Showing papers in "Theoretical Inquiries in Law in 2001"
TL;DR: In this paper, the authors advocate opening up international securities regulation to greater regulatory competition than the scant competition that exists at present, and sketch the contours of an international regime of regulatory competition in securities laws and the reasons why such competition is desirable.
Abstract: This article advocates opening up international securities regulation to greater regulatory competition than the scant competition that exists at present. After sketching the contours of an international regime of regulatory competition in securities laws and the reasons why such competition is desirable, the article provides a detailed response to objections that have been raised to a proposal for a competitive securities regime that was principally focused on the United States, objections that would accordingly also be raised against this article’s proposal. These include whether the U.S. securities regime is directed at mitigating problems regarding disclosure of interfirm externalities and whether international competition will result in a regulatory race to the lowest level of disclosure. Because the analysis in support of regulatory competition in securities law draws upon the learning regarding competition across U.S. states over the production of corporate law, which has been successful in creating a regime that, on balance, benefits shareholders, the article concludes by demonstrating that recent critiques of the efficacy of state-charter competition are unfounded.
62 citations
TL;DR: In this article, the authors show that managerial opportunism is a more plausible explanation for managers' use of open market repurchases than signaling, and also more consistent with the empirical data.
Abstract: Managers conduct open market repurchases (“OMRs”) for many different reasons, including to distribute excess cash. However, the most widely discussed explanation for OMRs is the “signaling theory:” that managers announce OMRs to signal that the stock is underpriced. The first purpose of this paper is to show that the signaling theory is theoretically problematic—in part because it assumes managers deliberately sacrifice their own wealth to increase that of shareholders—as well as inconsistent with much of the empirical evidence. The second purpose of the paper is to put forward an alternative explanation for managers’ use of OMRs: the managerial-opportunism theory. This theory, which assumes that managers seek to maximize their own wealth, predicts that managers announce OMRs both when the stock is underpriced and when it is not. When the stock is underpriced, managers may announce and conduct an OMR to transfer value to themselves and other remaining shareholders. When managers wish to sell a large portion of their shares, they announce an OMR to boost the stock price before selling their shares. The paper shows that managerial opportunism is not only a more plausible motive for OMRs than is signaling, it is also more consistent with the empirical data. The paper concludes by describing some testable predictions of the theory.
36 citations
TL;DR: In this article, the authors draw on key models of monitoring and blockholding articulated in the incomplete contracts theory of the firm and suggest that each reform program may lead to disappointing results because neither assures conforming adjustments to the pertinent actors' incentives.
Abstract: This article draws on key models of monitoring and blockholding articulated in the incomplete contracts theory of the firm. Under incomplete contracts theory, different governance systems have incentive structures that entail different tradeoffs—tradeoffs between ownership concentration and liquidity, between monitoring and management initiative, and between private rent-seeking and activity benefiting shareholders as a group. The tradeoffs delimit opportunities for productive cross-reference. More specifically, blockholder systems, such as those in Europe, subsidize monitoring by permitting blockholders to reap private benefits of control through self-dealing and insider trading. Market systems, such as those in the United States and Britain, regulate such private rent-seeking toward the end of maintaining an institutional framework that supports diffuse share ownership and liquid trading markets. It follows that a legal framework conducive to blockholding may be ill-equipped to foster dispersed equity ownership and thick trading markets and that a legal framework conducive to liquid trading markets may have properties that discourage blockholding. This gives rise to questions for law reform agendas on both sides of the Atlantic. In the United States, proponents ask for deregulation of controls on institutional investors, looking to encourage blockholding and more effective monitoring. In Europe, proponents ask for stronger securities regulation, looking to encourage deeper trading markets. This article suggests that each reform program may lead to disappointing results because neither assures conforming adjustments to the pertinent actors’ incentives. Alternatively, strict reforms that materially change prevailing incentive patterns could perversely destabilize workable (if imperfect) arrangements without assuring the appearance of more effective alternatives.
32 citations
TL;DR: This article reviewed recent debates over the allocation of regulatory authority in three separate fields of financial regulation: corporate governance, securities regulation, and the regulation of financial institutions, concluding that reform proposals can be organized into three basic groups: those that advocate centralization of regulatory authorities; those that favor competition among governmental bodies; and those that recommend the privatization of regulatory standards.
Abstract: This essay reviews recent debates over the allocation of regulatory authority in three separate fields of financial regulation: corporate governance, securities regulation, and the regulation of financial institutions. In each field, the essay argues, reform proposals can be organized into three basic groups: those that advocate centralization of regulatory authority; those that favor competition among governmental bodies; and those that recommend the privatization of regulatory standards. While this debate is most familiar in the field of corporate governance, highly analogous policy discussions are currently taking place in securities regulation and the regulation of financial institutions. This essay traces the development of arguments over the proper allocation of regulatory authority in various sectors of the financial services industry, noting differences both in the contexts in which the issue has arisen in various sectors of the industry and also in the ways regulatory authority is currently allocated in each sector. The essay concludes with several tentative thoughts about normative grounds on which debates over the proper allocation of regulatory authority might ultimately be resolved.
