Showing papers on "Principal (commercial law) published in 2014"

The Evolution of Shareholder Voting Rights: Separation of Ownership and Consumption

Abstract: The nineteenth century saw the standardization and rapid spread of the modern business corporation around the world. Yet those early corporations differed from their contemporary counterparts in important ways. Most obviously, they commonly deviated from the one-share-onevote rule that is customary today, instead adopting restricted voting schemes that favored small over large shareholders. In recent years, both legal scholars and economists have sought to explain these schemes as a rough form of investor protection, shielding small shareholders from exploitation by controlling shareholders in an era when investor protection law was weak. We argue, in contrast, that restricted voting rules generally served not to protect shareholders as investors, but to protect them as consumers. The firms adopting such rules were frequently local monopolies that provided vital infrastructural services such as transportation, banking, and insurance. The local merchants, farmers, and landholders who used these services were the firms’ principal shareholders. They commonly purchased shares not in the expectation of profit, but to finance collective goods. Restricted shareholder voting assured that control of the firms’ services would not fall into the hands of monopolists or competitors. In effect, the corporations had much the character of consumer cooperatives. This perspective also sheds light on the unusual importance given to the doctrine of ultra vires in the nineteenth century. While current legal and economic scholarship has focused incessantly on the separation between ownership and control, the prior separation between ownership and consumption, accomplished by the late nineteenth century, was another fundamental but generally overlooked turning point in the history of the business corporation. Understanding this transformation throws light not just on historical practices, but also on contemporary debates over deviations from the rule of one-share-onevote. authors. Henry Hansmann is Oscar M. Ruebhausen Professor of Law, Yale Law School. Mariana Pargendler is Professor of Law at Fundacao Getulio Vargas Law School in Sao Paulo (Direito GV). For helpful comments and suggestions on earlier drafts of this article we specially wish to thank Ian Ayres, Howard Bodenhorn, Ronald Gilson, Timothy Guinnane, Leslie Hannah, Eric Hilt, Daniel Ho, Naomi Lamoreaux, John Langbein, David Le Bris, Aldo Musacchio, Claire Priest, Richard Sylla, Andrew Verstein, Charles Whitehead, and Robert Wright, as well as participants at the American Law and Economics Association 2011 Annual Meeting at Columbia Law School, the Latin American and Iberian Law and Economics Association 2012 Annual Meeting in Lima, and the Comparative Law and Economics Forum in Rio de Janeiro, and at conferences and workshops at Columbia Law School, Fundacao Getulio Vargas Law School in Sao Paulo, Tel Aviv University, Toulouse School of Economics, Vanderbilt Law School, and Yale Law School. For valuable research assistance, we are grateful to Allison Gorsuch, Ian Masias, Nicholas Walter, Julie Wang, and particularly Joanne Williams. David Louk and his colleagues at the Yale Law Journal provided excellent editing. the evolution of shareholder voting rights 949 article contents

On Visual Law: Visual Legal Communication Practices and Their Scholarly Exploration

Abstract: Digital visual media have implications for the law. Also, the interest in visual legal communication is growing both within and outside the legal context. In light of these observations, this paper addresses various related questions: Is there already a trend toward visual legal communication practices? If there is, what does this trend look like? If no such trend exists at present, what might it look like in future? Do the established disciplines of applicable law and/or the basic legal disciplines explore these sensory legal communication practices? If they do, which specific legal disciplines are these? The principal findings of this paper are: first, a trend toward visual legal communication practices exists, and these practices manifest themselves both within and outside the legal context. Second, whereas these practices are interconnected, delimiting them from each other sometimes proves difficult. Third, the established disciplines of applicable law and/or the basic legal disciplines explore most visual legal communication practices. No single legal discipline, however, covers all these practices. Instead, most disciplines refer only to specific visual legal communication practices. In addition, these disciplines explore these practices merely as a sideline. In other words, their main research focus lies elsewhere. Consequently, these phenomena need to be studied more intensively. There is a strong need for a legal discipline capable of exploring all visual legal communication practices. Visual law should be assigned this task.

