Daniel Schwarcz has just posted on SSRN his forthcoming article in the annual Clifford Symposium issue of the DePaul Law Review: Redesigning Widespread Insurance Coverage Disputes: A Case Study of the British and American Approach to Pandemic Business Interruption Coverage. Although the main focus of the article is how to do better next time, I don’t want readers to miss the fact that Professor Schwarcz is now the third leading insurance law professor (along with Professors Knutsen and Stempel) to criticize the federal courts for using their larger coterie of clerks and smaller caseloads to usurp “the primacy of state, rather than federal, courts in deciding highly consequential and contested questions of state insurance law” (at p. 6).
Coming on the heels of the 6th Circuit’s extraordinary decision to make an Erie guess about a question of Ohio state law that is closely related to the certified question presently before the Ohio Supreme Court (rather than waiting for the Ohio Supreme Court to speak on that related question), I sense an emerging concern among insurance law academics that, at least when it comes to insurance, Erie may be broken.
