Download or read book A Safety Valve Model of Equity as Anti opportunism written by Kenneth Ayotte and published by Cambridge University Press. This book was released on 2023-08-31 with total page 96 pages. Available in PDF, EPUB and Kindle. Book excerpt: Equity can be defined as the use of a more flexible, morally judgmental, and subjective mode of legal decision making that roughly corresponds with historical equity. This Element presents a simple contracting model that captures the role of equity as a safety valve, and shows how it can solve problems posed by opportunists–agents with unusual willingness and ability to take advantage of necessary imperfections in the law. In this model, a simple but imperfect formal legal regime is able to achieve first best in the absence of opportunists. But when opportunists are added, a more flexible regime (equity), can be preferred. However, equity is also vulnerable to being used opportunistically by the parties it intends to protect. Hence, the Element shows that it is often preferable to limit equity, reserving it for use only against those who appear sufficiently likely to be opportunists.
Download or read book Equity as Second Order Law written by Henry E. Smith and published by . This book was released on 2015 with total page 75 pages. Available in PDF, EPUB and Kindle. Book excerpt: Despite the fusion of law and equity and the apparent demise of equity as a distinct system, this Article argues that equity is a distinct decision making mode within a legal system. Private law relies on formal structures of rights and rules that can be exploited and abused by opportunists. The possibility of strategic manipulation of the information available to other parties and to courts furnishes a rationale for a second-order safety valve on the formal law. In the Anglo-American tradition this anti-opportunism safety valve corresponds roughly to a major strand of equity jurisprudence. The Article shows that an equitable safety valve is to be found in both traditional equity theory and as a theme in equity, from the maxims to defenses to remedies to procedure. The Article explains and partially justifies the equitable safety valve as an ex post higher-order intervention aimed at a problem of measurement and uncertainty: law needs protection against opportunistic distortion and misuse of probabilistic information used by parties and courts. The importance of equity suggests a rethinking of “actuarialist” assumptions in conventional law and economics about stable and unbiased probabilistic information being available to parties and courts. Opportunists can be regarded as entrepreneurs in doing bad who exploit uncertainty. Once the function of equity as an anti-opportunism device is understood, many jurisprudential debates, especially those revolving around formalism and contextualism, can be seen to be lacking an appreciation of hybrid decision making that equity makes possible. Equity as an anti-opportunism safety valve provides an attractive way out of some thorny dilemmas.
Download or read book Philosophical Foundations of the Law of Equity written by Dennis Klimchuk and published by Oxford University Press. This book was released on 2020-04-02 with total page 400 pages. Available in PDF, EPUB and Kindle. Book excerpt: The law of Equity, a latecomer to the field of private law theory, raises fundamental questions about the relationships between law and morality, the nature of rights, and the extent to which we are willing to compromise on the rule of law ideal to achieve social goals. In this volume, leading scholars come together to address these and other questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of 'equity'? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity-and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around 'fusion'. A noteworthy addition to the Philosophical Foundations series, this volume is an important contribution to an ongoing debate, and will be of value to students and scholars across the discipline.
Download or read book Intellectual Property and the Common Law written by Shyamkrishna Balganesh and published by Cambridge University Press. This book was released on 2013-09-02 with total page 577 pages. Available in PDF, EPUB and Kindle. Book excerpt: Leading scholars of intellectual property and information policy examine what the common law can contribute to discussions about intellectual property's scope, structure and function.
Download or read book Philosophical Foundations of Fiduciary Law written by Andrew S. Gold and published by . This book was released on 2014 with total page 449 pages. Available in PDF, EPUB and Kindle. Book excerpt: Fiduciary law is one of the most important areas of law, governing a wide range of relationships that affect people in their daily lives. These new and innovative essays explore the foundations of fiduciary relationships and the duties of loyalty fiduciaries owe to their beneficiaries.
Download or read book A Purposive Approach to Labour Law written by Guy Davidov and published by Oxford University Press. This book was released on 2016-05-05 with total page 305 pages. Available in PDF, EPUB and Kindle. Book excerpt: The mismatch between goals and means is a major cause of crisis in labour law. The regulations that we use - the legal instruments and techniques - are no longer in sync with the goals they are supposed to advance. This mismatch leads to a problem of coverage, where many workers who need the protection of labour law are not covered by it, as well as a problem of obsoleteness, as labour laws are not sufficiently updated in light of dramatic changes in the labour market. Adopting a purposive approach to interpretation and legislative reform, this volume addresses this crisis of mismatch. It first articulates the goals of labour law, both general and specific, through an in-depth normative discussion and a consideration of critiques. The book then proceeds to reconsider our means, asking what we need to change or improve in the laws themselves in order to better advance the goals. Some of the proposed solutions are at the level of judicial interpretation, others at the legislative level. The book offers several examples of the way a purposive analysis should be performed in concrete cases. It also recommends institutional structures that are suited to ongoing adaptation of the law to ensure that our goals are advanced even when circumstances frequently change. Finally, in response to the crisis of enforcement in this field, which frustrates the achievement of labour law's goals, several proposals to improve compliance and enforcement are considered.
