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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).


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Journal ArticleDOI
TL;DR: In this article, the authors provide a theory of the relation between legal and non-legally enforceable rules and standards in the corporation, and then use that theory to analyze a variety of prominent features of corporate law.
Abstract: This article provides a theory of the relation between legal and non legally enforceable rules and standards in the corporation, and then uses that theory to analyze a variety of prominent features of corporate law. In the first part, we draw on recent developments in the theory of the firm to identify key problems facing participants in the firm. In developing this approach, we combine the "property rights" strand in the theory of the firm with the transaction cost approach. From this perspective, the main issue is solving the related problems of coordinating activities, choosing the firm's assets, and developing appropriate incentives for specific investments. In part II, we argue that the firm so understood will largely be governed through "norms," by which we mean "non-legally enforceable rules and standards" (NLERS). Indeed, the raison d'etre of firms is to replace legal/contractual governance of relations with NLERS. Using this framework, in part III, we analyze the duty of loyalty. In part IV, we analyze the duty of care and the business judgement rule, and a variety of other puzzling features of corporate law. From our perspective, corporate law can be understood as a remarkably sophisticated mechanism for facilitating governance by NLERS. Centralized management is used to determine the assets over which the corporation must have residual rights of control and to develop a governance structure for protecting the match-investments of insiders in these assets. Legal rules provide the default settings through which centralized management operate and prohibit non pro rata distributions (a combination of ex ante rules and the ex post duty of loyalty), which pushes controlling shareholders to maximize the value of the firm. Having established an "incentive compatible" legal form that facilitates NLERS governance, the law must be careful not to undermine that governance by midstream interference. Here, the duty of care and the business judgment rule are critical. The business judgement rule acts as a jurisdictional rule that facilitates a self governing NLERS relationship by preventing parties from turning to third party adjudicators. As such, it plays a role very similar to the role of the employment at will doctrine in employment law and for the same reasons. This analysis provides an explanation for why the duty of care, despite its appearance, does not function as a negligence rule, and why liability for directorial malpractice is so much less common than liability for other forms of professional malpractice, such as, legal or medical. The principal contexts in which the BJR does not apply are situations in which NLERS governance breaks down, generally because of last period temptations to defect. The difference in the ability of NLERS to govern midstream and end games provides the key to understanding a variety of corporate law puzzles. These puzzles include: the asymmetry between the legal standards governing purchases and sales of assets; the asymmetry between judicial review over decisions to resist all bids for control ("just say no") versus the review of sales of control; and the demand requirement in derivative litigation.

27 citations

Posted Content
TL;DR: In this paper, the Baker and Hacker/community consensus debate over the nature of rule-following in the later Wittgenstein is discussed, and it is shown that the legal argument is directed at constructing the point of law.
Abstract: I begin, in Parts I-III, by presenting the details of the Baker and Hacker/community consensus debate over the nature of rule-following in the later Wittgenstein. In Part IV this philosophical debate is related to the law through the argument that there is both an internal and an external element to rule-following in law. I here assert one of the principal claims of my position: viz., that legal argument is directed at constructing the point of law. Part V introduces the distinction between the formal and the material elements of a concept. As I shall show in detail, form is a heuristic for illuminating conceptual understanding. In Part VI, I move on to provide several examples in support of the form/matter distinction. Part VI also provides arguments in support of the proposition that understanding is internal to a practice and thus not necessarily coextensive with regularity in behavior. Parts VII-IX examine relevant claims made by Wittgenstein and their application to law. Finally, Parts X-XI sketch and illustrate my ultimate claim, a narrative approach to law.

27 citations

Book
01 Jan 1995
TL;DR: Cross and Tapper on Evidence as mentioned in this paper provides detailed coverage of a fast moving and important subject, with a particular focus on the interpretation, by the courts, of the radical changes to the law relating to the admissibility of evidence of the bad character of the accused and of hearsay.
Abstract: The eleventh edition of the renowned Cross and Tapper on Evidence provides detailed coverage of a fast moving and important subject. It carefully considers the full implications of the Criminal Justice Act 2003, with a particular focus on the interpretation, by the courts, of the radical changes to the law relating to the admissibility of evidence of the bad character of the accused, and of hearsay. The ways in which the jurisprudence of the European Court of Human Rights continues to penetrate English law are also fully evaluated. On the civil side, this new edition reflects on recent decisions in the area of private privilege, especially in relation to legal professional privilege. In addition, it considers and evaluates the principal changes proposed by various law reform bodies and lobbying groups. This focused and detailed book retains its wide coverage of overseas materials from the principal common law jurisdictions. This comparative material provides an excellent basis for the critical analysis and appraisal of English law.Cross and Tapper on Evidence remains the most all-embracing text on the law of evidence available, and will be of great use to students and practitioners alike.

27 citations

Journal ArticleDOI
TL;DR: In the Lochner period, government 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.
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.

27 citations

Journal ArticleDOI
TL;DR: Part II of the Siracusa Principles interprets the principal limitations on derogation set forth in the Covenant as well as certain limitations derived from other sources of international law and makes suggestions as to international supervision of derogations from human rights norms as mentioned in this paper.
Abstract: Part II of the Siracusa Principles interprets the principal limitations on derogation set forth in the Covenant as well as certain limitations derived from other sources of international law and makes suggestions as to international supervision of derogations from human rights norms. Unfortunately, lack of time prevented adequate consideration of all aspects of these questions, notably the non-discrimination clause of Article 4(1). The principles contained herein, therefore, while undoubtedly constituting a major contribution to legal doctrine on this topic, should not be considered to preclude the existence or future development of additional principles. The term "substantive provisions" of the Covenant refers to Articles 6 to 27. The term "derogation measures" refers to measures taken pursuant to Article 4 of the Covenant and which would otherwise constitute violations of substantive provisions; it does not include actions justifiable under restriction or limitation clauses or excluded from the protection of the Covenant by definitional clauses such as Article 3(c).

26 citations


Performance
Metrics
No. of papers in the topic in previous years
YearPapers
20222
202130
202037
201953
201839
201755