Gregory S. Alexander and Eduardo M. Peñalver (eds)
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780195391572
- eISBN:
- 9780199775804
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195391572.001.0001
- Subject:
- Law, Environmental and Energy Law
The relationship between individuals and communities — all manner of communities, but especially the state — is a central preoccupation of property theory. Across a broad range of property thought — ...
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The relationship between individuals and communities — all manner of communities, but especially the state — is a central preoccupation of property theory. Across a broad range of property thought — from utilitarian to Lockean to Hegelian — scholars have expended enormous effort explaining what owners can do with their property and the extent to which the community or the state can participate in those decisions. Discussions of property rights, from whatever perspective, necessarily reflect ideas about the proper domain and limits of individual and community power. Property stands so squarely at the intersection between the individual and community because systems of property are always the creation of some community. Moreover, systems of property have as their subject matter the allocation among community members of rights and duties with respect to resources that human beings need in order to survive and flourish. These allocative decisions are crucially important both to individuals, owners and non-owners alike, and to the community as a whole. In other words, whenever we discuss property, we are unavoidably discussing the architecture of community and of the individual's place within it. Even though the relationship between individuals and community stands at the conceptual center of property theory, the normative theories of community underlying discussions of property are frequently left implicit. This book aims to remedy this deficiency. With essays by property theorists from five different countries, it addresses various facets of the intersection between property and community.Less
The relationship between individuals and communities — all manner of communities, but especially the state — is a central preoccupation of property theory. Across a broad range of property thought — from utilitarian to Lockean to Hegelian — scholars have expended enormous effort explaining what owners can do with their property and the extent to which the community or the state can participate in those decisions. Discussions of property rights, from whatever perspective, necessarily reflect ideas about the proper domain and limits of individual and community power. Property stands so squarely at the intersection between the individual and community because systems of property are always the creation of some community. Moreover, systems of property have as their subject matter the allocation among community members of rights and duties with respect to resources that human beings need in order to survive and flourish. These allocative decisions are crucially important both to individuals, owners and non-owners alike, and to the community as a whole. In other words, whenever we discuss property, we are unavoidably discussing the architecture of community and of the individual's place within it. Even though the relationship between individuals and community stands at the conceptual center of property theory, the normative theories of community underlying discussions of property are frequently left implicit. This book aims to remedy this deficiency. With essays by property theorists from five different countries, it addresses various facets of the intersection between property and community.
M. W. Lau
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199602407
- eISBN:
- 9780191725203
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199602407.001.0001
- Subject:
- Law, Trusts
This book provides an economic account of why trusts exist and how trust law should be shaped. The trust is a key legal institution in the common law world but it has been neglected by the law and ...
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This book provides an economic account of why trusts exist and how trust law should be shaped. The trust is a key legal institution in the common law world but it has been neglected by the law and economics community until recently. Borrowing theories and doctrines from corporate law and economics, scholars have variously analysed and described the trust as a tripartite contract, a nexus of contracts, and even a legal entity. These obligational approaches overlook the unique features of trusts for which corporate legal theories have no explanation. Most importantly, they fail to account for the nature of the beneficiary's interest in the trust property. This book presents an original analysis of the common law of trusts, arguing that trust law is about the trust property and the principal parties' relationships with it. At the same time it questions recent trends in trust law, especially those in offshore jurisdictions. Exotic developments such as non-charitable purpose trusts, settlor-retention of wide powers, and generous trustee exemption clauses have become the new normal and, coincidentally, draw analytical support from obligational accounts. This book explains that once trusts are properly understood as property, it becomes obvious why these novel developments can only be for the worse, and should be reversed. It then goes on to develop an analysis of trusts from a proprietary perspective, and applies the property — based approach to the economic analysis of trusts — explaining the economic benefits of trusts as an extension of the law of property.Less
This book provides an economic account of why trusts exist and how trust law should be shaped. The trust is a key legal institution in the common law world but it has been neglected by the law and economics community until recently. Borrowing theories and doctrines from corporate law and economics, scholars have variously analysed and described the trust as a tripartite contract, a nexus of contracts, and even a legal entity. These obligational approaches overlook the unique features of trusts for which corporate legal theories have no explanation. Most importantly, they fail to account for the nature of the beneficiary's interest in the trust property. This book presents an original analysis of the common law of trusts, arguing that trust law is about the trust property and the principal parties' relationships with it. At the same time it questions recent trends in trust law, especially those in offshore jurisdictions. Exotic developments such as non-charitable purpose trusts, settlor-retention of wide powers, and generous trustee exemption clauses have become the new normal and, coincidentally, draw analytical support from obligational accounts. This book explains that once trusts are properly understood as property, it becomes obvious why these novel developments can only be for the worse, and should be reversed. It then goes on to develop an analysis of trusts from a proprietary perspective, and applies the property — based approach to the economic analysis of trusts — explaining the economic benefits of trusts as an extension of the law of property.