26 citations
TL;DR: In a follow-up article as discussed by the authors, the same authors pointed out that despite the theoretical case for the existence of a market failure and the current program for dealing with it is widely admired, the advocate of change should have the burden of proof.
Abstract: This article responds to Professor Romano’s piece in this issue. It concerns our ongoing debate with regard to the desirability of permitting issuers to choose the securities regulation regime by which they are bound. Romano favors issuer choice, arguing that it would result in jurisdictional competition to offer issuers share value maximizing regulations. I, in contrast, believe that abandoning the current mandatory system of federal securities disclosure would likely lower, not increase, U.S. welfare. Each issuer, I argue, would select a regime requiring a level of disclosure less than is socially optimal because its private costs of disclosure would be greater than the social costs of such disclosure. Professor Romano and I agree on most of the basic analytic building blocks for deciding whether issuer choice is a desirable reform: belief in analyzing the problem in terms of the broadly accepted principles of modern financial economics; recognition that disclosure has costs as well as benefits; and acknowledgment that incentives exist for issuers to provide at least some disclosure. We nevertheless reach the opposite conclusion on the desirability of issuer choice. To start, Romano believes that issuers’ private costs of disclosure will not generally be greater than the social costs of such disclosure, whereas I show they will be. Romano argues as well that this is a special case in which any divergence of private and social costs that does exist will not lead to a market failure, at least one possibly correctable by public regulation. I show her argument to be unpersuasive. Finally, Romano interprets the existing empirical evidence as proving mandatory disclosure’s lack of social value, while I show that the evidence in fact does not point in either direction. Where, as here, the theoretical case for the existence of a market failure is strong and the current program for dealing with it is widely admired, the advocate of change should have the burden of proof. Professor Romano has not met this burden. If she is serious about advancing her proposal for issuer choice, she needs to show that despite the market failure inherent in issuer choice, there is inevitably an even greater failure in the regulatory response. Absent such a showing, mandatory disclosure should be retained.
25 citations
TL;DR: In this article, the authors apply the framework of corrective justice to gain-based damages for torts, which is the consequence of the parties' being correlatively situated as the doer and sufferer of an injustice and the remedy is seen as undoing that injustice to the extent possible.
Abstract: For corrective justice, liability is the consequence of the parties' being correlatively situated as the doer and sufferer of an injustice, and the remedy is seen as undoing that injustice to the extent possible. Combining consideration of legal doctrine and private law theory, this article applies the framework of corrective justice to gain-based damages for torts. Within this framework, restitutionary damages ought to be available only insofar as they correspond to a constituent element in the injustice that the defendant has done to the plaintiff. The radical proposal that allows restitutionary damages for any wrongful gain is unsatisfactory because it fails to link the damages that the plaintiff receives to the normative quality of the defendant's wrong. In contrast, dealings in another's property give rise to such damages because the idea of property includes within the owner's entitlement the potential gainsfrom the property's use or alienation. Restitutionary damages should not be seen as serving a deterrent or punitive function; such a function cannot account for why the plaintiff, of all people, is entitled to the defendant's gain. Properly understood, even situations where the plaintiff's wilfulness or calculation increases the damage award fit within the framework of corrective justice. The corrective justice approach thus repudiates the notion that restitutionary damages are occasions for the promotion of social purposes extrinsic to the juridical relationship between the parties.
22 citations
TL;DR: In this article, the authors argue that much international law does not reflect the will of an indentifiable demos, and it is articulated through innovative legal institutions that combine the procedures and organizational forms of many distinct states and legal cultures.
Abstract: American public law scholarship views law as a purposive instrument for the achievement of democratic purposes. It has analyzed how this instrument can best be employed within the historical context of the legal institutions and traditions of particular nation-states. Emerging forms of international law, articulated by international tribunals, challenge these fundamental premises of American public law scholarship. Much international law does not reflect the will of an indentifiable demos, and it is articulated through innovative legal institutions that combine the procedures and organizational forms of many distinct states and legal cultures. Attempting to omprehend the sources and limitations of the legitimacy of this kind of international law will force American public law scholarship to re-examine deep and implicit presuppositions, inherited from legal realism, about the inherent normativity of the rule of law. The author speculates about possible effects of this re-examination on the substantive and methodological agenda of American public law scholarship.
21 citations
TL;DR: In this article, the authors use the phenomenon of Israeli hi-tech companies going public on the Nasdaq as a case study to explore the connection between a venture capital industry and domestic capital markets.
Abstract: Black and Gilson have argued that “venture capital can flourish especially – and perhaps only – if the venture capitalist can exit from a successful portfolio company through an initial public offering (IPO), which requires an active stock market.” But nothing in the Black and Gilson analysis requires that the exit option be a domestic capital market. In this article, I use the phenomenon of Israeli hi-tech companies going public on the Nasdaq as a case study to explore the connection between a venture capital industry and domestic capital markets in a world of global capital and product markets.
20 citations
TL;DR: In this article, the authors argue that the problem of insincere voting in the form of strategic voting and conflict-of-interest voting is the most fundamental problem in corporate law.
