This article investigates whether the passage and the implementation of the Sarbanes-Oxley Act of 2002 (SOX) drove firms out of the public capital market. To control for other factors affecting exit decisions, we examine the post-SOX change in the propensity of American public targets to be bought by private acquirers rather than public ones with the corresponding change for foreign public targets, which were outside the purview of SOX. Our findings are consistent with the hypothesis that SOX induced small firms to exit the public capital market during the year following its enactment. In contrast, SOX appears to have had little effect on the going-private propensities of larger firms. (JEL G30, G34, G38, K22) The Author 2008. Published by Oxford University Press on behalf of Yale University. All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org, Oxford University Press.
{"title":"Going-Private Decisions and the Sarbanes-Oxley Act of 2002: A Cross-Country Analysis","authors":"Ehud Kamar, P. Karaca-Mandic, Eric L. Talley","doi":"10.1093/JLEO/EWN019","DOIUrl":"https://doi.org/10.1093/JLEO/EWN019","url":null,"abstract":"This article investigates whether the passage and the implementation of the Sarbanes-Oxley Act of 2002 (SOX) drove firms out of the public capital market. To control for other factors affecting exit decisions, we examine the post-SOX change in the propensity of American public targets to be bought by private acquirers rather than public ones with the corresponding change for foreign public targets, which were outside the purview of SOX. Our findings are consistent with the hypothesis that SOX induced small firms to exit the public capital market during the year following its enactment. In contrast, SOX appears to have had little effect on the going-private propensities of larger firms. (JEL G30, G34, G38, K22) The Author 2008. Published by Oxford University Press on behalf of Yale University. All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org, Oxford University Press.","PeriodicalId":390004,"journal":{"name":"University of Southern California Center for Law & Social Science (CLASS) Law & Economics Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129209577","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Citation: 74 U. Chi. L. Rev. 2007 Content downloaded/printed from HeinOnline (http://heinonline.org) Tue Jun 30 18:12:55 2009 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0041-9494
{"title":"Jurisdictional Competition and the Evolution of the Common Law","authors":"Daniel Klerman","doi":"10.2139/ssrn.968701","DOIUrl":"https://doi.org/10.2139/ssrn.968701","url":null,"abstract":"Citation: 74 U. Chi. L. Rev. 2007 Content downloaded/printed from HeinOnline (http://heinonline.org) Tue Jun 30 18:12:55 2009 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0041-9494","PeriodicalId":390004,"journal":{"name":"University of Southern California Center for Law & Social Science (CLASS) Law & Economics Research Paper Series","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122156018","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court's recent Dura Pharmaceuticals decision requires a plaintiff to show a market decline (ex post losses), as opposed to price inflation at the time of purchase (ex ante losses), in order to maintain an action for securities fraud. Since fraud is actionable only where a market decline attributable to the fraud occurs under the ex post loss rule, firms that can bundle together disclosures or business projects are under-deterred by the antifraud regime: the success of one project may compensate for the failure of another, the firm can time the release of good and bad news to mask fraud's effect on price, and other factors that would have caused a loss of investment value even without the fraud can disallow a claim for damages. Strategically, firms may bundle to minimize exposure to liability. On the other hand, firms that value transparency may wish to unbundle. In this sense, the credibility of disclosure under an ex post loss rule depends on the extent to which firms can and do unbundle, whereas an ex ante regime is theoretically perfect in any case. This analysis also reveals two additional problems with an ex post rule: market tests for ex post damages awards (a chief purported benefit) are generally not available for bundled firms, and awarding ex post damages may over-punish small frauds but reward big ones.