Second-Order Regulation of Law Enforcement

Abstract: This Article interrogates a critical, yet understudied, regulatory design choice the Supreme Court makes in each criminal case raising constitutional questions about law-enforcement conduct: not what the Constitution requires but how to implement its requirements. In particular, the Court must decide whether to address its decision directly to rank-and-file officers or instead to political policymakers, such as legislators and police administrators, who in turn will regulate officers on the street. In the former, dominant model, termed here first-order regulation, the Court tells officers precisely what they can and cannot do. In the latter model, second-order regulation, the principal objective instead is to enunciate constitutional values and create incentives for political policymakers to write the conduct rules. Framed differently, the Court, as principal, enlists political policymakers as its agents in the regulatory enterprise. Although first-order regulation predominates, a careful search uncovers bits of second-order regulation in spaces such as inventory searches and interrogation, and analogies in fields like employment and desegregation. The Article claims that second-order regulation should, in some domains, benefit suspects and criminal defendants in the aggregate by increasing the expected value of their constitutional protections. It should meanwhile facilitate efficient prosecution of the guilty. The benefits of agency, in other words, should in some cases outweigh the costs. Shifting rulemaking responsibility from the Court to political leaders harnesses certain comparative advantages of political institutions and permits experimentation in search of workable, well-tailored safeguards to protect constitutional rights. Even more important, social science research suggests that affording law-enforcement greater opportunity to participate in its own regulation encourages “buy in” that leads to improved compliance. The agency costs, in contrast, including “slippage” in the form of potentially underprotective rules, can often be reduced to tolerable levels. After making the general case for the second-order approach, the Article sketches where it should work especially well or poorly. It then reimagines several of the Court’s first-order decisions in a second-order model. Finally, it suggests a role in second-order regulation for other potential catalyst institutions, such as legislatures and state courts.

Non-International Armed Conflicts in International Law

Abstract: 1. The framework 2. The preconditions of a NIAC 3. Thresholds and interaction of armed conflicts 4. Insurgent armed groups and individuals 5. Foreign intervention in a NIAC 6. Recognition 7. State responsibility 8. The principal LONIAC treaty provisions 9. Additional treaty texts 10. NIAC war crimes 11. LONIAC customary international law 12. LONIAC and human rights law Conclusions.

The Fiduciary Relationship Model for Managing Clinical Genomic “Incidental” Findings

Abstract: The physician-patient relationship has a long history and is rich in deeply held traditions, yet it is one of the principal destinations for many of society’s most innovative technological advances. The implementation of scientific innovations, such as genomic sequencing, forces the physician-patient relationship to continuously confront difficult ethical and legal dilemmas. The way the physician-patient relationship responds to the implementation of genomics is a crucial aspect of the success of these technologies as catalysts for the improvement of human health. Therefore, it is important to identify frameworks that can guide the sustainable implementation of genomics in clinical care. One promising alternative is to apply legal fiduciary principles to guide the generation, use, and handling of genomic information in the clinic. Courts, legislatures, scholars, and medical organizations have applied fiduciary principles to define or describe different aspects of the physician-patient relationship. Recently, the American College of Medical Genetics and Genomics (ACMG) and the Presidential Commission for the Study of Bioethical Issues (PCSBI) released reports that refer to clinicians as fiduciaries when ordering genomic sequencing tests in clinical care.1 However, in these reports the implications of applying fiduciary principles were often not made explicit, which can lead to uncertainty about how clinicians should act or some fiduciary principles were applied without considering others, which led to recommendations that are actually in conflict with the principles of fiduciary law. This article examines the concept of fiduciary relationships as a framework for defining clinicians’ duties and patients’ rights when ordering whole genome/exome sequencing (WGS/WES) in the clinic and managing potential genomic “incidental”2 or secondary target findings. In this context, the application of fiduciary principles (e.g., duty of loyalty, duty of care, duty to inform, and the duty act within the scope of authority), which have their origins in trust and agency law, gives rise to at least four specific clinician fiduciary duties. These clinician fiduciary duties include the duty to: (1) provide material pretest information about secondary target genomic conditions that may be analyzed and reported when WGS/WES is ordered; (2) give patients the opportunity to opt-out of the analysis and report of any secondary target genomic condition; (3) offer WGS/WES and the examination of secondary target conditions, even if patients do not want all secondary target conditions examined; (4) respect patients’ “right not to know” secondary target genomic information.