Stephen Breyer
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199566181
- eISBN:
- 9780191705458
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199566181.003.0038
- Subject:
- Law, Legal History
This chapter deals with the use of economics in the law, and in particular, at the U.S. Supreme Court. It illustrates how the partnership between economy and law functions at the Supreme Court of the ...
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This chapter deals with the use of economics in the law, and in particular, at the U.S. Supreme Court. It illustrates how the partnership between economy and law functions at the Supreme Court of the United States, and considers cases arising in legal fields where the law — if it is to work well — must draw upon insights provided by economists.Less
This chapter deals with the use of economics in the law, and in particular, at the U.S. Supreme Court. It illustrates how the partnership between economy and law functions at the Supreme Court of the United States, and considers cases arising in legal fields where the law — if it is to work well — must draw upon insights provided by economists.
Guido Calabresi
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780300195897
- eISBN:
- 9780300216264
- Item type:
- book
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300195897.001.0001
- Subject:
- Law, Constitutional and Administrative Law
In a concise, compelling argument, one of the founders and most influential advocates of the law and economics movement divides the subject into two separate areas, which are identified with Jeremy ...
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In a concise, compelling argument, one of the founders and most influential advocates of the law and economics movement divides the subject into two separate areas, which are identified with Jeremy Bentham and John Stuart Mill. The first, Benthamite, strain, “economic analysis of law,” examines the legal system in the light of economic theory and shows how economics might render law more effective. The second strain, law and economics, gives equal status to law, and explores how the more realistic, less theoretical discipline of law can lead to improvements in economic theory. It is the latter approach that this book advocates.Less
In a concise, compelling argument, one of the founders and most influential advocates of the law and economics movement divides the subject into two separate areas, which are identified with Jeremy Bentham and John Stuart Mill. The first, Benthamite, strain, “economic analysis of law,” examines the legal system in the light of economic theory and shows how economics might render law more effective. The second strain, law and economics, gives equal status to law, and explores how the more realistic, less theoretical discipline of law can lead to improvements in economic theory. It is the latter approach that this book advocates.
Stefan Voigt
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199658589
- eISBN:
- 9780191742248
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199658589.003.0005
- Subject:
- Law, Public International Law
Offering a law and economics perspective, this chapter uses the database of US ‘international agreements’ (defined in the US Case Act as legally binding agreements other than ‘treaties’ in the sense ...
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Offering a law and economics perspective, this chapter uses the database of US ‘international agreements’ (defined in the US Case Act as legally binding agreements other than ‘treaties’ in the sense of Article II:2 of the US Constitution) to analyse to what extent we can see an increase of informality away from formal treaties (in the sense of the US Constitution) to international agreements (who remain binding under international law but do not require advice and consent by the US Senate by a two-thirds majority). More broadly, the chapter analyses from an economic perspective, the choice between formal and informal international lawmaking (IN-LAW) by a traditional actor: the State. It is argued that the emerging picture is at best mixed. Informality differs over time and largely depends on the subject area.Less
Offering a law and economics perspective, this chapter uses the database of US ‘international agreements’ (defined in the US Case Act as legally binding agreements other than ‘treaties’ in the sense of Article II:2 of the US Constitution) to analyse to what extent we can see an increase of informality away from formal treaties (in the sense of the US Constitution) to international agreements (who remain binding under international law but do not require advice and consent by the US Senate by a two-thirds majority). More broadly, the chapter analyses from an economic perspective, the choice between formal and informal international lawmaking (IN-LAW) by a traditional actor: the State. It is argued that the emerging picture is at best mixed. Informality differs over time and largely depends on the subject area.
Guido Calabresi
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780300195897
- eISBN:
- 9780300216264
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300195897.003.0001
- Subject:
- Law, Constitutional and Administrative Law
This introductory chapter explains the difference between law and economics, identified with John Stuart Mill, and the economic analysis of law, exemplified by Jeremy Bentham. It presents examples of ...
