Public Law and Economics: Private Governance and Government Functions

2020 ◽  
Author(s):  
Omran Mohammadi
Keyword(s):  
Law And Economics ◽  
Public Law ◽  
Private Governance ◽  
Government Functions

Private and Public Law

2020 ◽  
pp. 574-592
Author(s):  
Thomas W. Merrill
Keyword(s):  
Law And Economics ◽  
Public Law ◽  
Private Law ◽  
General Criterion ◽  
The Public ◽  
Private Ordering ◽  
Public Rights ◽  
Private And Public ◽  
The Relationship ◽  
Derivatives Of

This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible—the discretionary decisions that individuals make in structuring their lives. Public law is concerned with providing public goods—broadly defined—that cannot be adequately supplied by private ordering. In the twentieth and twenty-first centuries, various schools of thought derived from utilitarianism have assimilated both private and public rights to the same general criterion of aggregate welfare analysis. This has left judges with no clear conception of the distinction between private and public law. Another problematic feature of modern legal thought is a curious inversion in which scholars who focus on fields of private law have turned increasingly to law and economics, one of the derivatives of utilitarianism, whereas scholars who concern themselves with public law are increasingly drawn to new versions of natural rights thinking, in the form of universal human rights.

Liability and Climate Change

2019 ◽  
Author(s):  
Michael Faure ◽  
Marjan Peeters
Keyword(s):  
Climate Change ◽  
Greenhouse Gases ◽  
Greenhouse Gas ◽  
Law And Economics ◽  
Criminal Liability ◽  
Tort Law ◽  
Public Law ◽  
Greenhouse Gas Mitigation ◽  
Private Law ◽  
Court System

In view of the need to curb greenhouse gases, the question arises as to the functions of liability in providing effective incentives for emitters in order to change their behavior. Liability for emitting greenhouse gases exists (or can exist) in the area of public law and private law and can be subdivided into international, administrative, and criminal liability (public law liabilities) and tort law liability (private law liability). Actions for holding individual and legal persons (such as states, authorities, and companies) liable can, depending on the specific jurisdiction, be triggered by citizens but also by legal persons, such as authorities, companies, and non-governmental organizations (NGOs), particularly environmental NGOs. The central question in this article is how climate liability is arranged under public law and whether there would be any role for climate liability to play under private law, thereby applying a legal and economic methodology. That so-called law and economics doctrine is a useful approach as it has given a lot of attention, for example, to the different functions of specific legal instruments (more particularly regulation, including taxation and emissions trading and tort law liability) for mitigating greenhouse gases. Meanwhile, in practice, various examples can be identified whereby tort law liability is used as a complement to greenhouse gas regulation. This specific use of tort liability is analyzed in the light of the law and economics literature, thereby pointing at prospects but also at remaining core questions. The success of tort law actions will most likely greatly depend on the (lack of) ambition vested into the emissions regulations at international and national levels. One of the exciting questions for the near future is to what extent judges feel able to step into the regulation of the climate change problem, in an ex ante way. The most difficult cases are obviously those where a regulatory system concerning greenhouse gas mitigation has been put in place and where the court system is strong, but where particular groups consider the regulations to be insufficient.

scholarly journals Governance under the shadow of the law: trading high value fine art

Public Choice ◽  
2019 ◽  
Vol 184 (1-2) ◽  
pp. 157-174
Author(s):  
Anja Shortland ◽  
Andrew Shortland
Keyword(s):  
Law Enforcement ◽  
Art Market ◽  
Fine Art ◽  
Public Law ◽  
Court Cases ◽  
Opportunistic Behavior ◽  
Private Governance ◽  
Governance System ◽  
Auction Houses ◽  
Blue Chip

Abstract The market for paintings by well-known artists is booming despite widespread concern about art crime and difficulties in establishing provenance. Public law enforcement is imperfect, and court cases often are deemed problematic. So how is the thriving art market governed in practice? We analyze the protocols used by the top auction houses to identify and resolve problems of illicit supply—fakes, forgeries and items with defective legal titles—through the lens of institutional analysis. We uncover a polycentric private governance system in which different actors govern distinct but overlapping issue areas, motivated by profit, prestige, or the search for truth. When the financial stakes rise, opportunistic behavior undermines the credibility of private governance. We argue that as litigious, super-rich investors entered the art market, the interaction between public law and the traditional private governance system restricted the supply of “blue chip” art, driving the escalation of prices.

scholarly journals Outsourcing to Not-for-Profits: Can Judicial Enforcement of Charity Law Provide Accountability for the Performance of ‘Public’ Functions?

