Principal (commercial law)

About: Principal (commercial law) is a research topic. Over the lifetime, 1579 publications have been published within this topic receiving 35379 citations. The topic is also known as: Principal (commercial law).

Lochner's Legacy

Abstract: The received wisdom is that Lochner was wrong because it involved “judicial activism”: an illegitimate intrusion by the courts into a realm properly reserved to the political branches of government. This view has spawned an enormous literature and takes various forms. The basic understanding has been endorsed by the Court in many cases taking the lesson of the Lochner period to be the need for judicial deference to legislative enactments. The principal purpose of this essay, descriptive in character, is to understand Lochner from a different point of view. For the Lochner Court, neutrality, understood in a particular way, was a constitutional requirement. The key concepts here are threefold: government inaction, the existing distribution of wealth and entitlements, and the baseline set by the common law. Governmental intervention was constitutionally troublesome, whereas inaction was not; and both neutrality and inaction were defined as respect for the behavior of private actors pursuant to the common law, in light of the existing distribution of wealth and entitlements. Whether there was a departure from the requirement of neutrality, in short, depended on whether the government had altered the common law distribution of entitlements. Market ordering under the common law was understood to be a part of nature rather than a legal construct, and it formed the baseline from which to measure the constitutionally critical lines that distinguished action from inaction and neutrality from impermissible partisanship. This understanding of the Lochner period is faithful to what the Court said when it both engaged in and abandoned Lochner-like reasoning, and it points to an important element in the Lochner Court's approach, one that has little to do with an aggressive judicial role in general.

Law and the Economics of Entrepreneurship

Abstract: I show how the law interacts with entrepreneurship in two principal ways. First, legal structures shape organizational forms in entrepreneurship. Second, legal rules and institutions carry public policy implications for entrepreneurship in at least three areas: regulation; bankruptcy legislation; and the broad area of property rights, corruption, and the efficiency of courts. This article reviews the literature on each of these issues.

Autonomous weapon systems and international humanitarian law: a reply to the critics

Abstract: In November 2012, Human Rights Watch, in collaboration with the International Human Rights Clinic at Harvard Law School, released Losing Humanity: The Case against Killer Robots.[2] Human Rights Watch is among the most sophisticated of human rights organizations working in the field of international humanitarian law. Its reports are deservedly influential and have often helped shape application of the law during armed conflict. Although this author and the organization have occasionally crossed swords,[3] we generally find common ground on key issues. This time, we have not. “Robots” is a colloquial rendering for autonomous weapon systems. Human Rights Watch’s position on them is forceful and unambiguous: “[F]ully autonomous weapons would not only be unable to meet legal standards but would also undermine essential non-safeguards for civilians.”[4] Therefore, they “should be banned and . . . governments should urgently pursue that end.”[5] In fact, if the systems cannot meet the legal standards cited by Human Rights Watch, then they are already unlawful as such under customary international law irrespective of any policy or treaty law ban on them.[6] Unfortunately, Losing Humanity obfuscates the on-going legal debate over autonomous weapon systems. A principal flaw in the analysis is a blurring of the distinction between international humanitarian law’s prohibitions on weapons per se and those on the unlawful use of otherwise lawful weapons.[7] Only the former render a weapon illegal as such. To illustrate, a rifle is lawful, but may be used unlawfully, as in shooting a civilian. By contrast, under customary international law, biological weapons are unlawful per se; this is so even if they are used against lawful targets, such as the enemy’s armed forces. The practice of inappropriately conflating these two different strands of international humanitarian law has plagued debates over other weapon systems, most notably unmanned combat aerial systems such as the armed Predator. In addition, some of the report’s legal analysis fails to take account of likely developments in autonomous weapon systems technology or is based on unfounded assumptions as to the nature of the systems. Simply put, much of Losing Humanity is either counter-factual or counter-normative. This Article is designed to infuse granularity and precision into the legal debates surrounding such weapon systems and their use in the future “battlespace.” It suggests that whereas some conceivable autonomous weapon systems might be prohibited as a matter of law, the use of others will be unlawful only when employed in a manner that runs contrary to international humanitarian law’s prescriptive norms. This Article concludes that Losing Humanity’s recommendation to ban the systems is insupportable as a matter of law, policy, and operational good sense. Human Rights Watch’s analysis sells international humanitarian law short by failing to appreciate how the law tackles the very issues about which the organization expresses concern. Perhaps the most glaring weakness in the recommendation is the extent to which it is premature. No such weapons have even left the drawing board. To ban autonomous weapon systems altogether based on speculation as to their future form is to forfeit any potential uses of them that might minimize harm to civilians and civilian objects when compared to other systems in military arsenals.

State Responsibility for Genocide

Abstract: In the past years international law has made strides in establishing individual responsibility for crimes against international law as one of its most fundamental principles. This year, however, provides us with the first opportunity for adjudication on state responsibility for genocide in the case brought before the International Court of Justice by Bosnia and Herzegovina against Serbia and Montenegro. This article attempts to provide a methodological approach for deciding the many issues raised by this case, mainly by focusing on a strict separation between primary and secondary rules of international law, with this approach being both theoretically and practically desirable. The article also deals with the question of state responsibility for acts of non-state actors on the basis of state de facto control. By applying this general methodology to the facts of the Genocide case, the article will show that the principal difficulties the Court will face if it decides to use this approach will not be in applying the relevant substantive law, but in establishing the facts and assessing the available evidence.

Agency Models in Law and Economics

Abstract: This lecture is an introduction to the use of agency models in law and economics. It is designed for first year law students with no background in economics. A simple example is used to illustrate the basic tradeoff between incentives and insurance when a principal is unable to observe an agent's level of effort. The example is then generalized, and several complications (multitasking, multiple agents, teams, etc.) are discussed. The agency model is then used to analyze contract remedies, and (very briefly) issues in torts, corporations, civil procedure, administrative procedure, and other important areas of the law.