ETHICS - THE ADVERSARIAL SYSTEM AND BUSINESS PRACTICE*

[This article is an edited version of a lecture delivered in November 2004 to Melbourne University Juris Doctor students. It takes as its starting point the argument that the ethics of the adversarial legal system ill accord with the norms of society and that we should discard it in favour of the inquisi- torial system. That view is contrasted with the school of thought which takes the ethical superiority of the adversarial system as given and with the idea that increasing commercialisation of the legal profession may be leading us away from the nobler traditions of the adversarial system.]

Mistake and Disclosure in a Model of Two-Sided Informational Inputs

This paper will examine some theoretical aspects of contractual non-disclosure and the related doctrine of unilateral mistake. These two legal rubrics are conceptually similar; each is concerned with the degree to which parties must communicate their understandings about the nature of the contract into which they are about to enter. If one party fails to reveal enough information, the other party may enter into the agreement under a misunderstanding and consequently may attempt to avoid contractual liability on the basis of mistake or on a theory of nondisclosure. The law of contracts clearly attaches a great deal of importance to ensuring that contracting parties have a mutual understanding about their agreement - a meeting of the minds - for that is the cornerstone of mutual assent. Indeed, one of the foundational theoretical goals of contract doctrine is to establish rules of law that will induce parties to reveal information that will reduce the cost of contracting and minimize the negative effects of breach. This “information forcing” concept has received substantial attention by many leading scholars as the animating principle behind the rule of Hadley v. Baxendale, which limits consequential damages to those that are foreseeable (i.e., those that have been communicated by the party seeking damages)

Hollins Columns (1962 Apr 5)

Table of Contents: Diercks To Replace Talmadge As Head Of Music Department Angola Is Subject of Movie Charles A. Micaud To Lecture Wed. On North Africa Retirement Ends Service of Twenty-Six Years at H.C. Diercks Is An Accomplished Composer, Pianist, Critic Navy Offers Program For H.C. Grads. News Briefs Prof. Hartt To Preach Sunday Eve Hollins Abroaders To Speak At Forum Cast Changes Are Announced for Blithe Spirithttps://digitalcommons.hollins.edu/newspapers/1783/thumbnail.jp

Hollins Columns (1960 Jan 14)

Table of Contents: Date House: Coming Soon? Call for Action on Snack Bar Doctors Tell Effects of Giving Blood Levine and Diercks To Present Joint Recital of Dance and Music Hollins Has Grant Salem Music Club Presents Program College or Education Of Wee Mice And Women Alumna Presents Piano Concert Scriven Speaks on \u27Existence of God\u27 Exam Period Is Shorter This Year Duke Professor To Speak Destination: Campus, Roanoke, and Vicinity Thorpe Tells of Old South Writers Tryouts Are This Week Bolles Receives Science Grant Of $20,000 On Campus with Max Shulmanhttps://digitalcommons.hollins.edu/newspapers/1720/thumbnail.jp

Restricted Distribution Contracts and the Opportunistic Pursuit of Treble Damages

The analysis presented in this article addresses the narrow issue of the effects of potential treble damage actions on the behavior of contractually-related manufacturers and distributors. Part II of this article presents the notion of opportunistic behavior, which has influenced much of the economic analysis and the Supreme Court\u27s recent treatment of vertical nonprice restraints. The transformation of the threat of opportunism into socially-wasteful expenditures of resources is also discussed. Part III examines the problematic role of opportunism in the distribution of goods, restricted distribution practices that aim to solve the problem, and the antitrust treatment of such restricted distribution practices. This part argues that, in terms of controlling opportunism, which is the substantive purpose of the practice, the Supreme Court\u27s formalistic distinction between price and nonprice restraints is not useful. Part IV examines the perverse incentives created by the current antitrust treatment of restricted distribution practices. Part IV begins with an analysis of contract law damages and the incentives to engage in opportunistic behavior through inducing breach and collecting damages when stipulated damage clauses provide for damages greater than actual damages. The analysis is then extended to the antitrust treatment of restricted distribution contracts where the threat of a treble damage action is viewed as an implicit government-mandated clause stipulating damages greater than actual damages. Thus, the incentives to engage in opportunistic behavior through the manipulation of restricted distribution contract terms are the same as under other contracts when stipulated damages are greater than actual damages. This part argues that the pursuit of treble damages in restricted distribution cases is another form of opportunistic behavior, and that the threat of such opportunistic behavior increases the costs of procompetitive distribution practices and thus decreases consumer welfare. The opportunistic pursuit of treble damages also explains why distributor and franchisee terminations are among the most actively litigated categories of antitrust actions. Part V discusses the policy implications of the analysis. Although it is clear that the perverse incentives created by the current state of the antitrust law of restricted distribution practices could be eliminated by declaring all such practices to be per se legal, the narrow scope of the analysis does not support such a sweeping recommendation. Instead, Part V recommends that when the true basis of an action is a dispute concerning a voluntary contract between vertically-related parties, the problem of the opportunistic pursuit of treble damages should be minimized by adopting a uniform rule of reason for all restricted distribution practices and by revitalizing the in pari delicto defense to antitrust actions

Knowledge and Politics

A Review of Knowledge and Politics by Roberto Mangabeira Unge

The Inseparability of Professionalism and Personal Satisfaction: Perspectives on Values, Integrity and Happiness

This article suggests a more effective approach to professionalism training based on a modern understanding of human nature. It explains (1) the many empirically established connections between life satisfaction and the values and motivations that would promote professional behavior among lawyers, and (2) the role of character integrity in maintaining physical and emotional wellness. It then describes an approach to teaching this material in the classroom or clinical setting, in order to foster both professionalism and career satisfaction among law students