2020 ◽  
Author(s):  
Ian Murray ◽  
Murray Wesson
Keyword(s):  
Judicial Review ◽  
Public Law ◽  
Decision Makers ◽  
Front Line ◽  
The Public ◽  
Time Limits ◽  
Government Functions ◽  
Public Resources ◽  
Legal Accountability ◽  
The Public Sphere

Governments increasingly rely on charities to provide services on behalf of government. Decisions on outsourced functions can relate to the distribution of public resources, such as the provision of housing, education or legal assistance. Accordingly, such decisions can be contentious and outsourcing potentially places that contention in the private sphere rather than the public sphere. This article examines the extent to which outsourcing service delivery to charities affects the ability of current or potential service recipients to hold decision-makers accountable. It argues that outsourcing government functions to charities will often place such functions beyond the scope of public law judicial review. However, charity law contains accountability mechanisms that have the potential to fill the gap. These mechanisms are identified and then compared with the availability of judicial review for government decisions by reference to scope, grounds, standing, time limits and remedies. This article finds that in many circumstances there should be no diminution of legal accountability. Nevertheless, charity law is less tested than administrative law, is not as effective in dealing with service decisions made by front line employees and does not as readily guarantee procedural fairness. Balanced against this, charity law may provide more generous time limits and better enable systemic issues to be addressed.

scholarly journals Moral Obligation and Natural Capital Commons on Private Land

2015 ◽  
Vol 2 (2) ◽  
pp. 239-273
Author(s):  
Blake Hudson
Keyword(s):  
Law And Economics ◽  
Natural Capital ◽  
Legal Framework ◽  
Public Law ◽  
Resource Theory ◽  
Private Land ◽  
Moral Choice ◽  
The Commons ◽  
Economics Analysis

This Article makes a simple and hopefully straightforward attempt to demonstrate how Gerhart’s property theory fills the gaps in privatized commons resource theory. Part II describes in more detail privatized commons resource theory, while Part III discusses Gerhart’s theory both generally and more specifically in the context of natural resources management. This Part first analyzes Gerhart’s explicit grappling with the commons broadly, and more directly wrestles with how his theory lays a legal framework for addressing temporal commons and the interests of future generations in natural capital. Next, this Part discusses the role of positive public law in manifesting society’s moral choice regarding natural capital appropriation. Finally, this Part addresses the weaknesses of traditional law and economics analysis, as highlighted in both privatized commons resource theory and Gerhart’s theory, and how it does not adequately account for society’s interest in natural capital. Part IV concludes.

The Europeanization of the Nation-State

2011 ◽  
Vol 46 (3) ◽  
pp. 631-657 ◽  
Author(s):  
Jan Palmowski
Keyword(s):  
Law And Economics ◽  
Public Law ◽  
Nation State ◽  
Transnational Politics ◽  
Contemporary History ◽  
The European Union ◽  
Contemporary World ◽  
Political Sciences ◽  
Political Sovereignty ◽  
Asymmetric Impact

This article explores the interrelationship between national and supranational politics in contemporary history. In Europe, the nature of national and transnational politics, law and economics has been completely transformed through the emergence of the European Union (EU) and its predecessor, the European Community (EC). We cannot understand the European nation-state (and its regions) without appreciating the EC’s or EU’s dynamic (and often asymmetric) impact on public law, economics, the environment, social legislation, human rights and culture. This Europeanization of the nation-state has affected in different ways members and non-members of the EC and EU. The interplay between national and transnational politics, while not unique to the contemporary world, presents particular challenges to the contemporary historian. The enmeshing of national and supra- as well as international spheres means that the contemporary state cannot be analysed with the same tools and assumptions about political sovereignty as its nineteenth-century predecessors. Instead, this article calls for a greater readiness to engage in the complexities of national and EC/EU history and engage in a new dialogue with other disciplines, notably the political sciences.

