Corporations, through their products and behaviors, exert a strong effect on the well-being of populations. Industries including frearms, motor vehicles, tobacco, and alcohol produce and market products negatively impact public health. All of these industries are composed of corporations, which are legal fctions designed to provide limited exposure to liability, through a variety of mechanisms, for their investors and directors. This means that when actions are taken on behalf of a corporate entity, the individuals responsible generally will not (...) face personal liability for the negative results of those actions. To illustrate this point, this article considers corporate products or practices that have caused harm in varied settings, and analyzes the role that limited liability played in these cases. In addition, the article identifes ways to modify or eliminate some of the principles and practices that accompany limited liability. (shrink)

Corporations, through their products and behaviors, exert a strong effect on the wellbeing of populations. Public health practitioners and academics have long recognized the harms associated with some corporations’ products. For example, firearms are associated with approximately 30,000 deaths in the United States each year1 and over 200,000 deaths globally. Motor vehicles are associated with about 40,000 deaths in the United States each year and over 1.2 million deaths globally. Tobacco products kill about 438,000 people each year in the United (...) States5 and about 4.9 million people worldwide. In addition to producing unsafe or harmful products, some corporations behave in ways that negatively impact the public’s health, such as marketing alcohol to youth and other vulnerable populations. Given these observations, one can conclude that it is possible to quantify the public health impact of individual industries, such as firearms, motor vehicles, tobacco, and alcohol. Health professionals can then target these individual industries to prevent or lessen the harms they cause. (shrink)

The principle of limited liability is one of the defining characteristics of modern corporate capitalism. It is also, we argue in this article, a powerful structural source of moral hazard. Engaging in a double conceptual genealogy, we investigate how the concepts of moral hazard and limited liability have evolved and diffused over time. We highlight two parallel but unconnected paths of construction, diffusion, moral contestation, and eventual institutionalization. We bring to the fore clear elective affinities between (...) both concepts and their respective evolution. Going one step further, we suggest that both concepts have come to be connected through time. In the context of contemporary capitalism, limited liability has to be understood, we argue, as a powerful structural source of moral hazard. In conclusion, we propose that this structural link between limited liability and moral hazard is an important explanatory factor of the systemic instability of contemporary capitalism and, as a consequence, of a pattern of recurrent crises that are regularly disrupting our economies and societies. (shrink)

Tackles the problem of fixing the tenacity of believers in forming, holding, and modifying beliefs. in conversation with the history of philosophy and religion, the author attempts to expose and refute some aspects of the dominant epistemological framework for engaging belief fixation and improvement. In contrast to this framework, Dr. Frazier provides a model of responsible believing agent rooted in an ethic of the intellectual virtue tradition. In dialog with Aristotle, he proposes three principal virtues, which he calls the generative, (...) the transmissive, and the metamorphic. The author's alternative framework includes an examination of the role that intellectual passions play in the melioration of belief. This text considers whether Dostoevsky's claim that "Beauty will save the world" has a place in discussions of belief formation and revision and offers an account of its vitality in addressing the concerns raised in the book. (shrink)

Grotius’s ideas on proportionate and limited liability, as mentioned in the Inleidinge and De iure belli ac pacis, were novel in comparison to the civilian doctrine of his time. Grotius drew from sources of local law and statutes regarding maritime law but was nonetheless original in his interpretations. Grotius proposed to consider the liability of co-owners of ships (reders, exercitores), who acted as organizers of maritime expeditions, and of others that were participating in these expeditions, as broad. (...) At the same time, their liability was limited to the maximum of the value of the ship and cargo. In this regard, Grotius’s conceptions hinged on a view of a ship’s voyage as engendering a community of risk among all stakeholders. However, in spite of the underlying connections, Grotius did not eradicate all inconsistencies which the originality of his combinations brought forward. (shrink)

A limited-liability corporation is an artificial (“legal”) person whose liability is limited to the assets “owned” by the corporation. This means that the real or natural persons (if there are any) who own the corporation are not liable for the consequences of corporate actions or events originating within the property “owned” by the corporation. Thus, while the limited-liability corporation itself is fully liable (i.e., to the full extent of its assets) for such actions and (...) occurrences, its human owners (if there are any) are not liable at all. Admittedly, they run a risk of losing all that they have invested in the corporation, but nothing more. This risk may be called an economic liability but it is not a liability in the relevant juridical sense: debtors cannot turn to the owners of the corporation to ask or compel them to pay its debts—it does not matter whether these debts are consequences of the corporation’s contractual obligations (wages, rents, purchases, loans, etc.) or consequences of harmful actions or events (explosions, flooding, contaminations, etc.) caused by the corporation or its property to third parties. Thus, we have the problem of the standing of the limited-liability corporation in view of the principles of Austro-libertarianism: the limited-liability corporation is a fully liable artificial person that shields any natural persons who are its owners from any liability. This is a problem because we cannot have it both ways. Either the limited-liability corporation is an autonomous (“self-owning”) person in its own right and then no objection can be made to it, as, despite its name, it is fully liable; or it is something owned by natural persons and then these owners must, like all other owners, be held fully liable for what they do (or command or permit others to do) with their property as well as for the consequences of events that originate within their property. Now, from an Austro-libertarian point of view—which, as I understand it, is committed to a realist philosophy and therefore akin to a natural law position1—it does not make sense to say that an artificial person can be an autonomous person in its own right.. (shrink)

