Topic
Doctrine
About: Doctrine is a research topic. Over the lifetime, 21901 publications have been published within this topic receiving 204282 citations.
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TL;DR: The authors traces the influence of Lutheran Protestantism on the leading German liberal economic doctrine, Ordoliberalism, and holds that once we recognize the strong religious impetus behind the ordoliberal doctrine, we can understand its strongly anti-liberal character and only then we are able to comprehend that Germany's postwar political economy in essence is an expression of a compromise between social Catholicism and social Protestantism.
Abstract: The article traces the influence of Lutheran Protestantism on the leading German liberal economic doctrine, Ordoliberalism. The central claim is that Ordoliberalism is the reaction of Weimar’s protestant-bourgeois milieu to its growing feeling of being economically endangered, politically marginalized and religiously majorized. The early formulations of this new economic doctrine start as a sharp polemic against the ‘system of Weimar’, in particular against the German welfare state. Social reform, once the pet-project of the enlightened Protestant middle-class, gave birth to the corporatist Bismarckian welfare state, that turned out to be especially favorable for the Socialist and Catholic unions as well as politically beneficial for the Catholic Center party and Social democracy. The article holds that once we recognize the strong religious impetus behind the ordoliberal doctrine, we can understand its strongly anti-liberal character. And only then we are able to comprehend that Germany’s postwar political economy in essence is an expression of a compromise between social Catholicism and social Protestantism.
39 citations
TL;DR: In this paper, a story about recent doctrinal developments in the lower federal courts in the area of securities class actions is described, and the authors suggest that the institutional perspective provides insights into the evolution of doctrine that today's dominant models fail to provide.
Abstract: Judicial opinions in securities fraud class actions frequently do not conform to standard theories of adjudication. Instead of the complex modes of legal reasoning predicted by standard models, decisions in this area commonly rely on rules of thumb-decisionmaking heuristics or shortcuts. To the extent prior literature has focused on the use of decisionmaking heuristics in adjudication, commentators have emphasized procedural shortcuts, such as the doctrine whereby courts refuse to address issues that have not been squarely argued. In contrast, the heuristics we identify are substantive law doctrinal rules of thumb enabling a judge to avoid analysis of a case's full complexities. This distinction is significant. Procedural shortcuts do not affect the evolution of substantive legal doctrines, except as to produce no doctrine. Substantive heuristics, however, not only become doctrine but can come to dominate the on-going evolution of substantive law. We suggest that the desire to avoid complexity is an important factor in explaining the emergence of a number of the newer doctrines in the securities area. Underlying all of these doctrines are assumptions about either, (a) investor responses to information or (b) managerial responses to incentives. The standard approaches used by commentators in the area would be to explain either why the assumptions are accurate or why they are not and how they should be corrected. What we suggest, however, is that the real puzzle thus is that federal judges are claiming-at least implicitly-both a level of expertise about the workings of markets and organizations that, in some areas, not even the most sophisticated researchers in financial economics and organizational theory have reached. Federal judges, however, are far from being experts in these areas. As a group, they have little expertise on the topics of markets and organizational behavior. Further, they are consistently faced with overwhelming caseloads where only a small fraction of cases are securities cases. As a result, there is little opportunity to develop expertise in the area. Finally, judges are known to delegate much of the work of drafting their decisions to their law clerks, who are typically recent law school graduates. Generalizing from the securities regulation context, we contend that standard theories of adjudication are flawed because they fail to adequately account for institutional constraints. Drawing on the tools of new institutional economics (bounded rationality, transaction costs, and agency costs), we tell a story about recent doctrinal developments in the lower federal courts in the area of securities class actions. The story highlights the link between doctrinal developments and the characteristics of the institutions that produce them. That story is then extended to the contexts of the Supreme Court and the Delaware state courts. Our claim is that the institutional perspective provides insights into the evolution of doctrine that today's dominant models fail to provide.
39 citations
TL;DR: In this article, the authors demonstrate that Hobbes's conceptualization of political power is not stable across his texts, and that it is not sufficient simply to defend a doctrine of the authorized power of the sovereign; such a doctrine must be robustly complemented by an account of how the effective power commensurate to this authority might be achieved.
Abstract: Thomas Hobbes has been hailed as the philosopher of power par excellence ; however, I demonstrate that Hobbes’s conceptualization of political power is not stable across his texts. Once the distinction is made between the authorized and the effective power of the sovereign, it is no longer sufficient simply to defend a doctrine of the authorized power of the sovereign; such a doctrine must be robustly complemented by an account of how the effective power commensurate to this authority might be achieved. Nor is this straightforward: for effective political power can fluctuate, sometimes severely. In this light, the prevalent juridical reading of Hobbes’s political philosophy is inadequate.
39 citations
TL;DR: The common law of England has consistently affirmed a doctrine of bodily integrity which makes no distinction between degrees of violence and prohibits unauthorised touchings, and the patient's right to prohibit treatment extends even to lifesaving treatment.
Abstract: The common law of England has consistently affirmed a doctrine of bodily integrity which makes no distinction between degrees of violence2 and prohibits unauthorised touchings. The evolution of the laws of assault and battery into a coherent legal doctrine affirming and protecting patient autonomy in medical treatment is nonetheless of relatively recent origin and remains flawed in its detail. The adoption in Sidaway v. Board of Governors of Bethlem Royal Hospital and the Maudsley Hospital* of the professional standard to govern information disclosure deprives patients on occasion of the information crucial to a maximally autonomous choice. However, two principles are now crystal clear. First, any treatment involving physical contact with a competent adult must be expressly authorised by her. If a health professional acts without consent (save in emergency), or exceeds the consent given by the patient, he commits a civil battery and a criminal assault.4 It is no defence that he proves that he acted in what he believed to be the patient's best interests. Secondly, the patient's right to prohibit treatment extends even to lifesaving treatment. The state has no right or power to intervene to protect patients from themselves.5 Lord Donaldson M.R. declared in ReT:6
38 citations