Personalized Regulatory Techniques

2021 ◽  
pp. 85-104
Author(s):  
Omri Ben-Shahar ◽  
Ariel Porat
Keyword(s):  
Legal Institutions ◽  
Opt Out ◽  
Average Person ◽  
Specific Subgroup ◽  
The Law ◽  
Compensatory Damages ◽  
Default Rules ◽  
Best Fit ◽  
Legal Interventions

This chapter expands the demonstration how personalized law would transform existing legal institutions. The chapter shifts the focus from specific doctrines to regulatory techniques. These are generic approaches to the design of legal interventions, used in every area of law. The chapter examines the personalization of several techniques: default rules, mandated disclosures, compensatory damages, and bundles of rights. With each of these tools, the law presently prescribes one-size-fits-all rules, designed to either best fit the average person, or to promote the interests of a specific subgroup of the population. By shifting to personalized rules, the law could simultaneously advance the interests of different groups and individuals. The chapter shows that designing personalized default rules, disclosures, damages, or bundles of rights would promote the goals underlying these interventions. Personalized default would mimic peoples’ preferences more successfully and reduce the incidence of opt-out. Personalized disclosures stand a chance of being more useful to people. Personalized compensation would come closer to making victims of wrongs whole. And personalized bundles of rights would recognize the diversity of people’s interests and aspirations.

On the Artifactual—and Natural— Character of Legal Institutions

2018 ◽  
Author(s):  
Corrado Roversi
Keyword(s):  
Natural Law ◽  
Common Ground ◽  
Legal Positivism ◽  
Legal Institutions ◽  
Human Beings ◽  
Legal Realism ◽  
Natural Law Theory ◽  
The Law ◽  
Theory Of Law

Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.

Mandatory and Default Rules in Fiduciary Law

2019 ◽  
pp. 434-448
Author(s):  
Daniel Clarry
Keyword(s):  
Modern Trend ◽  
Legal Institutions ◽  
Core Element ◽  
Constituent Element ◽  
Mandatory Rules ◽  
Default Rules ◽  
Other Regarding ◽  
The Relationship

This chapter discusses the nature and operation of mandatory and default rules in fiduciary law, arguing that loyalty is a core element of every fiduciary legal institution. Loyalty is the hallmark of fiduciary law, as it requires persons in other-regarding positions of power to perform functions selflessly, rather than selfishly. However, there are many circumstances in which a person undertakes and exercises other-regarding powers, underscoring the fact that a broad range of persons may be the subject of fiduciary law. This chapter first provides an overview of key concepts and context, focusing on the distinction between mandatory rules and default rules as well as sources of such rules in fiduciary law. It then considers fiduciary loyalty, citing examples that illustrate how a baseline of fiduciary accountability is implied by the essential nature of fiduciary legal institutions, along with the mandatory or default quality of the duties of care and good faith. The main thesis of this chapter is that loyalty is a basic constituent element of all fiduciary legal institutions. Whether fiduciary principles are mandatory involves a consideration and determination of whether the relationship or institution is inherently fiduciary as matter of law and legal classification. It also highlights the modern trend toward codification and clear legislative demarcation of mandatory and default rules in fiduciary law.

Pseudo-Restitutionary Damages: Some Thoughts on the Dual Theory of Restitution for Wrongs

2009 ◽  
Vol 22 (1) ◽  
pp. 49-78 ◽  
Author(s):  
Francesco Giglio
Keyword(s):  
The Other ◽  
Corrective Justice ◽  
Dual Theory ◽  
Judicial Decision ◽  
Legal Response ◽  
First Case ◽  
The Law ◽  
Compensatory Damages ◽  
Single Response

Restitution for civil wrongs, also known as restitutionary damages, is a legal response through which the defendant’s wrongful gain is awarded to the claimant. James Edelman has recently advocated two different restitutionary responses for wrongs. One response, termed ‘restitutionary damages’, would aim to compel the wrongdoer to give back to the victim a wrongful gain, whereas the other response, ‘disgorgement damages’, would oblige the wrongdoer to give up a wrongful gain for the benefit of the claimant.In the first case, the claimant would obtain what should have never left his assets. In the second case, the claimant would be the beneficiary of a judicial decision according to which a wrongful gain should not be kept by the wrongdoer. In this essay, I seek to demonstrate that this taxonomy cannot be accepted. I argue that Edelman’s ‘disgorgement damages’ are the only true example of restitution for wrongs, whereas his ’restitutionary damages’ are simply compensatory damages which are quantified in a particular fashion. Edelman’s ‘restitutionary damages’ might appear to deprive the defendant of his gain, and thus to achieve a restitutionary goal. Yet they nullify the victim’s loss and therefore have a compensatory nature. They are ‘pseudo-restitutionary damages’. In opposition to the dual theory, I submit a model of restitutionary damages based upon a single response which is coherent with the tenets of corrective justice. Given that it deals mainly with Edelman’s ‘restitutionary damages’, this article is not so much about restitution for wrongs but rather about compensation, which is what Edelman’s ‘restitutionary damages’ really concerns. The theory which I propose, based upon a single restitutionary response for wrongs, solves the taxonomic incoherence of Edelman’s dual theory. It also reflects the law as we find it, being supportable by reference to the available judicial authorities.

scholarly journals Why Do People Comply with the Law? Legitimacy and the Influence of Legal Institutions

