Senator Blutarsky and the Indemnification of the Fraternity System

A good deal of legitimate criticism of Caitlin Flanagan’s work has appeared on this blog, but I must say that I very much enjoyed this article on fraternity life and litigation strategy:

So recently and robustly brought back to life, the fraternities now faced the most serious threat to their existence they had ever experienced. A single lawsuit had the potential to devastate a fraternity. In 1985, a young man grievously injured in a Kappa Alpha–related accident reached a settlement with the fraternity that, over the course of his lifetime, could amount to some $21 million—a sum that caught the attention of everyone in the Greek world. Liability insurance became both ruinously expensive and increasingly difficult to obtain. The insurance industry ranked American fraternities as the sixth-worst insurance risk in the country—just ahead of toxic-waste-removal companies. “You guys are nuts,” an insurance representative told a fraternity CEO in 1989, just before canceling the organization’s coverage; “you can’t operate like this much longer.”

For fraternities to survive, they needed to do four separate but related things: take the task of acquiring insurance out of the hands of the local chapters and place it in the hands of the vast national organizations; develop procedures and policies that would transfer as much of their liability as possible to outside parties; find new and creative means of protecting their massive assets from juries; and—perhaps most important of all—find a way of indemnifying the national and local organizations from the dangerous and illegal behavior of some of their undergraduate members. The way fraternities accomplished all of this is the underlying story in the lawsuits they face, and it is something that few members—and, I would wager, even fewer parents of members—grasp completely, comprising a set of realities you should absolutely understand in detail if your son ever decides to join a fraternity.

Flanagan moves past the standard complaints about the role of fraternities in campus life, and focuses on the ways in which national fraternities manage litigation damage.  I also like how she interviews  expert litigators in order to determine how they negotiate the legal terrain; her account brings out the craft of law more than many similar articles.