New anti-concurrent article coming Monday April 28
Posting will be light, probably, for the next few days due to extreme day job demands. I do want to mention, however, that I will be posting on Monday, April 28 the text of my new article on anti-concurrent cause and Fifth Circuit Katrina cases, being published this week in New Appleman on Insurance: Current Critical Issues in Insurance Law. In the course of examining the workings of anti-concurrent cause, this article puts a heavy emphasis on two things: a critique of the circuit court's decision in Leonard v. Nationwide and examination of the nature of ambiguity in insurance contracts.
The second part was included for three reasons: it's fun to talk about, it was necessary to talk about, and it gives me an excuse to highlight once again the amazing work of Prof. Michelle Boardman in her article March 2006 article in the University of Michigan (Go Blue!) Law Review, Contra Proferentem: The Allure of Ambiguous Boilerplate. I've talked about this article before, and as I said in the Critical Issues piece, it is destined to become a classic on the subject, not just because of the insights presented but because it is uncommonly well-written.
Because LexisNexis owns the copyright to my article, I am not free to do with it what I want, but my friends there have given me permission to post it on my blog, along with appropriate legal mumbo-jumbo about copyright ownership and so forth. But it is embargoed until Monday, so the post has to wait. These things have a lengthy lead time, and I wrote it in January, so even though the article's nominal scope is all Katrina litigation before the Fifth Circuit, the Broussard case had not yet been decided so the treatment of this case is incomplete. The name of it is Katrina in the Fifth Dimension: Hurricane Katrina Cases in the Fifth Circuit Court of Appeals.
It's very difficult to write these things and keep them from becoming some boring string of legal indecipherability where the author quack-quack-quacks along as mindlessly as a duck. The primary responsibility of the author is not to put words on paper or to try to look smart but to write something that fellow humans would find enjoyable and possibly enlightening to read. If the thing won't be read, it has no hope of being accepted. So a lot of thought has to go into organization, pacing and storytelling, using all of the writer's tools: plot, character development, foreshadowing, simile, metaphor and allegory, humor. Intellectual discourse that lacks humor fights itself, it will only appeal to ideologues who are already convinced. And it is not easy, believe me, to find humor that is both appropriate to the subject matter and works to tell the story, while maintaining intellectual standards. I have no use whatsoever for any kind of writing in which the author distances himself or herself from the reader, denying the humanity of both, where the author fails to do the work to anticipate the struggles and distractions of the readers and try to solve these problems in advance. Humor is one such device that can be employed by the author, even in works of the utmost gravity, a point made most famously and most unforgettably by Thomas De Quincey in his essay, On the Knocking at the Gate in Macbeth. One of the most remarkable things about this essay to me is its opening line, in which we come to understand that the author actually read or saw Macbeth as a boy -- imagine that. A reminder that, in addition to its other attractions, Macbeth is a ripping good yarn.
So, once again, the embargo is in place, but on Monday it is lifted and that's when I will post the article. In passing, I will also mention that I finished the chapter on Hurricane Law for the Appleman's treatise, and that will be published in the book at some point in the semi-near future, the exact timing of which I haven't inquired about because it was so exhausting to write I was sick of thinking anything about it by the time it was done. As you might expect, anti-concurrent cause is a prominent part of the chapter.
David, is there a recognized expert on this issue?
The most widely recognized and professionally qualified expert on this issue is Alexis King.
3rd -- can "Alexis" testify in court now? Has she heretofore been deemed an expert in any court?