{"title":"How not to end disability.","authors":"Janet Radcliffe Richards","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"39 3","pages":"693-713"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24781041","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Is moral theory perplexed by new genetic technology?","authors":"Richard J Arneson","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"39 3","pages":"715-36"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24781042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Genetic interventions: (yet) another challenge to allocating health care.","authors":"Arti K Rai","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"39 3","pages":"657-67"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24781038","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Genetic enhancement, distributive justice, and the goals of medicine.","authors":"Mark A Hall","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"39 3","pages":"669-81"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24781039","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The ethics of genetic intervention: human research and blurred species boundaries.","authors":"Rebecca Dresser","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"39 3","pages":"737-46"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24781043","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Deontologists believe that agents are morally constrained in ways that preclude always being able to maximize good consequences and minimize bad ones. For example, deontologists would deny that one is morally permitted to torture an innocent person, even if doing so will save three other innocent persons from torture. On the other hand, most deontologists concede that if the good or bad consequences of violating these deontological restrictions become sufficiently weighty, the restrictions give way and the agent is morally permitted to act as a consequentialist. The point at which consequences overcome the deontological restrictions is the deontological threshold, and those deontologists who think there is such a threshold -- for example, Michael Moore, Thomas Nagel, and Robert Nozick -- are threshold deontologists. Threshold deontology has been almost completely neglected in the deontological literature. In this article, I examine aspects of threshold deontology, in particular pointing out peculiarities attributable to the presence of any deontological threshold, and raising a general question, previously raised by Anthony Ellis, of whether such a threshold can be rationally defended.
{"title":"Deontology at the Threshold","authors":"L. Alexander","doi":"10.2139/SSRN.253676","DOIUrl":"https://doi.org/10.2139/SSRN.253676","url":null,"abstract":"Deontologists believe that agents are morally constrained in ways that preclude always being able to maximize good consequences and minimize bad ones. For example, deontologists would deny that one is morally permitted to torture an innocent person, even if doing so will save three other innocent persons from torture. On the other hand, most deontologists concede that if the good or bad consequences of violating these deontological restrictions become sufficiently weighty, the restrictions give way and the agent is morally permitted to act as a consequentialist. The point at which consequences overcome the deontological restrictions is the deontological threshold, and those deontologists who think there is such a threshold -- for example, Michael Moore, Thomas Nagel, and Robert Nozick -- are threshold deontologists. Threshold deontology has been almost completely neglected in the deontological literature. In this article, I examine aspects of threshold deontology, in particular pointing out peculiarities attributable to the presence of any deontological threshold, and raising a general question, previously raised by Anthony Ellis, of whether such a threshold can be rationally defended.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"37 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2000-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.253676","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68195400","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay is a comment on an article by Professor Chris Wonnell entitled "Expectation, Reliance, and the Two Contractual Wrongs." Both Wonnell's article and this comment will appear in a forthcoming symposium on the Reliance Interest to be published in the San Diego Law Review. Wonnell's thesis is that the concepts of expectation and reliance are not simply two different ways of conceiving compensation; rather, they are two different ways of conceiving contractual wrongs. Expectation damages remedy the wrong of breaching a contractual promise that should have been performed. Wonnell also suggests that courts should choose between expectation and reliance remedies depending on the reason for the breach, but with a strong presumption in favor of expectation. I agree with much of Wonnell's thesis, which draws on and is broadly consistent with my prior article, The Fault Lines in Contract Damages, 80 Va. L. Rev. 1225 (1994). In my comment, I expand on my view that an economic approach to contract damages supports a fault-based system in which courts adjust the damage measure depending on the reason for the breach, and that this is the system we actually have. The expectation remedy is superior to reliance for deterring opportunistic breaches. The reliance remedy is not sufficient to deter opportunistic breach once one considers the gains to the promisor from the opportunistic behavior beyond the immediate contract. On the other hand, the reliance remedy is superior to expectation for deterring nonopportunistic breaches. Although Wonnell accepts the argument of some economic scholars that the expectation remedy serves a cost-minimizing "pricing" function in nonopportunistic breach cases, in my view the pricing advantage of the expectation remedy is overstated. My conclusion is that our theoretical energies should now be directed away from the abstract superiority of expectation or reliance in general and toward the development of better presumptions of opportunistic and nonopportunistic breach.
