Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 6 of 6
Full-Text Articles in Law
Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee
Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee
UF Law Faculty Publications
Private resolution and public adjudication of disputes are commonly seen as discrete, antipodal processes. There is a generally held understanding of the dispute resolution processes. The essence of private dispute resolution is that the parties can arrange the disputed rights and entitlements per agreement and without judicial intervention. In public adjudication, however, the sovereign mandates the substantive and procedural laws to be applied, many of which cannot be changed by either a party's unilateral decision or both parties' mutual consent. Neither approach allows a party an option to unilaterally alter important aspects of the process, such as the standards of …
Tort Arbitrage, Robert J. Rhee
Tort Arbitrage, Robert J. Rhee
UF Law Faculty Publications
The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the empirical world. This Article models the interaction of settlement dynamics and the theory of negligence. It shows that tort claims are systematically devalued during settlement relative to the legal standard. Central to this thesis is a proper conception and accounting of cost. Cost is typically viewed as the transaction cost of litigation processing. Cost, however, encompasses more than this. Each dispute has a cost of resolution, defined as the discounting effect of risk on legal valuation. A spread between the parties' …
The Effect Of Risk On Legal Valuation, Robert J. Rhee
The Effect Of Risk On Legal Valuation, Robert J. Rhee
UF Law Faculty Publications
From a financial economic perspective, the governing condition of a meritorious civil action is the uncertainty of outcome. Expectation and outcome deviate, and the spread is the measure of uncertainty (or variance). During litigation each party has an option to settle or select trial. The decision standard can be seen as an option strike price and a finding of liability as an "in-the-money" call option. This apparent optionality suggests the application of an option pricing model to legal valuation, and a small but growing body of scholarship endorses this concept. However, option theory is not the only concept. Under an …
A Price Theory Of Legal Bargaining: An Inquiry Into The Selection Of Settlement And Litigation Under Uncertainty, Robert J. Rhee
A Price Theory Of Legal Bargaining: An Inquiry Into The Selection Of Settlement And Litigation Under Uncertainty, Robert J. Rhee
UF Law Faculty Publications
Conventional wisdom says that economic surplus is created when the cost of litigation is foregone in favor of settlement, a theory flowing from the Coase Theorem. The cost-benefit analysis weighs settlement against the expected value of litigation net of transaction cost. This calculus yields the normative proposition that settlement is a superior form of dispute resolution and so most trials are considered errors. While simple in concept, the prevailing economic model is flawed. This article is a theoretical inquiry into the selection criteria of settlement and trial. It applies principles of financial economics to construct a pricing theory of legal …
Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen
Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen
UF Law Faculty Publications
In this Article, I focus on injuries committed by members of organizations, such as corporations, and examine distinct issues raised by apology in the organizational setting. In particular, I consider: (i) the process of learning to prevent future errors; (ii) the divergent interests stemming from principal-agent tensions in employment, risk preferences and sources of insurance; (iii) the non-pecuniary benefits to corporate morale, productivity and reputation; (iv) the standing and scope of apologies; and (v) the articulation of policies toward injuries to others.
Advising Clients To Apologize, Jonathan R. Cohen
Advising Clients To Apologize, Jonathan R. Cohen
UF Law Faculty Publications
The article argues that lawyers should consider the possibility of advising clients to apologize for harms they commit, as in some cases apology may best serve their client's interests. The articles discusses some of the pros and cons to apology in the legal setting, as well as barriers that may inhibit apologies.