This week’s Watcher’s council winners (and runners up) are:First place with 2 1/3 points! – Bookworm Room – The view from the other side re health careSecond place with 1 2/3 points – Mere Rhetoric – Human Rights Watch Earns Their Saudi Pay, Publishe…

Council submissions are now UP! Human Rights Watch Earns Their Saudi Pay, Publishes Another Thinly-Sourced Report Demonizing Israel -Mere Rhetoric writes about some of the latest revelations about Human Rights Watch. We have an opportunity to prevent a…

* Mere Rhetoric – Human Rights Watch Earns Their Saudi Pay, Publishes Another Thinly-Sourced Report Demonizing Israel * Right Truth – We have an opportunity to prevent a disaster * Soccer Dad – Still stuck on “moderate” * The……

I would much prefer some sort of arbitration panel to deal with these issues, rather than the courts.
It would allow these cases to be decided quicker, and at less cost.

You will be pleased to know that ERISA, as interpreted by the Supremes, does allow states to provide for these types of alternative approaches, with the proviso of course that in no event may a meaningful remedy be available.

Ymarsakar said:

So it doesn’t matter what contract law stipulates to you nor does it matter what’s actually in the contract. Once you have interpreted that there is a breach, no matter what’s actually in the contract, you believe it is a breach of contract.
It’s not a breach of contract. It’s a breach of your own personal wishes.

I apologize for not making myself clear. Proving a breach of contract means proving a material term of the contract has not been performed. What’s in the contract is critical to this inquiry of course. Nowhere have I meant to suggest otherwise. I do not “interpret that there has been a breach” based on my own personal wishes but by comparing what the terms of the contract requires against what the party did or did not do to perform its obligations according to those terms.

But that example is used as an example of ‘contract breach’ in which the law provides no punishment for. That’s a libel against the law, for which contract law has very specific provisions in this country. In point of fact, this country has one of the strongest contract laws around.

You are making my point for me. ERISA eradicates contract law in cases of employment-based insurance coverage. If “one of the strongest contract laws around” applied in that circumstance that would answer every single one of my objections. But they don’t – they are preempted.

BTW, a conceptual point which may be material to the discussion. Contract law is not intended to “punish” anyone; the law attaches no moral opprobrium to a contract breach. It attempts to achieve not punishment but compensation – to put the aggrieved party in the same position it would be if the contract had been performed according to its terms. If you move beyond simple breach of contract to bad faith or fraud then that changes. My present objection is that ERISA does not allow for even simple breach of contract compensation. We are miles away from even thinking about “punishment.”

Insurances aren’t here to make people whole, any more than car insurance is here to guarantee that you get a new car every time you blow up your last one.

Again I apologize for failing to make myself clear. By “made whole” I mean put in the same position, insofar as measures available to the law can do so, as if the insurance contract had been performed according to its terms, and that is all – and my objection is that ERISA forecloses even that level of relief. I do not mean “made whole” in some more cosmic sense.

I sense we are having trouble understanding each other. Let me ask you this then: what do you believe to be the proper role of the judiciary in the enforcement of private contracts? What recourse does (should) a party have if the other party fails to perform its contractual obligations?

Tort lawyers aren’t part of the rule of law. They are the ones looting the law for personal gain. Providing more power to tort lawyers and lawsuits does not make insurance provide better healthcare, as they are forced to pain Dane Geld every time a John Edwards comes up for air from his mud hole, with the concomitant effect that what the insurance pays out in damages is looted from the contributions of individuals in need of health coverage.

Insurances aren’t here to make people whole, any more than car insurance is here to guarantee that you get a new car every time you blow up your last one.

But that example is used as an example of ‘contract breach’ in which the law provides no punishment for. That’s a libel against the law, for which contract law has very specific provisions in this country. In point of fact, this country has one of the strongest contract laws around. Look at Hugo Chavez and the nationalization of White Property in Zimbabwe, formerly Rhodesia, for an example of another system. With its concurrent economic stupidity, of course. People don’t create a vibrant economy without a strong contractual law protection.