Kenneth S. Abraham

The Once and Future Crisis

The insurance crisis of the mid-1980s produced a number of legal and public policy reactions. Although many of the immediate symptoms of that crisis have disappeared, a number of its underlying causes remain. This article analyzes the continuing effect of these factors on the insurance markets, and predicts the occurrence of a milder crisis during the mid-1990s.

The maze of mega-coverage litigation

Over the last two decades, the rise of mass tort liability and the enactment of CERCLA1 have transformed both tort and insurance litigation. Class and multidistrict tort actions involving thousands of personal injury claimants, and disputes over environmental cleanup liability involving hundreds of millions of dollars, are now commonplace. With this new civil liability, however, has come a less noticed but also very significant development: massive insurance coverage litigation between the companies that are subject to the new civil liability and their liability insurers. Judge Jack Weinstein, whom this issue of the Columbia Law Review honors, has rendered important decisions in both fields.2 The new civil liability has received much scholarly attention, including an entire book emphasizing Judge Weinsteins role in the Agent Orange case.3 But the megainsurance coverage disputes that typically accompany mass tort and CERCLA litigation have not been studied as extensively. In this Essay, I step back from the doctrinal details of this liability insurance litigation in order to sketch its principal characteristics and generate some insights about the way it has worked in practice.4 This

Prosser and His Influence

This Article focuses on the rhetorical strategies employed by William L. Prosser in presenting overviews of tort law doctrines in his celebrated Handbook of the Law of Torts, which was first published in 1941 and went through three additional editions between that date and 1971. We devote special attention to Prosser’s treatment of two relatively novel actions, intentional infliction of emotional distress and privacy, in which Prosser’s conceptualization of the elements and scope of each of the actions was influential in their adoption by numerous jurisdictions. We also explore the sources of Prosser’s influence among his contemporaries in the legal profession in the three decades beginning in the 1940s. Prosser was unquestionably the leading torts scholar of his time: his Handbook was regarded as the authoritative torts treatise of his day, his Torts casebook was the most widely adopted in the nation, and he was the principal Reporter for the Second Restatement of Torts, which was first published in 1965. We survey the reaction of reviewers to the first edition of his treatise, which was uniformly favorable, serving to establish Prosser’s Handbook as the equivalent of a masterpiece. We also attempt to demonstrate, through a close reading of the paragraphs in which Prosser sought to make generalizations about tort doctrines, the way in which he sought to create an impression of doctrinal order that was not quite consistent with the cases he cited as support for his doctrinal propositions. Finally, we contrast the implicit criteria for scholarly visibility and influence under which Prosser forged his reputation with the quite different criteria operating in the contemporary legal academy, and seek to provide explanations for the origins of those sources of influence.