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This chapter describes how liability insurance has contributed to the transparency of the civil justice system. It makes three main points. First, much of what we know about the empirics of the civil justice system comes from access to liability insurance data and personnel. Second, as long as access to liability insurance data and personnel depends on the discretion of liability insurance organizations, this knowledge will be incomplete and, most likely, biased in favor of the public policy agenda of the organizations providing discretionary access to the data. Third, although mandatory disclosure of liability insurance data would improve transparency, a reasonably complete understanding of the empirics of the civil justice system also requires mandatory disclosure of the payments and defense expenditures that are not covered by alternative risk transfer arrangements. The first part of the chapter describes existing approaches to transparency through liability insurance in the United States. The second part analyzes the role of liability insurance in promoting transparency in several discrete civil justice arenas—auto, medical, and products liability—and, for comparison purposes, workers' compensation. The concluding section addresses objectives to expanding mandatory claims reporting and links the discussion in this chapter to the literature on the relationship between liability and insurance more generally.

Practical operation of the law of tort cannot be fully comprehended without closely looking at the fact and extent of insurance, whether it be liability insurance, loss insurance, or legal expenses insurance. In general and in several cases, it is only the fact that the defendant is insured against liability which makes it worthwhile to sue him. Liability insurance is observed in the case of individual defendants as well as in business and institutions wherein liability insurance is seen as a means to rid out fear when confronted with a claim. This chapter focuses on the interplay between insurance and tort law. It discusses the effect of insurance on the content of law as well as the impact of law on insurance. The chapter also discusses mutual insurance, which emerged as means of riding out the increasing cost of indemnity insurance. The discussion furthermore includes subrogation and contribution and the prevailing arguments on insurance.

Illustrates the pervasive influence of insurance in the conduct of civil litigation and the enforcement of rights, affecting which claims are brought; how they are framed; and how they are defended. Draws on legal provisions and reforms to explain how deep and wide the influence of insurance is in shaping the process of claiming. Analyses the role of insurance in assisting the claimant in financing a claim; sets out the impact of the defendant’s liability insurance upon the manner in which the claim is made and its defence; and reviews the operation of the third party legislation, which converts liability insurance into a mechanism for the enforcement of judgments. Shows how insurance affects the way in which liability is established and, ultimately, satisfied

French law is famous for the sharpness with which it draws the distinction between private law and public (and particularly administrative) law, revealed at the level of the courts’ jurisdiction, as well as at the levels of substantive law and legal procedure. The French law of liability demonstrates many of the key features of this division between administrative and civil, public and private. This chapter outlines the very basic features of the regimes of liability, notes the influence of liability insurance in their development, and outlines how insurers and others who pay compensation to primary claimants may themselves have a claim for an indemnity in respect of these payments. These latter features are important in forming an understanding of how liability is channelled in the system.

This chapter explores the institutional culture of American maternity care and analyzes the common belief that malpractice lawsuits are arbitrary, unpredictable, and irrational threats. The high cost of liability insurance, the impossibility of guaranteeing perfect outcomes, and knowledge of lawsuits or experience with claims has produced a culture of anxiety and risk avoidance among obstetricians. At the same time, the rate of malpractice lawsuits has declined over time, largely because the cost of pursuing a case is very high. Healthcare professionals also wield enormous power to define the standard of care, which is the benchmark for medical negligence. Rather than many lawsuits being frivolous, there are many genuine victims of negligence who cannot find legal representation.

The Dodd–Frank Act not only cut back on the Fed's ability to serve as lender of last resort, it also cut back on the Federal Deposit Insurance Corporation's (FDIC) ability to expand deposit insurance or create other guarantees during a crisis. A starting point for reform would be to eliminate the changes made to the guarantee system by Dodd–Frank. But more needs to be done to further strengthen the system. This chapter explores the various problems in designing a better and broader insurance regime. It discusses the amount of liabilities to insure; insurance pricing; ex ante pricing; option pricing; ex post pricing; and implementing a guarantee program for short-term nondeposit creditors of financial institutions only when it becomes apparent that there is a crisis involving heightened systemic risk.

This chapter discusses the practice of American courts in resolving conflicts involving various types of insurance coverage. These conflicts have earned their classification in a separate category, not only because of their sheer numbers, but also because they possess characteristics of both contract and tort. The coverage includes automobile insurance, life insurance, and insurance for commercial liability products liability, environmental pollution, and punitive damages. It includes extensive discussion of the two approaches American courts have developed in resolving conflicts involving insurance policies that cover multiple risks situated in different state—the “Uniform Contract Interpretation” approach, and the “Site-Specific” approach.

Liability insurance premiums in the United States are extremely costly for many commercial policyholders, and at times, availability crises have arisen in lines such as pollution liability, general liability, and medical malpractice. Even personal lines policyholders have been adversely affected by the high cost of private passenger automobile liability insurance. This chapter addresses several important aspects of a liability system. First, it considers the loss event itself and how one can assign responsibility equitably for damages arising from two or more distinct sources. Next, it discusses the concept of no-fault automobile insurance—one mechanism a society can use to reduce the costs of its liability system. Finally, it suggests various ethical criteria for determining the ultimate financial responsibility of government as the “insurer of last resort.”

Are there compelling reasons why we should not have serious gun control at least in the United States? Would any attempt at control fail in the way that Prohibition failed? I explain why the comparison with Prohibition is illicit. I propose how we should proceed incrementally given the absence of wholly convincing rights-based or empirical arguments. We can implement a series of small forms of control: universal registration, an assault weapons ban, retaining gun-free zones, among others. I then explore indirect methods of achieving some aims of control without employing explicit coercion. In particular, I argue that gun owners should be required to carry liability insurance to guarantee that those harmed by guns are appropriately and adequately compensated. This could be augmented by a policy of strict liability.

Chapter 3, “Customer Protection and the Liability Conundrum in an Open Finance Ecosystem,” examines what is arguably the most difficult challenge in open banking. Authored by Steven Boms, Executive Director of the Financial Data and Technology Association’s North American Chapter and President of Allon Advocacy, and Sam Taussig, Kabbage’s former Global Head of Policy and Special Product Development, this chapter explores why this issue is particularly challenging in various jurisdictions, such as the United Kingdom, continental Europe, and the United States. Boms and Taussig describe current gaps in the US customer liability framework under Regulation E of the Electronic Fund Transfers Act and suggest shared liability and traceability-based policy options for modernizing the US regulatory environment.