Document Type

Article

Publication Date

2001

Abstract

Seventh Circuit Judge Richard Posner is well known for bringing economic analysis to bear on a host of issues, including infamously controversial notions such the market for baby sale. Not surprisingly, Posner's insurance law opinions reflect economics, but perhaps not to the degree one would expect. A review of Posner's 20 years of opinions relating to insurance issues reviews his pragmatic jurisprudence as well. Decisions frequently reflect not only economics but also situational context and considerations of business reality as well as a sophisticated grasp of basic insurance doctrine and contract law. As a general matter, Posner also displays considerably more reflection than one often finds in insurance decisions and his outcomes are well-balanced between insurers and policyholders. However, where insurance law questions intersect with issues of statutory interpretation and regulation, Posner's tendency to privilege the private sector and markets results in decisions unduly resistant to legislative initiatives such as the Americans with Disabilities Act and other civil rights statutes. This is consistent with the criticism made of Posner's brand of economic analysis more than 25 years ago by Yale Law Professor Arthur Leff's review of the first edition of Posner's treatise. On the most litigated pure questions of insurance coverage, however, the politico-social neutrality of the contest (big commercial policyholder vs. big commercial insurer) is associated with some of Posner's best judicial work.

Publication Citation

7 Conn. Ins. L.J. 7 (2000-2001).