Contemporary academic and policy discussions of corporate governance tend to accord primacy to the interests of shareholders. While the primacy (descriptive or prescriptive) of shareholders is argued for in various ways, others seek to promote a wider stakeholder model of the firm and its governance. In both cases, the interests of creditors tend to be neglected. In this paper, the fundamental position of creditors in a system of corporate law that offers limited liability is reasserted and explained, and (...) the implications explored. It is demonstrated that there are, in effect, two modes of governance possible for a limited liability corporation: the “normal” mode, when shareholders’ interests are primary, and the “distressed” mode, when creditors’ interests are paramount. As a result of this analysis, writers on corporate governance who are influenced by certain managerial myths or economic theories of the firm are encouraged to view the position of shareholders in a more informed light. Writers on business ethics, who often find themselves contending, perhaps implicitly, with inappropriate understandings of the nature of business corporations and their governance, are similarly alerted to the weakness of certain positions perceived as antithetical to their agenda. Finally, business ethicists who advocate a stakeholder perspective are encouraged to recognize the position of creditors and to pay more attention to them as a stakeholder group. (shrink)

This article focuses on Grotius’s treatment of obligations arising from wrongdoing in his Inleidinge. The work has clear parallels with the natural law formulation of the same topic in De Jure Belli ac Pacis, and this article explores the extent of the similarities. It focuses on points of divergence, suggesting that the theoretical coherence of the natural law approach to obligations arising from wrongdoing was challenged primarily by extant legislative enactments. These provided either for region-specific doctrines, or rules that proved (...) difficult to reconcile with the underlying principles of natural law, especially the primacy of fault. While much of the Inleidinge’s treatment of liability arising from wrongdoing is consonant with Grotius’ approach to the topic in De Jure Belli ac Pacis, these discrete points of dissimilarity serve as a reminder of the limits of theoretical accounts of private law. (shrink)

In Gebser v. Lago Vista Independent School District, the Supreme Court set an exacting standard for establishing institutional liability under Title IX for a teacher sexually harassing a student. That standard, rejecting the simple application of agency principles and instead requiring a student to notify the school of the harassment and then the school to be deliberately indifferent to the student's complaints, has been inconsistently applied by lower courts faced with other, non-harassment forms of sex discrimination under Title IX. (...) In other areas of the law, the Supreme Court has regularly applied well-established federal common-law agency principles to statutes when determining liability issues. This Article argues that, when faced with Title IX non-harassment claims, courts should do the same because the policy reasons that offer the only reasonable explanation of the result in Gebser are not present in cases of non-harassment sex discrimination in schools and because non-harassment sex discrimination lies at the heart of Title IX's prohibition of sex discrimination in federally funded educational institutions. (shrink)

Criminal liability of legal entities was legitimised in the Republic of Lithuania nine years ago, and in the ruling of the Constitutional Court of 8 June 2009, a conclusive confirmation on its accordance with the Constitution was made. It should be noted that this penal law novelty (providing the extension of the concept of criminal offence subject) caused considerable debate among Lithuanian scientists. One of the most controversial issues of this penal law novelty are the exceptions listed in Article (...) 20(5) of the Criminal Code. (shrink)

In most cases, liability in tort law is all-or-nothing—a defendant is either fully liable or not at all liable for a claimant's loss. By contrast, this paper defends a causal theory of partial liability. I argue that a defendant should be held liable for a claimant's loss only to the degree to which the defendant's wrongdoing contributed to the causing of the loss. I ground this principle in a conception of tort law as a system of corrective justice (...) and use it to critically evaluate different mechanisms for “limiting” liability for consequences of wrongdoing and for “apportioning” liability between multiple wrongdoers. (shrink)