{"title":"Why Shareholders Want Their CEOS to Lie More after Dura Pharmaceuticals","authors":"J. Spindler","doi":"10.2139/SSRN.920470","DOIUrl":"https://doi.org/10.2139/SSRN.920470","url":null,"abstract":"The Supreme Court's recent Dura Pharmaceuticals decision requires a plaintiff to show a market decline (ex post losses), as opposed to price inflation at the time of purchase (ex ante losses), in order to maintain an action for securities fraud. Since fraud is actionable only where a market decline attributable to the fraud occurs under the ex post loss rule, firms that can bundle together disclosures or business projects are under-deterred by the antifraud regime: the success of one project may compensate for the failure of another, the firm can time the release of good and bad news to mask fraud's effect on price, and other factors that would have caused a loss of investment value even without the fraud can disallow a claim for damages. Strategically, firms may bundle to minimize exposure to liability. On the other hand, firms that value transparency may wish to unbundle. In this sense, the credibility of disclosure under an ex post loss rule depends on the extent to which firms can and do unbundle, whereas an ex ante regime is theoretically perfect in any case. This analysis also reveals two additional problems with an ex post rule: market tests for ex post damages awards (a chief purported benefit) are generally not available for bundled firms, and awarding ex post damages may over-punish small frauds but reward big ones.","PeriodicalId":390004,"journal":{"name":"University of Southern California Center for Law & Social Science (CLASS) Law & Economics Research Paper Series","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127746159","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Welfare economics suggests that the tax system is the appropriate place to effect redistribution from those with more command over material resources to those with less - that is, in short, to serve "equity." Society should set other mechanisms of private and public law, including public finance systems, to maximize welfare - that is, in short, to serve "efficiency." The populace, however, may not always accept first-best policies. Perspectives from cognitive psychology suggest that ordinary citizens can react to the purely formal means by which social policies are implemented, and thus may reject welfare-improving reforms. This Article sets out the general background of the problem. We present the results of original experiments that confirm that the means of implementing redistribution affect its acceptability. Effects range from such seemingly trivial matters as whether or not tax burdens are discussed in dollars or in percent terms, to more substantial matters such as how many different individual taxes there are, whether the burden of taxes is transparent or not, and the nature and level of the public provision of goods and services. The findings suggest a deep and problematic tension between the goals of equity and efficiency in public finance.
{"title":"The Political Psychology of Redistribution","authors":"Edward J. McCaffery, J. Baron","doi":"10.2139/ssrn.695305","DOIUrl":"https://doi.org/10.2139/ssrn.695305","url":null,"abstract":"Welfare economics suggests that the tax system is the appropriate place to effect redistribution from those with more command over material resources to those with less - that is, in short, to serve \"equity.\" Society should set other mechanisms of private and public law, including public finance systems, to maximize welfare - that is, in short, to serve \"efficiency.\" The populace, however, may not always accept first-best policies. Perspectives from cognitive psychology suggest that ordinary citizens can react to the purely formal means by which social policies are implemented, and thus may reject welfare-improving reforms. This Article sets out the general background of the problem. We present the results of original experiments that confirm that the means of implementing redistribution affect its acceptability. Effects range from such seemingly trivial matters as whether or not tax burdens are discussed in dollars or in percent terms, to more substantial matters such as how many different individual taxes there are, whether the burden of taxes is transparent or not, and the nature and level of the public provision of goods and services. The findings suggest a deep and problematic tension between the goals of equity and efficiency in public finance.","PeriodicalId":390004,"journal":{"name":"University of Southern California Center for Law & Social Science (CLASS) Law & Economics Research Paper Series","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125953473","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Law in modern market societies serves both democratic and economic functions. In its economic function, law is a service, a means of enhancing the value of transactions and organizations. Yet modern market economies continue to rely on the state, rather than the market, to provide this service. This article investigates whether private provision of law may be superior to public provision. We look in particular at corporate law, where there is a substantial literature exploring the efficiency implications of "regulatory competition" and compare this competition with market competition between private providers. Drawing from the well-known framework of spatial models of imperfect competition, we argue that while neither public nor private competition may lead to the optimal corporate law regimes, there are at least some reasons to believe that private provision may be preferable. Specifically, we present a model that demonstrates when regulatory competition is likely to produce widespread emulation and little innovation. Private competition, in contrast, is more likely to lead to greater "product" differentiation, which benefits heterogeneous consumers of corporate law services in the short term. Moreover, such differentiation also has long-term benefits, as providers are able to "learn" more about business organizations' demand-side characteristics and can thus tailor their services to business needs more effectively. Copyright 2006, Oxford University Press.