Abstract: Voting lies at the center of collective decision-making in corporate law. While scholars have identified various problems with the voting mechanism, insincere voting—in the forms of strategic voting and conflict of interests voting—is perhaps the most fundamental. This article shows that insincere voting distorts the voting mechanism at its core, undermining its ability to determine transaction efficiency. As further demonstrated, strategic and conflict of interests problems frequently coincide with one another: voting strategically often means being in conflict, and many fact patterns present aspects of both problems. Finally, this article claims that although the two problems have seemingly different solutions, these solutions are essentially similar in nature: all solutions to insincere voting are variations on two basic rules, namely, property rules and liability rules.
19 citations
TL;DR: In this article, the authors argue that proxy contest elections sometimes can be won by incumbent managements when a transfer of control would be efficient, a conclusion consistent with the sparse data; and the proxy election process aggregates information regarding the sale decision less well than markets do.
Abstract: Delaware case law has rendered the tender offer obsolete as a method for purchasing a company whose directors oppose the acquisition. A potential acquirer facing target opposition today must run an insurgent director slate, in the expectation that its directors are more likely to sell. The Delaware courts have not justified their preference for elections over markets as the preferred vehicle for implementing changes in control. Informal scholarly analyses ask transaction cost questions, such as whether proxy contests are more costly than takeovers. This article attempts to break new ground by asking whether there are systematic differences in the performance of elections and markets in the corporate context. Recent models of voting processes, we argue, strongly suggest that elections are inferior to markets. Proxy contest elections sometimes can be won by incumbent managements when a transfer of control would be efficient, a conclusion consistent with the sparse data; and the proxy election process aggregates information regarding the sale decision less well than markets do, thereby implying that proxy voters are less well-informed. Theory and data thus suggest, at the least, that the intellectual burden of proof should change: the task now is to justify using elections to transfer control despite their apparent deficiencies. The article briefly considers the policy implications of this change in perspective.
19 citations
TL;DR: The notion of corrective justice is the synthesis of two complementary abstractions: correlativity and personality as mentioned in this paper, i.e., the relationship between the interacting parties as doer and sufferer of the same injustice, and the idea of purposiveness regardless of one's particular purposes.
Abstract: Over the last few decades, corrective justice has established itself as central to serious academic discussion of the normative dimension of tort liability This article describes the consensus about corrective justice that is presently emerging, as is evident from work of the author and from recent work of other tort theorists (Jules Coleman, Stephen Perry, Arthur Ripstein, and Martin Stone) The framework for discussing this emerging consensus is what the article calls "the juridical conception of corrective justice" The juridical conception seeks to explicate the most general ideas implicit in liability as a normative practice in which the plaintiff makes a claim against the defendant Under the juridical conception, corrective justice is the synthesis of two complementary abstractions: correlativity and personality Correlativity articulates at the most general level the relationship between the interacting parties as doer and sufferer of the same injustice Personality, ie, the idea of purposiveness regardless of one's particular purposes, similarly articulates at the most general level the conception of the interacting parties that is presupposed in a regime of rights and their correlative duties The leitmotif of the emerging consensus is the idea of correlativity, which is now effectively accepted by all of the theorists mentioned, even by those (Coleman and Perry) who initially rejected it Personality, on the other hand, has gained less support, because of the apprehension that it implies that rational agency, as elaborated by Kant or Hegel, is a philosophical truth from which tort theory can be derived This reason for dismissing personality is insufficient Corrective justice comes into view not by being derived from a notion of rational agency but by reflection on the most general ideas implicit in liability as a normative practice Personality is merely the abstraction that represents the parties as the bearers of rights and their correlative duties Like correlativity, it owes its status within corrective justice to its being implicit in the law's doctrines and institutions Consequently, whether the Kantian or Hegelian notion of rational agency is plausible is a philosophical question that lies beyond tort theory and that does not affect the place of personality within a corrective justice approach to liability Moreover, if (as argued in this article) correlativity and personality are indeed complementary, acceptance of the former should lead to acceptance of the latter Such acceptance would provide the theorists who now reject it with a concept that would be serviceable for their own formulations In any case, the consensus about the highly structured notion of correlativity indicates that the main lines of the corrective justice approach to tort law are now firmly established Although refinements inevitably remain to be made, radical revisions are unlikely to result from further reworking the standard material of corrective justice tort theory Scholarly attention should instead turn to the examination of the place of corrective justice within the legal order as a whole and to the expansion of the corrective justice analysis from tort law to other bases of liability
TL;DR: In this paper, the authors argue that giving issuers a greater degree of freedom to select among the securities regulatory regimes of different countries will result in both desirable levels of investor protections as well as increased social welfare.
Abstract: The globalization of securities markets has resulted in a rapid increase in securities transactions that cut across the national borders of more than one country. Individual country regulators cannot avoid the question of how regulatory authority should be allocated for such transactions. Rather, they continue with the present territorial regime, which allocates regulatory authority based on the location of a particular transaction and the effects associated with the transaction. This article assesses a range of alternate responses to globalization. Some have argued that a company’s home country should regulate all transactions in the company’s securities regardless of location. Others have argued for increased harmonization across different country securities regulatory regimes. The article instead contends that giving issuers a greater degree of freedom to select among the securities regulatory regimes of different countries will result in both more desirable levels of investor protections as well as increased social welfare. Arguments have been raised against a move toward greater issuer choice in securities regulation. The article responds to such criticism, pointing out that the present territorial regime suffers from even greater flaws.