According to the dominant position in the just war tradition from Augustine to Anscombe and beyond, there is no "moral equality of combatants." That is, on the traditional view the combatants participating in a justified war may kill their enemy combatants participating in an unjustified war - but not vice versa (barring certain qualifications). I shall argue here, however, that in the large number of wars (and in practically all modern wars) where the combatants on the justified side violate the (...) rights of innocent people ("collateral damage"), these combatants are in fact liable to attack by the combatants on the unjustified side. I will support this view with a rights-based account of liability to attack and then defend it against a number of objections raised in particular by Jeff McMahan. The result is that the thesis of the moral equality of combatants holds good for a large range of armed conflicts while the opposing thesis is of very limited practical relevance. (shrink)

In recent years, the advancements made in the field of neuroscience have been echoed in criminal law, reigniting the discussion on culpability from the viewpoint of if it actually exists, considering the echoes of determinism on the re-found non-existence of free will. This discussion has triggered, once again, the issue of the boundaries and inter-relations between law and science, namely on whether normative or legal concepts and categories should acknowledge scientific breakthroughs. Bringing forth the theme of the limits of the (...) law, this discussion is able to provide insight, with reference to a specific problem, as to whether there are plausible legal answers in the context of the ascription of liability if the subject of law ceases to be a responsible—and thus free—person. Taking into consideration evolution both of science and criminal law dogmatic, we aim to argue that in the particular case of culpability, the desired autonomy of law has its limitations, and that without such limitations the ascription of liability would not have a correct answer. For this argument we will firstly approach the meaning of culpability as a milestone of subjective responsibility in criminal law, so that we can then analyse some arguments made regarding the impact of neuroscience on the maintenance of a concept of culpability with the meaning given above, so that lastly we can proceed to the rebuttal of the overarching impact of science on the law and advocate the autonomy of culpability within the necessary limits imposed by the needs of a plausible legal answer. (shrink)

Adil Ahmad Haque argues that civilians who contribute to unjust lethal threats in war, but who do not directly participate in the war, are not liable to defensive killing. His argument rests on two central claims: first, that the extent of a person’s liability to defensive harm in virtue of contributing to an unjust threat is limited to the cost that she is initially required to bear in order to avoid contributing, and, second, that civilians need not bear (...) lethal costs in order to avoid indirectly contributing to unjust lethal threats. I argue that Haque’s defence of each claim fails. (shrink)

This article considers the interplay between intellectual property rights and classic property rights raised by Hoffman v. Monsanto (2005) and advances the idea that intellectual property law can serve as an autonomous source of liability for intellectual property owners. The article develops the conceptual advantages of demarcating physical and intellectual properties and allocating rights and responsibilities based on the respective property sphere. It introduces a theoretical Hohfeldian framework, in which the grant of a positive limited-term monopoly right entails (...) a corresponding duty, to establish intellectual property law as a source of internal limits on intellectual property rights. The article is a prolegomena to a detailed matrix of those rights and duties within intellectual property law. This matrix could support patentee duties that go beyond public disclosure of the invention and could establish patent law as an alternative legal framework to tort law to address harms caused by inventions. (shrink)

During the Covid‐19 pandemic, as resources dwindled, clinicians, health care institutions, and policymakers have expressed concern about potential legal liability for following crisis standards of care (CSC) plans. Although there is no robust empirical research to demonstrate that liability protections actually influence physician behavior, we argue that limited liability protections for health care professionals who follow established CSC plans may instead be justified by reliance on the principle of reciprocity. Expecting physicians to do something they know (...) will harm their patients causes moral distress and suffering that may leave lasting scars. Limited liability shields are both appropriate and proportionate to the risk physicians are being asked to take in such circumstances. Under certain narrow circumstances, it remains unclear that the standard of care is sufficiently flexible to protect physicians from liability. Given this uncertainty, the likelihood that physicians would be sued for such an act, and their desire for such immunity, this limited protection is morally legitimate. (shrink)

Agritourism activities have gained importance as a mechanism for some farmers to broaden their sources of income. As businesses have pursued agritourism activities, they have been concerned about liability for personal injuries of participants. In some states, providers of agritourism activities have presented legislators with ideas for an agritourism statute to limit liability for injuries resulting from inherent risks. Four new agritourism statutes have been enacted, while six other states have adopted alternative liability provisions that may apply (...) to some agritourism providers. The agritourism statutes provide an affirmative defense to providers to eliminate liability for inherent-risk injuries. An analysis of the statutory provisions shows legislatures making choices on the assignment of liability for accident injuries and the ability of providers to obtain releases from negligence. Because the agritourism statutes impose prerequisites and do not stop meritless lawsuits, they do not offer much assistance to agritourism providers. An evaluation of policy issues suggests that legislatures might consider additional options to address agritourism providers’ concerns. (shrink)