{"title":"On Public Versus Private Provision of Corporate Law","authors":"Gillian K. Hadfield, E. Talley","doi":"10.2139/ssrn.570641","DOIUrl":"https://doi.org/10.2139/ssrn.570641","url":null,"abstract":"Law in modern market societies serves both democratic and economic functions. In its economic function, law is a service, a means of enhancing the value of transactions and organizations. Yet modern market economies continue to rely on the state, rather than the market, to provide this service. This article investigates whether private provision of law may be superior to public provision. We look in particular at corporate law, where there is a substantial literature exploring the efficiency implications of \"regulatory competition\" and compare this competition with market competition between private providers. Drawing from the well-known framework of spatial models of imperfect competition, we argue that while neither public nor private competition may lead to the optimal corporate law regimes, there are at least some reasons to believe that private provision may be preferable. Specifically, we present a model that demonstrates when regulatory competition is likely to produce widespread emulation and little innovation. Private competition, in contrast, is more likely to lead to greater \"product\" differentiation, which benefits heterogeneous consumers of corporate law services in the short term. Moreover, such differentiation also has long-term benefits, as providers are able to \"learn\" more about business organizations' demand-side characteristics and can thus tailor their services to business needs more effectively. Copyright 2006, Oxford University Press.","PeriodicalId":390004,"journal":{"name":"University of Southern California Center for Law & Social Science (CLASS) Law & Economics Research Paper Series","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124596184","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The principal findings of behavioral economics and cognitive psychology over the past several decades have been to show that human beings deviate from ideal precepts of rationality in many settings, showing inconsistent judgment in the face of framing and other formal manipulations of the presentation of problems. This paper summarizes the findings of original experiments about subjects' perceptions of various aspects of tax-law design. We show that in evaluating tax systems, subjects are vulnerable to a wide range of heuristics and biases, leading to inconsistent judgment and evaluation. The prevalence of these biases suggests that there is room for skillful politicians or facile political systems to manipulate public opinion, and that tax system design will reflect a certain volatility on account of the possibility of eliciting preference reversals through purely formal rhetorical means. More troubling, the findings suggest the possibility of a persistent wedge between observed and optimal public finance systems.
{"title":"Heuristics and Biases in Thinking About Tax","authors":"Edward J. McCaffery, J. Baron","doi":"10.2139/ssrn.467440","DOIUrl":"https://doi.org/10.2139/ssrn.467440","url":null,"abstract":"The principal findings of behavioral economics and cognitive psychology over the past several decades have been to show that human beings deviate from ideal precepts of rationality in many settings, showing inconsistent judgment in the face of framing and other formal manipulations of the presentation of problems. This paper summarizes the findings of original experiments about subjects' perceptions of various aspects of tax-law design. We show that in evaluating tax systems, subjects are vulnerable to a wide range of heuristics and biases, leading to inconsistent judgment and evaluation. The prevalence of these biases suggests that there is room for skillful politicians or facile political systems to manipulate public opinion, and that tax system design will reflect a certain volatility on account of the possibility of eliciting preference reversals through purely formal rhetorical means. More troubling, the findings suggest the possibility of a persistent wedge between observed and optimal public finance systems.","PeriodicalId":390004,"journal":{"name":"University of Southern California Center for Law & Social Science (CLASS) Law & Economics Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130718071","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The traditional understanding of broad-based tax systems contrasts an income tax with all forms of a consumption tax. The income tax, alone, includes the yield to capital in its base; consumption taxes do not. Simple financial analysis demonstrates the equivalence of the two most common classes of consumption taxation - prepaid, or wage-based, and postpaid, or sales taxes - under certain assumptions, most importantly including constant tax and interest rates between the periods in the model. Advocates of redistributive taxes insist on both progressive rates and an income base, in large part to tax the yield to capital; opponents clamor for flat-rate consumption taxes, often invoking Mill's celebrated argument against the income tax's double taxation of savings to support their case. Once progressivity is presumed, however - as its enduring popular appeal suggests it ought be - the traditional understanding is flawed. Asking a different timing question, when, in a taxpayer's flow of funds, ought progressive taxes be imposed?, casts tax systems in a new light. The present tax system emerges as an onerous wage-based one. A progressive cash-flow consumption tax, in contrast, emerges as the best - most consistent and principled - tax on the yield to capital, under just the conditions in which it is fair and appropriate to tax such yield. This gives a further reason to support a progressive cash-flow consumption tax, sounding in reasons familiar to income tax supporters. A consistent progressive cash-flow consumption tax will lower the burden of taxation when capital transactions (borrowing, saving, and investing) are used to smooth labor earnings within or between lifetimes (or taxpayers), and will increase the burden of taxation when capital transactions are used to enhance labor earnings within or between lifetimes (or taxpayers). Critical reflection based on a near century of experience reveals such a tax to give form to attractive normative ideals. The new understanding helps to show that the traditional and most common arguments for consumption taxation are not compelling. The best, most appealing case for a consumption tax does not rest on simple horizontal equity models, nor on claims about the economic, consequentialist importance of savings on an individual or an aggregate social level. Rather it is claims of fairness, in a social contractarian sense in the manner of John Rawls and other liberal theorists, that argue for a properly designed consumption tax - in part precisely because of the way such a tax sometimes but not all the times burdens capital and its yield, and in greater part because such a tax points the way towards greater, more meaningful progressivity in tax. The new understanding of tax yields important insights into pressingly practical matters of tax policy and design, and opens up an important window to critique contemporary trends in tax reform. The battle in tax policy should not be over income versus consumption taxation