TL;DR: The Eichmann trial as discussed by the authors was a seminal event in the history of criminal law, and it was the first time that a criminal event could be viewed as a "critical history" and not just as a rehearsal of a given story, but as a transformative event.
Abstract: This paper explores the Eichmann trial in its dimension as a living, powerful event, whose impact is defined and measured by the fact that it is "not the same for all." I examine this legal event from two perspectives: Hannah Arendt's and my own. I pledge my reading against Arendt's, in espousing the State's vision of the trial, but in interpreting the legal meaning of this vision us one that exceeds its own deliberateness and distinct from the State's ideology. I use Nietzsche's terms to contrast "critical history" with "monumental history." Whereas the official State vision of the trial is, I propose, precisely one of "monumental history, " Arendt's vision offers a substitutive "critical (legal) history." I analyze, one against the other, what I call the monumental legal vision of the Eichmann trial and the critical vision (or the critical version of events) offered by Arendt. Exploring thus the monumental versus the critical as two opposed but non-exclusive and, in fact, profoundly complementary perspectives, I examine, side by side, the Eichmann trials' monumental focus on the victims and Arendt's critical objections to this focus: her objections, I show, are based in a jurisprudential conservatism coexisting with a historiographical radicalism. The Eichmann trial, in my view, is on the contrary and diametrically, historiographically conservative, but jurisprudentially revolutionary. I argue that Arendt failed to see the way in which the trial in effect did not simply repeat the victim's story, but historically created it for the first time. I submit, in other words, that the Eichmann trial legally created a radically original and new event: not a rehearsal of a given story, but a groundbreaking narrative event that is itself historically and legally unprecedented. Examining the trial's transformation of victims into prosecution witnesses, I analyze the victim-oriented focus of the trial as s legal process of translation of private traumas into public ones and as a public scene of the recovery of language and legal subjecthood by victims who were formerly defined by the oppressor's language and who were, therefore, not just injured, but essentially robbed of a language in which to articulate their injury and name their victimization. I argue that the Eichmann trial expanded the space available for moral deliberation in creating a new legal language: the trial was the victim's trial only insofar as it was now the victims who, against all odds, were precisely (through the trial) writing their own history. To enable such a writing, the Eichmann trial had to enact not simply memory, but memory as change. It had to dramatize upon its legal stage before the audience nothing less than a conceptual revolution in the victim. And this, in fact, is what the trial did This historically unprecedented revolution in the victim that was operated in and by the Eichmann trial is, I suggest, the trial's major contribution not only to Jews, but to history, to law, to culture - to humanity at large. I further argue that as a singular legal event, the Eichmann trial calls for a rethinking - and sets in motion a transvaluation - of the structures and the values of conventional criminal law. I submit that the quintessence of the Eichmann trial is the acquisition of semantic authority by victims. It was the newly acquired semantic and historical authority of this revolutionary story that, for the first time, created what we know today as the Holocaust: a theme of international discussion and world conversation designating the experience of the victims and referring to the crime against the Jewish people independently from the political and military story of the Second World War.
TL;DR: In this article, the authors describe an Israeli regulatory program aimed at luring back home Israeli companies listed only on U.S. stock markets, to facilitate dual listing of their stocks on the Tel Aviv Stock Exchange.
Abstract: This article tells the story of an Israeli regulatory program aimed at luring back home Israeli companies listed only on U.S. stock markets, to facilitate dual listing of their stocks on the Tel Aviv Stock Exchange. Beyond documenting a piece of Israeli political economy, this article provides several lessons of general relevance to small or emerging markets as well as to large ones. In this story, the regulator of the small market finds itself a regulatory price-taker. In a mirror image, the U.S. market emerges as a global regulatory price-setter. This regulatory externality, or regulatory arbitrage, is disturbing because the standard with which Israeli regulation had to align is the watered-down version for non-U.S. issuers. Indeed, any effort to require an iota of additional disclosure beyond the American foreign issuer regime has failed due to vehement objections from the Tel Aviv Stock Exchange and business interest groups. The role of the stock exchange as regulator and the interplay between corporate law and securities regulation are also discussed in this context. This article thus casts some doubt on the desirability of piggybacking on foreign markets. Sometimes, it turns out, piggybacking can be a ride to the bottom.
TL;DR: In this paper, the authors tackle the problems and possibilities that arise out of Arendt's view that judgment relies on a "common sense" shared by members of a community of judging subjects.
