The purpose of this Article is to demonstrate that there is indeed a great deal of method within this apparent judicial 'hiadness" if one properly understands and appreciates the two competing theories of Judicial Formalism versus Judicial Functionalism in an insurance law context. And with a proper understanding of these two competing judicial theories, numerous apparent inconsistencies in insurance law decisions may be reconciled within each particular theoretical framework.
Accordingly, this Article will present a general overview of these two competing theories of American jurisprudence, and then discuss their conflicting applications in various insurance law decisions by utilizing a number of specific insurance law examples for illustrative purposes.
The central theme of this Article is that, in an insurance law context at least, Legal Formalism today is far from a dead issue and may in fact be in a resurgence, while Legal Functionalism, as exemplified by the "doctrine of reasonable expectations," may be experiencing a more limited application in many courts today than various commentators had originally predicted. The resulting conclusion of this Article, therefore, is that it is not enough to know the law of insurance. One must also know the judge.
Peter Nash Swisher, Judicial Rationales in Insurance Law: Dusting Off the Formal for the Function, 52 Ohio St. L.J. 1037 (1991).