Legal acts of the Republic of Lithuania establish several types of material liability of workers engaged in labour (professional) relations: material liability applied pursuant to the Labour Code of the Republic of Lithuania (hereinafter referred to as the LC) and material liability applied pursuant to the Law on Public Service of the Republic of Lithuania (hereinafter referred to as the LPC). In the present article, theoretical and practical aspects of material liability of Lithuanian public servants for (...) material damage caused are analysed. The authors of the article study the conditions for the application of the material liability and identify the main circumstances that must be determined in applying this type of legal compulsion. Furthermore, the authors investigate the relation between the material and disciplinary liabilities, study the limits of the application of labour law norms (that regulate material liability of employees) and civil law norms (regulating personal civil liability) in professional legal relations, identify the means and procedure for solving disputes arising in the application of the material liability. Practical mistakes in the application of the material liability of public servants and violations are analysed on the basis of a rather sparse case-law of the Supreme Administrative Court of Lithuania related to the material liability. (shrink)

This article focuses on the problem of criminal liability for unlawful engagement in economic activities, analyses the emergence and development of this norm in criminal law and the ways of its optimal explanation. Special attention is paid to the problem of identification of illegality of activities, based on specific tax and economic regulation. The study concludes that criminal liability must be limited to a violation of fundamental requirements for the legality of business, and does not include particular (...) abuses occurring in legal business. The author also deals with the criteria of delimitation of criminal and administrative liability for unlawful engagement in economic activities. Under Article 202(1) of the Criminal Code of the Republic of Lithuania, application of criminal liability is limited by two alternative conditions: either a person illegally undertakes activity in entrepreneurial way or on a large scale. According to the paper, the above-mentioned regulation lacks clarity and leads to the risk of unfounded prosecutions. The author gives practical examples, where on the basis of inexplicable criterion of an entrepreneurial way, criminal charges are filed in respect of petty economic activities. Such practice is incompatible with the purposes and principles of criminal law. The paper proposes to delete the criterion of an entrepreneurial way from the definition, leaving the possibility of criminal liability only in case of large scale illegal economic activity. The article also substantiates the conclusion that prohibited business activities provided for in Article 202(2) of the Criminal Code actually defies logical explanation and should be removed from the regulation. At the end of the article, the author offers a sample of optimal legal wording of unlawful engagement in economic activities in criminal law. (shrink)

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar (...) arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance. But this analysis fails to appreciate the crime-control costs of strict liability. By explicitly providing for punishment in the absence of moral blameworthiness, the law undermines its moral credibility with the community and thereby provokes subversion and resistance instead of the cooperation and acquiescence it needs for effective crime control. More importantly, the system’s lost moral credibility undermines the law’s ability to harness the powerful forces of stigmatization, social influence, and internalized norms. Given the serious limitations inherent in the real-world application of general deterrence and preventive detention programs, the most effective crime-control strategy is to build the criminal law’s reputation for being just, which means avoiding the use of strict liability. (shrink)

The risk of tort liability for health maintenance organizations and other managed care plans has dramatically increased in recent years. This is due in part to the growing percentage of health care rendered through managed care plans. The cost-containment mechanisms commonly used by managed care plans, such as limiting access to services and/or choice of providers, creates a climate ripe for disputes that may end up in court. As dissatisfied patients and providers seek recourse in the courts, tort doctrines (...) are extended and new legal theories emerge as needed. For example, the concepts of direct and vicarious tort liability developed in the hospital context have been extended by courts to encompass HMOs. vicarious liability claims, based on ostensible agency or respondeat superior doctrines, have been brought against HMOs and managed care plans for negligent treatment by physicians selected to provide care to members. (shrink)

The risk of tort liability for health maintenance organizations and other managed care plans has dramatically increased in recent years. This is due in part to the growing percentage of health care rendered through managed care plans. The cost-containment mechanisms commonly used by managed care plans, such as limiting access to services and/or choice of providers, creates a climate ripe for disputes that may end up in court. As dissatisfied patients and providers seek recourse in the courts, tort doctrines (...) are extended and new legal theories emerge as needed. For example, the concepts of direct and vicarious tort liability developed in the hospital context have been extended by courts to encompass HMOs. vicarious liability claims, based on ostensible agency or respondeat superior doctrines, have been brought against HMOs and managed care plans for negligent treatment by physicians selected to provide care to members. (shrink)

