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Property Rights and Economic Regulation

ASHUTOSH BHAGWAT

in The Myth of Rights: The Purposes and Limits of Constitutional Rights

This chapter examines protection of private property and the sanctity of contract from governmental overreaching in the Constitution. In the body of the Constitution itself, the Contracts Clause of ... More

This chapter examines protection of private property and the sanctity of contract from governmental overreaching in the Constitution. In the body of the Constitution itself, the Contracts Clause of Article I, Section 10 specifically forbids state governments from “impairing the Obligation of Contracts”; one of the very few limitations imposed on states by the Constitution, it should be noted, and the only one (other than the ban on titles of nobility) that is not understandable as simply preventing state governments from intruding on the powers of the new national government. In the Bill of Rights, two provisions of the Fifth Amendment specifically protect property: the Due Process Clause, which provides that no person shall “be deprived of life, liberty, or property, without due process of law”; and the so-called Takings Clause, which states that “nor shall private property be taken for public use without just compensation.” Finally, the Fourth Amendment's assurance that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” also has the effect of protecting private property from governmental intrusions.Less

Healthcare contracts and the allocation of financial risk

Pauline Allen, Marie Sanderson, Christina Petsoulas, and Ben Ritchie

in Commissioning Healthcare in England: Evidence, Policy and Practice

Chapter 7 reports two aspects of research on contracting in the NHS. The first investigates how the policies to use contractual mechanisms including financial risk allocation work in practice. Most ... More

Chapter 7 reports two aspects of research on contracting in the NHS. The first investigates how the policies to use contractual mechanisms including financial risk allocation work in practice. Most of the contractual relationships between NHS owned acute providers and commissioners were characterised by the use of general annual financial settlements outside the terms of the contract. This behaviour appeared to be increasing over time. The second study comprises a review of the evidence concerning new forms of contract being introduced into the NHS: alliance and outcome based contracts. These are aimed at facilitating the integration of services and improving quality of care. Evidence from other sectors indicates that new models of contracting may result in cost savings including a reduction in capital costs, the development of innovations and benefits in relation to time. But there are high transaction costs in relation to the process of contract negotiation and specification. The evidence base regarding improvements in the quality of services is not convincing. These models carry a number of potential governance issues in relation to their implementation in the NHS, and are at risk of failing to satisfy public sector governance objectives including accountability, integrity and transparency.Less

Introduction

Steven Davidoff Solomon and Randall Stuart Thomas (eds)

in The Corporate Contract in Changing Times: Is the Law Keeping Up?

This book was inspired by a conference held on April 14 and 15, 2016 also titled "The Corporate Contact in Changing Times: Is the Law Keeping Up?". This book is a collection of the papers presented ... More

This book was inspired by a conference held on April 14 and 15, 2016 also titled "The Corporate Contact in Changing Times: Is the Law Keeping Up?". This book is a collection of the papers presented at that conference, and a modest attempt to bring more understanding and cohesion to future corporate law.Less

Besant, Chatto, and Watt: An Income from Fiction in the 1890s

Simon Eliot

in Walter Besant: The Business of Literature and the Pleasures of Reform

Walter Besant was a very successful novelist in the late nineteenth century but his income never quite matched his popularity, which rose in the 1880s and slowly fell thereafter. He did not use the ... More

Walter Besant was a very successful novelist in the late nineteenth century but his income never quite matched his popularity, which rose in the 1880s and slowly fell thereafter. He did not use the royalty system in his contracts but instead sold his copyrights either outright or for a limited term to book, magazine, and newspaper publishers. This was probably an expression of his doubts about the longer-term success of his work. He was one of the earliest significant novelists to use the services of A. P. Watt, the first formal literary agent in the UK. Watt was able to farm Besant’s literary property by splitting it into UK book rights (usually sold to Chatto and Windus), foreign book rights, first serialisation rights, second serialisation rights, and syndication in various newspaper and magazine markets in the USA, Europe, and British Empire. In the 1890s Besant earned an average of £1,750 for each of his major novels. Besant claimed that Watt had increased his income significantly. There is evidence that Watt did have an effect, but that Besant becoming a solo writer after 1881 – and gaining securer income in the USA from the Chace Act (1891) – were the more important factors.Less

