The ALI Principles: A Farewell to Fault—But What Remedy for the Egregious Marital Misconduct of an Abusive Spouse?

The fundamental premise of this commentary is that the ALl has erred in not including appropriate nonfinancial fault-based factors in the Principles for three major reasons: 1) other no-fault laws, including no-fault automobile insurance law, no-fault workers compensation law, and strict liability in tort law, have all incorporated a number of fault-based exceptions to their general no-fault framework for serious or egregious conduct, and American divorce law should likewise have a similar fault-based exception for serious or egregious marital misconduct; 2) a substantial number of states continue to recognize and utilize a number of fault-based statutory factors in divorce for serious and egregious marital misconduct, and these state courts generally have applied such fault-based remedies in a realistic and responsible manner; and 3) alternative tort or criminal law remedies for serious and egregious marital misconduct have proven to be inadequate legal remedies in theory and practice. Accordingly, this commentary will conclude that fault-based factors for egregious marital misconduct should be retained, or should be seriously reconsidered, by any state legislature that is considering legislative adoption of the ALI Principles

Judicial Rationales in Insurance Law: Dusting Off the Formal for the Function

The purpose of this Article is to demonstrate that there is indeed a great deal of method within this apparent judicial \u27hiadness if one properly understands and appreciates the two competing theories of Judicial Formalism versus Judicial Functionalism in an insurance law context. And with a proper understanding of these two competing judicial theories, numerous apparent inconsistencies in insurance law decisions may be reconciled within each particular theoretical framework. Accordingly, this Article will present a general overview of these two competing theories of American jurisprudence, and then discuss their conflicting applications in various insurance law decisions by utilizing a number of specific insurance law examples for illustrative purposes. The central theme of this Article is that, in an insurance law context at least, Legal Formalism today is far from a dead issue and may in fact be in a resurgence, while Legal Functionalism, as exemplified by the doctrine of reasonable expectations, may be experiencing a more limited application in many courts today than various commentators had originally predicted. The resulting conclusion of this Article, therefore, is that it is not enough to know the law of insurance. One must also know the judge

Techniques of Legal Drafting: A Survival Manual

The charge that we lawyers cannot write plain English is often supported by the quality of our legal documents. Legal drafting has aspects of complexity and precision not found in the great bulk of writing with which pre-law students are familar. Yet the traditional apprentice method for training competent legal draftsmen has failed either because the typical young lawyer has been apprenticed to the wrong master or because the law schools have been unable to provide enough competent ones. This lack of a proper emphasis on legal drafting skills in America is demonstrated by the fact that of the four authors of current treatises on legal drafting, only one is an American

Products Liability Tort Reform: Why Virginia Should Adopt the Henderson-Twerski Proposed Revision of Section 402A Restatement (Second) of Torts

Over the past three decades, literally thousands of American products liability judicial opinions have explicitly referred to, and analyzed, section 402A of the Second Restatement of Torts. At least thirty-four states have judicially adopted section 402A, and five other states have passed specific statutes adopting the section.3 Since the landmark products liability case of Greenman v. Yuba Power Products,Inc.4 in 1963, at least forty-five states have now adopted some form of strict liability in tort remedy in American products liability actions.5 Only Virginia and four other states do not recognize a strict liability in tort remedy applied to state prod- ucts liability actions.\u2

Proposed Legislation: A (Second) Modest Proposal to Protect Virginia Consumers Against Defective Products

The purpose of this article is to suggest a viable, necessary, and eminently reasonable legislative alternative that the Virginia General Assembly should enact for legitimate and pressing public policy reasons in order to properly protect Virginia consumers from defective and unreasonably dangerous consumer products.Adopting this alternative would bring the Commonwealth of Virginia into the mainstream of twenty-first century American, and transnational, products liability law

Divorce Planning in Antenuptial Agreements: Toward a New Objectivity

Within the past fifty years, there have been numerous articles written about the validity and enforceability of antenuptial agreements. Such agreements are generally favored by the law when prospective spouses privately contract to vary, limit, or relinquish certain rights which they would otherwise acquire in each other\u27s property or in each other\u27s estate by reason of their impending marriage. Traditionally, this antenuptial agreement is typically made by older people who are about to be remarried, and who have acquired considerable property from a prior marriage that they wish to control

Judicial Interpretations of Insurance Contract Disputes: Toward a Realistic Middle Ground Approach