Download or read book The Oxford Handbook of Law and Economics written by Francesco Parisi and published by Oxford University Press. This book was released on 2017 with total page 593 pages. Available in PDF, EPUB and Kindle. Book excerpt: The Oxford Handbook of Law and Economics applies the theoretical and empirical methods of economics to the study of law. Volume 2 surveys Private and Commercial Law.
Download or read book More is Less written by Maija Halonen-Akatwijuka and published by Cambridge University Press. This book was released on 2024-05-23 with total page 57 pages. Available in PDF, EPUB and Kindle. Book excerpt: Why are contracts incomplete? Transaction costs and bounded rationality cannot be a total explanation since states of the world are often describable, foreseeable, and yet are not mentioned in a contract. Asymmetric information theories also have limitations. We offer an explanation based on 'contracts as reference points'. Including a contingency of the form, 'The buyer will require a good in event E', has a benefit and a cost. The benefit is that if E occurs there is less to argue about; the cost is that the additional reference point provided by the outcome in E can hinder (re)negotiation in states outside E. We show that if parties agree about a reasonable division of surplus, an incomplete contract is strictly superior to a contingent contract. If parties have different views about the division of surplus, an incomplete contract can be superior if including a contingency would lead to divergent reference points.
Download or read book Why Fiduciary Law Is Equitable written by Henry E. Smith and published by . This book was released on 2013 with total page 26 pages. Available in PDF, EPUB and Kindle. Book excerpt: Fiduciary law is both celebrated as unbound by rules and deplored as unprincipled. Moralists see in fiduciary law a fixed and mandatory system, even as legal economists and contractarians have cast fiduciary law as the ultimate set of defaults to fill in incomplete contracts. Like general equity, out of which it grew, modern fiduciary law suffers from the hard times the theory of equity has fallen into, and for the same reasons. This chapter argues that a functional theory of equity - of equity as a safety valve aimed at countering opportunism - captures the character of fiduciary law. Fiduciary relationships, in which someone undertakes to act on another's behalf by using discretion, carry more than the usual potential for opportunism. In the equitable solutions to opportunism based on proxies and presumptions, fiduciary law gets its main features. Like equity but in a more sweeping and often more categorical way, fiduciary law sets the presumption against the fiduciary when certain proxies are triggered. Thus, in situations of undisclosed conflict of interest the presumption of opportunism arises even without regard to the substance of the deal. For self-dealing likewise the presumption arises in an almost indefeasible way. Like equity generally, fiduciary law features a constrained residuum of open-endedness to deal with new and creative ways of being opportunistic. The theory of equity as targeting potential opportunism unifies the best aspects of traditional and modern theories of fiduciary law, and helps explain why fiduciary law has become so disparate and contested after the fusion of law and equity. Cut off from the special rationales of equity, fiduciary law itself threatens to become too expansive or too narrow and hidebound - like equity generally. Finally, the functional theory of equity as anti-opportunism helps explain the similarity of fiduciary law to another much misunderstood area of private law - unjust enrichment - and the relation between the two. The chapter concludes with some remarks about fiduciary law within the overall architecture of private law.
Download or read book Private Law and the Rule of Law written by Lisa M Austin and published by OUP Oxford. This book was released on 2014-12-18 with total page 514 pages. Available in PDF, EPUB and Kindle. Book excerpt: The rule of law is widely perceived to be a public law doctrine, concerned with the way in which governmental authority conforms to the dictates of law. The goal of this book is to challenge this presumption. The chapters in this volume all consider the idea that the rule of law concerns the nature of law generally and the conditions under which any relationship - that among citizens as well as that between citizens and the state - becomes subject to law. Addressing two major questions, they ask if our understanding of the rule of law is enriched by considering how and to what degree it is expressed or realized in private law, and whether our understanding of the private law is enriched by adding the principles of the rule of law to the traditional list of core private law concepts. Bringing together leading philosophers of private and public law, this volume examines key questions in a little-explored field, and will be essential reading for all those interested in the rule of law and in private law theory.
