Showing papers on "Principal (commercial law) published in 1972"

Harmonization of European Company Laws

Abstract: May I begin with a statement of confession and avoidance: I am not and never have been an expert in corporation law of any kind-European or American-and I shall therefore avoid any discussion of technical corporation law questions. I am, however, interested in the corporation as an institution that plays a role in the process of integration of states. Arthur S. Miller wrote once that going national by American corporations was one of the principal reasons for the American economy's becoming national, and for the changes in the nature of the federal system that have taken place since I787. Once the economy became national, it meant that a continental economic system was superimposed on what was then a decentralized political order. This released powerful impulses toward centralization in the federal political system. The analogy between the evolution in the United States and that in contemporary Western Europe is alluring, but it is, of course, dangerous as all such analogies are. Yet it is a fact that business in a politically decentralized Europe is going European, that the corporation is the principal instrumentality in this Europeanization process, and that the Common Market Treaty provides an institutional framework for a new economic system and perhaps for a new political order as well. It is proper for us lawyers to realize that the law plays a part in this development as it did in the United States. But it is the better part of wisdom to keep in mind that in this complex process the law plays only the role-to paraphrase George Kennan-of a gentle fertilizer.

On Davis on Confining, Structuring, and Checking Administrative Discretion

Abstract: In reviewing Davis's Administrative Law Treatise2 a decade earlier, I had thought it a remarkable compilation and evaluation of court cases dealing with administrative agency practices and procedures, as well as the most comprehensive examination of the relationship to administrative law of such central legal concepts as stare decisis, res judicata, estoppel, official notice, ripeness, primary jurisdiction, and exhaustion of remedies.3 Although he recognized that many principles of administrative law, because of confusing or conflicting authorities, could not be asserted with certainty, Davis's objective as author of the Treatise was to make a systematic statement of principles derived from the huge mass of administrative law that had sprung up in recent decades. The data he examined were primarily Supreme Court decisions and lower court opinions that were based on agency rules, adjudications, and practices related to them. Unsurprisingly, the evaluations he made consisted primarily of learned observations and incisive critiques of what the courts had said and done in response to what agerncies had said and done. My principal reservation about the Treatise was that it focused much more on formal law than on administration, more on the delineation of legal principles than on processes of decision-making. As a consequence, little was done to meet the concern of practitioners, administrators, and students about how administrative law develops and functions in reality. To the extent that Davis was then concerned with discretion at all, his emphasis was on judicial rather than on administrative discretion. Even in his examination of institutional decisions, Davis dealt mainly with the formal aspects of administrative problems. He discussed, for example, the extent to which deciding officers must personally consider evidence, the consultation of staff by examiners and agency heads, and the absences of or substitutions for officers and agency heads in decision sessions4 Implicit in his analysis was the view that