Oregon law review最新文献

{"title":"Legal by Design: A New Paradigm for Handling Complexity in Banking Regulation and Elsewhere in Law","authors":"P. Lippe, D. Katz, D. Jackson","doi":"10.2139/SSRN.2539315","DOIUrl":"https://doi.org/10.2139/SSRN.2539315","url":null,"abstract":"On August 5, 2014, the Federal Reserve Board and the Federal Deposit Insurance Corporation criticized shortcomings in the Resolution Plans of the first Systematically Important Financial Institution (SIFI) filers. In his public statement, FDIC Vice Chairman Thomas M. Hoenig said “each plan [submitted by the first 11 filers] is deficient and fails to convincingly demonstrate how, in failure, any one of these firms could overcome obstacles to entering bankruptcy without precipitating a financial crisis.”The first eleven SIFIs — Bank of America, Bank of New York Mellon, Barclays, Citigroup, Credit Suisse, Deutsche Bank, Goldman Sachs, JPMorgan Chase, Morgan Stanley, State Street Corp. and UBS — include some of the largest organizations in the world, with sophisticated internal and external teams of professional advisors. According to Jamie Dimon of JPMorgan Chase in 2013, it took 500 professionals over 1 million hours per year to produce JPMorgan Chase’s annual Resolution plan. With regulatory pressure increasing, that number is likely to be consistent or increasing across first-wave filers, and suggests significant spending by all filers.So why were the plans criticized despite heavy compliance investment?The Fed and FDIC identified two common shortcomings across the first 11 SIFI filers: “(i) assumptions that the agencies regard as unrealistic or inadequately supported, such as assumptions about the likely behavior of customers, counterparties, investors, central clearing facilities, and regulators, and (ii) the failure to make, or even to identify, the kinds of changes in firm structure and practices that would be necessary to enhance the prospects for orderly resolution.” We believe this regulatory response highlights, in part, the need for lawyers (and other advisors) to develop approaches that can better manage complexity, encompassing modern notions of design, use of technology, and management of complex systems. In this paper, we will describe the information mapping aspects of the Resolution Planning challenge as an exemplary “Manhattan Project” of law: a critical enterprise that will require — and trigger — the development of new tools and methods for lawyers to apply in their work handling complex problems without resort to unsustainably swelling workforce, and wasteful diversion of resources. Fortunately, much of this approach has already been developed in innovative Silicon Valley legal departments and has been applied by leading banks. Although much of the focus of the Dodd-Frank Act is on re-organizing and simplifying banks, we will focus here on the information architecture issues which underlie much of what should — and will — change about how law is delivered, not just for Resolution Planning, but more broadly.","PeriodicalId":82234,"journal":{"name":"Oregon law review","volume":"93 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2539315","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68197136","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":"A Graceful Exit: Redefining Terminal to Expand the Availability of Physician-Facilitated Suicide","authors":"B. Lewis","doi":"10.2139/SSRN.2117304","DOIUrl":"https://doi.org/10.2139/SSRN.2117304","url":null,"abstract":"For almost ten years, Oregon stood alone as the state that permits terminally ill persons to choose the time and manner of their deaths. Finally, in 2009, Oregon received company when the state of Washington’s physician facilitated suicide statute officially went into effect in March of that year. Supporters of the statutes hailed the enactments as a victory for persons seeking to die with dignity. Persons from groups like Compassion & Choices vowed to seek similar legislation in the remaining states. Representatives from the Washington State Medical Association, hospice groups and hospitals argued that the mandates of the statutes place physicians in an unnatural position. In particular, the Medical Association’s spokesman stated that physicians take an oath to save lives, not to end them. The number of persons in the country who support physician-facilitated suicide has continued to grow. At the end of 2009, the Montana Supreme Court indicated that physician-facilitated suicide is not against the state’s public policy. In this article, instead of joining the debate about the legalization of physician assisted suicide, I analyzed the law in Oregon and Washington. That analysis shows that the legislatures in those states attempted to regulate the process in order to protect the interests of terminally ill patients and physicians. The statutory mandates are a step in the right direction, but there is still work that needs to be done. The statutes should be amended to close certain loop holes and to ensure that the physician-facilitated suicide option is available to all of the patients who need it. Persons suffering from physical conditions that will lead to death within six months should not be the only persons permitted to exit gracefully. As long as the safeguards included in the statutes are followed, there is no good reason to prohibit persons suffering from irreversible and incurable physical diseases that lead to death from being classified as terminal. In addition, persons diagnosed with irreversible and incurable brain disorders, like severe dementia or Alzheimer’s disease should be able to avail themselves of the rights provided by the physician-facilitated suicide statutes. Alzheimer’s patients suffer a slow, painful death. They revert to childhood and forget everyone around them. The mental death they suffer is similar to the physical death experienced by terminally physically ill patients. During the early stages of the disease, most Alzheimer sufferers are still competent enough to request physician-facilitated suicide. Therefore, the statutes should be amended or interpreted to give them that option.","PeriodicalId":82234,"journal":{"name":"Oregon law review","volume":"91 1","pages":"457-493"},"PeriodicalIF":0.0,"publicationDate":"2012-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67919670","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 There Such A Thing As Too Much Free Speech","authors":"Randall P. Bezanson","doi":"10.5406/illinois/9780252037115.003.0007","DOIUrl":"https://doi.org/10.5406/illinois/9780252037115.003.0007","url":null,"abstract":"","PeriodicalId":82234,"journal":{"name":"Oregon law review","volume":"91 1","pages":"601"},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70738974","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 Birth of a Logical System: Thurman Arnold and the Making of Modern Administrative Law","authors":"Mark Fenster","doi":"10.2139/SSRN.587051","DOIUrl":"https://doi.org/10.2139/SSRN.587051","url":null,"abstract":"Much of what we recognize as contemporary administrative law emerged during the 1920s and 1930s, a period when a group of legal academics attempted to aid Progressive Era and New