{"title":"Ethical postures of futility and California's Uniform Health Care Decisions Act.","authors":"Matthew S Ferguson","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2002-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24536592","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Mediation - with its promise of less contentious, less expensive and more satisfying resolution of disputes - has been widely recommended for disputes in all areas of the law. Yet its successes have been far from uniform. While it has flourished in some areas - most notably divorce and child custody - it has met with much greater resistance in others. This is particularly puzzling for areas of the law such as will disputes, for which mediation would seem to provide so many benefits. In this essay I argue that the answer to this conundrum can be found in doctrine - the statutory and common law rules governing a particular dispute. Although legal doctrine is sometimes seen as mere window dressing that is applied to cover up what really goes on in the law - I argue that doctrine plays an important role in structuring how lawyers and parties involved in a dispute conceive of the dispute and its proper mode of resolution. In particular, I argue that the acceptance of mediation in the divorce field would not have been possible without the changes in doctrinal law known as the no-fault revolution. By contrast, wills law doctrine encourages lawyers and parties to seek judicial resolution of their disputes through its focus on testamentary intent, its opportunity for moral condemnation or vindication and its winner take all system. In this essay I also identify those features of the law that would encourage mediation or negotiation of disputes and consider the costs of adopting such a system.
{"title":"Lurking in the Shadow: The Unseen Hand of Doctrine in Dispute Resolution","authors":"R. Madoff","doi":"10.2139/SSRN.309749","DOIUrl":"https://doi.org/10.2139/SSRN.309749","url":null,"abstract":"Mediation - with its promise of less contentious, less expensive and more satisfying resolution of disputes - has been widely recommended for disputes in all areas of the law. Yet its successes have been far from uniform. While it has flourished in some areas - most notably divorce and child custody - it has met with much greater resistance in others. This is particularly puzzling for areas of the law such as will disputes, for which mediation would seem to provide so many benefits. In this essay I argue that the answer to this conundrum can be found in doctrine - the statutory and common law rules governing a particular dispute. Although legal doctrine is sometimes seen as mere window dressing that is applied to cover up what really goes on in the law - I argue that doctrine plays an important role in structuring how lawyers and parties involved in a dispute conceive of the dispute and its proper mode of resolution. In particular, I argue that the acceptance of mediation in the divorce field would not have been possible without the changes in doctrinal law known as the no-fault revolution. By contrast, wills law doctrine encourages lawyers and parties to seek judicial resolution of their disputes through its focus on testamentary intent, its opportunity for moral condemnation or vindication and its winner take all system. In this essay I also identify those features of the law that would encourage mediation or negotiation of disputes and consider the costs of adopting such a system.","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2002-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68561302","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Many scholars agree that a robust market for corporate control provides a critical check on managerial opportunism within public corporations. Even prior to a tender offer, the specter of a takeover provides a powerful mechanism for aligning the incentives of managers and shareholders. Conventional wisdom, therefore, views with suspicion any practice that retards the takeover threat looming over managers who perform poorly. One such practice that has garnered particular attention of late is managerial "favoritism" towards influential block shareholders. Favoritism can take any number of forms, ranging from preferential stock subscriptions, to selective information disclosure, to outright cash payments. But regardless of its form, the argument goes, favoritism is potentially harmful to firm value, as it co-opts one of the most plausible monitors of management. Thus, many argue that corporate law should proscribe (or at least discourage) all forms of favoritism towards block shareholders. In this Article, we question whether the case for prohibiting favoritism is as compelling as conventional wisdom suggests. Our arguments are both practical and conceptual. From a practical standpoint, we raise doubts as to whether piecemeal regulation is even capable of curtailing favoritism writ large, rather than simply relocating it to less verifiable (and less efficient) domains. From a conceptual standpoint, we argue that permitting favoritism would likely enhance outsiders incentives to form a large block in order to extract patronage. Predicting this enhanced incentive, a rational manager would have to choose ex ante between (1) acquiescing to a division of her control benefits with outsiders; or (2) imposing significant constraints on her own self-dealing so as to deter the initial formation of any block. Using a game-theoretic model, we demonstrate that under many plausible circumstances, managers would prefer the latter option to the former. Consequently, playing favorites with block shareholders may, ironically, be in all shareholders interests.