Elements of an Act of Aggression: An Overview of Modern International Law and Practice

Abstract: The Charter of the United Nations is the principal source of contemporary international law for the regulation of the use of force in inter-State relations. It sets out the interrelated competences of the main bodies of the United Nations—first of all, of the Security Council, the General Assembly and the International Court of Justice—in the area of maintaining international peace and security, and confirms States’ inherent right of self-defence as a matter of applicable customary international law. The Charter’s main provision pertaining to the prohibition of the use of force—Article 2(4)—is at the heart of the in-depth legal analysis, as a rule of conventional and customary international law as well as one of jus cogens. The chapter suggests that any use of force not falling within one of three categories—Charter-based exceptions, Charter-related exceptions and extra-Charter exceptions to the prohibition of the use of force—might potentially qualify as aggression and entail consequences provided for under international law, including the individual criminal responsibility of its authors.

The Inter-American System of Human Rights

Abstract: The Inter-American System of Human Rights, one of the three main regional human rights systems, was created under the auspices of the Organization of American States. This article describes the historical background of the system as well as the principal functions of its main supervisory bodies: the Inter-American Commission and the Inter-American Court of Human Rights.

Reforming Property Law to Address Devastating Land Loss

Abstract: Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States Such ownership under the default rules also represents the most unstable ownership of real property in this country Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result ofsuch sales This Article reviews and analyzes the Uniform Partition of Heirs Property Act (UPHPA), a uniform act that represents the most significant reform to partition law in modern times I served as the Reporter, the person charged with principal responsibility for drafting a uniform act promulgated by the National Conference of Commissioners on Uniform State Laws, for the UPHPA The Article summarizes those aspects of partition law that have resulted in thousands of property owners losing millions of acres of property and the real estate wealth associated with such property The Article also provides an analysis of key sections of the UPHPA, and this analysis makes clear that the UPHPA represents a very comprehensive and innovative reform to what heretofore had long been perceived to be the intractable problem of tenancy-in-common land loss To this end, the Council of State Governments selected the UPHPA as one of thirty-five newly enacted statutes or uniform acts for inclusion in its 2013 Suggested State Legislation publication (from hundreds of submissions by state officials from across the country) to encourage states to consider it as a model The UPHPA has been enacted into law in four states, it was introduced for consideration in four other jurisdictions in 2014, and a number of states are on the cusp of introducing it for consideration in 2015 ABSTRACT 1 1 INTRODUCTION 3

Citizen Relationship Management and Principal/Agent Theory

Abstract: Principal/Agent Theory economic that makes clear accountability relationship management (Agent) to shareholders (Principal), �Have the effect of creating new public management . This theory highlights important issues regarding the accountability of state structures that distinguishes private structures. �This theory of public administration causes agents to act and be accountable to their citizens' interests. � Although the Principal/Agent theory does not provide a complete solution for administration accountable, but accountability relationships which reveal a positive step in improving accountability. � This theory is one of the factors citizen relationship management. In this article we will examine the relationship between Principal/Agent theory and citizen relationship management.

Conflict of interest in Victorian rural and regional legal practice

Abstract: This research report was based on 163 survey responses and 29 interviews with Victorian rural and regional legal practitioners, as well as 8 human service organisation representatives Peak law profession organisations including the Legal Services Board, Law Institute of Victoria, the Federation of Community Legal Centres and Victoria Legal Aid were also interviewed for the research The principal objective of the research was to examine how conflict of interested is manifested in rural and regional settings and how effectively the current conflict of interest rules are applied within those settings The report includes a number of recommendations for better responding to issues of conflict of interest within a rural and regional context

Investor protection and equity markets: an evaluation of private enforcement of related party transactions rules in Russia

Abstract: The aim of my thesis is to investigate the relationship between legal protections of minority shareholders – ‘on the books’ and ‘in action’ – and the development of equity markets. In this regard, there is a general consensus that Russian legal measures adopted to protect minority shareholders are strong. The failure of the judiciary to enforce these measures is the principal focus of the academic criticism and has been frequently cited to explain the underdevelopment of the Russian equity market. Notably, the criticism of the judiciary persists despite the market’s marked improvements over the last decade. And yet there has been little empirical analysis of enforcement of the minority shareholder protections by Russian judiciary. This thesis examines private enforcement of corporate law in Russia focusing on the lawsuits to impugn transactions with corporate insiders and the outcomes of those suits. Drawing on a dataset of 170 cases decided by the Federal Arbitrazh Court for the Moscow region in 1999 – 2006, the thesis finds that a large proportion of claimants are unsuccessful. Relying primarily on the law and economics literature and theoretical accounts of the relationship between the law and market development, the thesis develops an analytical framework (for convenience termed judicial bias hypothesis) against which it evaluates case outcomes. The evaluation suggests that in a substantial fraction of the cases the outcomes were justified by legislation or by efficiency, casting doubt over the criticisms of Russian judiciary. While cautious in drawing causal links between the enforcement and markets, the thesis suggests that marginalising legal institutions’ role in Russia might be premature. Their role in fostering the market might be greater than anticipated particularly in incentivising disclosure if not in deterring overreaching.