{"title":"The Fair Timing of Tax","authors":"Edward J. McCaffery","doi":"10.2139/SSRN.441344","DOIUrl":"https://doi.org/10.2139/SSRN.441344","url":null,"abstract":"The traditional understanding of broad-based tax systems contrasts an income tax with all forms of a consumption tax. The income tax, alone, includes the yield to capital in its base; consumption taxes do not. Simple financial analysis demonstrates the equivalence of the two most common classes of consumption taxation - prepaid, or wage-based, and postpaid, or sales taxes - under certain assumptions, most importantly including constant tax and interest rates between the periods in the model. Advocates of redistributive taxes insist on both progressive rates and an income base, in large part to tax the yield to capital; opponents clamor for flat-rate consumption taxes, often invoking Mill's celebrated argument against the income tax's double taxation of savings to support their case. Once progressivity is presumed, however - as its enduring popular appeal suggests it ought be - the traditional understanding is flawed. Asking a different timing question, when, in a taxpayer's flow of funds, ought progressive taxes be imposed?, casts tax systems in a new light. The present tax system emerges as an onerous wage-based one. A progressive cash-flow consumption tax, in contrast, emerges as the best - most consistent and principled - tax on the yield to capital, under just the conditions in which it is fair and appropriate to tax such yield. This gives a further reason to support a progressive cash-flow consumption tax, sounding in reasons familiar to income tax supporters. A consistent progressive cash-flow consumption tax will lower the burden of taxation when capital transactions (borrowing, saving, and investing) are used to smooth labor earnings within or between lifetimes (or taxpayers), and will increase the burden of taxation when capital transactions are used to enhance labor earnings within or between lifetimes (or taxpayers). Critical reflection based on a near century of experience reveals such a tax to give form to attractive normative ideals. The new understanding helps to show that the traditional and most common arguments for consumption taxation are not compelling. The best, most appealing case for a consumption tax does not rest on simple horizontal equity models, nor on claims about the economic, consequentialist importance of savings on an individual or an aggregate social level. Rather it is claims of fairness, in a social contractarian sense in the manner of John Rawls and other liberal theorists, that argue for a properly designed consumption tax - in part precisely because of the way such a tax sometimes but not all the times burdens capital and its yield, and in greater part because such a tax points the way towards greater, more meaningful progressivity in tax. The new understanding of tax yields important insights into pressingly practical matters of tax policy and design, and opens up an important window to critique contemporary trends in tax reform. The battle in tax policy should not be over income versus consumption taxation","PeriodicalId":390004,"journal":{"name":"University of Southern California Center for Law & Social Science (CLASS) Law & Economics Research Paper Series","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115237906","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The authors construct a regulation model in which renegotiation occurs due to the imperfect enforcement of concession contracts. This enables the authors to provide theoretical predictions for the impact on the probability of renegotiation of a concession, regulatory institutions, institutional features, economic shocks, and the characteristics of the concession contracts. Then they use a data set of nearly 1,000 concessions awarded in Latin America and the Caribbean countries from 1989 to 2000 covering the sectors of telecommunications, energy, transport, and water to test these predictions. Finally, the authors derive some policy implications of their theoretical and empirical work.
{"title":"Renegotiation of Concession Contracts in Latin America","authors":"J. Guasch, J. Laffont, S. Straub","doi":"10.1596/1813-9450-3011","DOIUrl":"https://doi.org/10.1596/1813-9450-3011","url":null,"abstract":"The authors construct a regulation model in which renegotiation occurs due to the imperfect enforcement of concession contracts. This enables the authors to provide theoretical predictions for the impact on the probability of renegotiation of a concession, regulatory institutions, institutional features, economic shocks, and the characteristics of the concession contracts. Then they use a data set of nearly 1,000 concessions awarded in Latin America and the Caribbean countries from 1989 to 2000 covering the sectors of telecommunications, energy, transport, and water to test these predictions. Finally, the authors derive some policy implications of their theoretical and empirical work.","PeriodicalId":390004,"journal":{"name":"University of Southern California Center for Law & Social Science (CLASS) Law & Economics Research Paper Series","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121116358","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article explains, updates and generalizes Cooper (1979), which had labeled the estate tax a voluntary tax. The tax has remained "voluntary" in the sense of being easily avoidable, even by those engaging in activities within the tax's ostensible normative target (i.e., significant intergenerational wealth transfers). Further, all taxes on the yield to capital are voluntary in this sense. The federal tax system, writ large, is increasingly a wage-based tax. Citizens who own large stores of capital can live - and die - tax-free using common tax planning techniques. These facts ought to call the normative justification for the status quo, including the estate tax, into question. A consistent progressive cash flow tax - without a separate estate tax - is a far better, more consistent tax on both the yield to capital and inheritance than is the present, highly flawed, income plus estate tax.