The modern Lithuanian legal doctrine recognises that criminal liability is a last resort (ultima ratio) protecting the society from various law violations. This idea has got deep roots in criminology and is obviously based on the position of rational approach towards the state criminal policy. However, it is not clear whether it is of obligatory legal status to the legislature and the courts. This article attempts to present the idea of a last resort as a concept based on the (...) constitutional principles of the rule of law, justice, proportionality and rationality in the legislation and case law. The author concludes that the main precursors of the ultima ratio principle are the German legal doctrine of protection of legal goods (Rechtsgüterschutz) and Harm principle respected in the common law tradition, as well as the need for protection of human rights in the democratic world. These concepts raise the duty of the legislator to justify the act of criminalisation by legitimate purpose and to comply with certain constitutional limits of application of criminal law. The idea of criminal liability as a last resort is recognised both in the jurisprudence of the Constitutional Court (obiter dictum) and in the practice of the Supreme Court of Lithuania reasoning particular decisions in criminal cases, especially delimiting criminal and other types of legal liability. The author concludes that the fact of discrepancy of criminal law to ultima ratio test can be one of the arguments in support of its objection to the Constitution and even the European Convention on Human Rights and Fundamental Freedoms. At the same time, the author of the article has found that many norms of the Criminal Code are in conflict with the idea of a last resort. (shrink)

Shareholders of corporations have their liability for actions of the corporation limited by law. Unlike the equity holder in a partnership or proprietorship, the assets that a shareholder has distinct from her holdings in the enterprise can not be taken to satisfy liabilities arising from actions of the enterprise itself. This paper argues that a reasonable principle of fairness argues for an alternative to limited liability, proportional liability. Proportional liability makes a shareholder liable for (...) the same proportion of a corporation''s excess of liabilities over assets that her number of shares bears to the total number of shares outstanding. The key idea is that it is unfair in situations in which explicit agreements can not be reached for shareholders to bear only limited risk when they may receive gains from stock dividends and appreciation that are not limited to any pre-determined amount. Proportional liability has not been much examined in the financial literature. Good utilitarian arguments have been given for limited liability over unlimited liability for corporate shareholders, but these arguments do not clearly support the choice of limited liability over proportional liability. (shrink)

On the strict liability view, excusably ignorant agents must cover all the wrongful costs they have inadvertently brought onto others, although it is undisputed that they are not at fault. On the fault liability view, victims need not be compensated by excusably ignorant harmers. To some, both views appear harsh. Under fault liability, those who cause harm are seen as getting off scot-free while victims suffer. Under strict liability, agents are viewed as being burdened without any (...) fault of their own. In response to a seemingly intractable conflict between competing theories, some have called for compromise. Caney :210, 2010) has proposed a “modified strict liability principle” which was further developed by Bell :391–411, 2011). The principle’s revision is promising because it gives substantive reason for why and how middle ground should be achieved. In this paper, I assess this proposal and the prospects for mediating between strict and fault liability more generally. Specifically, I introduce concepts, present Bell’s principle of limited liability, critique it, and explore general avenues for finding middle ground between strict and fault liability. (shrink)

Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this (...) class='Hi'>limited kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted. (shrink)

Faith in the power and righteousness of retribution has taken over the American criminal justice system. Approaching punishment and responsibility from a philosophical perspective, Limits of Blame takes issue with a criminal justice system that aligns legal criteria of guilt with moral criteria of blameworthiness. Many incarcerated people do not meet the criteria of blameworthiness, even when they are guilty of crimes. The author underscores the problems of exaggerating what criminal guilt indicates, particularly when it is tied to the illusion (...) that we know how long and in what ways criminals should suffer. Our practice of assigning blame has gone beyond a pragmatic need for protection and a moral need to repudiate harmful acts publicly. It represents a desire for retribution that normalizes excessive punishment. Kelly proposes that we abandon our culture of blame and aim at reducing serious crime rather than imposing retribution. Were we to refocus our perspective to fit the relevant moral circumstances and legal criteria, we could endorse a humane, appropriately limited, and more productive approach to criminal justice.--. (shrink)

Contemporary discussions of the relationship between negligence liability and the provision of services by both public and private organizations frequently suggest the emergence of a ‘compensation culture’. Despite empirical evidence that compensation culture claims are somewhat inflated, an anxiety persists that risks of tortious liability may still undermine the implementation of public policy. Concerns about the potential negative effects of liability on public administration frame the problem in various ways. First, there is an anxiety that public authorities (...) may overreact to liability risks by becoming excessively risk averse. Secondly, there is a fear that compensation claiming will divert financial resources away from service delivery and towards the payment of insurance premiums and compensation awards. Thirdly, there is the fear that insurance companies will, as ‘risk bullies’, curtail public service activities. And, finally, there is the suggestion that risk management, including legal risk management, is becoming the dominant mode of government decision-making to the exclusion of professional judgement. This article addresses these concerns through a set of empirical case studies about the management of liability risks associated with road maintenance services. Although our findings suggest that public authorities respond to liability risks in a variety of ways, we found only limited evidence of the above concerns. In general terms, it was a case of public authorities being risk aware and responsive as opposed to risk averse. (shrink)