Corporate Governance Breach: An Overview of the Owner-Manager Agency Problem in the Nigerian Banking Industry

Abstract: The effects of a breakdown in the principal/agent relationship in the Nigerian financial services industry, especially in the banking sector, cannot be overemphasized. The required alert is due to the fact that this type of industry requires that there must be trust between the principal and the agent who is making decisions on behalf of the principal’s financial investment in the business environment. This paper analyses the agency problem that surfaced in the Nigerian banking sector, following the recapitalization exercise that took place in the industry in 2006. The study found that, to a large extent, the breakdown in the corporate governance code was a major cause of the crisis. The paper also examines the various ways the regulatory agencies responded to the problem and the measures that are being instituted to forestall a reoccurrence.

Can the ICTY Šainović and Perišić Cases Be Reconciled

Abstract: In the January 23, 2014 decision of Prosecutor v. Sainovic, the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) upheld convictions of six defendants for crimes related to the 1999 ethnic cleansing of Kosovo by Serb forces. The defendants had held high-ranking positions within the army and government ranks; Sainovic himself was one of Milosevic’s closest and most trusted associates, the prime minister of Serbia and deputy prime minister of the Former Republic of Yugoslavia (FRY). This article examines the Sainovic decision within the context of ICTY jurisprudence on liability for aiding and abetting and for participating in a Joint Criminal Enterprise. In particular, Sainovic is distinguished from the aberrant decision of Perisic, in which the appeals chamber found that to establish liability for aiding and abetting, where the acts of the accused are remote from the principal crimes, the assistance must have been specifically directed to furthering the criminal activities. Without this “specific direction”, large-scale assistance to another army’s war efforts would be insufficient to establish individual criminal liability, even where the accused had knowledge of the crimes being perpetrated. The Sainovic appeals chamber, after undertaking extensive analysis of international jurisprudence and customary international law, rejected the Perisic approach as a divergence from the established standards for aiding and abetting liability recognized internationally. Contrary to the Perisic decision, Sainovic focused on the considerable cooperation between Serb forces operating outside and inside the FRY, and the shared common purpose of the defendants and those perpetrating the crimes. The Sainovic appeals chamber’s efforts to thoroughly examine and clarify the substantive law and create a comprehensive historical record are a welcome contribution to international criminal jurisprudence, and may serve as critically important guidance for future decisions of the ICTY and the International Criminal Court.

The Informativeness Principle Under Limited Liability

Abstract: This paper studies the value of information under limited liability. With limited liability on the agent, informative signals may have no value for contracting. Since the agent is paid zero for outputs that suggest low effort, even if these outputs are accompanied by an unfavorable signal, the wage cannot fall further and so the principal cannot make use of the signal. Similarly, for outputs that suggest high effort, limited liability on the principal or a constraint that her contract be monotonic prevents the wage from rising further with a favorable signal. We derive necessary and sufficient conditions for a signal to have value under limited liability.

The Fiduciary Character of Agency and the Interpretation of Instructions

Abstract: This chapter in a forthcoming book justifies the conventional characterization of common-law agency as a fiduciary relationship. An agent serves as the principal's representative in dealings with third parties and facts about the world, situating the agent as an extension of the principal for legally-salient purposes. A principal's power to furnish instructions to the agent is the fundamental mechanism through which the principal exercises control over the agent, a requisite for an agency relationship. The agent's fiduciary duty to the principal provides a benchmark for the agent's interpretation of those instructions. The chapter draws on philosophical literature on the identity of the self over time to address related characteristics of agency doctrine, including the agent's duty to interpret instructions and statements of authority in light of the principal's present wishes as the agent reasonably understands them as well as the principal's ongoing power to revoke the agent's authority even when the revocation constitutes a breach of contract.

