Insurance Law as Public Interest Law

Shauhin A. Talesh, UC Irvine School of Law

Abstract

For over a century, numerous lawyers in the United States have devoted their careers to promoting and serving the public interest in some way. The public interest law movement more formally began in the 1960s and was grounded in a mission of using legal institutions to advance social justice causes. Although public interest law was originally used to connote left-oriented reform activities, politically conservative activists in recent years have undertaken activities and advocacy in the name of the public interest. Precisely what is public interest law is now deeply contested and has triggered a resurgence of scholarly interest devoted to mapping the organization, practice, and meaning of public interest law in the modern era. This Article does not advocate for one meaning of public interest law over another, but suggests that both sides of this debate conceptualize what is public interest law too narrowly. In particular, public interest law does not necessarily involve or require public interest lawyers. This Article counters contemporary public interest law scholarship by arguing that insurance laws and regulations serve the public interest by enabling insurance — at times — to assist the very same unrepresented and underrepresented groups that public interest lawyers are often concerned with: the poor, minorities, the elderly, consumers, employees, and other marginalized groups. Insurance law is public interest law because insurance is sometimes foundational to the public interest. Moreover, insurance law is often necessary for insurance to work favorably for the public. Using a series of examples from a number of lines of insurance, I highlight how insurance’s risk transfer, spreading, and distribution functions promote the public welfare by allowing injured victims to seek relief and compensation. Most importantly, insurance creates a collection scheme that allows people access to justice without necessarily requiring people to retain lawyers. This alone serves the public interest. I conclude by suggesting that public interest law scholars would be well served to focus less on defining what is public interest lawyering and more on concrete descriptions of the ways systems of law promote the general welfare.