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This introductory chapter explains the difference between law and economics, identified with John Stuart Mill, and the economic analysis of law, exemplified by Jeremy Bentham. It presents examples of recent scholarship of both fields and where they fit historically and considers why legal scholars have a particularly important role to play in law and economics, and especially in its future. This discussion serves as an introduction to the rest of the chapters which form the core of this book. It uses a law and economics approach to discuss the role of the lawyer, merit goods, and the perdurance and proper analysis of altruism and of not-for-profit institutions. It also examines what the use of the liability rule tells us about the relationship between markets and command, what economics often says about the validity of various tastes and values, and what economics can say about the shaping of tastes and values.Less
This introductory chapter explains the difference between law and economics, identified with John Stuart Mill, and the economic analysis of law, exemplified by Jeremy Bentham. It presents examples of recent scholarship of both fields and where they fit historically and considers why legal scholars have a particularly important role to play in law and economics, and especially in its future. This discussion serves as an introduction to the rest of the chapters which form the core of this book. It uses a law and economics approach to discuss the role of the lawyer, merit goods, and the perdurance and proper analysis of altruism and of not-for-profit institutions. It also examines what the use of the liability rule tells us about the relationship between markets and command, what economics often says about the validity of various tastes and values, and what economics can say about the shaping of tastes and values.
Michel Goyer
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199578085
- eISBN:
- 9780191731051
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578085.003.0001
- Subject:
- Business and Management, Corporate Governance and Accountability
What accounts for the observed differences across national systems of corporate governance? This chapter analyzes the importance of diversity in regard to institutional arrangements of corporate ...
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What accounts for the observed differences across national systems of corporate governance? This chapter analyzes the importance of diversity in regard to institutional arrangements of corporate governance. Institutional analyses of comparative corporate governance raise many issues also found in other areas of the social sciences: the interaction between different institutional features of an economy; and the importance of complex causation resulting from the presence of many institutional variables. The analysis of these issues in this chapter is structured around the three two most prominent theoretical perspectives: law and economics, and politics. Additional materials drawing from economic sociology are also presented. The chapter concludes by highlighting two important tasks: accounting for divergence across national systems of corporate governance in a context of change; assessing the relative weight of causal factors in processes of complex causation.Less
What accounts for the observed differences across national systems of corporate governance? This chapter analyzes the importance of diversity in regard to institutional arrangements of corporate governance. Institutional analyses of comparative corporate governance raise many issues also found in other areas of the social sciences: the interaction between different institutional features of an economy; and the importance of complex causation resulting from the presence of many institutional variables. The analysis of these issues in this chapter is structured around the three two most prominent theoretical perspectives: law and economics, and politics. Additional materials drawing from economic sociology are also presented. The chapter concludes by highlighting two important tasks: accounting for divergence across national systems of corporate governance in a context of change; assessing the relative weight of causal factors in processes of complex causation.
Manuel A. Utset
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195376685
- eISBN:
- 9780199776306
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195376685.003.0015
- Subject:
- Philosophy, Moral Philosophy
This chapter develops a model of repeated procrastination that can be used to examine the efficacy of legal rules. The model yields the following counterintuitive result: if the immediate costs of ...
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This chapter develops a model of repeated procrastination that can be used to examine the efficacy of legal rules. The model yields the following counterintuitive result: if the immediate costs of committing a crime are sufficiently great, a subset of people who, from a long-term perspective, believe that violating the law is economically worthwhile will nonetheless repeatedly procrastinate about following through. This phenomenon of “time-inconsistent obedience” helps explain an important puzzle in criminal law: the fact that people routinely obey the law even though the benefits of misconduct greatly exceed the expected sanctions. The chapter also argues that nonbenevolent lawmakers can engage in “stealth regulation” by exploiting people’s propensity to procrastinate. For example, under the model, even relatively low hurdles for getting abortions, such as a 24-hour waiting period, can have a disproportionate impact in reducing the number of abortions.Less
This chapter develops a model of repeated procrastination that can be used to examine the efficacy of legal rules. The model yields the following counterintuitive result: if the immediate costs of committing a crime are sufficiently great, a subset of people who, from a long-term perspective, believe that violating the law is economically worthwhile will nonetheless repeatedly procrastinate about following through. This phenomenon of “time-inconsistent obedience” helps explain an important puzzle in criminal law: the fact that people routinely obey the law even though the benefits of misconduct greatly exceed the expected sanctions. The chapter also argues that nonbenevolent lawmakers can engage in “stealth regulation” by exploiting people’s propensity to procrastinate. For example, under the model, even relatively low hurdles for getting abortions, such as a 24-hour waiting period, can have a disproportionate impact in reducing the number of abortions.