Download or read book Judging Equity written by T. Leigh Anenson and published by Cambridge University Press. This book was released on 2018-11-15 with total page 237 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book explores the 'clean hands' doctrine, a safety valve in the legal system designed to correct injustice.
Download or read book Property and Practical Reason written by Adam J. MacLeod and published by Cambridge University Press. This book was released on 2015-04-30 with total page 269 pages. Available in PDF, EPUB and Kindle. Book excerpt: Presents a moral argument, grounded in natural law, for private property and the limits of rights.
Download or read book Equity and Administration written by P. G. Turner and published by Cambridge University Press. This book was released on 2016-05-26 with total page 601 pages. Available in PDF, EPUB and Kindle. Book excerpt: Each generation of lawyers in common law systems faces an important question: what is the nature of equity as developed in English law and inherited by other common law jurisdictions? While some traditional explanations of equity remain useful - including the understanding of equity as a system that qualifies the legal rights people ordinarily have under judge-made law and under legislation - other common explanations are unhelpful or misleading. This volume considers a distinct and little noticed view of equity. By examining the ways in which courts of equity have addressed a range of practical problems regarding the administration of deliberately created schemes for the management of others' affairs, modern equity can be seen to have a strongly facilitative character. The extent and limits on this characterisation of equity are explored in chapters covering equity's attitude to administration in various public and private settings in common law systems.
Download or read book Defences in Equity written by Paul S Davies and published by Bloomsbury Publishing. This book was released on 2018-05-03 with total page 437 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book is the fourth in a series of essay collections on defences in private law. It addresses defences to liability arising in equity. The essays range from those adopting a mainly doctrinal perspective to others that explore the law from a more philosophical perspective. Some essays concentrate on specific defences, while others are concerned with the links between defences, or with how defences relate to the structure of the law of equity generally. One aim of the book is to shed light on equitable doctrines by analysing them through the lens of defences. The essays offer original contributions to this complex, important but neglected field of scholarly investigation. The contributors – judges, practitioners and academics – are all distinguished jurists. The essays are addressed to all of the major common law jurisdictions.
Download or read book Private Law in the 21st Century written by Kit Barker and published by Bloomsbury Publishing. This book was released on 2017-01-26 with total page 613 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book brings together a wide range of contributors from across the common law world to identify and debate the principal moral and systemic challenges facing private law in the remaining part of the twenty-first century. The various contributions identify serious problems relating to complexity and overload, threats to research and education, the law's unintelligibility, the unsatisfactory nature of the law reform process and a general lack of public engagement. They consider the respective future roles of statutes, codes, and judge-made law (in the form of both common law and equitable rules). They consider how best to organise the private law system internally, and how to co-ordinate it externally with other public and economic systems (human rights, regulation, insurance markets and social security frameworks). They address the challenges for private law presented by new forms of technology, and by modern demands for the protection of new and intangible forms of moral interest, such as interests in privacy, 'vindication' and 'personal choice'. They also engage with the critical contemporary debates about access to, and the privatisation of, civil justice. The work is designed as a source of inspiration and reference for private lawyers, as well as legislators, policy-makers and students.
Download or read book The Cambridge Handbook of Law and Entrepreneurship in the United States written by D. Gordon Smith and published by Cambridge University Press. This book was released on 2022-04-14 with total page 575 pages. Available in PDF, EPUB and Kindle. Book excerpt: Law plays a key role in determining the level of entrepreneurial action in society. Legal rules seek to define property rights, facilitate private ordering, and impose liability for legal wrongs, thereby attempting to establish conditions under which individuals may act. These rules also channel the development of technology, regulate information flows, and determine parameters of competition. Depending on their structure and implementation, legal rules can also discourage individuals from acting. It is thus crucial to determine which legal rules and institutions best enable entrepreneurs, whose core function is to challenge incumbency. This volume assembles legal experts from diverse fields to examine the role of law in facilitating or impeding entrepreneurial action. Contributors explore issues arising in current policy debates, including the incentive effect of legal rules on startup activity; the role of law in promoting or foreclosing market entry; and the effect of entrepreneurial action on legal doctrine.
Download or read book Defence Economics written by Keith Hartley and published by Cambridge University Press. This book was released on 2020-08-20 with total page 130 pages. Available in PDF, EPUB and Kindle. Book excerpt: This Element introduces students, policy-makers, politicians, governments and business-people to this new discipline within economics. It presents the recent history of the subject and its range of coverage. Traditional topics covered include models of arms races, alliances, procurement and contracting, as well as personnel policies, industrial policies and disarmament. Newer areas covered include terrorism and the economics of war and conflict. A non-technical approach is used and the material will be accessible to both economists and general readers.
