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).

The Renaissance of Accident Law Plans Revisited

Abstract: This paper is a contribution to a symposium devoted to reassessing Guido Calabresi's pathbreaking volume, The Costs of Accidents, 35 years after its publication. In Calabresi's opening chapter, he begins by noting a renaissance of interest in plans, by which he meant legislative efforts and proposals to supplant conventional tort doctrine - the negligence system - with a nonfault-based compensation scheme of one sort or another. Concurrently, Calabresi noted a then-emerging parallel challenge to the fault system in the judicial domain, strict liability for product injuries. Both in the legislative sphere and the courts, he lamented the absence of an ideological framework that would make sense of the various developments. Viewing accident law from the vantage point of 1970, Calabresi offered a brief account of five categories of plans that seemed both topical and representative of the under-theorized character of accident law reform proposals. The three principal strategies that he surveyed - social insurance/welfare legislation, first-party auto no-fault, and strict liability for defective products - serve as my port of entry for a broader view of developments in nonfault approaches since the publication of The Costs of Accidents. I begin by surveying how the renaissance has fared in the ensuing years, indicating the pathways taken by the resurgence of interest in nonfault approaches since 1970. In particular, I discuss two systems of reparation that stand in contrast to fault-based liability: no-fault compensation schemes and strict liability (in particular, for product injuries) - systems that are consonant with Calabresi's range of concerns, but at the same time reflect a view of no-fault substantially broadened beyond the motor vehicle area. From a scholarly perspective, one can also ask, as Calabresi did a generation ago, whether latter-day efforts to reconstitute accident law - whether in the legislative arena or in the courts - reveal a greater fidelity to coherently articulated goals than was evident in earlier times. In exploring this question, in the following section of the paper, I discuss some related issues, as well: Was accident law, in fact, as under-theorized as The Costs of Accidents suggests? And does the notion of theorizing about legislative compensation plans resonate in similar fashion to theorizing about judge-made tort law? The principal thrust of this section is to determine whether there are identifiable themes underlying nonfault alternatives to traditional tort that illuminate the staying power of the fault system. In a brief concluding section, I offer some summary thoughts on the legacy of Costs, drawing on my survey of the observable patterns of legislative and judicial activity over the past thirty-five years.

Socialist Legal Theory in Deng Xiaoping’s China

Abstract: After assuming supreme power in the People’s Republic of China in late 1978, Deng Xiaoping was most insistent that law was essential to socialist modernization and that Maoist legal nihilism had to be combated. He inaugurated a massive program to reform and restructure the legal system. Accordingly, the Party and State Constitutions were revised, law was codified,judicial organs were reorganized and the academic discipline of legal studies was revived. The aim was to replace what was referred to as the ‘rule of persons’ by the rule of law. By the time of his death in early 1997, much had been achieved. Though defects in the system remain and have been highlighted by many scholars, it is fair to say that China’s socialist legal system has gone far beyond the old instrumental notion of safeguarding the rule of a Marxist Party. In the context of promoting economic modernization, law has increasingly been seen as the principal means for resolving conflict and maintaining social order. While many scholars have noted Deng’s limited success in instituting the rule of law,’ one must concede that China is no longer faced with the legal nihilism of the Maoist era.

The law of impersonal transactions

Abstract: Most economic interactions happen in a context of sequential exchange in which innocent third parties suffer information asymmetry with respect to previous “originative” contracts. The law reduces transaction costs by protecting these third parties but preserves some element of consent by property rightholders to avoid damaging property enforcement — e.g., it is they, as principals, who authorize agents in originative contracts. Judicial verifiability of these originative contracts is obtained either as an automatic byproduct of transactions or, when these would have remained private, by requiring them to be made public. Protecting third parties produces a legal commodity which is easy to trade impersonally, improving the allocation and specialization of resources. Historical delay in generalizing this legal commoditization paradigm is attributed to path dependency — the law first developed for personal trade — and an unbalance in vested interests, as luddite legal professionals face weak public bureaucracies.