Michel Goyer
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199578085
- eISBN:
- 9780191731051
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578085.003.0003
- Subject:
- Business and Management, Corporate Governance and Accountability
What institutional arrangements best account for the willingness of short-term investors to acquire important equity stakes in listed companies? The law and economics perspective on cross-national ...
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What institutional arrangements best account for the willingness of short-term investors to acquire important equity stakes in listed companies? The law and economics perspective on cross-national variations in capital mobility is grounded in principal-agent theory — the principals being dispersed shareholders that invest in companies but do not run them; and the agents being either managers or large controlling shareholders. The analytical starting point is that noncontrolling shareholders need assurance that they will get a return on their investment before departing from their financial assets. This chapter presents the institutional arrangements of legal protection for minority shareholders in French and German corporate law. The expectations are that companies with diffused ownership should be primarily targeted. The legal systems of these two economies are better at protecting the interests of noncontrolling shareholders from the value-destroying actions of managers, as compared to wealth-diverting moves by the controlling shareholder.Less
What institutional arrangements best account for the willingness of short-term investors to acquire important equity stakes in listed companies? The law and economics perspective on cross-national variations in capital mobility is grounded in principal-agent theory — the principals being dispersed shareholders that invest in companies but do not run them; and the agents being either managers or large controlling shareholders. The analytical starting point is that noncontrolling shareholders need assurance that they will get a return on their investment before departing from their financial assets. This chapter presents the institutional arrangements of legal protection for minority shareholders in French and German corporate law. The expectations are that companies with diffused ownership should be primarily targeted. The legal systems of these two economies are better at protecting the interests of noncontrolling shareholders from the value-destroying actions of managers, as compared to wealth-diverting moves by the controlling shareholder.
Christopher Hutton
- Published in print:
- 2009
- Published Online:
- September 2012
- ISBN:
- 9780748633500
- eISBN:
- 9780748671489
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748633500.003.0002
- Subject:
- Linguistics, Applied Linguistics and Pedagogy
This chapter offers a brief introduction to topics and approaches in legal theory and language. It offers a critical summary of the differences between natural law and legal positivism, describes in ...
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This chapter offers a brief introduction to topics and approaches in legal theory and language. It offers a critical summary of the differences between natural law and legal positivism, describes in outline the formalist position as opposed to the realist, summarizes the idea of the rule of law in liberal ideology, and shows how this idea of the relative autonomy of the legal system and legal language comes under attack in radical approaches to law. It then looks at how the law and economics framework might deal with linguistic questions, and contrasts the different understanding of law and language in Luhmann and Habermas. The fundamental issue at stake is the notion of law's autonomy.Less
This chapter offers a brief introduction to topics and approaches in legal theory and language. It offers a critical summary of the differences between natural law and legal positivism, describes in outline the formalist position as opposed to the realist, summarizes the idea of the rule of law in liberal ideology, and shows how this idea of the relative autonomy of the legal system and legal language comes under attack in radical approaches to law. It then looks at how the law and economics framework might deal with linguistic questions, and contrasts the different understanding of law and language in Luhmann and Habermas. The fundamental issue at stake is the notion of law's autonomy.
Michel Goyer
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199578085
- eISBN:
- 9780191731051
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578085.001.0001
- Subject:
- Business and Management, Corporate Governance and Accountability
Corporate governance has become a major topic of interest for academics and policymakers in recent years. The advent of major financial scandals in the early 2000s (Enron, WorldCom, Ahold, Parmalat) ...