{"title":"Playing Favorites with Shareholders","authors":"Stephen Choi, E. Talley","doi":"10.2139/SSRN.286893","DOIUrl":"https://doi.org/10.2139/SSRN.286893","url":null,"abstract":"Many scholars agree that a robust market for corporate control provides a critical check on managerial opportunism within public corporations. Even prior to a tender offer, the specter of a takeover provides a powerful mechanism for aligning the incentives of managers and shareholders. Conventional wisdom, therefore, views with suspicion any practice that retards the takeover threat looming over managers who perform poorly. One such practice that has garnered particular attention of late is managerial \"favoritism\" towards influential block shareholders. Favoritism can take any number of forms, ranging from preferential stock subscriptions, to selective information disclosure, to outright cash payments. But regardless of its form, the argument goes, favoritism is potentially harmful to firm value, as it co-opts one of the most plausible monitors of management. Thus, many argue that corporate law should proscribe (or at least discourage) all forms of favoritism towards block shareholders. In this Article, we question whether the case for prohibiting favoritism is as compelling as conventional wisdom suggests. Our arguments are both practical and conceptual. From a practical standpoint, we raise doubts as to whether piecemeal regulation is even capable of curtailing favoritism writ large, rather than simply relocating it to less verifiable (and less efficient) domains. From a conceptual standpoint, we argue that permitting favoritism would likely enhance outsiders incentives to form a large block in order to extract patronage. Predicting this enhanced incentive, a rational manager would have to choose ex ante between (1) acquiescing to a division of her control benefits with outsiders; or (2) imposing significant constraints on her own self-dealing so as to deter the initial formation of any block. Using a game-theoretic model, we demonstrate that under many plausible circumstances, managers would prefer the latter option to the former. Consequently, playing favorites with block shareholders may, ironically, be in all shareholders interests.","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2001-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68403635","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Tort theory is torn between two competing conceptions. One of these - the justice conception - takes the tort law of accidents to be continuous with our ordinary notions of agency and responsibility, carelessness and wrongdoing, harm and reparation. The other - the economic conception - holds that tort accident law should express an appropriately scientific conception of human welfare. Theorists in the first camp have generally believed that justice in tort is a matter of corrective justice, that it is concerned all but exclusively with the rectification of losses wrongfully inflicted. This paper challenges that belief. It argues that we should understand tort law to be primarily a matter of distributive justice - a matter of the fair apportionment of the burdens and benefits of risky activities - and only secondarily a matter of corrective justice. Calling attention to the role that distributive justice plays in the law of torts has an interpretive advantage: it helps to explain and justify the existence of strict liability in tort, something which corrective justice conceptions have had difficulty doing. But focusing on the importance of distributive justice to the law of torts also has transformative implications for the law of torts: it implies that, other things equal, strict liability is to be favored over negligence.
{"title":"Distributive and Corrective Justice in the Tort Law of Accidents","authors":"Gregory C. Keating","doi":"10.2139/SSRN.269347","DOIUrl":"https://doi.org/10.2139/SSRN.269347","url":null,"abstract":"Tort theory is torn between two competing conceptions. One of these - the justice conception - takes the tort law of accidents to be continuous with our ordinary notions of agency and responsibility, carelessness and wrongdoing, harm and reparation. The other - the economic conception - holds that tort accident law should express an appropriately scientific conception of human welfare. Theorists in the first camp have generally believed that justice in tort is a matter of corrective justice, that it is concerned all but exclusively with the rectification of losses wrongfully inflicted. This paper challenges that belief. It argues that we should understand tort law to be primarily a matter of distributive justice - a matter of the fair apportionment of the burdens and benefits of risky activities - and only secondarily a matter of corrective justice. Calling attention to the role that distributive justice plays in the law of torts has an interpretive advantage: it helps to explain and justify the existence of strict liability in tort, something which corrective justice conceptions have had difficulty doing. But focusing on the importance of distributive justice to the law of torts also has transformative implications for the law of torts: it implies that, other things equal, strict liability is to be favored over negligence.","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2001-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.269347","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68257940","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Ending the genetic discrimination barrier: regaining confidence in preconception, prenatal, and neonatal genetic testing.","authors":"W Lovejoy","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2001-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25821235","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2000-11-01DOI: 10.1628/978-3-16-157500-6
M. Moore
In the fall of 1977, I joined an extraordinary group of men and women. Not only were we rather bunched together by age, what Bob Ellickson referred to as a “wart hog going through the python of life together,” but we also shared a vision of legal scholarship I still respect. It was hard-edged, theoretical, and interdisciplinary; it evinced a dedication to the life of the mind and an excitement about ideas that I have not seen before or since. Of the twelve American universities at which I have been on the faculty,1 my experience at USC remains unique in these dimensions.
{"title":"Remembrance of Things Past?","authors":"M. Moore","doi":"10.1628/978-3-16-157500-6","DOIUrl":"https://doi.org/10.1628/978-3-16-157500-6","url":null,"abstract":"In the fall of 1977, I joined an extraordinary group of men and women. Not only were we rather bunched together by age, what Bob Ellickson referred to as a “wart hog going through the python of life together,” but we also shared a vision of legal scholarship I still respect. It was hard-edged, theoretical, and interdisciplinary; it evinced a dedication to the life of the mind and an excitement about ideas that I have not seen before or since. Of the twelve American universities at which I have been on the faculty,1 my experience at USC remains unique in these dimensions.","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2000-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67495056","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Viewing health care as a common good: looking beyond political liberalism.","authors":"K P Quinn","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22371701","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Regulating managed care: what's wrong with a patient bill of rights.","authors":"D A Hyman","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22372339","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Managed care and the health of a nation.","authors":"R Bowser, L O Gostin","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"1999-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22231664","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Controlling desires: sexual orientation conversion and the limits of knowledge and law.","authors":"D B Cruz","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"1999-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22372338","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：