Abstract: The debates over "universal" human rights versus alleged abuses in the name of culture and tradition are best understood as conflicts between different communities of judgment. This article attempts to respond to the pressing need for an adequate theory of the role of judgment in order to address these debates. Using Hannah Arendt's work on judgment as a starting point, the article tackles the problems and possibilities that arise out of Arendt's view that judgment relies on a "common sense" shared by members of a community of judging subjects. The author identifies some of the puzzles surrounding the concepts of "common sense," "community," and "other judging subjects," concepts not fully developed in Arendt's theory. Section I begins with a brief outline of Arendt's theory and its relation to Kant's. In Section II, the author points to some of the virtues of a community-based theory of judgment and, in Section III, to the link between the issues in international human rights and judgment as community-based. Section IV identifies a set of interlocking puzzles posed by the idea of "community-based" judgment, while Section V offers a more detailed account of the concepts of "enlarged mentality" and "common sense" that serve as the basis for exploring these puzzles. These puzzles are then worked through in Section VI, particularly, the question of how can one decide to change or oppose "common sense" when it seems to be presupposed for judgment to be possible. Finally, Section VII addresses the implications of these theoretical arguments for human rights and the insights human rights debates provide for the theory. The author shows that it is necessary to understand these debates as a concrete manifestation of the problem of judgment across communities and how this particular problem, in turn, helps to refine the issues the theory must articulate and resolve. The modern world makes huge demands on our linked capacities for autonomy and judgment; in order to bestmeet these demands, we must understand the ways in which judgment is community-based.
TL;DR: In this article, the authors suggest two approaches - creating new ideal types and synthesizing existing ones - that may help update our static property metaphors and move beyond polarizing oppositions that have made jurisprudential debates unsolvable and rendered concrete problems invisible.
Abstract: The standard property trilogy of private, commons, and state has become so outdated that it now impedes imagination and innovation at the frontiers of ownership. This essay suggests two approaches - creating new ideal types and synthesizing existing ones - that may help update our static property metaphors. Using these dynamic approaches to property analytics, legal theory can move beyond polarizing oppositions that have made jurisprudential debates unsolvable and rendered concrete problems invisible.
TL;DR: In this article, the authors explore the extent to which international law has limited definitional capacity to address the unique ways in which violence is directed towards and experienced by women and demonstrate that sexual harms combine direct sexual harm to women with broader objectives of eliminating the cultural, social and physical integrity of the community to which the women belong.
Abstract: Sexual violence experienced by women during interstate and internal conflict has long escaped legal regulation. This article explores tile extent of that lacuna by analyzing and reflecting upon experiences of sexual violation during the Holocaust. While it is inappropriate to describe the Holocaust experience as a facet of war per se, its horrors did occur in the context of war and thus ex post facto legal accountability for the perpetration of those dreadful events fall under the legal rubric of international humanitarian law. The article explores the extent to which humanitarian law has limited definitional capacity to address the unique ways in which violence is directed towards and experienced by women. The article also demonstrates that sexual harms combine direct sexual harm to women with broader objectives of eliminating the cultural, social, and physical integrity of the community to which the women belong. The article claims that both victims and perpetrators of sexual harms understand the compounded function of sexual violence, but that international law fails to name or adequately sanction either aspect sexual harms. The article goes on to assert that in establishing dual conceptions of harm, there may be multiple bearers of rights when questions of remedy arise. Traditional notions of individualized entitlement to rights are inadequate to fully account for the communities of harm resulting from gendered violence that takes place in the context of war.
TL;DR: The Eichmann trial permitted the opening up of survivors' experiences in public as discussed by the authors, transforming the survivors from outlaws to partners in justice, transforming them from a victim to a partner in justice.
Abstract: This article reviews professional mental health publications before and after the Eichmann trial. Psychiatrists rejected the massive denial of survivors' emotional reactions that was prevalent in Israeli society at the time. The Eichmann trial permitted the opening up of survivors' experiences in public. Legal procedure enabled the witnesses to speak about what they had hidden until then. The judge's presence gave legitimacy and power to the accusations, transforming the survivors from outlaws to partners in justice. The audience came to support this stronger survivor identity. Through a slow process, it became a valid issue for psychotherapy, allowing the weaker aspects of the survivors' personalities to be addressed. This article reviews professional mental health publications before and after the Eichmann trial. Psychiatrists rejected the massive denial of survivors' emotional reactions that was prevalent in Israeli society at the time. The Eichmann trial permitted the opening up of survivors' experiences in public. Legal procedure enabled the witnesses to speak about what they had hidden until then. The judge's presence gave legitimacy and power to the accusations, transforming the survivors from outlaws to partners in justice. The audience came to support this stronger survivor identity. Through a slow process, it became a valid issue for psychotherapy, allowing the weaker aspects of the survivors' personalities to be addressed.
TL;DR: The theoretical inquiry into the foundations of criminal law in the twentieth century, in both civil and common law traditions, is assayed by the consideration of seven main currents or trends as discussed by the authors.
