All-or-Nothing, or Something – Proportional Liability in Private Law

2021 ◽  
Vol 22 (1) ◽  
pp. 159-199
Author(s):  
Omer Y. Pelled
Keyword(s):  
General Theory ◽  
Private Information ◽  
The State ◽  
Private Law ◽  
Clear Cut ◽  
Institutional Uncertainty

Abstract Judges and juries often make factual decisions even if the facts are disputed and there is no clear-cut evidence available. Despite this common state of uncertainty, verdicts are thought of as having clear winners and losers––either the plaintiff wins and receives a full remedy, or the defendant wins and the plaintiff gets nothing. In private disputes, factfinders base their binary factual determinations on the preponderance of the evidence. There are, however, several doctrines that allow for partial remedy, discounted by the probability that the facts support the plaintiff’s case, given the available evidence (proportional liability). This Article offers a general theory for proportional liability in private law. It identifies three types of factual uncertainty—mutual uncertainty, unilateral uncertainty, and institutional uncertainty—and shows that legal economists should support proportional liability when the state of uncertainty is shared by the parties and the court (mutual uncertainty), and they should adopt an all-or-nothing rule whenever the information is observable but unverifiable (institutional uncertainty). In cases where one party holds private information (unilateral uncertainty), proportional liability is sometimes, but not always, superior to an all-or-nothing rule.

scholarly journals Restructuring the State: Policy Transition of Construction Land Supply in Urban and Rural China

Land ◽  
2020 ◽  
Vol 10 (1) ◽  
pp. 15
Author(s):  
Renhao Yang ◽  
Qingyuan Yang
Keyword(s):  
Rural China ◽  
Institutional Arrangements ◽  
The State ◽  
Market Forces ◽  
Central State ◽  
Land Supply ◽  
Reform Era ◽  
Construction Land ◽  
Clear Cut ◽  
State Functions

Encountering the articulation of the strongness of local authorities and market forces in China’s development, attention has been paid to the changing central state which recentralised the regulation capability of localities which has more discretional power on resources utilisation, land for example, in the post-reform era. Yet it is still not clear-cut what drives the state rescaling in terms of land governance and by what ways. After dissecting the evolving policies and practices of construction land supply in China with the focus on the roles of state, we draw two main conclusions. First, the policy trajectory of construction land supply entails a complicated reconfiguration of state functions, which is driven by three interwoven relations: land–capital relation, peasant–state relation and rural–urban relation. Second, state rescaling in terms of the governance of construction land provision works via four important approaches: limited decentralism, horizontal integralism, local experimentalism and political mobilisationism. By reviewing the institutional arrangements of construction land provision and the state rescaling process behind them, this article offers a nuanced perspective to the state (re)building that goes beyond the simplified (vertical or horizontal) transition of state functions.

A Comparison of Mortality and Sickness in Relation to Geographical and Socio-Economic Factors

1971 ◽  
Vol 97 (1) ◽  
pp. 17-67 ◽  
Author(s):  
R. H. Daw
Keyword(s):  
General Theory ◽  
Good Health ◽  
Acute Illness ◽  
Economic Factors ◽  
Clear Cut ◽  
External Agent ◽  
The Subject ◽  
The Dead ◽  
Socio Economic Factors

‘Suppose a man becomes ill, gets worse and dies. His death is instantaneous but the cause of his death—deterioration of health—may have been progressing for some time. Death takes place because his health has deteriorated beyond a certain limit.’ So wrote C. D. Rich (1940) in introducing his ‘General theory of mortality’ which can also be regarded as a theory of sickness, although Rich does not develop this aspect of it. The point in the gradual deterioration of health at which death takes place is unmistakable but the point at which sickness begins is hazy and ill defined, as also is the point at which recovery from sickness takes place when health is improving. As Stocks (1949) says ‘The distinction between the living and the dead is clear cut, but no such frontier line between sickness and health can be said to exist except in the case of acute illness caused immediately and directly by an external agent. There is a zone between the two states in which the decision whether the subject is sick or not depends on definitions or standards of good health and also on who decides.’

