Today, in Insurance class, I received a reminder of how critical it is that law professors approach their craft of teaching and writing in a nonpartisan way. As a First Amendment scholar, my priors were already set to fostering respectful disagreement in my classes, but it is all too easy, without constant vigilance, to teach classes and present legal arguments in an ideological way. Today’s guest speaker in my Insurance class reminded me that free speech can and does work, if we, especially academics, commit to the enterprise as honest brokers.
My guest speaker, who Skyped into class, represents maritime insurance companies in a litigation, arbitration, and appellate practice. He regaled my students with vivid stories about the complexities of maritime law and the foibles of state and federal courts. Ever since the Supreme Court, in Wilburn Boat v. Fireman’s Fund Insurance, 348 U.S. 310 (1955), ruled that not all maritime insurance disputes are governed by federal admiralty law, courts now decide whether to apply state or federal law to maritime insurance disputes. My guest speaker explained that courts often look beyond the choice of law question to the ultimate result in a given case to decide which law applies, generally to favor policyholders over insurance companies. Indeed, my guest speaker told my class that his father, who started their insurance practice, was once denied the ability to speak on behalf of his client, by a Florida state-court judge who said something to the effect of, “No slick Jewish lawyer in Gucci loafers is going to come into my court and tell me how to rule.”
According to my guest speaker, the Eleventh Circuit is particularly hostile to insurance companies in favor of policyholders, and my guest speaker has published articles about how this Circuit warps the law to achieve results sympathetic to policyholders, knowing that the Supreme Court very infrequently reviews maritime disputes. From teaching insurance, I know that rules that reduce clarity for insurance companies – rules that benefit policyholders in any individual case – will ultimately raise premiums for all policyholders, so a ruling that seems sympathetic to a particular policyholder has broad systemic effects.
Of course, my guest speaker is an advocate, not an academic. His job is to have a clear view of what the law should be in order to benefit a particular class of people/companies. He notices when judges pervert the law in ways that harm his clients, and may not notice when they do so to the advantage of his clients. He is also particularly likely to remember the judges who engage in heavy handed legal realism, misapplying the law or flouting precedent to reach a particular result.
Hearing my guest speaker, who kept my class rapt, was also an important moment for me. For one, I tend to teach class from a more formalist perspective, asking my students to reconcile precedent in harmonious ways and to believe that judges are generally trying to do their best to faithfully apply the law. That perspective comports with my own commitment to rule of law principles. But, to fully present a picture of how the law is applied, students need to hear the experience of those who practice, day in and day out, with state court judges, some of whom are, as my guest speaker noted, irrationally angry at out-of-state insurance companies and are not as committed to the rule of law.
I also realized that, because courts are much more sympathetic to policyholders, insurers are often the relatively weaker parties in a given dispute. Those on the left side of the spectrum often forget how much deference courts give to individuals over companies, despite clear contractual language in insurance policies. Plus, my guest speaker served as a good counterpoint to a prior guest speaker, a former state insurance regulator, who discussed the difficulties of regulating insurance companies.
Even for someone like me, who believes that an academic’s job, unlike an advocate’s job, is to charitably present all sides of an issue, my own priors will inform my teaching. In some contexts, students are robbed of meritorious views in my blindspots, areas where I don’t recognize the hypocrisy of my own positions or where I credit those who agree with me but fail to apply my own principles to those who do not. Law school, in particular, must teach students to think critically and logically, to respectfully engage with views they may find odious, and to see the correctness in opposing views and the flaws in their own views. To do that, we, as law professors, must constantly question our own commitments (and even that meta commitment to question our commitments) and ensure that we give our students the benefits of all sides of an issue.
Because I teach and write about the First Amendment, students and friends often ask me if free speech really works. Many believe it does not, citing our current fractured political climate as evidence. I continue to question the efficacy of free speech, but believe that, if we, as academics, present our views as honest brokers, and give voice to views that oppose our own, students will learn to glean what is good about each argument. What society needs is more trust in speech, which requires speakers empowered with large audiences to honor the responsibilities they have been given by rigorously scrutinizing their own views.
At the end of class today, I told my students to each share their views about a particular case (Engelman v. Connecticut General Life Insurance, 240 Conn. 287 (Conn. 1997)). The students differed in their opinions about the result, the rationale, and the effects of the precedent on society. What was beautiful to observe was not just that they differed, but how they differed- truly engaging with the difficulties presented by the other side instead of the benefits of their own views.