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The South Asian legal systems are still bearing colonial heritage of the British Indian empire inside its important laws. Basic laws in the field of evidence law, civil procedure, criminal procedure, penal law, contract law, personal law and so many other fields. Larger portion of these legislations are based on either the principles of Roman Law, Common law.
Most of these outdated and socially irrelevant laws are causing severe damage to the judicial systems and the societies. Complex laws are creating case-backlogs, laws with socially irrelevant remedy and lack of deterrance in punishments are creating social disorder.
Moreover, from a jurisprudential perspective, we can not expect a portion of victorian age legal system to be applied into some modern heterogenous societies having high opportunity of socio-economic prosperity.
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Altough my opinion can not be but an external point of view, because I am not immersed in the culture of the South Asian countries, nor have I had experienced their history, I agree what Montserrat Gas-Aixendri wrote: «The changes should depend more on the fact that the laws are not adequate to reality, than on whether they come from a colonial government».
In Latin America, where I live and work, even when some figures (still on force) descends clearely from Roman Law, our legal systems were not precisely inherited from those ruling in the times of european empire's domination, but imported from codes, institutions and political arrangements conceived under the strong influence of liberal ideals, also brought from Europe in the times of French Revolution and intensfied with the example given by the United States' Independence. Probably, we could regard them as colonial inheritance, but they have been well assimilated in our political culture and our legal thinking.
Nowadays, after two centuries, the same basic constructs support our normative frame and, even in the recognizion of the several ammendements operated time by time, globalization is impelling us to equate legal figures and procedures to those existent in developed countries, in order to attract business and investments. So, I think, there is a worldwide phenomenon concerning legislation: its tendency to be homologated.
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Most of the current laws within this sphere were designed before the rapid progress of digital agriculture and therefore they can be interpreted differently. Most of the farmers using benefits of digital agriculture are concerned about data use (or theft) since they are no ICT experts and the data can be used for various reasons. Is it really a data theft then, since some of that data could (and should?) be used by the local (of national) agriculture authorities to monitor the agricultural process or production of the farmer (in case of governmental incentives)? For what else can it be used in that case? What if the software is freeware as a part of the agricultural incentives for farmers? To what level the farmer should be informed about it since there is no possibility to guarantee what will happen with that data in practice?
How do you see the advancement of the law in this field? How do you assess the current situation? Let me know what do you think.
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Agriculture is a sea of opportunities, where the farm laws are helping to create digital opportunities. Digital agriculture requires data and skills to proceed so, it is developing at slow pace. Digital agriculture is sustainable tool but good things take time !
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The ICJ Statute in art. 38 (1) defines sources of international law. One of these are:
" international conventions, whether general or particular... "
What do you understand under "general conventions". Is there difference between general conventions and general customs? What is the reason for differentiation between general and particular conventions?
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very good question
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I am especially interested in the meaning of these presumptions regardin electronic seals an timestamps in UK and Irish Law.
Do they shift the burden of proof?
What kind evidence has to be presented to rebut them?
Are they in effect more like prima facie evidence or is their power of persuasion higher?
Can somebody point me to work on this topic or more general informations on statutory presumptions that might be applicable here?
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I concur to your point, that Art. 13 (3) eIDAS does not mean, that national law can supercede Art. 13 (1) and (2) or that they can be different from them.
Therefore (3) only regards the application of the burden proof in national law. I guess for example as to the meaning and application in court proceedings and rulings, possibility of shifts du to contract, obligation to disclose right toward consumer. 
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In Belgium, a citizen can sue on behalf of the municipality he lives in and the municipal government (mayor and aldermen, those who normally decide over starting a suit or not) cannot prevent the individual of suing on behalf of the municpality.
It resembles the qui tam procedure known in the U.S.A. When the suit is lost, the suing individual must pay, when he wins, the gains from the suit flow to the municipality.
In Belgium it's mostly used in environmental lawsuits (non-pecuniary injunctions) because those suits can only be started by the municipality and not an individual.
