Current Commentaries


New Jersey Insurance Producer Liability: Attempting to Define the “Special Relationship” Theory of Liability

Jason S. Kanterman

Author and Rutgers University Law Review Alumnus Jason S. Kanterman, Esq. examines the general concepts of the special relationship theory of insurance producer liability and the lack of clarity in the application of the theory in this Commentary, written in Spring 2016. Specifically, Mr. Kanterman notes that New Jersey lacks established precedent identifying facts or occurrences triggering liability, while other courts have. Looking at several cases, Mr. Kanterman concludes that “the existence of an affirmative, extraordinary undertaking appears to be the heart of establishing a viable special relationship claim” in New Jersey. “What remains unclear is what facts will lead New Jersey courts to conclude that a special relationship exists.”

Where Are the 2007–08 Financial Crisis Prosecutions? A Response to Judge Rakoff

Joshua J. Smith

Judge Rakoff is correct to attribute a portion of the lack of prosecutions to the Justice Department’s shift in focus to counterterrorism and pursuing cases that would yield “easier” convictions. However, his suggestions that an embarrassment about the government’s role in the financial crisis or a focus on corporate reform contributed to the lack of prosecutions is misplaced. This Commentary will proceed in four parts, each evaluating the merits of Judge Rakoff’s identified factors contributing to the lack of executive prosecutions related to the mortgage fraud scandal.

Their Blood, Their Sweat, Whose Problem?: Insurance Coverage Implications of the NFL Concussion Litigation

Melissa Farber

This Commentary explores the insurance implications of the ongoing NFL concussion litigation. Part I describes the procedural history of the concussion lawsuits, the settlement reached between the NFL and over 4500 former players, and obstacles that stand in the way for players that chose to opt-out of the settlement class and reserve the right to pursue individual claims against the NFL. Part II examines the pending coverage litigation regarding insurers’ obligations to defend and/or indemnify the NFL for settlement expenses and the ongoing underlying concussion claims. Specifically, it highlights how dispositive choice of law determinations will be to the outcome of the litigation, as jurisdictions apply competing theories of policy interpretation, including when coverage is triggered, the duty to defend, and other policy exclusions.

Does the Draft Restatement of the Law of Liability Insurance Wrongly Elevate Proof and Overvalue Legal Uncertainty? Yes, Given the Foreseeable Risk Insurers May More Often Decline the Duty to Defend as a Result

Joseph Lavitt

Tentative Draft No. 1 of the American Law Institute’s forthcoming Restatement of the Law of Liability Insurance is admirable in many important respects. However, proposed section 13 can be falsified in too many instances to serve as a meaningful statement of black letter law governing an insurer’s duty to defend. This Commentary will consider how proposed section 13 and associated provisions of the proposed Restatement might influence the decision by insurers to defend their insureds, particularly in instances of so-called “legal uncertainty.”

A Plea for Constitutional Balance

Stephen M. Feldman

We live in the age of Democracy, Inc. Political advertisements package candidates in twenty second sound bites. Corporations and billionaires wield herculean political power. Although citizens still vote—at least once in a while—corporate muscle largely steers elections and government policy to increase profits. Income inequality, consequently, has skyrocketed.

An Appreciation of Practitioner Kim Marrkand’s Thoughtful Article, and a Gentle Forensic Suggestion to Professors Abraham, Hay, Martinez, and Thomas Regarding the RLLI’s section 24 and a Liability Insurer’s Exposure to Extracontractual, Bad Faith Liability

Dennis J. Wall

Kim Marrkand’s article on section 24 of the Restatement of the Law of Liability Insurance’s (“RLLI”), entitled, Duty to Make Reasonable Settlement Decisions, brings the refreshing perspective of a practicing lawyer to the subject. The title of Ms. Marrkand’s article says it all so far as I am concerned, and I agree with her perspective entirely: Duty to Settle: Why Proposed Sections 24 and 27 Have No Place in a Restatement of the Law of Liability Insurance. To her credit, Ms. Marrkand puts her article’s text at the service of her article’s title, starting with her overall observation that the RLLI’s “duty to make reasonable settlement decisions” is known to practicing lawyers as the liability carrier’s “duty to settle.” She fleshes out her very welcome article with a fine sense of accuracy, except perhaps in one particular. There is so much good in her article that I hesitate to point out the inaccuracy, except that it is an important one.



Volume 68, Issues 4 and 5 are on their way!


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