Abstract: The theoretical inquiry into the foundations of criminal law in the twentieth century, in both civil and common law traditions, is assayed by the consideration of seven main currents or trends. First, the structure of offenses is examined in light of the bipartite, tripartite, and quadripartite modes of analysis. Second, competing theories of culpability - normative and descriptive - are weighed in connection with their important ramifications for the presumption of proof and the allocation of the burden of persuasion on defenses. Third, the struggle with alternatives to punishment for the control and commitment of dangerous but non-criminal persons is compared in civil and common law approaches. Fourth, the ascendancy of feminism, as the most successful interdisciplinary school of thought applied to criminal law since the early 1970s, and its contributions in the areas of rape, self-defense, provocation, and capital punishment are charted and weighed. Fifth, one of the most distinctive facets of criminal theory in the last century has been the emergence of the victims' rights movement; its success is compared in civil and common law jurisdictions. Sixth, while it is commonplace in the civil law tradition to embed issues of criminal law within the principles of constitutional law, common law jurisdictions vary; the increasing constitutionalization of criminal law in Canada is contrasted with its decrease in the U.S. Seventh, against the backdrop of a particularly intense period of codification of the criminal law in the last half of the twentieth century, the celebrated American Model Penal Code is criticized. Finally, four predictions for the direction of criminal theory in the next century are ventured.
TL;DR: In this article, the authors re-examine the gradual expansion of liability in discrimination law from the perspective of the key conceptual elements of liability for tort law in order to examine the normative underpinnings of this area of law Viewed from a tort perspective, the enlargement of the scope of discrimination law can best be understood as resulting from an implicit expansion of the concept of fault appropriate to this context of human interaction.
Abstract: A central trend in the development of discrimination law, in every jurisdiction, has been the movement from a requirement of intention to ground a complaint to the recognition as actionable of indirect or adverse effect discrimination Initially, liability for discrimination was circumscribed very narrowly, requiring a form of intention that was tantamount to malice The practical consequences of this narrow conception were apparent early on, and those concerned about them have long been agitating, with some success, for a reading or redrafting of anti-discrimination statutes that would yield broader liability Advocacy (both practical and theoretical) in the discrimination law context has tended to swing wildly between two extremes -- from a virtually exclusive focus on the moral blameworthiness of the defendant to an attempt to focus solely on the effects of discrimination on its victims This article seeks to reexamine the gradual expansion of liability in discrimination law from the perspective of the key conceptual elements of liability in tort law in order to reexamine the normative underpinnings of this area of law Viewed from a tort perspective, the enlargement of the scope of discrimination law can best be understood as resulting from an implicit expansion of the concept of fault appropriate to this context of human interaction, a change linked to an expanding conception of the human interests that discrimination law protects from infringement From its beginnings, discrimination law implicitly recognized that deliberately refusing to contract with others out of ill will or prejudice toward an important aspect of identity such as race or sex constituted an affront to human dignity that could not be justified by the value of freedom of contract The expansion of liability over time reflects an expansion of the concept of human dignity bound up with fair access to important opportunities and due consideration of the needs and interests of differently situated groups in the design of important social institutions This conception of dignity constructs it as an objective interest that can be affected by implicitly discriminatory behavior as well as by conduct motivated by prejudice, requiring more robust justification than the mere claim to liberty This approach can explain many of the advances in modern discrimination law without resorting to end-state distributive principles
TL;DR: Ernest Weinrib's theory of tort law is definitely the purest corrective justice theory among the various tort theories as discussed by the authors, and it does not invoke any distributive or retributive justice considerations, either explicitly or implicitly, and it conceives of corrective justice considerations not only as relevant to tort law, but as the only relevant considerations for that field.'
Abstract: Ernest Weinrib's theory of tort law is definitely the purest corrective justice theory among the various tort theories: it does not invoke any distributive or retributive justice considerations, either explicitly or implicitly, and it conceives of corrective justice considerations not only as relevant to tort law, but as the only relevant considerations for that field.' Weinrib dismisses deterrence and loss distribution as irrelevant to tort law and, consequently, objects to mixed theories that strive to accommodate both corrective justice and deterrence within tort law. 2 Weinrib would also reject justice theories that
TL;DR: In this article, the normative desirability of enabling a promise to pursue the profits derived by the promisor through a breach of contract as an alternative pecuniary remedy of wide applicability is investigated.
Abstract: This article focuses on cases of restitution within contract, investigating the normative desirability of enabling a promise to pursue the profits derived by the promisor through a breach of contract as an alternative pecuniary remedy of wide applicability. Situated at the frontier of both contractual and restitutionary liability, the question of whether restitutionary damages for breach of contract should be available has received a considerable amount of attention. This article makes a critical examination of the normative groundings that have been proposed for and against awarding this pecuniary remedy. This article arrives at two significant conclusions. The first is deconstructive. Parts I and II critique two conventional arguments often raised in the debate over restitutionary damages. These Parts raise doubts as to the ability of these arguments to substantiate the doctrinal conclusions they purport to support. I claim that both promise-keeping and unjust enrichment are neutral between rules offering restitutionary damages and denying such awards. The significance of the results of this analysis extends beyond the specific questions at hand, since these arguments dominate many of the debates surrounding private law theory. The second conclusion reached is reconstructive. Parts III, IV and V present three normative considerations that are more helpful: protection of proprietary rights, enhancement of efficiency, and good faith. Here an attempt is made to reconceptualize the conventional arguments for the derivation of legal rules from these normative prescriptions. From this reconceptualization, we realize that in order to settle the debate over restitutionary damages for breach of contract, a choice must be made between the instrumental conception of contract and its more cooperative alternative. Thus, it emerges that here, too, just as in the case of many other legal issues, the persistent need to choose between two conflicting social visions cannot be avoided.