Similar procedures existed until 1966 in the Netherlands and still exist in France and Luxembourg, apparently all three modeled after the Belgian example (law of 1836).
In France and Luxembourg however, the indivudual needs the approval of his action by the administrative court (France) or the national government (Luxembourg).
Does such a procedure also exist in other countries?
Primary legal sources:
- Belgium: Loi communale / Gemeentewet, art. 271 (1988 version, still valid in the Brussels region, originally art. 150 of the 1836 law)
- Flanders: Gemeentedecreet, art. 194
- Wallonia: Code de la démocratie locale et de la décentralisation, art. L1242-2
- France: Code général des Collectivités Territoriales, art. L 2132-5 (originally art. 49.3 of the 1837 law)
- Luxembourg: Loi communale, art. 85 (originally art. 107 of the 1843 law)
- Netherlands: Gemeentewet, art. 143.3 in original 1851 version, art. 177.3 in 1966 when abolished
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I am not an expert on this subject.  But in the United States, one must have "standing" to sue under Article III of the Constitution. Generally this requires proof of (1) harm or injury to the person suing; (2) that the injury was a legally protected right; and (3) that the injury or harm resulted from the defendant's action.  A municipality in the U.S. is a subdivision of a State and so the right to sue would generally have to arise under a State Constitution (unless the individual were raising a federal claim). There is a federal statute, the False Claims Act where individuals may sue on behalf of the government if the individual believes the government has been harmed -- the citizen's "standing" to sue is generally based on the citizen's rights as a taxpayer.  Thus, if someone over charges the government for a hammer, it is my tax dollars that are being wasted so I can sue.  At the level of a municipality, a similar right to sue attaches as a state taxpayer under a State Constitution in many states.  For example, there was a case in Colorado where someone sued to stop abortions paid for with state dollars. I think they lost however because the government's right to provide healthcare over rode the citizen's interest in where their tax dollars went, but I don't actually remember exactly.  So the "standing" to sue is separate from the ability to win the lawsuit, which is the same elsewhere I suspect.
If I were smarter I could probably be more succinct.  You can see it would be a matter of looking up case law in 50 states + Or I could link a Supreme Court case the the False Claims Act if you like.
Cheers! Mary
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Dear Colleagues, 
What to do you think, in case of future possibility of creating artificial intelligence which will be like ours, where will be the edge (in a legal point of view) between human being and the robot with artificial intellect?
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Choice between good and bad in a given situation is the edge between human and AI from all points of view including legal.
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I know of many great Marxist criminologists but no legal scholars working on criminal law from an explicitly Marxist perspective. I am interested in Marxist theoretical analysis of the form & content of criminal law.
Thanks!!
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Dear Grietje,
The most known Soviet scholars in criminal law were A.A. Piontkovskiy, N.D. Durmanov, P.S. Romashkin, A.N. Traynin, V.D. Men'shagin, M.D. Shargorodsky, B.S. Utevskiy. Next generation -  N.F Kuznetsova, M.I. Kovalev, G.A. Kriger, V.N. Kudriavtsev.
The book "Criminal Law. History of Legal Science" ( ed. by V.N. Kudriavtsev; Moscow: Nauka, 1978) is one of the useful source for names and ideas . Unfortunately the book is in Russian.
Best regards
S.
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I have seen increased scholarship calling into question the default rule that expectation damages be awarded for a contract default. I am more convinced this is a legitimate question (although it is certainly not the prevailing law I have seen.) A tort seems to be at least as worthy of compensation to the injured as does the innocent party in a contractual contest. Yet, in tort, you are awarded your actual damages. In contract, actual damages would be what we usually call "reliance damages." We award reliance damages when it is difficult to measure expectation damages. Why is it not the other way around? Why not, instead, award reliance damages generally and expectation damages when reliance damages are difficult to determine? Can anyone point me to the most recent literature on this debate? It is a question both old and new, and I'd like to see what is the state of the art is on it. Also, feel free to state your own opinion on the matter. Thanks.