2012 ◽  
Author(s):  
Jonathan Jackson ◽  
Ben Bradford ◽  
Mike Hough ◽  
Andy Myhill ◽  
Paul King Quinton ◽  
...  
Keyword(s):  
Legal Institutions ◽  
The Law

Failure and Resistance

2020 ◽  
pp. 122-137
Author(s):  
Alexander Kaye
Keyword(s):  
Legal Institutions ◽  
Legal Rhetoric ◽  
The Law

The attempts of religious Zionists to establish halakha as the law of Israel failed. This chapter examines the response of religious Zionist leaders to this failure, and their bitter resentment of Israel’s secular legal institutions that, in their view, had usurped halakhic rule. It shows that, resigned to these circumstances, religious Zionists adopted a double strategy. Among themselves, they persevered in their commitment to the idea of the halakhic state. When speaking to others, however, they embraced a more pragmatic position. In Knesset speeches, for example, they argued for a pluralistic position in which the rabbinical courts would have equal authority to the state’s secular courts. The chapter also shows how the legal rhetoric of religious Zionists, particularly of Zerah Warhaftig, shored up the identity of the community during the time of setback.

7. Contraception, Abortion, and Pregnancy

2020 ◽  
pp. 320-411
Author(s):  
Jonathan Herring
Keyword(s):  
Pregnant Women ◽  
Criminal Law ◽  
Teenage Pregnancy ◽  
Legal Status ◽  
Ethical Issues ◽  
Tort Liability ◽  
Unborn Child ◽  
The Law ◽  
And Function ◽  
Legal Interventions

This chapter examines the legal and ethical aspects of contraception, abortion, and pregnancy. Topics discussed include the use and function of contraception; the availability of contraception; teenage pregnancy rates; tort liability and contraception; ethical issues concerning contraception; the law on abortion; the legal status of the foetus; abortion ethics; and controversial abortions. A major current issue is the extent to which, if at all, the criminal law should be involved in the law of abortion. The chapter also considers arguments on legal interventions for pregnant women; for example, imprisoning a drug-using mother to ensure that her unborn child does not suffer from the consequences of her drug use.

26. Working time

2019 ◽  
pp. 461-478
Author(s):  
Stephen Taylor ◽  
Astra Emir
Keyword(s):  
Working Time ◽  
Member States ◽  
The Core ◽  
Opt Out ◽  
The Law ◽  
The Uk

This chapter looks at the background to the Working Time Regulations, the core working time rights and the specifics of the law. It then considers some of the arguments that have been raised both for and against such regulation. The Working Time Regulations regulate daily rest, weekly working time, weekly rest and annual leave, among other matters. The maximum weekly working time is forty-eight hours, but the UK has retained an opt-out to this, so a person can agree to work more hours. The opt-out remains extremely controversial amongst fellow European Member States. The chapter also considers remedies if the rights are breached.

Love and the Law

2017 ◽  
Author(s):  
Elizabeth Brake
Keyword(s):  
Emotional Response ◽  
Romantic Love ◽  
Legal Regulation ◽  
Legal Obligation ◽  
Legal Institutions ◽  
Marriage Law ◽  
Free Love ◽  
Love Relationships ◽  
History Of ◽  
The Law

Both the free love tradition and philosophers appalled by the “love revolution” in marriage saw an antagonism between love and legal obligation. Marriage abolitionists and queer theorists have more recently argued against state legitimation of love relationships. This chapter briefly outlines the history of the concept of romantic love and its unlawfulness. It describes how law in modern liberal states has treated love, both in marriage law and in legal regulation of sex. It then turns to normative questions: Are love and legal institutions incompatible? What laws should there be regarding love or sex? The chapter considers arguments that legal institutions designed to protect love relationships wrongly burden the choice to remain in relationships, that they threaten spontaneous emotional response, that they are inherently unstable, that they are oppressive, and that love is a political virtue. I conclude that we are still witnessing the love revolution unfold.

The Development of Legal Reasoning

2017 ◽  
Author(s):  
Tom R. Tyler ◽  
Rick Trinkner
Keyword(s):  
Moral Development ◽  
Social Order ◽  
Legal Reasoning ◽  
Developmental Model ◽  
Legal Authority ◽  
Legal Institutions ◽  
Legal Socialization ◽  
The Law ◽  
Legal Judgments ◽  
The Relationship

The cognitive developmental model of legal socialization is discussed in chapter 5. This approach emphasizes the development of legal reasoning and focuses on how such thinking shapes legal judgments about the purpose of laws, how legal authority should be used, and whether people should feel obligated to obey legal institutions. Basically, legal reasoning provides a framework to understand the nature of society and the requirements of social order, leading to judgments about the legitimacy of the law. Building on Kohlberg’s work in moral development, the legal reasoning perspective argues that people develop increasingly abstract and sophisticated models of the relationship between society and the law with respect to the position and duties of the law and the responsibilities and obligations of citizens. This provides a basis for understanding when to follow appropriate laws and when to violate laws viewed as unjust or unprincipled.

The Life of the Law: Readings on the Growth of Legal Institutions

1967 ◽  
Vol 67 (7) ◽  
pp. 1353
Author(s):  
Charles Donahue ◽  
John Hannold
Keyword(s):  
Legal Institutions ◽  
The Law
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