Epistemics at Work: The Theory of Mind in Principal-Agent Relations

Abstract: Agency theory studies the impact of and remedies to asymmetrically distributed information in principal-agent relations. Yet, it does so in a surprisingly binary manner: it assumes the principal to be perfectly knowledgeable of some pieces of information (such as the agent’s risk aversion), while others (such as the agent’s true effort exerted) are considered to be perfectly private information of the agent. Agency theory thus makes very asymmetrical assumptions about the knowledge of principals and agents, largely neglecting the human capacity for interpersonal sense-making. This chapter explores the implications of instilling agency theory with a more realistic account of the human capacity to read other people’s desires, intentions, knowledge, and beliefs — that is, to have a theory of someone else’s mind.

Regulatory governance by contract: the rise of regulatory standards in commercial contracts

Abstract: Scholars of ‘regulatory governance’ promote the view that regulation is not confined to government-based rules and procedures, but constitutes a whole range of activities exercised by both state and non-state actors, either separately or in combination. This paper investigates the role of commercial contracts as instruments of regulatory governance. Various scholars have noted that commercial contracts are increasingly important vehicles for the implementation and enforcement of safety, social and sustainability standards in transnational supply chains. While commercial contracts have traditionally acted as a principal legal vehicle to facilitate the exchange of commodities between individual entities, they are now increasingly being employed as regulatory instruments of entire transnational supply chains. 1 Right from the outset, however, it appears that contract law imposes constraints on the use of commercial contracts as a regulatory device. More specifically, the doctrine of ‘privity of contract’ (relative du contrat) holds that a contract can give rise to rights and duties only for those who are party (‘privy’) to the contract. This implies that, as a rule, firms can bind their contracting parties only and not the other parties that constitute the supply chain (e.g. second or third tier suppliers) and parties positioned outside that chain but with an interest in its proper functioning (e.g. consumers, NGOs, workers and other stakeholders). The logic that underpins regulation by contract therefore differs fundamentally from that which underpins (traditional) forms of regulation: regulation operates on the logic that it is binding on the entire group of regulated entities, while contracts in principle only bind those that have agreed to the contract (i.e. the contracting parties). Based on a literature review, this paper further explores the tension between regulation and contract law by mapping the emergence of commercial contracts as a means to implement and enforce safety, social, and sustainability standards in transnational supply chains. It highlights the scope of this development, identifies its drivers, and discusses the main challenges to governance that arise from it, also in the light of classical contract law doctrine. Accordingly, the paper summarizes the state-of-the-art in the literature on the use of contracts as instru* I thank the other contributors to this Special Issue and the editors for helpful comments and discussions on an earlier draft of this paper. I am also grateful for the suggestions offered by Katerina Peterkovai and Louise Vytopil, who carry out innovative (empirical) research on the private law implications of codes of conduct and private standards. The usual disclaimer applies. 1 See e.g. McBarnet & Kurkchiyan 2007, Vandenbergh 2007, Lin 2009, Cafaggi 2013, Vandenbergh 2013, Peterkova (2014a, 2014b), with further references in each of these sources.

Mediating Legal Reform: Animal Law, Livestock Welfare and Public Pressure

Abstract: Legal protection of animal welfare in Australia is problematic with livestock (defined here as all animals farmed for use and profit, including poultry and aquatic animals) being effectively excluded from the majority of animal protection statutes. Such legal exclusions, joined with the inherent challenges of legal reform in this field – significant issues to do with standing, costs bearing and jurisdiction – have increased the difficulties of successful litigation. Despite explicit recognition of the necessity for reform in Australian animal law – in 2008 the Australian Law Reform Commission journal, Reform, took as its subject the ‘next great social justice movement’ of animal welfare and animal rights – a number of legal strategies for reform have been summed up by the Principal Solicitor for the Pro Bono Animal Law Service (PALS), the national legal referral service for animal law operating between 2009 and 2013, as having been exhausted. Specifically, the challenges of standing and costs bearing have meant that many meritorious animal welfare matters have not been able to be pursued within the legal domain. Alternative strategies for the achievement of legal reform in this field are thus required, and at this point in the history of the Australian animal welfare movement, one significant strategy is arguably emerging: that of strategically using social media to develop public interest in these issues and to focus this interest into effective pressure in the political, social and industry domains. This paper thus carries out an analysis of this development and focusing of pressure by animal welfare organisations through their use of social media, specifically considering a) the social media strategies utilised by such peak animal welfare bodies as Animals Australia and Voiceless, and b) the recently released Animal Effect smartphone app. More generally, this is a paper outlining and analysing the architecture of social media and public pressure being conjoined in the service of the livestock law reform movement. This paper is part of a larger project in which we record and analyse how animal welfare issues are conceived, articulated and argued within the public domain.