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Corporate governance has become a major topic of interest for academics and policymakers in recent years. The advent of major financial scandals in the early 2000s (Enron, WorldCom, Ahold, Parmalat) has been followed by important financial market turmoil by the end of the decade. A common theme associated with these developments is the increased power of finance – especially shareholder value-oriented institutional investors — across advanced capitalist economies. Will the pressures of financial market globalization force companies to converge on a shareholder-based model of corporate governance? This book which highlights the importance of the institutional context in which companies are embedded, focuses on the divergence in the allocation of capital by shareholder value-oriented institutional investors in Europe's two largest nonliberal market economies: France and Germany. The major difference between these two economies is that France has proven to be twice as attractive to short-term, impatient shareholders with short-term horizon as compared to Germany — a disparity that disappears for investors with a longer term horizon. These empirical findings highlight the importance of providing a sophisticated differentiation between different categories of institutional investors in order to assess the impact associated with the greater prominence of finance. Goyer points to the importance of firm-level institutional arrangements in the process by which companies coordinate their activities as the key variable for understanding the investment allocation of impatient investors. The implication is that the governing of corporations is not about whether or not strategies of shareholder value are being adopted — but rather what types of strategies of shareholder value are being pursued.Less
Corporate governance has become a major topic of interest for academics and policymakers in recent years. The advent of major financial scandals in the early 2000s (Enron, WorldCom, Ahold, Parmalat) has been followed by important financial market turmoil by the end of the decade. A common theme associated with these developments is the increased power of finance – especially shareholder value-oriented institutional investors — across advanced capitalist economies. Will the pressures of financial market globalization force companies to converge on a shareholder-based model of corporate governance? This book which highlights the importance of the institutional context in which companies are embedded, focuses on the divergence in the allocation of capital by shareholder value-oriented institutional investors in Europe's two largest nonliberal market economies: France and Germany. The major difference between these two economies is that France has proven to be twice as attractive to short-term, impatient shareholders with short-term horizon as compared to Germany — a disparity that disappears for investors with a longer term horizon. These empirical findings highlight the importance of providing a sophisticated differentiation between different categories of institutional investors in order to assess the impact associated with the greater prominence of finance. Goyer points to the importance of firm-level institutional arrangements in the process by which companies coordinate their activities as the key variable for understanding the investment allocation of impatient investors. The implication is that the governing of corporations is not about whether or not strategies of shareholder value are being adopted — but rather what types of strategies of shareholder value are being pursued.
Paul J. du Plessis (ed.)
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780748668175
- eISBN:
- 9780748684328
- Item type:
- book
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748668175.001.0001
- Subject:
- Law, Legal History
Roman law as a field of study is rapidly evolving to reflect new perspectives and approaches in research. Scholars who work on the subject are increasingly being asked to conduct research in an ...
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Roman law as a field of study is rapidly evolving to reflect new perspectives and approaches in research. Scholars who work on the subject are increasingly being asked to conduct research in an interdisciplinary manner whereby Roman law is not merely seen as a set of abstract concepts devoid of any background, but as a body of law which operated in a specific social, economic and cultural context. Since the mid-1960s, a new academic movement has advocated a “law and society” approach to the study of Roman law instead of the prevailing dogmatic methodology. This “context-based” approach to the study of law and society in the Roman world is an exciting new field which legal historians must address and which is largely unexplored. This interdisciplinary collection focuses on three larger themes which have emerged from these studies: Roman legal thought, the interaction between legal theory and legal practice and the relationship between law and economics.Less
Roman law as a field of study is rapidly evolving to reflect new perspectives and approaches in research. Scholars who work on the subject are increasingly being asked to conduct research in an interdisciplinary manner whereby Roman law is not merely seen as a set of abstract concepts devoid of any background, but as a body of law which operated in a specific social, economic and cultural context. Since the mid-1960s, a new academic movement has advocated a “law and society” approach to the study of Roman law instead of the prevailing dogmatic methodology. This “context-based” approach to the study of law and society in the Roman world is an exciting new field which legal historians must address and which is largely unexplored. This interdisciplinary collection focuses on three larger themes which have emerged from these studies: Roman legal thought, the interaction between legal theory and legal practice and the relationship between law and economics.
Makoto Usami
- Published in print:
- 2015
- Published Online:
- September 2015
- ISBN:
- 9781847429841
- eISBN:
- 9781447311515
- Item type:
- chapter
- Publisher:
- Policy Press
- DOI:
- 10.1332/policypress/9781847429841.003.0005
- Subject:
- Political Science, Public Policy
In the literature of comparative policy analysis, few attempts have been made to examine the remarkable development of study on law and public policy in contemporary Japan. To fill this gap in the ...
