Abraham on the Structure of Insurance Law

Ken Abraham has posted to SSRN The Structure of Insurance Law. The abstract provides:

In this Article I provide an account of the conceptual and doctrinal structure of insurance law, defining “structure” as the consistent arrangement and organization of the interrelated elements of this body of law. I contend that insurance law consists of three types of rules, defined by their scope of application. General rules apply to all forms of insurance. Category rules apply only to particular classes of insurance, such as liability or property insurance. Special rules apply to only one form of insurance, such as crop or flood insurance. In addition, insurance law consists of both mandatory rules, which may not be displaced by policy language, and default rules, that can be displaced.

The Article also examines the ways in which the major treatises and casebooks present insurance law, showing that, interestingly, the casebook presentations do not follow and are not congruent with the structure of insurance law that the Article describes. I explain why the casebooks do not and could not effectively present insurance law in a manner that is purposely congruent with the structure of insurance law. Finally, the Article makes a series of observations about the significance of the very idea that a body of common law, such as insurance law, can have a coherent structure as I have defined that notion.