La cláusula penal

Abstract: The requirement for liquidated damages a convention, accessorial to the principal obligation, which guarantees the accomplishment of the first one. The penalty clause has received a different treatment in various legal systems; such are the French, Italian, German and Peruvian cases. In this article, the author explains the functions of the requirement for liquidated damages and its differences with similar figures. In addition he explains the relation between the requirement for liquidated damages and precontractual responsibility, as well as its role inthe scheme of contractual responsibility.

The Portrayal of Post-Separation Parents in the Speeches of the Principal Family Court Judge of New Zealand

Abstract: This article examines the ways in which parents negotiating care and contact arrangements for their children following separation are portrayed within speeches of the New Zealand Principal Family Court Judge (2005 to 2012). Our analysis finds the speeches to be marked by gender neutrality, and promote prescriptive normative 'ideals' of cooperation and an orientation to the future uncomplicated by the past. We suggest that these texts set out an informal philosophy surrounding the court, and that they construct parents in ways that may work against the interests of mothers, and do not necessarily align with achieving solutions that are in the best interests of children. Our findings suggest the need for professionals working in the area of family law to bring to their work a nuanced and contextual consideration of separating parents and their situations, including recognition of gendered power dynamics.Key wordsfamily law, custody disputes, gender, power, speechesIntroductionThe Family Court touches the lives of parents and their children in profound ways, beyond the letter of the law and the formal proceedings and judicial rulings within the courtroom. As scholars of governmentality would argue (e.g., Ewald, 1990; Rose & Valverde, 1998), the conduct of citizens in a country like New Zealand is governed not only by the law directly, but also by norms which co-exist with the law in interdependent ways. Thus, when mothers and fathers are faced with negotiating post-separation care and custody arrangements for their children they will be guided by the dominant norms of conduct within the society as much, or more than, they will be by the law directly. Such norms are, of course, formed and reproduced within broader cultural contexts, but they are also shaped directly and indirectly within specifically legal contexts.If we think about a 'legal complex' as an 'assemblage of legal practices, legal institutions, statutes, legal codes, authorities, discourses, texts, norms and forms of judgement' (Rose & Valverde, 1998, p. 542), we can see the many avenues that exist for influence. Through efforts to educate parents or to inform the public at large, for instance, agents of the Family Court (judges, lawyers, court officials and delegated professionals of various kinds) provide information and ideas about how separated mothers and fathers should be and act. Carried out in the shadow of the law, however, with the implicit backing of legal authority and supported by scientific truth claims from the psy disciplines (e.g., psychology), statements made in this context hold considerable power to influence commonsense ideas about what is right and wrong, and what is an appropriate resolution to conflict over the care of children following parental separation. The cost of flouting the norms promoted in these contexts is not merely the risk of being judged unconventional, eccentric, or odd; but rather the risk of having one's family life rearranged by a stranger, and possibly losing the care of children or even the ability to protect them from identified sources of emotional hurt and physical harm. Thus, even ostensibly benign or helpful interventions proffered in the service of 'education' or public commentary in this context can have a harsher side to them. Bearing this in mind highlights the potentially coercive way in which the norms embedded within the legal complex can operate.At the same time as the Court's 'voice' - enacted through its policies, patterns of practice, and proclamations - is influential in shaping cultural expectations and normalising particular social formations, that voice is itself shaped by the cultural values and assumptions of its key actors. Unlike laws which are explicit, forged through some degree of public consultation and debate, and documented with precision, the mundane non-legal underpinnings of the Family Court's operations are rarely acknowledged, let alone open to critical examination. …

Might Alone Does Not Make Right: Justifying Secondary Liability

Abstract: The current test for secondary liability usually turns on foresight of a risk that the principal might commit the crime, but this is misguided. If some form of foresight must be used, which is both doubtful and if true, regrettable, the current formulation of it is unacceptable. It is commonly said now that S is liable for the same offence as P, where S foresees a “real risk” or “substantial possibility” that P will commit that offence. This is a poor cousin to recklessness, the hard-won common law test for wrongful risk-taking. In particular, reference to quantifying the risk cannot take the place of the other established element of recklessness: recklessness only criminalises foreseeing a risk and unjustifiably taking it, rather than merely the taking of any appreciated risk, however small. A return to established principle might help to level off from the last twenty years’ downward spiral of the level of culpability required for secondary liability and prevent further problems in the law. At the very least, the law should recognise the situations where the validity or utility of the conduct by the secondary party makes the risk that it contributes to a crime taking place insufficient to justify criminal liability.