Criminalization as Regulation: The Role of Criminal Law

Nicola Lacey

in Regulating Law

This chapter focuses on the norms and doctrines of criminal law in order to ask three questions which echo those raised in Hugh Collins's Regulating Contracts. The argument begins by sketching out ... More

This chapter focuses on the norms and doctrines of criminal law in order to ask three questions which echo those raised in Hugh Collins's Regulating Contracts. The argument begins by sketching out the theoretical framework which shapes the analysis, tracing its application to the various aspects of criminalization. Second, it applies this analysis to a number of key aspects of criminal law viewed in historical perspective, so as to tease out the regulatory aspects of modern criminal law in England and Wales. Third, it addresses some of the questions raised in the introduction to this collection, so as to examine the regulatory and meta-regulatory actuality and potential of criminal law in the contemporary regulatory state.Less

Regulatory Frameworks in International Law

Hilary Charlesworth and Christine Chinkin

in Regulating Law

Regulatory theory is concerned with how various forms of regulation, including law, govern social interaction. Much of the theoretical work on legal regulation has been developed in the context of ... More

Regulatory theory is concerned with how various forms of regulation, including law, govern social interaction. Much of the theoretical work on legal regulation has been developed in the context of domestic law. This chapter examines international law in the particular setting of regulation of outsider entities, such as failed and nascent states, that is where international regulation fills the vacuum caused by the collapse of domestic institutions and the rule of law. Through a brief examination of international regulation in Bosnia–Hercegovina and East Timor, this chapter asks what light a regulatory lens sheds on international law. Drawing on Hugh Collins's starting questions in Regulating Contracts, it investigates whether the international law in this area conceives of relations in ways that are different from the frameworks in which they operate.Less

Views from agencies

Roger Matthews, Helen Easton, Daniel Briggs, and Ken Pease

in Assessing the use and impact of Anti-Social Behaviour Orders

This chapter summarises the findings of the research which explored the operation, views and experiences of the relevant agencies in selecting and processing cases of Anti-Social Behaviour Orders ... More

This chapter summarises the findings of the research which explored the operation, views and experiences of the relevant agencies in selecting and processing cases of Anti-Social Behaviour Orders (ASBOs) in the United Kingdom. It analyses both the conceptual and practical issues that have arisen in different locations and in different agencies. The findings are discussed under the following headings: variations in attitudes and experience in different boroughs; interagency partnership and cooperation; criteria for selecting and processing cases; the problem of definition; the shift from ASBOs to Anti-Social Behaviour Orders on Conviction; formulating the conditions for ASBOs; the provision of support and welfare services; the use of ASBOs in relation to Acceptable Behaviour Contracts and Parenting Orders; and breaches and enforcement.Less

Perspectives on a Sovereign Debt Restructuring Framework: Less is More

Richard A. Conn

in Too Little, Too Late: The Quest to Resolve Sovereign Debt Crises

Chapter 13: argues that the creation of an agreed upon framework that interacts with private party contracts or restricts contractual options ex ante is a logical alternative to the status quo. This ... More

Chapter 13: argues that the creation of an agreed upon framework that interacts with private party contracts or restricts contractual options ex ante is a logical alternative to the status quo. This approach can provide greater stability and efficiency in the restructuring process while allowing for sufficient flexibility and certainty for market participants. He claims that there are procedural frameworks that could add value to the restructuring process with less risk of treading on the political terrain of sovereigns. The chapter discusses the catalyst for recent efforts to create a framework for and the context for evaluating sovereign debt restructuring; a strategy to successfully adopt a framework that deals with problems that require resolution; highlights the deficiencies of relying solely upon private party contractual revisions; discusses practical impediments to a substantive law approach to sovereign debt restructuring; and finally, puts forward specific proposals for a consensual, procedural framework designed to earn broad political support.Less