TL;DR: The authors discusses various representations of Eichmann's mind that were fashioned on the occasion of his trial in Jerusalem in 1961, and argues that even though the psychological outlook declares itself to be non-judgmental, it does, in fact, entail a dimension of moral judgment.
Abstract: This essay discusses various representations of Eichmann's mind that were fashioned on the occasion of his trial in Jerusalem in 1961. Gideon Hausner the prosecutor presented the defendant as demonic. Hannah Arendt, the German-born American Jewish philosopher portrayed him as banal or thoughtless. Limiting themselves to the issue of mens rea in their judgment, the Israeli Supreme Court justices described Eichmann's mind as controlled by criminal intent. While these views have been widely discussed in the literature, much of this essay focuses on a hitherto little noted perspective on Eichmann's mind that was formulated by the mental health experts who examined Eichmann for the prosecution. As compared to the inclusionist, confictual, and complex picture these experts presented of Eichmann's mind, Arendt's and Huusner's views appear similar in their reductionism, rather than diametrically opposed, while the approach of the Supreme Court justices to Eichmann's mind can be regarded as restrictive. Methodological problems involved in all these different perspectives are discussed, and it is argued that even though the psychological outlook declares itself to be non-judgmental, it does, in fact, entail a dimension of moral judgment. Finally, Eichmann 's recently declassified memoirs are adduced and interpreted as lending some support to the psychological, inclusionist perspective on Eichmann's mind.
TL;DR: In this paper, the authors explored the extent to which it is possible to have a claim both in contract and in restitution, and argued that there will always be a restitutionary claim unless the contract, construed strictly against the party resisting restitution, has excluded it, goes too far in the opposite direction.
Abstract: This article explores the extent to which it is or may be possible to have a claim both in contract and in restitution. Restitution will almost never be appropriate before a valid contract has been discharged but after it has been discharged a restitutionary claim may be available as well as a contractual one. A restitutionary claim cannot, however, be used to set aside the contractual allocation of risks. It is argued that while in the past English courts may have been too willing to conclude that restitution would be inconsistent with the allocation of risks, the view of those striving to show the independence of restitution that there will always be a restitutionary claim unless the contract, construed strictly against the party resisting restitution, has excluded it, goes too far in the opposite direction. The terms of the contract and its nature are of vital importance to the existence and extent of any restitutionary claim Apart from the question of express or implied exclusion by a contractual remedial regime which is a complete code, the contract determines both whether contractual rights are "conditional" and defensible or "unconditional", and whether the acts of the person against whom restitution is sought constitute part performance of the contract which will either bar a claim or for which the plaintiff will have to give credit.
TL;DR: The Eichmann trial has been one of the most important formative events in the short history of the State of Israel as discussed by the authors, and the echoes of its impact on how Israelis as individuals and as a public perceive themselves reverberate even today in the most profound and existential of ways.
Abstract: The Eichmann trial has been one of the most important formative events in the short history of the State of Israel. The echoes of its impact on how Israelis as individuals and as a public perceive themselves reverberate even today in the most profound and existential of ways. In the public consciousness the trial was, and still is, fundamentally identified with its prosecutor then Attorney General Gideon Hausner. However the trial was not a one-man show as the public tended to perceive it. Behind the scenes were numerous people working and preparing for the trial and influencing the prosecution's case against Eichmann: the investigators in the special police unit Bureau 06 established to conduct the investigation and prepare the criminal file; the Holocaust survivor organizations and institutions; and all echelons of the political sphere. This paper will trace some of the stages in the preparation of the prosecution of Eichmann and the people involved, as well as the matter of the scope of the bill of indictment and of the historical narrative tolls at the trial and the fact that it emerged to he one of the most important trials in the history of the twentieth century.
TL;DR: The attitude to illegality has so dramatically changed that it is no longer possible, except in extreme cases, to say that illegality as such is a defense to restitutionary claims arising under illegal contracts as mentioned in this paper.
Abstract: The theory of this article is that the attitude to illegality has so dramatically changed that it is no longer possible, except in extreme cases, to say that illegality as such is a defense to restitutionary claims arising under illegal contracts. The objection to an otherwise good action in unjust enrichment is not illegality but stultification: to recognize an entitlement to restitution would make nonsense of the refusal to enforce the contract. It is true that the restitutionary action nearly always does prima facie have this stultifying tendency, for it will often operate as a safety net reducing the risks of illegal dealing or as a lever indirectly enforcing the illegal contract. However, this stultifying tendency can be neutralized by restricting the class of plaintiffs able to bring the restitutionary action and can be overridden if the effect of denying the restitutionary action would be to perpetrate a greater evil, as for instance by inflicting a wholly disproportionate penalty for the illegality. A stultification is an inexplicable contradiction. In cases such as these the seeming stultification is explained away. Restitution can then be allowed.
