Jay M. Feinman

Insurance Fraud, Agency, and Opportunism: False Swearing in Insurance Claims

This paper discusses the law of insurance fraud at the point of claim, what in the United States is known as the “false swearing” doctrine. It situates that doctrine within the broader landscape of both the claims process and of responses to insurance fraud. It suggests the proper contours of the doctrine and the applicable standard of proof and changes in other doctrines that address the particular problem of false swearing and the broader problem of agency and opportunism in insurance claims by both insured and insurer. The false swearing doctrine should require reliance by the insurer and proof by clear and convincing evidence, and the insurer’s conduct in asserting fraud should be evaluated by a reasonableness standard.

The Conservatives, the Market, and the Common Law

The common law—the law of contracts, torts, and property—is in the throes of a remarkable transformation. Many changes already have been adopted, and more are in process. The changes are radical and regressive, abandoning the progressive legal developments of the twentieth century, favoring the interests of big business, and animated by an ideology that is opposed to government acting in the public interest.