Discrimination is fundamental to the business of auto and homeowners insurance. Yet state insurance law does remarkably little to police against the risk that this discrimination will unfairly harm minority or low-income communities. Not only do state insurance regulators completely ignore the prospect that facially-neutral insurance practices might disparately impact vulnerable populations, but they affirmatively suppress the production and dissemination of data that would advance a better understanding of this risk. Meanwhile, most states continue to cling to an antiquated, ineffective, and inefficient scheme of “public utility style” rate regulation that purports to prohibit “excessive, inadequate, or unfairly discriminatory” insurance rates. This scheme not only undermines the operation of efficient insurance markets, but also helps to shield the industry and state regulators from scrutiny regarding how insurance practices impact larger social goals—like facilitating socio-economic mobility. This Article argues that insurance law should scrap its regime of public utility style rate regulation in favor of a civil rights approach to anti-discrimination law. Such an approach should, at a minimum, promote the collection and public disclosure of company specific, transaction-level data on insurance applications, purchases, losses, and policyholder membership in legally protected groups—much in the manner of the Home Mortgage Disclosure Act. Further paralleling modern anti-discrimination regimes in consumer finance, this civil rights approach should afford private parties a cause of action against insurers based on a modified disparate impact theory that reflects the important role of risk-based discrimination in insurance markets. This could be accomplished by recognizing that insurance discrimination based on factors that genuinely predict claim frequency or severity, even after controlling for prohibited characteristics, constitutes a “legitimate non-discriminatory” practice under the familiar burden-shifting scheme for disparate impact liability.
In the toxic tort context, both litigation and regulation require reliable scientific data to establish a causal connection between exposure to some substance and alleged harm before allowing recovery or mandating mitigation. On the one hand, it is important for litigation and regulation to be based on causal evidence of actual harms. Otherwise, these interventions could make society worse off by unduly limiting the availability of useful substances and diverting resources away from addressing true risks. On the other hand, for this system to comprehensively address all important environmental externalities, there must exist sufficient incentives to generate the data required for effective risk-management through litigation and regulation. This Article argues that, in many cases, the incentives are insufficient. When it comes to latent harms, in particular, scientific research evaluating causal links is challenging and expensive. Independent researchers, who require funding for their work, are unlikely to systematically analyze the effects of new substances. To date, there are thousands of unstudied substances in use. Given the increasing importance of reliable scientific data for efficient risk management, it is time to evaluate all options for incentivizing its production in order to promote optimal deterrence in the toxic tort context. This Article proposes several ways to combat the persistent data lag, including changes to tort common law and regulation. Most controversially, it proposes a new tort cause of action for informational monitoring and analysis in some circumstances when there exist no reliable studies on the potential harm of a particular substance. A successful claim would lead to the establishment of a scientific panel, paid for by the defendant, to analyze and monitor the link between exposure to the substance and subsequent health outcomes.
In this Article, I propose an understanding of the dynamic process through which society does unrepresented status that is informed by psychological and sociological research. In describing this doing of unrepresented status, I elaborate two new concepts: the social construction of pro se status and the social production of unrepresented persons. These concepts illuminate ways in which the doing of unrepresented status is a routine, recurring feature in how court officials, lawyers, and law-trained persons perceive and interact with unrepresented persons within our civil justice system. That is, a pro se party is not something that an unrepresented person is; rather pro se status is socially constructed. In describing this doing of unrepresented status, I describe a dynamic process in which societal decisions influence the very presence and prevalence of unrepresented persons within our civil justice system (the social production of unrepresented persons) and the way in which the meaning of these unrepresented persons is, in turn, socially constructed into pro se persons, such as through the application of stereotypes, schemas, biases, expectations, and labels onto these unrepresented persons (the social construction of pro se persons). This dynamic process—this doing of unrepresented status—varies with and depends on the contexts and social identities of the persons involved. This novel understanding of the doing of unrepresented status stands in contrast to the belief that unrepresented persons are natural, inherent, or fixed features of a civil justice system or that pro se status is a stable essence, or an essential nature, that explains the presence of unrepresented persons in the civil justice system.