TL;DR: This paper examined the Kastner trial and the Eichmann trial as constitutive moments in the development of Israeli collective identity and compared the intervention of two intellectuals, Nathan Alterman and Hannah Arendt, in the two trials respectively.
Abstract: This essay examines the Kastner trial and the Eichmann trial as constitutive moments in the development of Israeli collective identity. This aspect of the trials is explored by comparing the intervention of two intellectuals, Nathan Alterman and Hannah Arendt, in the two trials respectively. Both social critics challenged the terms of the collective identity that was reinforced by the trials. During the Kastner trial, the Israeli poet Alterman set out to challenge the "two paths" conception of heroism and cowardice that shaped the court's - and society's - understanding of the Holocaust. The first part of the essay examines Alterman's critical intervention and the public controversy that followed in its wake. In the second part, I examine Arendt's criticism of the Eichmann trial as an attempt to construct Israeli collective identity around opposition to the demonic Nazi In this context, I discuss the famous controversy between Arendt and Gershom Scholem over the terms of her criticism. The two episodes come together in the third part of the essay, where I discuss the surprising continuities and affinities between the controversies. The two controversies offer a fascinating tale about the role of the law in the construction of collective identities and the role of the social critic in the development of a liberal society.
TL;DR: In this article, the authors discuss the positive correlation between a nation's socioeconomic well-being and the safe guarantee of human rights and make the claim that human rights have become an important institution of international relations, their inherent powerlessness notwithstanding.
Abstract: The author makes the claim that human rights have become an important institution of international relations, their inherent powerlessness notwithstanding. In the first step of the analysis, the author discusses the positive correlation between a nationâs socioeconomic well-being and the safe guarantee of human rights. However, the social and political disembeddedness of human rights and their universalist character actually constitute their inherent weakness, which is analyzed in the second part. In the third part, which deals with the future development of human rights, the author makes the claim that the process of globalization does not only create the functional networks of economic, political, and military power elites, but also offers hope for the emergence of a global moral community in which the idea of human rights may become an essential institutional pillar.
TL;DR: In this paper, the authors criticize criminal law scholarship for helping to construct and failing to expose analytic structures that falsely claim a higher level of rationality and coherence than current criminal law theory deserves.
Abstract: T he paper criticizes criminal law scholarship for helping to construct and failing to expose analytic structures that falsely claim a higher level of rationality and coherence than current criminal law theory deserves. It offers illustrations of three such illusions of rationality. First, it is common in criminal law discourse for scholars and judges to cite any of the standard litany of "the purposes of punishment" -- just deserts, deterrence, incapacitation of the dangerous, rehabilitation, and sometimes other purposes -- as a justification for one or another liability rule or sentencing practice. The cited "purpose" gives the rules an aura of rationality, but one that is, in large part, illusory. Without a principle defining the interrelation of the "purposes," nearly any rule can be justified by some "purpose of punishment." Thus, a decision maker can switch among distributive principles as needed to provide an apparent rationale for whichever rule the person prefers, even if that preference is not based on rational criteria. A second example is found in a central mechanism for determining an offenderâs blameworthiness: the use of an individualized objective standard. The widely used mechanism avoids the problems acknowledged to attend a strictly objective standard. A person's situation and capacities are central to an assessment of whether a person can be fairly blamed for a violation, and the individualized objective standard allows the decision maker to take these into account. At the same time, the mechanism avoids reversion to a completely subjective standard, which might exempt many blameworthy cases from liability. In reality, however, the mechanism only shifts the form of the problem. Codes that use the individualized objective standard fail to provide a principle by which one can determine those characteristics of an offender with which the objective standard ought to be individualized and those with which it ought not. Without a governing principle, the issue again is left to the discretion of decision makers, with no guidance as to how that discretion is to be exercised. A final illusion obscures whether the criminal justice system is, in fact, in the business of "doing justice." The "criminal justice" system imposes "punishment" and encourages moral condemnation of those found "guilty" of "crimes." But while the system cultivates its doing-justice image, it increasingly shifts to a system of essentially preventive detention, where a violator's sanction is derived more from what is needed to incapacitate him from committing future offenses than to punish him for a past offense. There are great advantages to the deception, but also serious costs and inefficiencies. The paper discusses why some illusions are more objectionable than others and what the existence of such illusions says about modern criminal law scholarship.
TL;DR: Gordley as mentioned in this paper argued that a purposive understanding of commutative justice can shed more light on restitutionary damages than the formal understanding of Professor Weinrib, who argued that it should not matter whether the defendant acted wilfully or innocently.
Abstract: Professor Ernest Weinrib has argued that restitutionary damages must be understood, not as a deterrent to wrongful conduct, but as a requirement of commutative Justice. Professor Gordley agrees, but claims that a purposive understanding of commutative Justice can shed more light on restitutionary damages than the formal understanding of Professor Weinrib. A purposive understanding enables us to distinguish appropriation of a right from mere inteference, to distinguish true restitutionary damages from damages in lieu of a forced sale or hold-up; and to explain why, normally, it should not matter whether the defendant acted wilfully or innocently.