Common law

About: Common law is a research topic. Over the lifetime, 30135 publications have been published within this topic receiving 280701 citations. The topic is also known as: judicial precedent & judge-made law.

The Incentives Matrix: The Comparative Effectiveness of Rewards, Liabilities, Duties and Protections for Reporting Illegality

Abstract: Social enforcement is becoming a key feature of regulatory policy. Increasingly, statutes rely on individuals to report misconduct, yet the incentives they provide to encourage such enforcement vary significantly. Despite the clear policy benefits that flow from understanding the factors that facilitate social enforcement, i.e., the act of individual reporting of illegal behavior, the field remains largely understudied. Using a series of experimental surveys of a representative panel of over 2,000 employees, this Article compares the effect of different regulatory mechanisms-monetary rewards, protective rights, positive obligations, and liabilities-on individual motivation and behavior. By exploring the interplay between internal and external enforcement motivation, these experiments provide novel insights into the comparative advantages of legal mechanisms that incentivize compliance and social enforcement. At the policy-making level, the study offers important practical findings about the costs and benefits of different regulatory systems, including findings about inadvertent counterproductive effects of certain legal incentives. In particular, the findings indicate that in some cases offering monetary rewards to whistle-blowers will lead to less, rather than more, reporting of illegality. At the more theoretical level, the findings contribute to several strands of inquiry, including motivational crowding-out effects, framing biases, the existence of a "holier-than-thou effect," and gender differences among social enforcers. Together, these findings portray a psychological schema that offers invaluable guidance for policy and regulatory design. I. Introduction Questions about social enforcement and the role of individual reporting in preventing corporate and governmental misconduct are at the forefront of current debates and reforms. Most recently, the 2009 stimulus bill introduced by President Obama for the recovery of our troubled economy includes elaborate antiretaliation rights for whistle-blowers who report financial misconduct. ' Dozens of existing federal statutes and hundreds of state statutes include similar whistle-blower protections or incentives in a vast range of fields including tax regulation, environmental law, employment discrimination, health and safety, and trading standards.2 Indeed, all regulatory systems have built-in mechanisms designed to promote legal compliance. However, the variation among these regulatory mechanisms and incentives is immense.3 Some statutes are designed to protect employees against retaliation when they resist or report illegal activities.4 Other statutes state an obligation of the individual to report and, at times, impose penalties for failure to report.5 Yet another class of incentive-based systems encourages reporting by sharing part of the funds recovered from a report of corporate fraud.6 In addition to the vast differences among the statutes themselves, there is significant debate about the application of the various laws. Most notably, recent case law interpreting whistle-blower protections has brought the field to a state of flux.7 For example, in a recent decision decried as "the worst Supreme Court ruling on whistleblowing,"8 the U.S. Supreme Court, in a 5-4 decision, refused to extend constitutional protections to employees who report illegal conduct when such reporting is "pursuant to their official duties."9 Other recent cases similarly reveal a deep ambivalence and uncertainty about the role of individuals in resisting illegality in organizations.10 The legislative and adjudicative variations in the field of social enforcement - the act of individual reporting of illegality - indicate great uncertainty and undertheorizing about the comparative advantages and effectiveness of various reporting channels, protections, and incentives that affect the decision of individuals to report illegal conduct. In this Article, we offer new insights on the psychology of social enforcement. …

Consumer Law and Policy: Text and Materials on Regulating Consumer Markets

Abstract: Consumer law and policy has developed significantly since the first edition of this book. This fully revised edition takes into account these developments while maintaining much of the structure of the earlier edition. This edition includes material on the effects of globalisation, the many European initiatives, the growth of a new regulatory state in the UK and changes in the theory and practice of regulation of consumer markets. It incorporates recent legislative and judicial developments of the law, blending substantial extracts from primary legal materials such as case law, policy documents, and legislative materials, with a policy framework that includes references to comparative approaches. It includes a case study of the regulation of unfair terms in consumer contracts by the Office of Fair Trading, and discussion of the role of consumer law and policy in electronic commerce and the regulation of markets for consumer services. The book provides a critical introduction to the legal regulation of consumer markets by situating it within the context of broader debates about rationales for regulation, the role of the state and the growth of neo-liberalism.

Anti-lawyers : religion and the critics of law and state

Abstract: In early modern Europe the law developed as one of the few non-religious orderings of civil life Its separation from religion was, however, never complete and we see the contest continued today not only in the campaigns of religious fundamentalists of the right, but also in the clains of critical intellectuals to reshape government institutions and the legal apparatus in accordance with moral principle - whether of indivudual autonomy or communitarian self-determination In Anti-Lawyers, David Saunders traces the story of this unresolved conflict from Hobbes' Leviathan to the American law texts of today, and discusses how we might regard today's moral critics of government and law in the light of the early modern effort to disengage spiritual discipline from secular government and conscience from law Separate sections look at major figures in English common law in the Early Modern period, French and German absolutism and jurisprudence as it is taught in the American law texts of today

International Soft Law

Abstract: Although the concept of soft law has existed for years, scholars have not reached consensus on why states use soft law or even whether "soft law" is a coherent analytic category. In part, this confusion reflects a deep diversity in both the types of international agreements and the strategic situations that produce them. In this paper, we advance four complementary explanations for why states use soft law that describe a much broader range state behavior than has been previously explained. First, and least significantly, states may use soft law to solve straightforward coordination games in which the existence of a focal point is enough to generate compliance.Second, under what we term the "loss avoidance" theory, moving from soft law to hard generates higher sanctions which both deter more violations and, because sanctions in the international system are negative sum, increase the net loss to the parties. States will choose soft law when the marginal costs in terms of the expected loss from violations exceed the marginal benefits in terms of deterred violations. Third, under the "delegation theory," states choose soft law when they are uncertain about whether the rules they adopt today will be desirable tomorrow and when it is advantageous to allow a particular state or groups of states to adjust expectations in the event of changed circumstances. Moving from hard law to soft law makes it easier for such states to renounce existing rules or interpretations of rules and drive the evolution of soft law rules in a way that may be more efficient than formal renegotiation. Fourth, we introduce the concept of international common law ("ICL"), which we define as a non-binding gloss that international institutions, such as international tribunals, put on binding legal rules. The theory of ICL is based on the observation that, except occasionally with respect to the facts and parties to the dispute before it, the decisions of international tribunals are non-binding interpretations of binding legal rules. States grant institutions the authority to make ICL as a way around the requirement that states must consent in order to be bound by legal rules. ICL affects all states subject to the underlying rule, regardless of whether they have consented to the creation of the ICL. As such, ICL provides cooperation-minded states with the opportunity to deepen cooperation in exchange for surrendering some measure of control over legal rules. These four explanations of soft law, and in particular the theory of ICL, provide a firm justification for the coherence of soft law as an analytic category. They demonstrate that there are a range of non-binding international instruments from which legal consequences flow, just as in the domestic setting non-binding documents such as legislative committee reports often have legal consequences when, for example, used to interpret binding rules. Moreover, the theories offered in this paper explain the circumstances under which this quasi-legal characteristic of soft law will be attractive to states.

Hybrid Judicial Career Structures: Reputation v. Legal Tradition

Abstract: Scholars have distinguished career from recognition judiciaries, largely arguing that they reflect different legal cultures and traditions. We start by noting that the career/recognition distinction does not correspond perfectly to the civil law/common law distinction, but rather that there are pockets of each institutional structure within regimes that are dominated by the other type. We discuss the causes and implications of this phenomenon, arguing that institutional structure is better explained through a theory of judicial reputation/legitimacy than through a theory of legal origin or tradition. We provide some preliminary empirical support for our account.