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Date: Mon, 28 Jul 2003 12:23:52 -0400 From: Jason Neyers Subject: Insurance/Principles/Policies
Dear Colleagues, I have been reading with interest the latest posts to the ODG. I, as might be expected, disagree with the substance of many of them: 1) Harold mentions that it is fictional to ignore the insurance factor. I think that this takes for granted the question of whether or not insurance is relevant to deciding tort law cases. How is ignoring something that is irrelevant "fictional"? It is like saying that I am engaging in a "fiction" by not acknowledging my fellow ODG members' sexual orientation each time I respond to the particular posts they make. But it is not a fiction, since sexual orientation is generally irrelevant to the rightness or wrongness of the arguments that are being made about the private law (at least the arguments thus far). By ignoring sexual orientation, am I engaging in fictions? If I am, perhaps a new submission policy is in order ;) 2) Andrew rightly points out that insurance has a greater role to play in contract law. I agree, not for the reasons he gives, but rather because the question of insurance is one of the background facts against which the parties have contracted. It does seem relevant when trying to construct the necessary implication of a particular promise (ie. the risk allocation) to know industry practice (ie. who usually insures) or to know other facts that everyone would have had in their mind (ie the availability of insurance and the relative costs of doing so). But this is just as consistent with doing justice between the parties as it is with seeking to use this particular dispute as a way of furthering some societal goal, a goal which will necessarily be contestable and should be open to the democratic decision making process. 3) Jennifer and Andrew seem glad that the judges are making their "policy assumptions explicit". This seems to me indicate that in their minds every judgment which does not contain explicit policy statements is one where: (1) the judges are blissfully unaware of policy and deluding themselves or (2) the judges are in fact lying to us, giving one set of reasons publicly, while privately having in mind the 'real' policy reasons behind their judgments. As Stephen Smith has pointed out, (the name of the article in the UTLJ escapes me but is excellent) that it is hardly believable that either of these propositions could be true for most judges. In fact, my own experience as a clerk tells me that they are not. Why is it easier to believe a mass conspiracy or a rash of intellectual failings, than to accept that most judges give their actual reasons for decision in their written reasons and that they have until fairly recently honestly believed that their function as a judge, combined with the actions' procedure and their institutional competences, required them to limit their inquiry to a defined set of relevant facts/issues? In legal theory terms, to do corrective justice rather than distributive justice.
Jason --
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