It was often said of K’ung Fu-tse: “If the mat was not straight, the master would not sit.” This is surely an outlook with which many American lawyers, and those who deal with them, are familiar today. Though there is, of course, something to be said for keeping the mat straight, especially in an area as specific and particular as the law, the refusal to sit because of minor discrepancies can lead to tired legs and a bad temper. In the legal context, this means that certain “mat-straightening” practices can lead to inefficient procedure, incomprehensible or purposeless laws, and, at worst, miscarriages of justice.
The American legal system, descended as it is from Hebraic, Roman, and British law, is, in spite of the genius of its framers, at times hopelessly mired in the muck of mat-straightening when it should be concerned with simply sitting and getting down to the business of justice. This is due not so much to flaws in the basic structure of the law, but to the immense over-complexity that is largely (though certainly not solely) a phenomenon of the modern era. These days, it seems that the simple purpose of the law has been completely obscured by the practice of it. Fortunately, though much of Western legal scholarship has ignored or simply not recognized this trend toward unnecessary complexity, in the East, particularly in China, political and social philosophers have been dealing with this exact kind of excessive insistence on convolution and bureaucracy for thousands of years. They know it as Confucianism.
This bibliography serves as the 1999–2001 update to Gerontology and the Law: A Selected Annotated Bibliography. The Gerontology and the Law Bibliography was first published in the Law Library Journal in 1980. Subsequently, six updates to the bibliography were published in the Southern California Law Review between the years 1982 and 1999. The original bibliography and the five subsequent updates provided citations of books, reports, and articles focusing on law-related topics concerning gerontology, the elderly, and aging. Following the format of the sixth update, this seventh update is more specific than its early predecessors in terms of its coverage of topics and types of materials. Like the sixth update, this annotated bibliography provides descriptive annotations that summarize the topics and/or major points discussed in the cited books or articles.
As Russia and other formerly socialist states construct market economies, the appearance of strong securities markets remains an unfulfilled expectation. Notwithstanding broad privatization of state-owned enterprises and the elimination of industrial subsidies – essential precursors to demand for capital-raising securities markets – stock markets in Central and Eastern Europe remain illiquid, inefficient, and unreliable.
Strong securities markets do not, it seems, neatly follow from the welfare-maximizing behavior of individuals and institutions. Nor can the appearance of securities markets be effectively dictated by government decree. Post-communist securities market transition therefore presents a puzzle: Do markets emerge, or must they be created?
From Volume 76, Number 2 (January 2003) This Article discusses a survey on limited liability companies (LLCs) to […]
In 1924, proponents of the Federal Arbitration Act (“FAA”) believed arbitration was an amicable way to resolve disputes between business professionals: Arbitration “preserves business friendships. . . . It raises business standards. It maintains business honor.” This indeed may be true, but judicial opinions interpreting the FAA have transcended the realm of legal reasoning, becoming hostile and antagonistic not toward a party’s improper action, but toward judges.
Whether and to what extent multidisciplinary practices should be allowed in the United States has recently been described as the “‘most important issue facing the legal profession today.’” Multidisciplinary practices, or “MDPs,” emerged as an important ethical issue more than ten years ago when the accounting profession began to offer businesses a wide variety of professional services they had not traditionally offered. Consulting and other professional service firms followed suit, and began promoting services similar to those traditionally offered by law firms. The growth of these nonlegal firms led such firms to hire an increasing number of lawyers. Not surprisingly, this trend raised concerns about the unauthorized practice of law, conflicts of interest, and lawyer independence. Since the distinctions between legal and nonlegal professions have become muddled, the American Bar Association (“ABA”) has devoted significant resources to addressing the MDP issue.
New crimes require new thinking about regulation. Because of computerization and globalization, today’s world faces new crimes and new ways of committing old crimes. Because of the interconnectedness of our global financial markets, this evolving criminal activity has unprecedented power to wreak havoc on every aspect of modern life. Law enforcement has no choice but to respond effectively.
One aspect of this new thinking is revising our concept of crime. Complex, economic wrongdoing is difficult to categorize as criminal primarily because it is enormously difficult to prove the high level of mens rea traditionally and appropriately required in criminal law. Proving this requisite mental state by the heightened burden required in criminal cases is even more difficult. Moreover, even when proof of criminal intent beyond a reasonable doubt is possible, conducting the investigation and proving a case by these standards is so expensive and time-intensive for both the executive and judicial branches that the costs often outweigh any benefit achieved. Lastly, imposing the criminal sanction of imprisonment on defendants whose wrongdoing, however destructive to society, may be malum prohibitum, is morally and practically questionable for a criminal justice system and is often economically inefficient.
Mediation—the process through which a third party neutral assists parties in reaching their own agreement—has achieved a prominence in our legal system that belies its youth. Earlier in the twentieth century, the use of mediation was limited almost entirely to small disputes (which did not justify the expense of litigation) and labor disputes (which required quick resolution in order to avoid costly strikes and shutdowns.) By contrast, mediation today is touted for disputes of all sizes and in all areas of the law, including probate, family, commercial lending and business, criminal, employment discrimination, environmental, legal malpractice, medical malpractice, and maritime law. Indeed, such is the enthusiasm for mediation, that one is hard pressed to find a legal area in which mediation is not actively encouraged. Despite such broad encouragement, its success varies widely in different fields of law. While in some areas of law it has achieved dominance, in others its development has been far slower. Two areas where this disparity is particularly puzzling are divorce and will contests.