The World Bank and Legal Technical Assistance: Initial Lessons

Abstract: Instruments the World Bank uses to finance legal technical assistance. Issues and dilemmas associated with governments receiving and the Bank providing such assistance. Recommendations for both providers and recipients of such assistance. Over the past several years, World Bank member countries have increasingly sought Bank assistance in improving and reforming their legal systems. This paper catalogs the scope and breadth of such assistance and outlines some lessons the Bank has learned. Countries with long and established legal traditions usually seek help only in specialized areas of law, and in strengthening the judiciary and establishing alternative dispute resolution mechanisms. In countries with lesser developed legal systems, legal technical assistance may range from policy advice to assistance in drafting legislation, introducing, implementing, and enforcing new laws and regulations, devising procedures and institutions that carry out new laws, designing public information campaigns, and training. Lessons the Bank's Legal Department has learned include: Each country must make a choice about the direction of its legal reform and must assign its own priorities to reform needs. The Bank-financed assistance should fit the country's needs as well as the Bank's strategies. Countries usually benefit from diagnostic studies or sector analyses. The Bank may not be involved in financing legal reform activities unrelated to economic development. Legal reform is complex and long-term. Except for urgently needed legislation, the most suitable lending instruments for legal technical assistance are usually those that disburse over a longer time or, alternatively, a series of lending operations. The Bank's support for a stable, predictable business environment free of government arbitrariness may well include assistance to the judiciary of borrowing member countries. Countries are often reluctant to borrow for legal technical assistance. This is especially true for borrowing from the IBRD (rather than IDA). Recipient governments must demonstrate a clear commitment to legal reform and take ownership of legal reform for legal technical assistance to bring about the desired results. Broad participation by members of local legal professions should be sought. For legal technical assistance to succeed, there must be proper counterparts in the government implementing the assistance. Some countries may benefit from establishing legal reform units to coordinate economic and legal reform and to prevent duplication of legal reform activities. For quality legal technical assistance at affordable rates, it is important to diversify the selection of advisors to include local lawyers as well as consultants from different legal systems. But the selection of consultants should be consistent with the direction of legal reform chosen by the country. Training activities adjusted to local conditions are essential if legal technical assistance is to have a lasting impact. This report was prepared by a task force established by the Senior Vice President and General Counsel and consisting of Andres Rigo, Andrew Vorkink, Jean Francois Dupuy, Teresa Genta Fons, Roberto Laver, Natalie Lichtenstein, Katarina Mathernova, David Mead, T. Mpoy-Kamulayi, and Dominique Bichara. Ms. Mathernova is the principal author of the report. It is part of a departmental series to provide information and analysis of legal issues relevant to the Bank's developmental mandate.

A Revised Prospectus for a Third Restatement of Agency

Abstract: The article is based on a prospectus submitted to the American Law Institute proposing a new Restatement of Agency, to succeed Restatement (Second) of Agency, which was completed in 1958. Like the prospectus, the article identifies a number of practical and theoretical respects in which Restatement (Second) has been overtaken by subsequent developments. The article begins by distinguishing the definition of agency within legal doctrine from the meanings ascribed to agency in other disciplines, such as economics. The article then sketches the key elements of doctrine within the common law of agency and illustrates contemporary controversies concerning their application. Agency is intellectually distinctive within the law because it focuses on relationships in which one person (the agent), one way or another, is in a position to act with consequences for another person (the principal). Agency doctrine looks inward, to the relationship between the agent and the principal, as well as outward, to the consequences for the agent and principal of the agent's interactions with third parties. The outward looking consequences of agency encompass contracts entered into by the agent as well as the agent's wrongful acts. Much in agency turns on the scope or range of the agent's relationship with the principal. Agency doctrine reaches broadly, defining the legal consequences of choosing to act through another person in lieu of oneself. In a contemporary context, many principals as well as many agents are organizations, themselves networks or chains of agency relationships. A contemporary Restatement should reflect this reality, as well as provide an intellectual framework and a set of doctrinal formulations that enable courts, legal practitioners, and scholars to analyze ongoing and future developments.