In Campbell Soup Co. v. Allstate Insurance Co. ), the United States District Court for the Western District of Michigan, Southern Division, held that a health plan's coordination of benefits clause, covered under the Employee Retirement Income Security Act, does not preempt a similar no-fault automobile insurance clause in the absence of irreconcilable conflict. The court found that ERISA's policy of shielding plans from unanticipated claims could only be furthered when the plan had expressly disavowed such claims. Because the ERISA (...) plan in this case did not specifically subordinate itself to the no-fault policy, the district court found that the no-fault COB clause controlled. However, to escape this ruling, ERISA plans need only redraft their COB clauses specifically to disclaim liability in case of conflict with provisions of no-fault insurance policies. This caveat substantially limits the scope of the court's ruling. (shrink)

This article grapples with the causes of India’s microfinance crisis. By contrasting Bangladesh’s highly successful Grameen model with the allegedly “universalizable” version of India’s SKS Microfinance, trust or social capital is isolated—not just narrowly interpreted within standard economic theory, but more broadly construed—as the essential element accounting for the early success of microfinance. It is argued that the microfinance experience has been widely misinterpreted, in both analytical and policy terms. This article suggests inherent limits in extending the model to for-profit (...) institutions and, in particular, to the pace of scaling up. (shrink)

The deposit insurance makes the value of deposits independent from the behavior of other depositors or from the value of bank assets. Its existence induces a moral hazard which might threaten the stability of the banking system. The efficiency of the DI depends on the control of moral hazard, which means the agents’ responsibilisation, depositors included. There is a conflict between the DI principles and the present propositions improving this mechanism.The possible solutions in order to solve this paradox are the (...) restriction of the insurance coverage only for the demand deposits and the implementation of the double liability for the bank shareholders.The demand deposits insurance eliminates the incentive to bank runs caused by the fear of lack of liquidity, whereas the term deposits are exposed to losses which reduce the moral hazard induced by the demand deposit insurance.The double liability forces the shareholders of the defaulting banks to make supplementary payments limited to the nominal value of the owned shares. This combines the advantages of the limited liability and the unlimited liability.The efficiency of both propositions implies the enforcement of a closure rule of the banks whose net worth is close to zero.La garantie des dépôts rend la valeur des dépôts indépendante du comportement des autres déposa- nts ou de la valeur des actifs bancaires. Son instauration induit un aléa moral qui peut menacer la stabilité du système bancaire. L’efficacité de ce mécanisme dépend de la maîtrise de l’aléa moral. Cela suppose, entre autres, la responsabilisation des agents, y compris des déposants. Par conséquent, il existe un conflit entre le principe de la garantie des dépôts et les propositions courantes d’amélioration de ce dispositif.Les solutions envisagées dans cet article pour résoudre ce paradoxe sont la limitation de la garantie aux seuls dépôts à vue et l’instauration de la double responsabilité pour les actionnaires des banques.La garantie des dépôts à vue élimine l’incitation à la ruée due à la crainte de manque de liquidité, tandis que les dépôts à terme sont assortis d’une clause permettant à la banque de refuser tout retrait anticipé. Les titulaires des dépôts à terme s’exposent à des pertes, ce qui réduit l’aléa moral induit par la garantie des dépôts à vue.La double responsabilité oblige les actionnaires des banques défaillantes à effectuer des versements supplémentaires dans la limite de la valeur nominale des actions détenues. Cela réunit les avantages de la responsabilité limitée et de la responsabilité illimitée.L’efficacité des deux propositions suppose l’application d’une règle de fermeture des banques dont l’actif net avoisine zéro. (shrink)

Theological fatalists contend that if God knows everything, then no human action is free, and that since God does know everything, no human action is free. One reply to such arguments that has become popular recently— a way favored by William Hasker and Peter van Inwagen—agrees that if God knows everything, no human action is free. The distinctive response of these philosophers is simply to say that therefore God does not know everything. On this view, what the fatalist arguments in (...) fact bring out is that it was logically impossible for God to have known the truths about what we would freely do in the future. And this is no defect in God’s knowledge, for infallible foreknowledge of such truths is a logical impossibility. It has commonly been assumed that this position constitutes an explanation of where the fatalist argument goes wrong. My first goal is to argue that any such assumption has in fact been a mistake; Hasker and van Inwagen have in effect said only that something does go wrong with the argument, but they have not explained what goes wrong with it. Once we see this result, we’ll see, I think, that they need such an account—and that no such account has in fact been provided. The second goal of this paper is therefore to develop— and to criticize— what seems to be the most promising such account they might offer. As I see it, this account will in fact highlight in an intuitively compelling new way what many regard to be the view’s chief liability, namely, that the truths about the future which God is said not to know will now appear even more clearly (and problematically)‘ungrounded’. (shrink)

