mass tort defendants. As such, the Secretary may have a harder time collecting Medicare’s conditional outlays from truly tortious parties. Lastly, I offer a simple means to rectify this complex problem: force the Secretary to use the clear statutory right of subrogation against tortfeasors. Subrogation will not fundamentally change Medicare’s ability to recover its costs from an alleged tortfeasor, but will alleviate the disincentives to settlement in the tort setting

The New Regulatory Imperative for Insurance

This Article addresses emerging gaps in consumer protection. Insurers, like companies in other industries, are revolutionizing their practices with artificial intelligence and big data. Insurers are finding new ways to price risks and policies, tailor coverage, offer advice to purchasers, identify fraud, and sequence the payment of claims. These changes have subverted consumer protections built into current regulatory regimes, and regulators are struggling to adapt. This is not a niche problem. Insurance is a vital part of the U.S. economy: it rakes in over 1.2 trillion dollars in premiums a year; employs more than 2.7 million people; and undergirds transactions as simple as home purchases and as complex as corporate mergers and acquisitions, the multi-trillion-dollar tort system, and a vast system of private risk management and loss avoidance advice. Despite playing these critical roles, the insurance market is surprisingly inefficient. Deep information asymmetries make it difficult for consumers to evaluate the quality of policies and carriers, for insurers to price risks properly, and make it possible for both sides to act opportunistically. Further, behavioral barriers hamper purchasers, who often buy too little or the wrong insurance. And, in some markets, private insurers might not be willing to supply enough insurance because the underlying risks cannot be adequately spread. Insurance regulation is a necessary part of solving these complex market failures. Most of the previous legal scholarship about algorithmic justice has been in the context of information platforms, criminal justice, and employment discrimination. This Article connects to those discussions and expands them in the specific context of insurance. It does so by providing a taxonomy of the changes in the insurance industry, the potential danger to consumers as a result of those changes, the reasons for regulation, and the ways that regulators must adapt to protect individual consumers and the insurance market

Regulation by Liability Insurance: From Auto to Lawyers Professional Liability

Liability insurers use a variety of tools to address adverse selection and moral hazard in insurance relationships. These tools can act on insureds in a manner that can be understood as regulation. We identify seven categories of such regulatory activities: risk-based pricing, underwriting, contract design, claims management, loss prevention services, research and education, and engagement with public regulators. We describe these activities in general terms and then draw upon prior literature to explore them in the context of five areas of liability and corresponding insurance: shareholder liability, auto liability, gun liability, medical professional liability, and lawyers’ professional liability. The goal is to develop a conceptual framework to guide qualitative research on liability insurance as governance

Regulation by Liability Insurance: From Auto to Lawyers Professional Liability

Liability insurers use a variety of tools to address adverse selection and moral hazard in insurance relationships. These tools can act on insureds in a manner that can be understood as regulation. We identify seven categories of such regulatory activities: risk-based pricing, underwriting, contract design, claims management, loss prevention services, research and education, and engagement with public regulators. We describe these activities in general terms and then draw upon prior literature to explore them in the context of five areas of liability and corresponding insurance: shareholder liability, auto liability, gun liability, medical professional liability, and lawyers’ professional liability. The goal is to develop a conceptual framework to guide qualitative research on liability insurance as governance

Liability Insurer Data as a Window on Lawyers’ Professional Liability

Using the best publicly available data on lawyers’ liability claims and insurance – from the largest insurer of large law firms in the U.S., the American Bar Association’s Standing Committee on Professional Liability, and a summary of large claims from a leading insurance broker–this article reports the frequency of lawyers’ liability claims, the distribution and cost of claims by type of practice, the disposition of claims, and lawyers liability insurance premiums from the early 1980s to 2013. Notable findings include remarkable stability over thirty years in the distribution of claims by area of practice among both small and large firms, a large percentage of claims (64-70%) involving de minimis expense (less than $1000) in the small firm market, and in the large firm market a declining rate of “real claims” per 1000 lawyers, a declining rate of real average gross loss per claim, and stable real premiums per lawyer since the early 1990s. Because of data limitations, however, these results cannot be confidently generalized. Further advances in the understanding of lawyers’ liability and insurance will require qualitative research

Liability Insurer Data as a Window on Lawyers’ Professional Liability

Using the best publicly available data on lawyers’ liability claims and insurance – from the largest insurer of large law firms in the U.S., the American Bar Association’s Standing Committee on Professional Liability, and a summary of large claims from a leading insurance broker–this article reports the frequency of lawyers’ liability claims, the distribution and cost of claims by type of practice, the disposition of claims, and lawyers liability insurance premiums from the early 1980s to 2013. Notable findings include remarkable stability over thirty years in the distribution of claims by area of practice among both small and large firms, a large percentage of claims (64-70%) involving de minimis expense (less than $1000) in the small firm market, and in the large firm market a declining rate of “real claims” per 1000 lawyers, a declining rate of real average gross loss per claim, and stable real premiums per lawyer since the early 1990s. Because of data limitations, however, these results cannot be confidently generalized. Further advances in the understanding of lawyers’ liability and insurance will require qualitative research

Authentic Happiness & Meaning at Law Firms

We advocate that law firms can and should foster authentic happiness and meaning in the professional lives of their associates. Based upon empirical and experimental research in behavioral economics and positive psychology, we consider how law firms can implement policies to promote authentic happiness and meaning in their associates\u27 professional lives. We also believe that law schools can and should help to reduce the anxiety, stress, and unhappiness that individuals feel as law students and help them develop abilities to achieve meaningful careers as law firm associates. We provide a guide as to how law firms and law schools can design policies and procedures to nudge people towards achieving more authentic happiness and meaning in their professional (and personal) lives if people so desire