In a previous law review article, this author analyzed the seemingly arbitrary and contradictory decisional patterns in American insurance law cases. The article concluded that these contradictory judicial patterns could be understood and appreciated if one recognized the fundamental impact-and clash-of two competing theories of American jurisprudence: Legal Formalism and Legal Functionalism in an insurance law context. Broadly speaking, Legal Formalism is based upon the traditional view that correct legal decisions are determined by pre-existing legal rules, and that the courts must reach their decisions in a logical, socially neutral manner. Formalist judges therefore apply the philosophy of judicial restraint in favor of established legislative and administrative authority. In an insurance law context, Legal Formalism is exemplified by the writings of Professor Samuel Williston and others who believe that insurance contracts ought to be judicially interpreted under the same legal principles as contracts in general, with the exception of various insurance forms, laws, and procedures that are regulated by statute. Legal Functionalism, on the other hand, is based upon the view that the paramount concern of the courts should not be logical consistency, as the Formalists believe, but socially desirable consequences. Functionalist judges therefore apply the philosophy of judicial activism, co-equal to legislative and administrative authority. In an insurance law context, Legal Functionalism is exemplified by the writings of Professor Robert Keeton and others who believe that the reasonable expectations of the insured ought to be honored, even though a careful examination of the insurance policy contractually would have negated those expectations. The article concluded that although Legal Functionalism is widely recognized as the dominant theory of legal jurisprudence in many other areas of American law today, Legal Formalism nevertheless has maintained continuing theoretical credibility with many courts in the field of insurance law, while Legal Functionalism-as exemplified by the Keeton insurance law doctrine of reasonable expectations-has experienced a more limited judicial application than various commentators initially had predicted. The reaction to this article from a number of academic colleagues, practitioners, and judges has been supportive and encouraging. Indeed, I was asked if I might expand upon my original article and answer two additional questions: (1)Why do many courts, which seemingly apply a more Functionalist judicial approach to other areas of the law, still retain a more Formalistic judicial approach in cases involving insurance contract disputes? (2) Is there any viable way to reconcile these two competing doctrines of Legal Formalism and Legal Functionalism in an insurance law context? The answer to the first question necessarily leads to some speculation and alternative possibilities. However, law professors are seldom shy about rushing in where others fear to tread,Wo so I shall offer a number of possible answers to this first question. In answering the second-and the most important-question, I will argue that the best elements of Legal Formalist and Legal Functionalist judicial interpretations of insurance coverage disputes may indeed be reconciled and incorporated into a viable, contractually based, and eminently realistic judicial approach to insurance contract interpretation that a number of courts are already applying on an informal basis. It is a common sense middle ground judicial approach to the interpretation of insurance contract disputes that is both legally sound and socially expedient. Accordingly, I call this synthesis of judicial Formalism and judicial Functionalism in an insurance law context the realistic middle ground approach to insurance contract interpretation

Insurance Causation Issues: The Legacy of Bird v. St. Paul Fire & Marine Ins. Co.

In all of Anglo-American law, there is no concept that has been as been so pervasive - and yet so elusive - as the causation requirement; and even today this causation requirement in American law has resisted all efforts to reduce it to a useful, understandable, and comprehensive formula regarding its underlying nature, content, scope, and significance. Indeed, no less an authority than William Lloyd Prosser has stated that there is perhaps nothing in the entire field of the law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion than legal causation issues, despite the manifold attempts which have been made to clarify the subject. \u27 Accordingly, various commentators over the years have analyzed, criticized, and discussed legal causation issues from a traditional negligence perspective, from a law and economics approach, and even from the framework of chaos theory. Most research and analysis into causation has occurred in the context of tort law, and since insurance law is something of a hybrid between tort and contract, a number of courts traditionally applied classic tort causation principles to insurance contract disputes as well. However, in recent years, causation in insurance law has evolved dramatically from a traditional classic tort causation framework to take on a separate interpretive life of its own. Indeed, if the concept of proximate cause so nearly does the work of Aladdin\u27s lamp \u27 then Justice Benjamin Cardozo arguably was the Genie in Aladdin\u27s lamp, in creating magnificent and wondrous principles of legal causation in tort law and insurance law as these two interpretive roads diverged in the challenging and foreboding bramble bush forest of insurance coverage disputes. This Article will analyze the highly significant evolution of legal causation from its hybrid tort and insurance law origins, and discuss the dramatic effect that Benjamin Cardozo\u27s seminal landmark causation decisions still have on present-day insurance law