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The question relies on the deep basis of the distinction, not on the specific legal situation of one and other set of damages. In that field, the difference can be exposed as follows: the actual damage is the monetary valuation of a disadvantage derived from a fact considered as true, and the damages for expected benefits are the monetary valuation of a disadvantage and a fact considered as probable.Shortly: there is an epistemological difference. Obviously, the determination of an event as "true" or "prbable" do not keep on, within the legal practice, the rules of the scientific knowledge which are familiar to standard epistemology, since the legal practice operates within a institutional framework. But, philosophically speaking, that is the essential difference between one and other set of damages. 
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It is likely that theoretical explanations around social conformity and deviance can be usefully tested through reference to information on criminal law enforcement by professionalised police. Eg Hart and Kelsen, eg, relate conceptually the 'rule of recognition' and Pure Theory to the level of official concrete decision-making. It would appear that comparative police data is relevant for supporting and testing theoretical frameworks. In turn, it would be interesting to be able to assess experience of policing by consent by correlating to broader theoretical narratives - eg poststructuralist and interpretivist theories.
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Have you looked at the microsociological pathway laid out by Goffmann et al which when taken in conjunction with the phenomenology of Schultz and analysing how people construct their identity of themselves, who they are and how their control frames their sense of daisen through Marlaeu Ponty? Such a topic would also demand a study of space and people interacting with each other at interpretative and phenomenological realms through the work of Garston Bachelard.
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I mean: in a state of exception all legal categories collapse, and at the end of day the same act can deserve a medal or be deemed high treason. In this way it represents, according to me, a pure political world, where the law is suspended. 
From my viewpoint the law is to a large extent an ontology, a weaponed ontology, establishing the things composing the stuff of the world : goods, persons, properties, absolute rights, agreements, deeds, covenants, contracts, and so on.
Then it seems to me that a pure political state has no ontology, and as such is completely shapeless, and it works only through decision and mobilisation. 
This would also be practically important in the US constitutional law, since the Supreme Court maintains that a "political question" can not be justiciable.
As such the nature of the political seems to lie outside the law in a realm of pure ontological ambiguity where all things get confused, precisely at the opposite of a world governed by the rule of law, which needs, first of all, a fixed social ontology to establish its own domain.
Is such a sharp opposition between the legal and the political, in ontological terms, sustainable or not ? And where it can bring us to?
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Dear Pier Giuseppe
Let me share with you just some general approaches.
1) I am not very fond to think in terms of "ontologies", just because it usually means immutable essences, and therefore also liable to absolute truths. Beyond that, I can understand the approach that seeks a deeper understanding of this problem.
2) the problem you pose is about the relationship between politics and law. Generally, it is assumed that politics and law are independent and excluding experiences. Under this assumption, of course, states of emergency mean a collapse of rule of law.
3) however, in my view, it should be seen from another perspective: in any case public power corresponds to the policy. The policy can be exerted in a wide range of possibilities: through brutal ways (war) or through more rational ways (under rule of law), including intermediate or mixed forms.
4) keeping this in mind, it allows us to remember that : (a) even under the rule of law, politics is present everywhere, it's only a matter of degree; this includes the case where a judge decides when it should make an exception to the general rule for reasons of inapplicability or reasons of equity (b) is always risked falling into less civilized ways of exercising power (c) even when politic power exerted by violent means (uncivilized), the expectations of legitimation of power -in today's world- compels rulers to respect -as much as possible- legal forms, or at least, to promise to do so. Therefore, I think that the states of exception are instances in which the holders of power whereas interpret that must resign certain legal forms for the benefit of desirable outcomes, including to satisfy public opinion, hoping to legitimize power. Naturally, the less intense the withdrawal of legal forms and the more credible its exceptionality , the greater chance of being accepted. In those terms, states of exception (emergency) can be interpreted even as been part of the experience of a (legal) civilized politics, perhaps to the least extent, or perhaps on the way to stop being so.