Creating a Framework for Sovereign Debt Restructuring That Works

Martin Guzman and Joseph E. Stiglitz

in Too Little, Too Late: The Quest to Resolve Sovereign Debt Crises

Recent controversies surrounding sovereign debt restructurings show the weaknesses of the current market-based system in achieving efficient and fair solutions to sovereign debt crises. This article ... More

Recent controversies surrounding sovereign debt restructurings show the weaknesses of the current market-based system in achieving efficient and fair solutions to sovereign debt crises. This article reviews the existing problems and proposes solutions. It argues that improvements in the language of contracts, although beneficial, cannot provide a comprehensive, efficient, and equitable solution to the problems faced in restructurings–but there are improvements within the contractual approach that should be implemented. Ultimately, the contractual approach must be complemented by a multinational legal framework that facilitates restructurings based on principles of efficiency and equity. Given the current geopolitical constraints, in the short-run we advocate the implementation of a “soft law” approach, built on the recognition of the limitations of the private contractual approach and on a set of principles – most importantly, the restoration of sovereign immunity – over which there may be consensus. We suggest that in a context of political economy tensions it should be impossible for a government to sign away the sovereign immunity either for itself or successor governments. The framework could be implemented through the United Nations, or it could prompt the creation of a new institution.Less

Dumtaxat de peculio: What’s in a Peculium, or Establishing the Extent of the Principal’s Liability

Jean-Jacques Aubert

in New Frontiers: Law and Society in the Roman World

Roman Law accepted the fact that dependants endowed with a peculium could engage their principal’s liability up to the extent of the peculium. This statement implies that third contracting parties, ... More

Roman Law accepted the fact that dependants endowed with a peculium could engage their principal’s liability up to the extent of the peculium. This statement implies that third contracting parties, even more so than principals and agents, could figure out the value – and the nature – of the peculium at the relevant time, in order to be able to sue the principal for a definite, precise, and accurate amount of money, and thus avoid the double trap of damaging minus petitio or lethal plus petitio. Peculia were composed of various assets and liabilities, traces of which should be found in account books, the existence and reliability of which cannot be taken for granted. In view of the difficulties raised in the application of the actio de peculio, Roman jurists devised alternative, fairer, and more straightforward legal remedies (actio tributoria, actiones in solidum, i.e. institoria or exercitoria) to facilitate the legal implementation of commercial transactions (contracts) carried out through dependants.Less

. Delta Cooperative Farm and the Death of a Vision

Fred C. Smith

in Trouble in Goshen: Plain Folk, Roosevelt, Jesus, and Marx in the Great Depression South

Delta Cooperative Farm and the Death of a Vision is a narrative of a noble experiment that failed. Of the three communities, The Delta Cooperative Farm was the most radical, romantic, practical, and ... More

Delta Cooperative Farm and the Death of a Vision is a narrative of a noble experiment that failed. Of the three communities, The Delta Cooperative Farm was the most radical, romantic, practical, and pitiful in its demise. The promises made by the bosses at Hillhouse were not fulfilled; almost as soon as the promise of collective ownership of the means of production was made, it was withdrawn. The failure of the Socialists and liberal Christians to work together for good is demonstrated at Hillhouse. Chapter VI, Leaving Goshen, is conclusion and observation.Less

Building (and Not Building) New York City’s Subway System

Joseph B. Raskin

in The Routes Not Taken: A Trip Through New York City's Unbuilt Subway System

This chapter provides an overview of the plans to expand the subway system from the time of the construction of the first line through the start of the postwar era in 1945. It introduces several of ... More

This chapter provides an overview of the plans to expand the subway system from the time of the construction of the first line through the start of the postwar era in 1945. It introduces several of the key figures in the planning and development of the lines that were built, as well as the lines that did not achieve fruition.Less

Broken society, anti-social contracts, failing state? Rethinking youth marginality

Peter Squires and Carlie Goldsmith

in Youth Marginality in Britain: Contemporary Studies of Austerity

Peter Squires and Carlie Goldsmith examine social exclusion of youth and the conservative the ideology of the ‘broken society.’ They address young people’s hardship and marginality through a critical ... More

