John F. Rosato

Crystal Fraser

Andrew Amer & Linda H. Martin

Peter Nash Swisher & Richard C. Mason

Andrew Verstein

Abstract

Article 9 of the Uniform Commercial Code excludes from its scope any transfer of an interest in a life insurance policy, meaning that any lender whose security is a life insurance policy may not look to the UCC to determine her rights. This Article argues that the exclusion should be eliminated because it leaves insurance governed by antiquated and problematic law. Three specific problems are considered: non-UCC law does not have a satisfactory alternative to UCC perfection; non-UCC law is insufficient to prevent lenders from abusively taking more than their share of value from defaulted policies; and non-UCC law allows insurance companies to hinder securitization through the “reservation problem.” As a result, Americans borrow $121 billion worth of policy loans, almost all of which occurs without serious competition. Eliminating the life insurance exclusion would rationalize the law of lending in this area and improve prospects for a secondary market.

Taylor Meehan

Abstract

The following note discusses the Price-Anderson Nuclear Industry Indemnity Act as a model liability insurance system for future clean energy technologies such as carbon sequestration and geothermal energy. The Price-Anderson Act implements a tiered insurance system requiring individual commercial nuclear power plants to secure private insurance for site-specific incidents up to a certain threshold, supplemented by an industry-wide pooling system that indemnifies losses exceeding the primary layer. If the industry pool is exhausted, the federal government serves as the final indemnifier, providing additional compensation when appropriate. This note examines the history, development, and amendments of the Price-Anderson Act since its 1957 enactment and highlights aspects of the system that should be adopted in the future. It argues that carbon sequestration and geothermal energy technologies are presently in a position similar to that of the nuclear industry in the early 1950s. The parallels—particularly the low probability of industrial accidents but extensive potential consequences—support analyzing whether the nuclear indemnity model is transferable to emerging clean energy technologies. Ultimately, the note contends that several core components of the Price-Anderson Act, including its liability cap, federal involvement, no-fault liability structure, federal jurisdiction, and continuously updated policies, are not only suitable for future systems but should be implemented by the insurance industry when underwriting carbon sequestration and geothermal energy risks. The note concludes that the United States urgently needs to restructure its national energy policy, and a key aspect of this effort is creating an adaptable liability system for new clean energy sources; the framework provided by the Price-Anderson Act is America’s best solution.

Wyatt R. Jansen

Joseph B. Kadane

Abstract

Random sampling is a widely used and well-established technique for reducing the cost of providing interpretable data. This paper discusses examples in several different kinds of litigation in which random sampling has been useful and concludes with speculation about the possible use of random sampling in mass tort litigation. This paper aims to contribute to the discussion of using statistical methods to handle mass tort cases efficiently; after reviewing the basics of sampling, it summarizes cases involving sampling in which the author participated and concludes with thoughts on how mass tort litigation might be approached statistically.

Edward Brunet

Abstract

Several generalizations dominate mediation discourse. Discussions of mediation often invoke near-mythic concepts such as trust, confidentiality, expertise, and the supposed asymmetric information advantages held by risk-neutral, data-rich insurance companies. This short essay critiques these generalizations and exposes them as incomplete and often erroneous. Mediator expertise is elusive and not always necessary; mediators frequently lack substantive expertise and possess only procedural skill, making their expertise partial and sometimes minimal. Confidentiality, likewise heralded as central to mediation, is overstated. In reality, mediators routinely filter and redistribute information gathered in earlier caucuses—“noisy mediation”—which is essential to mediation theory and indispensable to settlement. Mediator comments often carry implicit informational signals. Similarly, the stereotype that data-rich insurers, as repeat players, possess a universal advantage in making and receiving offers is undermined by the rise of sophisticated, organized plaintiff networks that prevent insurers from dominating the mediation process. As for trust, often deemed essential, the author expresses mixed views: trust can be helpful and influential, particularly early in the mediation process, but it is difficult to generate and does not guarantee a successful settlement.

Robert G. Bone

Abstract

This Article addresses the normative issues raised by the use of statistical sampling to adjudicate large case aggregations. In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court referred to sampling pejoratively as “Trial by Formula,” but this Article argues that the label is undeserved. Sampling can be justified in many more situations than courts currently recognize, and society is paying a high price for limiting its use. Expanding on my earlier work, Statistical Adjudication: Rights, Justice, and Utility in a World of Process Scarcity, this Article develops the analysis in four ways. First, it examines the effect of sampling on settlement and explores how sampling influences frivolous and weak filings; although sampling may reduce settlement likelihood and provide cover for undesirable lawsuits, these effects do not outweigh its benefits in sufficiently large aggregations. Second, it evaluates sampling under an outcome-oriented, rights-based theory, noting that the most serious issue is that sampling gives high-value plaintiffs only an average recovery; the Article generalizes this concern beyond the earlier treatment. Third, it offers additional reflections on process-based participation and the day-in-court right based on more recent scholarship. Fourth, it explores a further objection not addressed previously—the “methodological legitimacy objection”—which argues that adjudication fundamentally requires reasoned, fact-sensitive deliberation, whereas sampling substitutes formulaic methods for individualized reasoning. Although this objection has intuitive force, the Article demonstrates that it is difficult to defend rigorously.