Otherwise, I agree with the theoretical references that mention our colleagues.
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Legal positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts. Legal positivists differ on what those facts are. (Soper, "Legal Positivism", Cambridge Dictionary of Philosophy)
In his book Law's Empire Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an 'interpretive' concept, that requires judges to find the best-fitting and most just solution to a legal dispute, given their constitutional traditions. (Ronald Dworkin, Law's Empire (1986) Harvard University Press)
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No theory of law is truly made obsolete by any later developments.  To some extent we are all positivists now–we believe in the value of and the primacy of written text in most circumstances.  But in another way we are all natural law adherents and advocates – the entire basis of international human rights and human rights more generally is premised on the understanding that certain rights attach to each person simply because of that person being human and because there are certain underlying "natural" truths about the nature of being human that cannot and must not be denied.
Philosophical explorations of the workings of the law and the underpinnings of it are valuable within their realm and for certain utilitarian purposes, but pushing any particular philosophical stance too far into practice can result in very strange and even evil results.  Law is a practical discipline with roots more in rhetoric than in theories of knowledge or morality.  All three are relevant, but law is far more a branch of rhetoric than it is the other two.
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Dear all,
On 30 September 2010 the Ukrainian Constitutional Court ruled upon the unconstitutionality of the Constitutional amendments made by Yushchenko. Whereas there are several comments available in Ukrainian (which I understand), I do not find any discussions upon the topic in any other language (as they might reflect a different point of view), apart from the statement of the Venice Commission (http://www.venice.coe.int/docs/2010/CDL-AD%282010%29044-e.pdf).
I searched Google Scholar and all I find are translated newspaper articles (i.e. the ones by ME Sharpe).
As I am updating an article from 2009, such articles would be very helpful!
Thank you in advance!
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This is a really simple, and yet profound question. Is there a point to study the sources of law without giving any thoughts to anthropological studies (i.e. Malinowski among others) carried out among the wild tribes? Can we really, sitting behind our desks, discover the nature and 'pedigree' of regal rules?
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From my point of view, It is very difficult to study the sources of law without giving any relevance to the human culture and the human history. The law is usually linked to the problems of the society of any moment.
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Psychology is developing with dizzying pace. Almost every day psychologists discover a new fact about human cognition, emotion, behavior etc. Can we ask questions about rule-following behavior without any reference to psychological studies? Can legal theorists study law and do not take a psychological perspective (among others, I agree)? Can we discuss a relation between law and morality and at the same time ignore studies conducted in moral or evolutionary psychology?
Is this development of psychology a chance for legal studies or a threat to the very nature of research on law?
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Though trained in traditional philosophy of law, I find your question to be perfectly appropriate.  The explosion in studies of brain function have identified the ability of humans to think in an "as-if" mode, which in effect gives them the ability to postulate alternative realities.  If that is what happens when humans create legal systems, the findings of psychology in this realm may turn out to be of great importance, and traditional legal philosophy may have to rethink itself.  Your previous question about anthropological studies may not go far enough. 
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Semantic externalists, like Kripke and Putnam, famously argued that the reference of natural kind terms can be explained without analysing the internal mental states of speakers. Those terms refer to whatever happens to have a certain nature or structure that the instances of natural kinds share, i.e. the reference is defined by conditions that are external to our mind. Do you think that the externalist approach can explain the reference of non-natural kind terms? Putnam suggested that the externalist approach can be extended to artifacts, like pencils. But can we explain the reference of theoretical or abstract terms in the same way? I am a lawyer, so I would like to analyse the meaning of the words like "proportionality", "justice" or "equality" in an externalist way. Is it viable?
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Dear Marcin,
thanks for a lively and very interesting discussion.
"In your discussion of the words “offence” and “ugly” you indicate the properties that the reality must have in order to be covered by those words. For instance, you say that the lack of proportionality between a car’s trunk and its other parts can justify the use of the term “ugly”."