The attacks on the legal and constitutional structures of Hungary are, Andr´as Pap, a Hungarian scholar, argues, political maneuvers designed to cement control in one political party, and one leader. Characterizing the appeal of Viktor Orb´an’s Fidesz’s party’s self-proclaimed illiberal ideology as a “U-turn” in Hungarian politics, a deliberate turn away from liberal democratic institutions, Pap suggests that Orb´an’s success is rooted mainly in the failure of post-1989, that is, post-communist, politics. Admittedly limiting his focus to 2010 to 2012, Pap nonetheless seeks to derive a larger meaning from the Hungarian example for popu-lism’s appeal elsewhere. While true as far as it goes, Pap’s explanation does not explain the deeper political appeal of Orb´an’s politics, much less the Hungarian acquiescence, perhaps celebration, of illiberal ascen-dency. In particular, he does not invest the two years of the U-turn with a sufficiently rich explanation of the role of Hungarian history or its economy. If Hungary is an example of a larger illiberal phenomenon, then understanding its appeal depends on more than knowing that, and how, Orb´an subverted democratic machinery. It depends on knowing what such subversion has appeal, which in turn requires a rich knowledge of historical and economic factors.
Clinical trials are increasingly using sensors embedded in wearable devices due to their capabilities to generate real-world data. These devices are able to continuously monitor, record, and store physiological metrics in response to a given therapy, which is contributing to a redesign of clinical trials around the world. Traditional clinical trials are immensely expensive and limited in testing options, as they typically entail research participants coming to designated sites for measuring responses to an investigational treatment. This process creates a costly, time-intensive pathway from discovery to market and may not produce results that future patients wish to know, particularly around improvements in activities of daily living and overall quality of life. While wearable devices present potential benefits, including a reduction in expense and time for researchers as well as burden on research participants, there are data protection concerns around the magnitude of data that is generated by these devices. Participants may not be aware of the detailed, granular-level of data being collected from them, and researchers may be in violation of collecting ‘unintended data’—that is, when the data collected does not pertain to the original research purpose. These seemingly opposing views, from individual data protection to sharing big data across populations as a common resource, would benefit from drawing on lessons learned in open science. Both data protection regulation and open science emphasize the need for transparency, access to data, security, and accountability. This Article focuses on the evolving role for research participants as they become increasingly engaged in clinical trials through participant-driven data collection, and how data protection regulation could further empower participants in the research process.
Legal scholars have long recognized that market norms are respected not only because of consumer protection laws, but also because of internal market dynamics. Consumers, the argument goes, fend for themselves and hold sellers accountable. But how exactly do consumers discipline sellers? The most influential model has been the informed minority theory, according to which a critical mass of informed consumers reads and negotiates contracts in advance, thereby pressuring sellers to offer better contracts to all consumers. Recent empirical studies, however, cast doubt on the existence of such a mass, leading many to view the informed minority theory as unrealistic. What, then, may explain bottom-up governance in a world where consumers do not read contracts? In this contribution to the Clifford Symposium, we aim at exposing a different mechanism of market discipline: one that works not through ex ante reading and negotiating, but rather through ex post pressures to meet buyers’ expectations. We specifically emphasize the role of a small subset of consumers that we dub “nudniks.” Nudniks are those consumers who call in to complain, fill out satisfaction surveys, post online reviews, and file lawsuits. Driven by an innate sense of justice and atypical motivations, these nudniks act as crusading consumers against underperforming sellers. Through their actions, nudniks direct attention to seller failure, leading to a variety of formal and informal sanctions, thus presenting a more realistic form of consumer activism in today’s overwhelming information environment.
Courts have long said that legal claims are a constitutionally protected form of property. But what does that mean? This essay explores the treatment of legal claims as property rights in the context of mass torts in doctrinal, theoretical, and economic terms. Corrective justice and civil recourse conceptions of tort law dictate that tort claims are owned by individual plaintiffs. Allocating these property rights at the individual scale can make it difficult to use public mechanisms, like class actions, to aggregate mass tort plaintiffs’ claims to achieve tort law’s instrumental goals like deterrence horizontal equity. At the same time property rights in tort claims facilitate aggregation and mass settlement through private ordering that often sweeps away individualized distinctions among plaintiffs. While the private aggregate settlements that emerge may sometimes further tort law’s instrumental goals, they do so fortuitously, as a byproduct of intermediaries seeking private gain from bundling claims together for sale to the defendant en masse, and without the transparency or oversight of public alternatives.
How well do procedural doctrines attend to present-day economic inequality? This Essay examines that question through the lens of three doctrinal areas: the “irreparable harm” prong of the preliminary injunction standard, the requirement that discovery must be proportional to the needs of the case, and the due process rights of class members in actions for injunctive relief. It concludes that in each of those areas, courts and commentators could do more to take economic inequality into account.