Christian theology’s concern for the individual whatever their station expanded the scope of criminal law from protection of the interests of the regime to the security of all in society. The concept of mens rea was first mentioned by Augustine of Hippo and became a key part of the Church’s canon law. From there it was adopted by the secular legal systems of both civil law and common law. Such systems imposed criminal liability on those whose state of mind (...) was adjudged to make them guilty for serious wrongs they did to others. Christian theology also offered the West’s legal systems a grammar for criminal law built around the idea of criminal responsibility for personal, voluntary, culpable acts. These requirements protected against scapegoating and stereotyping, led to the presumption of innocence, and limited the range of actions for which one could be punished. (shrink)

In March 2004, the U.K. government announced its intention to grant limited authorization for the growing of commercial genetically modified (GM) crops. This article reviews the potential liabilities that may arise from GM cropping, for environmental damage and for economic losses claimed by non-GM producers. It considers the application of the European Community (EC) Environmental Liability Directive of 2004 to genetically modified organisms (GMO) releases, and the proposed statutory scheme for the coexistence of GM and non-GM agriculture in (...) England and Wales. It also examines the application of the common law of nuisance to the release of GMOs and considers the relevant case law of the English courts. Although there will be a residual role for liability at common law following the establishment of a statutory coexistence scheme, the article highlights a number of formidable problems facing attempts to establish claims for liability arising from GMO releases at common law. (shrink)

This volume brings together a collection of essays, many of them scholarly classics, which form part of the debate around three questions central to criminal law theory: firstly, what conduct should be necessary for criminal liability, and what sufficient? Secondly, what culpability should be necessary for criminal liability, and what sufficient? Finally, essays consider the question of how criminal law rules should be best organized into a coherent and clarifying doctrinal structure.

This paper explores the role of ideology in attempts to influence public policy and in business representation in the EU–China solar panel anti-dumping dispute. It exposes the dynamics of international activity by emerging-economy multinationals, in this case from China, and their interactions in a developed-country context. Theoretically, the study also sheds light on the recent notion of ‘liability of origin’, in addition to the traditional concept of ‘liability of foreignness’ explored in international business research, in relation to firms’ (...) market and political strategies and their institutional embeddedness in home and host countries. Through a qualitative analysis of primary and secondary materials and interview data with key protagonists, we provide a detailed evolution of the case, the key actors involved and their positions, arguments and strategies. This illustrates the complexities involved in the interaction between markets and ideologies in the midst of debates regarding different forms of subsidy regimes for renewable energy, free trade versus protectionist tendencies by governments, and the economic and sustainability objectives of firms and societies. The case shows how relative newcomers to the EU market responded to overcome a direct threat to their business and became, with support from their home government, active participants in the public debate through interactions with local commercial partners and non-governmental organisations. Firms adopted relatively sophisticated strategies to reduce their liabilities vis-à-vis host-country institutions and local stakeholders, including collective action, to increase their legitimacy and reputation, and counter ideologically based attacks. We also discuss implications and limitations. (shrink)

Several areas of expanding corporate responsibilities are evident from current practices. This article penetrates one such field, economic compensation through litigation, and discusses the possibility and desirability of reversing the trend. In court, companies are fined increasing amounts for an ever wider range of faults, or they settle out of court under this legal threat. This is not a local American problem, but European companies are increasingly involved because of globalization. The development in Europe is also driven by the same (...) factors as in America – the mechanics of litigation and conventional ethics. The greed of plaintiffs and lawyers can mobilize the perceived virtue of sympathizing with a victim. Therefore it seems likely that a precondition for tort reform is an ethical reevaluation. Is it desirable and politically possible to make the individual more responsible for his own fate? (shrink)