The use of the term "justify" brings focus to a crucial point. I do not think that I am justified (or not justified) in calling the trunk ugly. In contemplating the "external" I believe we must resist the danger of equating ascription conditions with metaphysics. While I reject a purely internalist perspective on the concept of ugliness, I yet do not think that such an attribute or property is real in the sense of a naturalist ontology (that is, that ugliness is "out there", independent of a perceiver). For there to be a justification, there would have to exist a causal chain, or at least a chain of reasons, which runs from the (external) object in question to my (internal) experience. But as I remarked in footnote [1] in my first reply, no such chain is available to us. Thus, an ontological externalism does not seem feasible to me. (This does not mean that there is no external world, only that the infamous notion of a "thing-in-itself" is unintelligible.)
If classical externalist ontologies and internal/external dichotomies are defective, where does that leave us? What about an epistemological externalism? You write:
"By analogy, is it not the case that a state of affairs must have several properties in order to be called “an offence”, be it in a general or legal meaning? The fact that such properties exist and can be recognised by the public when using language constitutes an argument for externalism."
As you point out, ascription conditions can only work within a normative context. Without such a context we could not understand each other since language would have nothing to latch on to. However, there is a difference between general and legal meaning, because legal meaning is, similar to mathematics, a matter of creating a technical system of concepts on top of our ordinary language. In other words, the law can be learned by understanding definitions and the relations between them (I know I'm greatly oversimplifying, but it is only this aspect which I need here). This stands in contrast to ordinary language which is acquired in practice as we grow up and learn to cope with the world. Definitions are of no use (yet). Nonetheless, when we learn our ordinary practices together with our ordinary language(s), a normative context is created within which we can communicate. A silent and unreflected background comes into existence, against which we make our (ordinary) judgements. Later we augment our abilities by introducing the technical languages of science, mathematics, law, and other categories. We do well to remember that any understanding of technical language depends on ordinary language and that this bond can never be relinquished (a botanist can never forget what a tree is, even though "tree" is not a term in botany and you need to know what a river, a valley and a mountain is before you can engage in the science of geography).
"This is not to deny that a particular person may possess a private concept of “ugliness” or “offensiveness” that help her to identify states of affairs he or she encounters. This internal aspect of meaning (‘intension’) is not, however, a decisive factor in how reference works, simply because particular people can be mistaken in their attribution of ugliness or offensiveness to a particular states of affairs. Therefore, I appreciate your reference to Wittgeinstein’s private language argument, which is entirely appropriate to our discussion."
In view of the above, one may say that reference works differently in ordinary and in legal language. It is a difference in kind, not in degree. In both cases we evaluate against a normative background, but in the legal context the background is rationally created using definitions, while the background of ordinary language is human life itself, with no systematically conceived layers or theoretical frameworks inbetween speech and action. Intension, as you point out, indeed occurs in both cases and cannot be used to differentate between the two.
To summarize, I think that the externalism you have in mind does not work as a general theory of meaning, but may yet be successful within the confines of the law. The reasons for this would be:
  1. We have to acknowledge the inextricable mix of subjective and objective aspects in our ordinary language, which prevents strictly internal as well as strictly external epistemologies of terms referring to human experiences, and
We can "absorb" the subjective into the objective within legal systems, since these must be designed to not have to essentially rely on the subjective: all reference in legal contexts must be of a publicly accessible type, as opposed to internalised experience. Markus Frischhut gives an example in his reply ("Recital 7 ... fundamental ethical choices ..."). His emphasis of "fruitful" takes us away from essences of meaning (or the appearance of them) to applications and definitions of terms relative to what our goals are. Thus the focus shifts from searching for meaning ("behind" the words we use) to creating it through responsible action. An externalist analysis would then amount to examining how we act (thereby creating meaning) in our applications of "equality", "justice", etc., where "application" refers to human action, as opposed to internal, formal, linguistic relations.