scholarly journals Extraction Contracting: The Struggle for Control of Indigenous Lands

2020 ◽  
Vol 119 (2) ◽  
pp. 269-299 ◽  
Author(s):  
Dayna Nadine Scott
Keyword(s):  
First Nations ◽  
Public Law ◽  
Private Law ◽  
Private Governance ◽  
Economic Relations ◽  
Indigenous Resistance ◽  
The Public ◽  
Indigenous Lands ◽  
The Social ◽  
Indigenous Land

This article outlines the contemporary dynamics of “consent by contract,” argued to be a mode of governance that attempts to define the social, political, ecological, and economic relations regarding the use of Indigenous lands solely through confidential bargaining and agreement-making between private extraction companies and First Nations, but in fact affords the state a key role in setting the terms. Ultimately, it is not only that the settler state law sets the context for what can be negotiated between the parties, but also that state actors actively facilitate the agreement-making, influence the parameters of the deal, and are invested in the outcomes. Crucially, the settler state also draws inferences adverse to Indigenous land interests from the very fact of these negotiations. The phenomenon of “extraction contracting,” purported to be a mode of private governance, in fact engages crucial public and constitutional governance questions. I conclude that the contracts are not so much proliferating through autonomous actors seeking to fill a void in the public law regime as the settler law is holding open the gap for the private law mechanisms to fill, because the contractual regime serves a purpose in the settler state’s interests. Specifically, the private contractual regime normalizes and facilitates the state’s provision of access to Indigenous lands for extractive capital. Extraction contracting, then, is a crucial node in the contemporary contest over jurisdiction between the settler state and the surging Indigenous resistance.

Realising the Public Potential of Corporate Law: Twenty Years of Civil Penalty Enforcement in Australia

2014 ◽  
Vol 42 (1) ◽  
pp. 1-22 ◽  
Author(s):  
Michelle Welsh
Keyword(s):  
Law And Economics ◽  
Public Law ◽  
The State ◽  
Corporate Law ◽  
Private Law ◽  
Primary Role ◽  
The Public ◽  
Enforcement Mechanisms ◽  
Civil Penalty

Traditionally corporate law has been viewed as having characteristics that are commonly associated with private law. Largely this view developed as a result of the “law and economics” scholarship which dominated the corporate law debate, especially in the United States, in the last quarter of last Century. While the traditional “law and economics” approach supports the view that corporate law should be treated as a branch of private law, and that the state should have no role in its enforcement, other scholars, particularly those that adopt a progressive approach, argue that corporate law has, and should be recognised as having characteristics that are usually associated with public law. Arguably, an area of Australian corporate law that displays characteristics that are usually associated with public law is the statutory directors’ duties and the civil penalty regime that supports them. This enforcement regime gives the state through the corporate regulator, standing to take court based proceedings to enforce what are in effect, contracts that established corporate governance structures. This article seeks to determine the appropriate role of a public regulator in these circumstances. The questions considered are: whose interests should the public regulator represent when it is tasked with the responsibility of enforcing the statutory directors’ duties that largely codify fiduciary and common law duties? Given that the duties are owed by directors to their company should the primary role of the public regulator be to represent the interests of the company, and its shareholders, who have suffered a loss as a result of the alleged contravention of the directors’ duties or should the primary role of the public regulator be to act in the interests of the members of the larger community? In these situations what are the interests of the larger community? Drawing on regulatory theory the argument advanced in this paper is that despite the fact that the statutory directors’ duties codify what are in effect private rights between directors and their companies, the primary role of a public regulator is not to utilise the enforcement mechanisms at its disposal in order to obtain compensation for companies who have suffered a loss. Rather, the regulator's primary role is to act in the interests of the larger community by utilising the enforcement mechanisms at its disposal strategically in order to encourage greater compliance.

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