本文是对克里斯·旺内尔教授一篇题为《期望、信赖和两种契约错误》的文章的评论。旺内尔的文章和这篇评论都将出现在即将在《圣地亚哥法律评论》上发表的关于信实利益的研讨会上。旺内尔的论点是，期望和依赖的概念不仅仅是理解补偿的两种不同方式;相反，它们是理解合同错误的两种不同方式。期望损害赔偿是对违反本应履行的合同承诺的错误的补救。旺内尔还建议，法院应根据违约的原因，在预期救济和依赖救济之间做出选择，但要有有利于预期救济的强有力的推定。我同意旺内尔的大部分论点，它借鉴了我之前的文章《合同损害赔偿中的断层线》，80 Va. L. Rev. 1225(1994)，并与之大体一致。在我的评论中，我扩展了我的观点，即合同损害赔偿的经济方法支持一种基于过错的制度，在这种制度中，法院根据违约的原因调整损害赔偿措施，这就是我们实际拥有的制度。在阻止机会性违约方面，预期补救优于依赖。一旦考虑到允诺人从直接合同之外的机会主义行为中获得的利益，信赖救济就不足以阻止机会主义违约。另一方面，信赖救济在阻止非机会性违约方面优于期望。虽然旺内尔接受了一些经济学者的观点，即期望救济在非机会主义违约案件中发挥了成本最小化的“定价”功能，但在我看来，期望救济的定价优势被夸大了。我的结论是，我们的理论精力现在应该从一般期望或依赖的抽象优越性转向发展更好的机会性和非机会性违约的假设。
{"title":"Finding Fault with Wonnell's \"Two Contractual Wrongs\"","authors":"G. Cohen","doi":"10.2139/SSRN.252869","DOIUrl":"https://doi.org/10.2139/SSRN.252869","url":null,"abstract":"This essay is a comment on an article by Professor Chris Wonnell entitled \"Expectation, Reliance, and the Two Contractual Wrongs.\" Both Wonnell's article and this comment will appear in a forthcoming symposium on the Reliance Interest to be published in the San Diego Law Review. Wonnell's thesis is that the concepts of expectation and reliance are not simply two different ways of conceiving compensation; rather, they are two different ways of conceiving contractual wrongs. Expectation damages remedy the wrong of breaching a contractual promise that should have been performed. Wonnell also suggests that courts should choose between expectation and reliance remedies depending on the reason for the breach, but with a strong presumption in favor of expectation. I agree with much of Wonnell's thesis, which draws on and is broadly consistent with my prior article, The Fault Lines in Contract Damages, 80 Va. L. Rev. 1225 (1994). In my comment, I expand on my view that an economic approach to contract damages supports a fault-based system in which courts adjust the damage measure depending on the reason for the breach, and that this is the system we actually have. The expectation remedy is superior to reliance for deterring opportunistic breaches. The reliance remedy is not sufficient to deter opportunistic breach once one considers the gains to the promisor from the opportunistic behavior beyond the immediate contract. On the other hand, the reliance remedy is superior to expectation for deterring nonopportunistic breaches. Although Wonnell accepts the argument of some economic scholars that the expectation remedy serves a cost-minimizing \"pricing\" function in nonopportunistic breach cases, in my view the pricing advantage of the expectation remedy is overstated. My conclusion is that our theoretical energies should now be directed away from the abstract superiority of expectation or reliance in general and toward the development of better presumptions of opportunistic and nonopportunistic breach.","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"38 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2000-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68192262","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The future of bioethics testimony: guidelines for determining qualifications, reliability, and helpfulness.","authors":"B Spielman, G Agich","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"36 4","pages":"1043-75"},"PeriodicalIF":0.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22126462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Patient advocates or patient adversaries? Using fiduciary law to compel disclosure of managed care financial incentives.","authors":"K Johnston","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"35 4","pages":"951-92"},"PeriodicalIF":0.0,"publicationDate":"1998-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22413148","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Racial disparities in the delivery of health care.","authors":"B A Noah","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83257,"journal":{"name":"The San Diego law review","volume":"35 1","pages":"135-78"},"PeriodicalIF":0.0,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25626023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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