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Date: Mon, 28 Jul 2003 21:46:58 -0400 From: Jason Neyers Subject: Insurance
Dear Colleagues, Although I would love to continue the debate, deadlines are unfortunately pressing. In the newest NZ Univ. L Rev., however, there is an article by Allan Beever ("The Law's function and the Judicial Function") dealing with many of the issues we have been discussing over the last week. Knowing Allan's work, I am sure that he will make the formalist case with much greater precision and eloquence than I can muster.
Sincerely, Jason Harold Luntz wrote: Thanks to Steve Hedley for his support on this, but I'd like to make more explicit why insurance is relevant to tort cases while sexual orientation is not relevant to postings on this list. At the end of a tort case the court orders that Mary Brown pay $100,000 (or whatever amount it is) to John Smith, knowing full well that in the majority of cases Mary Brown will not pay the $100,000; that in fact there is an insurer behind her; and that the insurer has raised the funds from the community that pays premiums, often compulsorily as required by government. John Smith would probably not have pursued the case against Mary Brown if there had been no such insurance because Mary herself would not have had the resources to pay the judgment. In Australia about 18 months ago, when one of the largest liability insurers, HIH, collapsed, litigation that was in progress all over the country came to a virtual halt. The order made by the court in a typical tort case is a fiction, in that it pretends that Mary Brown will make a payment that she will not. There is no comparable pretence in relation to postings on the list. Furthermore, the community who provide the funds from which the payment is made in the majority of cases are not themselves tortfeasors or wrongdoers or in any sense morally guilty; they are as innocent as the plaintiff. As I've said, they are often required to provide the funds compulsorily, which makes it a form of taxation. Even if not compelled to do so, as with motor vehicle insurance premiums, they still contribute as a proportion of the price of goods and services they buy, which must be set aside to pay the manufacturers' or suppliers' voluntary or self-insurance. The exercise which the courts are engaged in is thus redistribution from one set of innocent people to another set. There may be good reasons for this, but pretending that it is because Mary Brown has committed a tort obscures the reasons. Harold. --
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