Deal regulatory efforts by crafting a legitimating system for the federal administrative state. Their system assigned competent, expert institutions - most notably administrative agencies and the judiciary - well-defined roles: Agencies would utilize their vast, specialized knowledge and abilities to correct market failures, while courts would provide a limited but crucial oversight of agency operations. This Article focuses both on this first generation of administrative law scholarship, which included most prominently Felix Frankfurter and James Landis, and on the contemporaneous challenge to their work raised by the legal realist Thurman Arnold. Arnold characterized early modern administrative law as a quasi-formalist effort to impose a logical system of procedure and judicial review on what he saw as pragmatic, functional regulatory agencies that were attempting to address the crisis of the Depression. Although he conceded the persuasive power of this logical system, Arnold predicted that its requirements, especially for adversarial litigation and judicial review, would ultimately impede the optimal operations of a modern administrative state. Although Arnold's eclectic alternative proposals had no influence, his predictions and critique remain incisive and relevant to an academic field and body of doctrine that regularly face regular bouts of intellectual and political crisis. The Article carries the historical disagreement between Arnold and his contemporaries into the present by connecting their debates first to the development of legal process theory as an approach to federal courts and constitutional law in the 1950s and then to similar debates in administrative law today. Arnold's challenge to early modern administrative law, the Article argues, remains relevant because American law still demands a systemic, legalistic conception of the administrative state. A logical system of administrative and legal process has enormous symbolic power even though, as its current detractors note, it often produces suboptimal regulatory practices. The recurring conflict between an enormously durable system and its critique, a conflict that continues to drive administrative law scholarship, began in the 1920s and 1930s; any efforts to reform the field should understand the terms and implications of the conflict's foundations.","PeriodicalId":82234,"journal":{"name":"Oregon law review","volume":"84 1","pages":"412"},"PeriodicalIF":0.0,"publicationDate":"2004-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67769721","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":"Thou shalt not kill as a defeasible heuristic: law and economics and the debate over physician-assisted suicide.","authors":"Daniel Gilman","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82234,"journal":{"name":"Oregon law review","volume":"83 ","pages":"1239-89"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26387489","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":"An Attitudinal Theory of Expressive Law","authors":"Richard Mcadams","doi":"10.2139/SSRN.253331","DOIUrl":"https://doi.org/10.2139/SSRN.253331","url":null,"abstract":"Economic analysis typically assumes that law changes the expected cost of behavior, and thereby changes behavior, only because it imposes legal sanctions. Another possibility is that law operates \"expressively\" - that it changes behavior by what it says rather than what it does. This article proposes an informal model to explain how law could have such an expressive effect. In the model, law changes the expected cost of behavior by signaling attitudes of approval or disapproval. The model assumes (1) that individuals value approval either intrinsically or instrumentally, (2) that individuals have only imperfect information about what others approve, and (3) that certain identifiable categories of legislation are positively correlated with diffuse public opinion. As a result, these categories of legislation cause individuals to update their prior beliefs about the approval pattern, and this updated belief produces behavioral change. As an example, anti-smoking legislation signals greater disapproval of public smoking, which raises the expected costs from public smoking, thereby decreasing such smoking independent of the legal sanctions. The article explores several implications of this attitudinal model of expressive law. One is that local ordinances have a greater expressive effect than state or federal laws, because most approval and disapproval occurs locally. Second, judicial decisions have an expressive effect because they are positively correlated with diffuse public opinion. Third, parties wishing to influence the behavior of others will invest in capturing the state's expressive power, with the result that there is substantial political conflict over what appear to be matters of pure symbolism.","PeriodicalId":82234,"journal":{"name":"Oregon law review","volume":"79 1","pages":"339"},"PeriodicalIF":0.0,"publicationDate":"2000-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68194687","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":"Protection of RU-486 as contraception, emergency contraception and as an abortifacient under the law of contraception.","authors":"R C Wyser-Pratte","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82234,"journal":{"name":"Oregon law review","volume":"79 4","pages":"1121-56"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22130259","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":"Reasons within Passions: Emotions and Intentions in Property Rights Bargaining","authors":"P. H. Huang","doi":"10.2139/SSRN.240505","DOIUrl":"https://doi.org/10.2139/SSRN.240505","url":null,"abstract":"This article discusses the role of emotions (or feelings or affects) in property rights bargaining. Real world people choose bargaining strategies based upon not only rational calculations, but also their gut feelings. This article considers the impact of anger and shame on bargaining over property rights and the Coase theorem. Such emotions may depend on beliefs (expectations or assessments) about whether particular strategic decisions should or will occur. Such beliefs can be viewed as attributions over the intentions of others.","PeriodicalId":82234,"journal":{"name":"Oregon law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68183585","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":"Protecting patient-doctor discourse: informed consent and deliberative autonomy.","authors":"K M Gatter","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82234,"journal":{"name":"Oregon law review","volume":"78 4","pages":"941-93"},"PeriodicalIF":0.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22316180","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":"Assisted suicide and the competent terminally ill: on ordinary treatments and extraordinary policies.","authors":"M Strasser","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82234,"journal":{"name":"Oregon law review","volume":"74 ","pages":"539-609"},"PeriodicalIF":0.0,"publicationDate":"1995-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24944869","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}