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In the literature of comparative policy analysis, few attempts have been made to examine the remarkable development of study on law and public policy in contemporary Japan. To fill this gap in the literature, the present chapter discusses the history, current state and prospect of Japanese law and public policy. It covers three major areas: the first is legislative study that deals with the legislative process and technical skills used in the process. The second field is the policy-oriented administration of laws by local government officials. The third domain is that of law and policy, which broadly refers to the branch of knowledge that studies policy design in terms of law. After reviewing the three areas, the chapter identifies their contemporary features and suggests remedies for the weaknesses involved in these features. It concludes by pointing out the implications that these fields of Japanese law and public policy might have for other societies.Less
In the literature of comparative policy analysis, few attempts have been made to examine the remarkable development of study on law and public policy in contemporary Japan. To fill this gap in the literature, the present chapter discusses the history, current state and prospect of Japanese law and public policy. It covers three major areas: the first is legislative study that deals with the legislative process and technical skills used in the process. The second field is the policy-oriented administration of laws by local government officials. The third domain is that of law and policy, which broadly refers to the branch of knowledge that studies policy design in terms of law. After reviewing the three areas, the chapter identifies their contemporary features and suggests remedies for the weaknesses involved in these features. It concludes by pointing out the implications that these fields of Japanese law and public policy might have for other societies.
Martha Chamallas and Jennifer B. Wriggins
- Published in print:
- 2010
- Published Online:
- March 2016
- ISBN:
- 9780814716762
- eISBN:
- 9780814790069
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814716762.003.0002
- Subject:
- Law, Comparative Law
This chapter describes the book's “critical” approach to tort law, one that draws insights from feminist theory, critical race theory, and critical theory and differs from the two tort theories that ...
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This chapter describes the book's “critical” approach to tort law, one that draws insights from feminist theory, critical race theory, and critical theory and differs from the two tort theories that currently dominate the field: law and economics and corrective justice. It explains how this approach is influenced by the Legal Realist tradition in tort law and by the impact of the Restatement of Torts. It also considers the body of feminist and critical race scholarship that provides the main ingredients for this approach, as well as existing critical torts scholarship focused on gender and race. The chapter concludes by commenting on the arguments of “pluralist” scholars, who reject the quest for a unified theory of torts and praise the historical capacity of tort law to transform itself by incorporating concepts, principles, and norms from other areas of law.
Less
This chapter describes the book's “critical” approach to tort law, one that draws insights from feminist theory, critical race theory, and critical theory and differs from the two tort theories that currently dominate the field: law and economics and corrective justice. It explains how this approach is influenced by the Legal Realist tradition in tort law and by the impact of the Restatement of Torts. It also considers the body of feminist and critical race scholarship that provides the main ingredients for this approach, as well as existing critical torts scholarship focused on gender and race. The chapter concludes by commenting on the arguments of “pluralist” scholars, who reject the quest for a unified theory of torts and praise the historical capacity of tort law to transform itself by incorporating concepts, principles, and norms from other areas of law.
Martha Chamallas and Jennifer B. Wriggins
- Published in print:
- 2010
- Published Online:
- March 2016
- ISBN:
- 9780814716762
- eISBN:
- 9780814790069
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814716762.003.0002
- Subject:
- Law, Comparative Law
This chapter describes the book's “critical” approach to tort law, one that draws insights from feminist theory, critical race theory, and critical theory and differs from the two tort theories that ...
More
This chapter describes the book's “critical” approach to tort law, one that draws insights from feminist theory, critical race theory, and critical theory and differs from the two tort theories that currently dominate the field: law and economics and corrective justice. It explains how this approach is influenced by the Legal Realist tradition in tort law and by the impact of the Restatement of Torts. It also considers the body of feminist and critical race scholarship that provides the main ingredients for this approach, as well as existing critical torts scholarship focused on gender and race. The chapter concludes by commenting on the arguments of “pluralist” scholars, who reject the quest for a unified theory of torts and praise the historical capacity of tort law to transform itself by incorporating concepts, principles, and norms from other areas of law.Less
This chapter describes the book's “critical” approach to tort law, one that draws insights from feminist theory, critical race theory, and critical theory and differs from the two tort theories that currently dominate the field: law and economics and corrective justice. It explains how this approach is influenced by the Legal Realist tradition in tort law and by the impact of the Restatement of Torts. It also considers the body of feminist and critical race scholarship that provides the main ingredients for this approach, as well as existing critical torts scholarship focused on gender and race. The chapter concludes by commenting on the arguments of “pluralist” scholars, who reject the quest for a unified theory of torts and praise the historical capacity of tort law to transform itself by incorporating concepts, principles, and norms from other areas of law.
G. Edward White
- Published in print:
- 2019
- Published Online:
- May 2019
- ISBN:
- 9780190634940
- eISBN:
- 9780190940348
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190634940.003.0007
- Subject:
- Law, Legal History, Constitutional and Administrative Law
By the close of World War II, Legal Realism had become the dominant jurisprudential perspective in the American legal academy. But developments connected to the use of totalitarian regimes of the ...