La educación jurídica clínica y el aprendizaje basado en problemas: ¿una formación con enfoque integral que cumple su proósito?

Abstract: In this paper is explained, the nature of experiential learning that is, studying through the application of theory to practice. Then how this approach to education can be integrated into the wider curriculum through the use of problem-based learning (PBL) and identify the benefits and challenges of doing so. It is used a case study, a description and analysis of how one particular law school uses clinic and PBL as the principal means of instruction and how this may represent not only an innovative departure from how law is conventionally learnt but also a positive one in terms of supporting student learning. Finally I ask and attempt to answer the question, to what extent is such a model transferable across jurisdictions and particularly in both the Common and Civil Law worlds.

Agency as Principal

Abstract: A presumption of a principal-agent relationship between the elected branches and the bureaucracy permeates administrative law and scholarship. This typical framework consistently casts agencies as agents, never principals. This Article challenges that assumption and explores the ways in which agencies can act as principals to the elected branches. Agencies, in fact, commonly manipulate the elected branches. The challenge posed by the Article to the typical understanding of the relationship between agencies and the elected branches not only provides a more nuanced understanding of the modern administrative state but also raises serious questions about administrative law, which regularly employs this same faulty assumption.

Administrative Law Without Congress

Abstract: Administrative law has ceased to respond adequately to the challenges posed by modern-day executive government. We suggest that the discordance reflects a mismatch between the debilities of the Congress and an administrative regime built on legislative supremacy.Administrative law — in its New Deal and its modern, post-Chevron forms — presuppose a Congress that is jealous of its legislative powers. However, the modern Congress has increasingly dis-empowered itself. It consistently fails to update old statutes even when they are manifestly outdated or, as actually administered, have assumed contours that neither the enacting nor the current Congress would countenance. When Congress does legislate, it tends to enact highly convoluted and often incoherent “hyper-legislation.”We examine the effects first on agencies, and then on courts and their doctrines. Knowing that there is no turning (back) to Congress, agencies are tempted to improvise policies lacking legislative authority. In turn, administrative law doctrines that were developed under very different institutional conditions start to bend.We describe three increasingly common forms of agency action: (1) agency “re-writes” of statutes; (2) procedural shell games and manipulation; and (3) broad regulatory waivers without or in excess of a statutory warrant. We provide illustrations in the “old statutes” and “hyper-legislation” settings. Our principal old-statute example is the Clean Air Act and the protracted litigation over the EPA’s regulation of greenhouse gases, culminating (for now) in the Supreme Court’s decision in Utility Air Regulatory Group v. EPA. Our principal examples of hyper-legislation are the Dodd-Frank Act and the Affordable Care Act, including the pending litigation over the scope of the act’s subsidy and mandate provisions. We conclude with a plea for more institutional realism and less interpretive metaphysics in administrative law.

The Informativeness Principle Under Limited Liability

Abstract: This paper shows that the informativeness principle does not automatically extend to settings with limited liability. Even if a signal is informative about effort, it may have no value for contracting. An agent with limited liability is paid zero for certain output realizations. Thus, even if these output realizations are accompanied by an unfavorable signal, the payment cannot fall further and so the principal cannot make use of the signal. Similarly, a principal with limited liability may be unable to increase payments after a favorable signal. We derive necessary and sufficient conditions for signals to have positive value. Under bilateral limited liability and a monotone likelihood ratio, the value of information is non-monotonic in output, and the principal is willing to pay more for information at intermediate output levels.