Peter Squires and Carlie Goldsmith examine social exclusion of youth and the conservative the ideology of the ‘broken society.’ They address young people’s hardship and marginality through a critical analysis of neo-liberal political ideology. They that young adult ‘quality of life’ has diminished as a result of ‘tough justice’ and punitive welfare policies. They question the neo-liberal approach to young adults with its focus on risk and compliance measures while young people receive sanctions, disciplines and punishments.Less

Returning Home with Glory

Michael Williams

in Returning Home with Glory: Chinese Villagers around the Pacific, 1849 to 1949

Remittances, letters, qiaokan, visits, and the sending of bones have been discussed in the Chapter 5, as were the organizations and practices that facilitated these. In this chapter is examined the ... More

Remittances, letters, qiaokan, visits, and the sending of bones have been discussed in the Chapter 5, as were the organizations and practices that facilitated these. In this chapter is examined the less tangible, often psychological aspects, such as the motivations that lay behind the tangible elements. Underpinning the remittances and stores, the families in the qiaoxiang, and the years of effort in the destinations was the necessity to earn an income. The nature of these incomes, what these incomes meant to those in the qiaoxiang, and the jobs that secured these incomes are discussed. Considerations of income are incomplete, however, without also considering what was done with the money and why. The second part of this chapter will therefore discuss the role of prestige and social status in the establishment and maintenance of the qiaoxiang links.Less

Richard Epstein and the Incredible Shrinking Government

in Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations

This chapter focuses on the Reagan platform which was constitutionally mandated as studied by Richard Epstein, a brilliant libertarian scholar at the University of Chicago Law School. He argued that ... More

This chapter focuses on the Reagan platform which was constitutionally mandated as studied by Richard Epstein, a brilliant libertarian scholar at the University of Chicago Law School. He argued that most government regulations violate the Constitution's Takings Clause and its companion, the Contracts Clause. Epstein talked about a striking governmental, especially federal, power that is illustrated in his book using as an example employment discrimination. Although Epstein argues that special limits apply to the federal government, he believes the powers of all levels of government should be sharply limited. According to Epstein, most existing regulations are beyond the power of any level of government because they are unconstitutional takings of private property. He also recognizes that people have relied in important ways on current law.Less

Déjà vu All over Again: Trafalgar House, 1984-1988

Lewis Johnman and Hugh Murphy

in Scott Lithgow: Dejá Vu All Over Again! The Rise and Fall of a Shipbuilding Company

This chapter explores the Trafalgar House ownership of Scott Lithgows; the disastrous Ocean Alliance contract; and the accusations of negligence Trafalgar House made against British Shipbuilders (BS) ... More

This chapter explores the Trafalgar House ownership of Scott Lithgows; the disastrous Ocean Alliance contract; and the accusations of negligence Trafalgar House made against British Shipbuilders (BS) that resulted in a saga of claim and counterclaim over culpability for the Ocean Alliance. It states that nationalisation and subsequent privatisation preserved employment in the area for a number of years, but that Trafalgar House resoundingly failed to transform Scott Lithgow’s prospects. They failed to break even and the shipyard closed for good in 1990.Less

People as Property in Medieval Dubrovnik

Hannah Skoda

in Legalism: Property and Ownership

This article addresses a particularly troubling form of property: slavery in fifteenth-century Dubrovnik. The practice of slavery depended upon law: its articulation lay at the intersection of the ... More

This article addresses a particularly troubling form of property: slavery in fifteenth-century Dubrovnik. The practice of slavery depended upon law: its articulation lay at the intersection of the Roman law of the ius commune, canon law, local customary and statute law, and natural law. The texture of these different legalistic frameworks provided ways of articulating the problems, discursive and ethical, of treating people as property. The essay explores these tensions by looking at slave contracts, and practices of manumission: slaves could purchase their freedom with their own property (peculium). Both manumission and peculium were inflected by favor libertatis, the acknowledgement that the rigidity of law was a problematic way to deal with people. Further tensions are explored in the context of the criminal liability of slaves. Finally, the essay turns to the range of contracts from outright slavery to indentured labour, and asks how this spectrum problematizes concepts of property.Less