BackgroundA physician's duty to provide an adequate explanation to the patient is derived from the doctrine of informed consent and the physician's duty of disclosure. However, findings are extremely limited with respect to physicians' specific explanatory behaviours and what might be regarded as a breach of the physicians' duty to explain in an actual medical setting. This study sought to identify physicians' explanatory behaviours that may be related to the physicians' legal liability.MethodsWe analysed legal decisions of medical malpractice (...) cases between 1990 and 2009 in which the pivotal issue was the physician's duty to explain (366 cases). To identify factors related to the breach of the physician's duty to explain, an analysis was undertaken based on acknowledged breaches with regard to the physician's duty to explain to the patient according to court decisions. Additionally, to identify predictors of physicians' behaviours in breach of the duty to explain, logistic regression analysis was performed.ResultsWhen the physician's explanation was given before treatment or surgery (p = 0.006), when it was relevant or specific (p = 0.000), and when the patient's consent was obtained (p = 0.002), the explanation was less likely to be deemed inadequate or a breach of the physician's duty to explain. Patient factors related to physicians' legally problematic explanations were patient age and gender. One physician factor was related to legally problematic physician explanations, namely the number of physicians involved in the patient's treatment.ConclusionThese findings may be useful in improving physician-patient communication in the medical setting. (shrink)

Scientific explanation in terms of laws and initial conditions (or better, in terms of objects with powers and liabilities) is contrasted with personal explanation in terms of agents with powers and purposes. In each case the factors involved in explanation may themselves be explained, and infinite regress of explanation is logically possible. There can be no absolute explanation of phenomena, which is explanation in terms of the logically necessary; but there can be ultimate explanation which is explanation in terms of (...) factors which themselves have no explanation. Our normal criteria of explanation suggest that the explanation of the universe lies in the action of God. (shrink)

This paper examines a recurrent debate about the rationale of contractual liability: whether the central object of contract law is to facilitate human interaction by respecting individual choices, or if it is in large part to redistribute wealth, power, and advantages generally. The debate between defenders of freedom of contract and those who would use contract law to advance schemes of redistribution is connected to the long-standing issues between natural-law theories and legal positivism. This paper is divided into two (...) main sections. In the first, the notion of individual autonomy is examined in light of the classical view, most recently advanced by Fried, that the rationale for enforcing contracts is connected to the respect for individual autonomy as such. There is also an examination of the notion of a collective concern, and what it is, from a libertarian point of view, that makes some social goals objectionably collective. The second part of the paper argues that the use of collective resources for the enforcement of contracts brings with it the authority to limit and shape enforcement in the interest of redistribution. (shrink)

Ethicists and legal theorists have proposed models of corporate culpability that shift the standard of guilt determination from vicariousattribution of individual action and intention to an assessment of culture, policies, as well as organizational action and inaction. This paper briefly reviews four prominent models of corporate culpability, arguing that each makes claims that extend well beyond the limits of existing law. As an alternative to these models, a constructive corporate fault is described that relies on both objective and subjective reasonableness (...) judgments. The paper concludes with a consideration of constructive corporate fault in relation to an Accountability model of corporate liability. (shrink)

This essay argues against the commonly held view that "ought" implies "can" in the domain of morality. More specifically, I contest the notion that nobody should ever be held morally responsible for failing to avoid the infliction of any harm that he or she has not been able to avoid through all reasonably feasible precautions in the carrying out of some worthwhile activity. The article explicates the concept of a moral right in order to show why violations of moral rights (...) can occur even when no one has acted wrongfully in any fashion. In so doing, it will effectively be maintaining that strict liability (i.e., liability irrespective of the presence or absence of culpability) exists in morality as well as in law. When we take account of the distinction between exoneration and extenuation, we can see that scrupulously thorough precautions are never sufficient to constitute an excuse in morality. Having made that point with some extended examples, the article goes on to consider a number of possible objections - objections that lead into discussions of some basic distinctions within moral philosophy and some central principles within deontic logic. (shrink)

Drawing on Brown and Fraser’s (in: Giles, Scherer (eds) Social markers in speech, Cambridge University Press, Cambridge, pp 33–62, 1979) framework for the analysis of communicative situations and Fuentes Rodríguez’s (Lingüística pragmática y Análisis del discurso, Arco Libros, Madrid, 2000; in Estudios de Lingüística: Investigaciones lingüísticas en el siglo XXI, 2009. https://doi.org/10.14198/ELUA2009.Anexo3.04 ) model of pragmatic analysis, this paper examines three home-made recordings featuring some of the members of the terrorist cell responsible for the 2017 vehicle-ramming attacks in Barcelona and (...) Cambrils weighted as evidence during the trial held between November 2020 and May 2021 in the Spanish National High Court. The aim of this qualitative analysis is to test whether the linguistic evidence available supports the allegation that the participation in these recordings by one of the accused, Mohamed Houli Chemlal, had been planned by his interlocutors. Results show, first, that the exchanges analyzed present features indicative of both spontaneity and (limited) planification. Second, that Houli makes key contributions to the unfolding of the interactions shown in the recordings and that he does so in a cooperative and apparently relaxed manner, which could at best provide only partial support to his allegations. It is claimed that forensic linguistic analysis can generate valuable insights within terrorism-related legal proceedings. (shrink)