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By the close of World War II, Legal Realism had become the dominant jurisprudential perspective in the American legal academy. But developments connected to the use of totalitarian regimes of the left and right put pressure on the apparent claim of realists that “law” was simply the decisions of officials holding power. In response to that concern, and to the “antidemocratic” dimensions of judicial review of major institutions by unelected judges, “process theory,” featuring emphasis on institutional constraints and the obligation of judges to describe cases on legal principles transcending results in cases, became entrenched as a jurisprudential perspective. But then, between the 1970s and the close of the century, process theory lost its resonance. The chapter surveys those developments.Less
By the close of World War II, Legal Realism had become the dominant jurisprudential perspective in the American legal academy. But developments connected to the use of totalitarian regimes of the left and right put pressure on the apparent claim of realists that “law” was simply the decisions of officials holding power. In response to that concern, and to the “antidemocratic” dimensions of judicial review of major institutions by unelected judges, “process theory,” featuring emphasis on institutional constraints and the obligation of judges to describe cases on legal principles transcending results in cases, became entrenched as a jurisprudential perspective. But then, between the 1970s and the close of the century, process theory lost its resonance. The chapter surveys those developments.
Avery W. Katz
- Published in print:
- 2014
- Published Online:
- March 2015
- ISBN:
- 9780198713012
- eISBN:
- 9780191781414
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198713012.003.0010
- Subject:
- Law, Philosophy of Law, Law of Obligations
This chapter discusses the role of economic analysis in explaining, justifying, and critiquing the law of contracts and its effects on private exchange. It discusses both positive issues (e.g., what ...
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This chapter discusses the role of economic analysis in explaining, justifying, and critiquing the law of contracts and its effects on private exchange. It discusses both positive issues (e.g., what motivates the practices regulated by contract law; what effect does law have on contracting behavior) and normative ones (e.g., is the law properly designed in light of such effects; to what extent should interpretation of legal rules and the design of legal institutions be based on economic as opposed to noneconomic considerations). Finally, it discusses whether an economic approach to contract law can be squared with other paradigms, and to the extent it cannot, how such inconsistency might be dealt with. It concludes by offering a pragmatic assessment of the economic approach to contracts, with primary emphasis on how it might be used by lawyers and legal officials in the performance of their distinctive professional tasks.Less
This chapter discusses the role of economic analysis in explaining, justifying, and critiquing the law of contracts and its effects on private exchange. It discusses both positive issues (e.g., what motivates the practices regulated by contract law; what effect does law have on contracting behavior) and normative ones (e.g., is the law properly designed in light of such effects; to what extent should interpretation of legal rules and the design of legal institutions be based on economic as opposed to noneconomic considerations). Finally, it discusses whether an economic approach to contract law can be squared with other paradigms, and to the extent it cannot, how such inconsistency might be dealt with. It concludes by offering a pragmatic assessment of the economic approach to contracts, with primary emphasis on how it might be used by lawyers and legal officials in the performance of their distinctive professional tasks.
Nuno Garoupa and Tom Ginsburg
- Published in print:
- 2015
- Published Online:
- May 2016
- ISBN:
- 9780226290591
- eISBN:
- 9780226290621
- Item type:
- book
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226290621.001.0001
- Subject:
- Law, Comparative Law
Judges, as Alexander Hamilton famously noted, lack the purse or the sword, and so must rely on their reputation to secure compliance with their decisions. This book uses the economics of information ...