"One further point regarding the words “ugliness” or “offensiveness”. Would you agree that it can be misleading to focus on universalia in our discussion? I believe that it is more transparent to analyse the meaning of the adjectives and nouns (“ugly”, offence”, “equal” proportionate”), as they refer to properties in the real world. “Ugliness”, as “redness”, is a word created to cover the experience of many instances of a property: a type of a summary of our experience. Therefore, the application of such terms is problematic in the context of externalist analysis."
I certainly agree with respect to universals and the analysis of meaning, but not so much about the notion of "ugly" or "red" summarizing experiences. The meaning of a word lies in its use. I cannot use "red" to explain or justify my experiences. "Red" is (partly) constitutive of my ability to express my experience of colour perception. Our use of "red", "ugly", etc. creates a logical (linguistic) space within which we can meet to talk about what we perceive. We agree or disagree not within language but in way of life (words construed as "pointers to reality" cannot create agreement or disagreement, we also have to live a little to achieve that). Reference and meaning do not occur with respect to the internal rules of a language, but by applying language, to use a Wittgenstein dictum, "within the stream of life".
Kind regards,
Chris
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JF Stephen once remarked that the degree of moral loathing of the offence of murder is a reflection of the fact that murderers are hanged for the offence. That reflection has interesting implications for jurisdictions which abandon mandatory penalties for murder.
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The definition of murder is not based on malice aforethought. While malice aforethought may help prove a reason why the murder occurred but is not required for a conviction. There must be the act of killing someone and the intent to do so. Furthermore, many states also have a category called Felony Murder where if certain violent crimes are committed and during the crime any person other than the felon(s) is killed, the criminals are subject to the same penalties as an intentional murder, Therefore intent to kill does not have to be proven. Rather, the intent to commit one of the included crimes must be proved,
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French philosopher Jean-Paul Sartre was a severe critic of liberal democracy and electoral politics. Even though Sartre drafted a new constitution for a postwar France (according to his biographer Annie Cohen-Solal), his philosophy challenges the idea of constitutionalism and civil law, which is largely accepted as a fundamental necessity for the creation and maintenance of a modern democratic society. How has European / Anglo-American constitutional law responded to existentialism? Has the field of Western legal theory / studies engaged with Sartre on any level? Which law journals would be the best to search through? Are there any relevant databases that I could search?
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Ronald Dworkin briefly (but quite positively) discusses Sartre in Justice for Hedgehogs, at 210 and (especially) 231.
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The realization of the budgets to be viabilize torts vary by event type harmful as the active subject that provokes so. A manager of a company that civil liability should take? A commercial company may sue for damages caused by mismanagement of the agency?
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Hi Pedro,
Are you talking about the liability of the Board of Directors of a publicly traded company? If you are talking about a company with public stockholders, then the Directors are fiduciaries -- not agents. And the cause of action would be a derivative lawsuit on behalf of the wronged corporation, which lawsuit would be filed by the shareholders/investors ( i.e., the absentee owners of the corporation).
The managers of the day-to-day activities of the company are the agents; that is to say, they are in an agency relationship with the shareholders for whom they are supposed to be managing the business. If the foregoing are the relationships you are talking about, then in what role is the "commercial company" suing? Is it a shareholder?
Please give me more details so that I can take a stab at answering your questions from the standpoint of which entities are in the role of would-be plaintiffs. Also, if the prospective defendants are actually the managers of a publicly traded company, one must be certain that the "mismanagement" alleged does not fall into the area of the "business judgment" rule. Because if it does, it will be hard to make a case for a Common Law tort such as negligence. For the "mis-manager" to be held liable, one would need to show gross negligence, total incompetence, self-dealing or fraud.
Gwen
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Peer reviewed only please!
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Nikole,
Oy.... You're going to have to get a bit more specific! With that said, Ross Matsueda's work is the best in this area over the long term. With respect to more recent work, see Dana Haynie - really interesting social network stuff. Really, though, this literature is HUGE...
Hope this helps. (like the post if it does.)
Best,
Brad Myrstol