Can the State Create Cooperation?: Problems of Reforming the Labor Supply in France

2000 ◽  
Vol 20 (3) ◽  
pp. 223-245 ◽  
Author(s):  
PEPPER D. CULPEPPER
Keyword(s):  
Private Information ◽  
Institutional Design ◽  
The State ◽  
Vocational Education And Training ◽  
Successful Implementation ◽  
Industrial Countries ◽  
Primary Obstacle ◽  
Emergence Of Cooperation ◽  
Private Actors ◽  
And Training

Governments in the advanced industrial countries increasingly rely on supply-side reforms to intervene in the economy. This article examines one such reform, that of vocational education and training in France, whose successful implementation required that private actors cooperate not with the state, but with each other. As demonstrated through an empirical analysis of two employment zones, theories of institutional design that underscore the necessity of sanctioning cannot explain the successful emergence of cooperation, because new sanctioning regimes lack credibility under the uncertain conditions of economic reform. The primary obstacle to successful implementation of these reforms is uncertainty about the consequences of reciprocal cooperation, and the article highlights the mutual roles of states and employers' associations in overcoming this uncertainty. Active collaboration between policymakers and employers' associations, which have uniquely good access to private information about firms, is necessary to enable state policies to target those firms which are the most likely potential cooperators.

scholarly journals Public Interest Opposite the Freedom of Contractual Will in Administrative Contracts in the Republic of Albania

2017 ◽  
Vol 6 (s2) ◽  
pp. 37-48
Author(s):  
Artan Spahiu
Keyword(s):  
Public Interest ◽  
Legal Framework ◽  
The State ◽  
Private Law ◽  
Legal Analysis ◽  
Administrative Contract ◽  
The Public ◽  
General Arrangement ◽  
Role Of The State ◽  
The Republic

Abstract The protection of the public interest is the main principle governing the activity regulation of the administrative bodies. This activity, traditionally, has been developed through administrative acts, as an expression of the unilateral and authoritarian willpower of public authority, which creates legal consequences. The administrative act has been and remains the most important instrument for the administration bodies to accomplish their mission, but it is no longer effective. Particularly this lack of efficiency is noticed in recent years when the development of the economy and the needs of the evergrowing society have prompted the administration to adapt its activity by making use of other mechanisms “borrowed” from private law. An important part of public activity can also be achieved through the contract as a way that brings the state closer to the private, mitigating its dominant position and leaving space for the efficiency of private activity to fulfil public engagements. Such contracts today are known as “administrative contracts” or “public contracts”. The terms mentioned above are instruments that establish legal relations, for the regulation of which the principle of public interest is opposed and competes with the principle of freedom of the contractual willpower. The regulation of these types of contracts is reached through the private law, which constitutes the general normative framework of contracts (lex generalis) even for the administrative contracts. But this general arrangement will have effect for as long as it does not contradict the imperative provisions of the specific act of public law (lex specialis), which regulates the administrative procedure for the completion of these contracts. This paper aims to bring to the spotlight the way our legislation predict and regulates administrative contracts, by emphasising particularly the features of their dualistic nature. The coexistence and competition of the principles of the freedom of contractual willpower and the protection of the public interest, evidenced in administrative contracts, is presented in this paper through the legal analysis of the Albanian legal framework which regulates these contracts. Under the terms when the role of the state in providing public services tends to increase and our legislation aims the harmonization in accord with the European legislation, it is necessary to improve the administrative contract regulation and extend its scope of action.

scholarly journals Prawnofinansowy status Agencji Nieruchomości Rolnych

2017 ◽  
pp. 119-134
Author(s):  
Wojciech Fill
Keyword(s):  
Public Finance ◽  
Public Sector ◽  
The State ◽  
Significant Part ◽  
Private Law ◽  
Financial Status ◽  
Legal Personality ◽  
The Public ◽  
Executive Agencies ◽  
The Impact

The legal-financial status of the Agricultural Property Agency is complex. Rights and obligations of the financial nature of the public are interspersed with numerous powers and duties of the sphere of private law. Specific elements shaping financial status Agency are organizational relationship and the capital of other legal entities, including primarily with the Treasury and the companies controlled by the Agency. They occur in the context of normative pass Agency to the public finance sector and its companies to the category of public sector entities. In view of the takeover by the executive agencies, a significant part of the tasks previously performed by the state without legal personality, budgetary establishments, precisely in this area normative appeared completely unique opportunity to examine the impact of the construction of legal personality to changes in the shape of subjectivity.

Intermediary and Intermediation

2017 ◽  
pp. 1-18 ◽  
Author(s):  
Laurence Saglietto
Keyword(s):  
General Theory ◽  
State Of The Art ◽  
The State ◽  
Historical Evolution ◽  
Comprehensive View ◽  
Long Time ◽  
The Subject ◽  
Similarities And Differences

The concept of intermediation has existed for a long time and taken numerous different forms. In this introductory chapter, we will therefore start by examining the state of the art of intermediaries through a range of different disciplines (history, management, economics, health, sociology), highlighting their historical evolution and current forms. We will then present the different models and theories of intermediation and their development, to produce an appreciation of their similarities and differences and a comprehensive view of the subject. This will allow us, in the last section, to propose the framework for a general theory of intermediation, in terms of organisational architecture and the services provided.

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