Vikramaditya S. Khanna, Omri Ben-Shahar-Olin Center for Law & Economics Working Paper Series

Omri Ben-Shahar, Profesor de Drept & Economie,la University of Michigan, editorul "working papers" pe aceasta tema a respectivei universitati(University of Michigan John M. Olin Center for Law & Economics Working Paper Series) anunta citeva articole din aceasta serie, dintre care urmatoarele mi se par(virtual) interesante si pentru juristii romani:

Vikramaditya S. Khanna "Corporate Defendants and the
Protections of Criminal Procedure: An Economic Analysis". Mi se pare potential interesant in perspectiva modificarilor codului penal roman.


Omri Ben-Shahar "Contracts Without Consent: Exploring a New
Basis for Contractual Liability". Ce poate fi mai strain de idea pe care o avem noi in drept, decit un contract fara consimatamint....


Redau mai jos abstractul (nu am avut timp sa citesc articolele,sau sa traduc "abstractul" o voi face negresit ceva mai incolo)

CITATIONS AND ABSTRACTS:

Vikramaditya S. Khanna, "Corporate Defendants and the
Protections of Criminal Procedure: An Economic Analysis"
(September 17, 2004). University of Michigan Legal Working
Paper Series. University of Michigan John M. Olin Center
for Law & Economics Working Paper Series. Working Paper 29.


ABSTRACT:
Corporations are frequently treated as "persons" under the
law. One of the fundamental questions associated with this
treatment is whether corporations should receive the same
Constitutional protections and guarantees as natural
persons. In particular, should corporations receive the
Constitutional protections of Criminal Procedure? After
all, corporations cannot be sent to jail so the sanctions
they face are essentially the same as in civil proceedings.
If so, then why not have the same procedural protections
for corporate defendants in civil and criminal cases?
Little scholarly analysis has focused on this issue from an
economic perspective and this article aims to fill that
gap.
My analysis concludes that the concerns animating most
procedural protections in the corporate context (i.e.,
reducing the costs of adjudicative errors and abusive
prosecutorial behavior) would require procedural
protections that differ for corporate defendants depending
on the identity of the moving party (e.g., government or
private litigant), and the type of sanction the corporation
is facing, but not on the type of proceedings (criminal or
civil) against the corporation. The analysis thus calls for
a reorientation of procedural protections for corporate
defendants along these lines rather than on the current
criminal civil dichotomy. The implications of such a
reorientation are sketched in this paper and may, at times,
suggest having stronger protections for corporations in
civil proceedings than in criminal proceedings.


Omri Ben-Shahar, "Contracts Without Consent: Exploring a
New Basis for Contractual Liability" (September 17, 2004).
University of Michigan Legal Working Paper Series.
University of Michigan John M. Olin Center for Law &
Economics Working Paper Series. Working Paper 28.


ABSTRACT:
This Essay explores an alternative to one of the pillars
of contract law, that obligations arise only when there is
"mutual assent" when the parties reach consensus over the
terms of the transaction. It explores a principle of
"no-retraction," under which each party is obligated to
terms it manifested and can retract only with some
liability. In contrast to the all-or-nothing nature of the
mutual assent regime, where preliminary forms of consent
are either full-blown contracts or create no obligation,
under the no-retraction regime, obligations emerge
gradually, as the positions of the negotiating parties draw
closer. Further, the no-retraction liability regime can be
coupled with different damage measures to advance various
social goals, including optimal reliance. The theory is
applied to areas of contract formation that have produced
inconsistent jurisprudence, such as precontractual
liability and misunderstands, and resolves them in a simple
and unified fashion. Finally, the analysis provides a fresh
understanding of the obligation to negotiate in good faith
and explores a new criterion for gap-filling in incomplete
contracts.

Lectura placuta!