The unity of the republic vs. living together on the same land: New Caledonia from colonization to indigenousness: law at the center of a major culture issue

Abstract: New Caledonia experienced from 1853 to 1945 the right of conquest. The French self-styled universalist Republic, oblivious of human rights, flouted all its basic standards. Consequently, for most Kanaks (the principal indigenous people of the territory), Custom became a matter of the respect they claimed for their collective values and identity. Their claim has produced legal, institutional and judicial evolutions during the past 30 years. In respect of personal status, the Kanaks, French citizens, can keep their own customary law if they so wish. In 1982, a local government set up civil courts with customary assessors to implement Customary law. The 1988 Matignon Accords and the 1998 Noumea Accord went further by organizing the coexistence of several legal orders on the same land. The latter Accord enshrines in the French Constitution the acknowledgement of a ‘Kanak people’ besides the ‘French people’, and of Kanak customary law as part of the French legal system. This promotes a ‘native’ policy, and a d...

The Contours and Composition of Agency Doctrine: Perspectives from History and Theory on Inherent Agency Power

Abstract: This Essay explores the history of formulations of agency doctrine, arguing that agency law can best be rationalized as a distinctive subject by recognizing that an agent acts as an extension of the principal. The Essay relies on historical material, some unpublished, related to the drafting of the Restatements of Agency, the disagreements among Reporters and other participants about the contours of agency law, and the intellectual backdrop against which these experts worked. Their disputes, preceded as they were by challenges to the fundamental coherence of agency law, led to successive formulations of agency doctrine; while attempting to provide a comprehensive level of generality, some formulations threatened to distort established limits on the scope of a principal's responsibility for the actions of a principal. The Essay develops in particular the history of the doctrine of inherent agency power, tracing its origins back to the early days of work on the first Restatement of Agency through to the Restatement Third, which jettisons the doctrine. Originating as a form of catch-all (termed a "third bottle" by those working on the first Restatement) inherent agency power as a doctrine was an over-generalization that responded to the narrowness with which other doctrine were formulated, in particular apparent authority.

Corruption, Corporations, and the New Human Right

Abstract: We should no longer expect the Alien Tort Statute to be the principal federal statute that deters overseas corporate rights violations. That distinction rightly belongs to the Foreign Corrupt Practices Act, an antibribery statute that rests on undisputed principles of corporate liability, contains a clear congressional statement of extraterritorial application, and routinely collects penalties from multinational corporate defendants. Scholars have not associated the FCPA with human rights, owing principally to a thin understanding of rights theory. But freedom from corruption can and should be understood as a human right, one that is as old as social contract theory but new to federal and international law. With specific reforms—one modeled after environmental law and the other after intellectual property—the FCPA can become a more powerful statutory tool for deterring overseas corporate rights violations than the ATS ever was or will be.  Assistant Professor, University of Richmond School of Law. I would like to thank the following law schools for opportunities to present prior iterations of this paper: Northwestern University Law School, William & Mary School of Law, Cardozo School of Law, Southern Methodist University School of Law, and Brigham Young University Law School. The American Society of International Law graciously allowed me to present this paper at its Mid-Year Research Forum and its Annual Conference. I also wish to thank the Glothro Workshop on the Direct Human Rights Violations in International Law and the African International Economic Law for their valuable workshop opportunities. I would particularly like to thank Larry Solum, John McGinnis, Jide Nzelibe, Sungjoon Cho, Larry Ribstein, David Zaring, Gordon Smith, Bruce Bean, and Donald Langevoort for their comments on this project. Finally, I would like to thank my extraordinary research assistant, Tim Archer. Washington University Open Scholarship 1366 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 91:1365

Measuring Agency MBS Market Liquidity with Transaction Data

Abstract: Agency mortgage backed securities are fixed income securities that entitle the owner to principal and interest payments on underlying residential mortgages that are guaranteed by government-sponsored enterprises or government agencies.

El riesgo moral en la revisoría fiscal

Abstract: The asymmetry of information is a condition of any contractual relationship, since the contractor (principal) is not completely aware of the work that he is assigning, nor verifies what the contract (agent) does. Then several problems arise: one of these is the moral hazard, which generates harmful situations for the principal, being the principal as responsible for the risk as the agent. The tax audit, as a contractual relationship is not exempt from this asymmetry and, therefore, it is possible that moral hazard arises in the development of the audit carried out by the professional contracted for this purpose. Examples of this are actions for which tax reviewers were sanctioned during the past five years, and failures to the rules discussed in the presentation of reports; these examples allow to assert the existence of moral hazard in the development of the fiscal audit.