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August 05, 2011



Since my post and yours appeared, there have been others, as well as a number of comments, from lawyers who do, or did, insurance work. They have authoritatively agreed, some with you and some with me, thereby conclusively proving that we are both incontrovertibly right. Or not.

I don't begrudge your expression of your sincere belief that the carrier likely settled without the defendant's consent or knowledge, though it's not my belief. What I have trouble understanding was the need to persist, after having expressed your view "provide a reasonably accurate description" of what happened.

There was an old internet cartoon where a wife asks her husband why he isn't coming to bed, and he responds that he's on the computer because there's someone wrong on the internet. I persisted in my position because I believe that settling for nuisance value with someone like Rakofsky in an action like this is a bad and dangerous thing that must be discouraged for the good of all.

Why you persisted, in this situation and under the circumstances here, isn't clear to me. Maybe you just couldn't sleep?

George Wallace


It is comforting to know that we have established our mutual incontrovertible rightness, although I have not understood this discussion to be about who was right. But then, I haven't seen myself particularly as "persisting" on this subject, either: 2 or 3 remarks on Twitter and one blog post seems not all that persistent to me.

I have absolutely no idea what actually happened back in June when agreement on this settlement was reached. I may be mistaken, but I do not think you have any more firsthand knowledge than I do. As I apparently have not made sufficiently clear, I have no particular stake in which of the possible scenarios actually played out. It may have been driven by the insurer entirely; it may have been insisted upon by the University in a moment of weakness; it may have happened in any of a dozen ways.

If there is any point to be made, it is that because none of us know what actually happened, for any of us to be grasping at or insisting upon the particular hypothetical explanation that either most condemns or most ennobles the motives of the settling defendants is little more than an exercise in confirmation bias.

As I say, nobody who was not actually a party to it knows what happened or why in this settlement. Down the road, in the end, as a matter of the big picture — pick your cliché — it hardly matters. It is a stupid nuisance settlement, but not really any different than any of the hundreds or thousands of nuisance settlements, in all kinds of cases, that are entered into in this country in any given week. I have said it in my post: I have no love at all for nuisance settlements, and I wish they did not happen in any case, least of all in this one. Like many another wish, I'm not holding my breath in anticipation of it being granted.

I do not foresee this settlement, even if it is not the last, as likely to have any substantial, practical impact on the long-term trajectory of the Rakofsky litigation, which is as meritless today as it has always been. The vindication of all defendants, on the merits, cannot come soon enough for my taste.

With that, my persistence is at an end.

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