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Judges, as Alexander Hamilton famously noted, lack the purse or the sword, and so must rely on their reputation to secure compliance with their decisions. This book uses the economics of information to understand the organization of the judiciary. While there is no shortage of other accounts in comparative law trying to explain judicial organization, most of these draw very heavily on history, tradition, and culture, emphasizing distinctions like that between the common law and civil law. Our account, however, starts with the agency model that has become central to modern legal and economic analysis. We show that this very simple model can explain a good deal of the variation that we observe around the world. A key part of our analysis is to recognize that reputation is a quality of both the judiciary as a whole, but also of individual judges, and that different systems of organization encourage investment in different parts of reputation. While we do not suggest that one model is universaly superior to another, we do identify the inevitable tradeoffs involved. Our approach has the advantage of being able to account for change over time in response to broader changes in society, and so we speculate how judicial reputation has been affected by globalization.Less
Judges, as Alexander Hamilton famously noted, lack the purse or the sword, and so must rely on their reputation to secure compliance with their decisions. This book uses the economics of information to understand the organization of the judiciary. While there is no shortage of other accounts in comparative law trying to explain judicial organization, most of these draw very heavily on history, tradition, and culture, emphasizing distinctions like that between the common law and civil law. Our account, however, starts with the agency model that has become central to modern legal and economic analysis. We show that this very simple model can explain a good deal of the variation that we observe around the world. A key part of our analysis is to recognize that reputation is a quality of both the judiciary as a whole, but also of individual judges, and that different systems of organization encourage investment in different parts of reputation. While we do not suggest that one model is universaly superior to another, we do identify the inevitable tradeoffs involved. Our approach has the advantage of being able to account for change over time in response to broader changes in society, and so we speculate how judicial reputation has been affected by globalization.
Richard Posner
- Published in print:
- 2012
- Published Online:
- March 2016
- ISBN:
- 9780814737071
- eISBN:
- 9780814745434
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814737071.003.0003
- Subject:
- Law, Legal History
This chapter presents an interview with Richard Posner, a judge of the US Court of Appeals for the Seventh Circuit. He was formerly the Lee and Brena Freeman Professor of Law, and is currently a ...
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This chapter presents an interview with Richard Posner, a judge of the US Court of Appeals for the Seventh Circuit. He was formerly the Lee and Brena Freeman Professor of Law, and is currently a Senior Lecturer at the University of Chicago. Judge Posner is best known for his leadership and pioneering work in the law and economics field in the 1970s and 1980s. He was a founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. Topics covered during the interview include why he chose to become a legal academic; the intellectual climate while he was at Harvard Law School; his description of the major tenets of law and economics; his discourse with rights theorists, particularly Ronald Dworkin, as well as critical legal studies types, specifically Duncan Kennedy; and his engagement with the law and economics types today.Less
This chapter presents an interview with Richard Posner, a judge of the US Court of Appeals for the Seventh Circuit. He was formerly the Lee and Brena Freeman Professor of Law, and is currently a Senior Lecturer at the University of Chicago. Judge Posner is best known for his leadership and pioneering work in the law and economics field in the 1970s and 1980s. He was a founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. Topics covered during the interview include why he chose to become a legal academic; the intellectual climate while he was at Harvard Law School; his description of the major tenets of law and economics; his discourse with rights theorists, particularly Ronald Dworkin, as well as critical legal studies types, specifically Duncan Kennedy; and his engagement with the law and economics types today.
Andrea Bianchi
- Published in print:
- 2016
- Published Online:
- January 2017
- ISBN:
- 9780198725114
- eISBN:
- 9780191792533
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198725114.003.0013
- Subject:
- Law, Public International Law, Philosophy of Law
Thriving on the inferiority complex of international lawyers vis-à-vis the lack of effectiveness of international law, Law and Economics proclaims law to be effective, provided economic analysis is ...
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Thriving on the inferiority complex of international lawyers vis-à-vis the lack of effectiveness of international law, Law and Economics proclaims law to be effective, provided economic analysis is applied to legal processes. Furthermore, the use of methodologies borrowed from economic sciences allows this strand of international law scholarship to lay claim to scientific objectivity, thus countering the charges often levied against the discipline that it is indistinguishable from politics or morals. From limited applications of game theory and cost-benefit analysis in specific areas of international law, the movement has recently moved to a more systematic approach providing comprehensive theories on how the international legal system works. The rational choice paradigm, however, has recently come under attack from both the traditional Law and Economics perspective as well as from the emerging Law and Behavioural Economics movement more geared towards empirical studies than abstract assumptions.Less
Thriving on the inferiority complex of international lawyers vis-à-vis the lack of effectiveness of international law, Law and Economics proclaims law to be effective, provided economic analysis is applied to legal processes. Furthermore, the use of methodologies borrowed from economic sciences allows this strand of international law scholarship to lay claim to scientific objectivity, thus countering the charges often levied against the discipline that it is indistinguishable from politics or morals. From limited applications of game theory and cost-benefit analysis in specific areas of international law, the movement has recently moved to a more systematic approach providing comprehensive theories on how the international legal system works. The rational choice paradigm, however, has recently come under attack from both the traditional Law and Economics perspective as well as from the emerging Law and Behavioural Economics movement more geared towards empirical studies than abstract assumptions.