{"title":"A Voluntary Tax? Revisited","authors":"Edward J. McCaffery","doi":"10.2139/ssrn.269352","DOIUrl":"https://doi.org/10.2139/ssrn.269352","url":null,"abstract":"This Article explains, updates and generalizes Cooper (1979), which had labeled the estate tax a voluntary tax. The tax has remained \"voluntary\" in the sense of being easily avoidable, even by those engaging in activities within the tax's ostensible normative target (i.e., significant intergenerational wealth transfers). Further, all taxes on the yield to capital are voluntary in this sense. The federal tax system, writ large, is increasingly a wage-based tax. Citizens who own large stores of capital can live - and die - tax-free using common tax planning techniques. These facts ought to call the normative justification for the status quo, including the estate tax, into question. A consistent progressive cash flow tax - without a separate estate tax - is a far better, more consistent tax on both the yield to capital and inheritance than is the present, highly flawed, income plus estate tax.","PeriodicalId":390004,"journal":{"name":"University of Southern California Center for Law & Social Science (CLASS) Law & Economics Research Paper Series","volume":"95 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127097904","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The proposed Restatement Third, Torts: General Principles takes the position that there is no general conception of strict liability, only special instances of such liability. This paper argues that there is indeed a general conception of strict liability, namely, enterprise liability, and that enterprise liability is a conception of responsibility for harm done equal to and competitive with the fault principle. Enterprise liability emerges early in the 1900's and expands in influence throughout most of the twentieth century. At the very moment when fault theorists like Ames and Jeremiah Smith were proclaiming the triumph of the fault principle in the common law of torts, enterprise liability burst full-blown on the legal landscape, with the enactment of the first Worker's Compensation Acts. These Acts, as Jeremiah Smith saw, were "founded largely upon a theory inconsistent with the common law of torts." That theory - the theory of enterprise liability - went on to spread throughout the tort law of accidents, reshaping preexisting forms of strict and vicarious liability and blossoming in the products liability regime inaugurated by Section 402A of the Second Restatement. Enterprise liability played an important role in tort accident law throughout the twentieth century, expanding the domain of strict liability relative to negligence and increasing the strictness with which certain doctrines (such as res ipsa loquitur) were interpreted. Even during the current renaissance of negligence liability, enterprise liability continues to exert a powerful subterranean influence on the way negligence doctrine is formulated in such disparate areas as medical malpractice, special relationships and duty. The proposed Restatement, Third's portrayal of strict liability as a set of isolated exceptions to a general regime of fault liability is thus untrue to the history and theory of the tort law of accidents as it has come down to us at the start of this century. More disturbingly, this slighting of enterprise liability and celebration of fault liability covertly contributes to its own realization. By writing enterprise liability out of our law and treating all instances of strict liability as special cases with particular histories and peculiar rationales, the proposed Restatement, Third fosters the triumph of negligence over strict liability, a triumph it purports merely to find.
{"title":"The Theory of Enterprise Liability and Common Law Strict Liability","authors":"Gregory C. Keating","doi":"10.2139/ssrn.277312","DOIUrl":"https://doi.org/10.2139/ssrn.277312","url":null,"abstract":"The proposed Restatement Third, Torts: General Principles takes the position that there is no general conception of strict liability, only special instances of such liability. This paper argues that there is indeed a general conception of strict liability, namely, enterprise liability, and that enterprise liability is a conception of responsibility for harm done equal to and competitive with the fault principle. Enterprise liability emerges early in the 1900's and expands in influence throughout most of the twentieth century. At the very moment when fault theorists like Ames and Jeremiah Smith were proclaiming the triumph of the fault principle in the common law of torts, enterprise liability burst full-blown on the legal landscape, with the enactment of the first Worker's Compensation Acts. These Acts, as Jeremiah Smith saw, were \"founded largely upon a theory inconsistent with the common law of torts.\" That theory - the theory of enterprise liability - went on to spread throughout the tort law of accidents, reshaping preexisting forms of strict and vicarious liability and blossoming in the products liability regime inaugurated by Section 402A of the Second Restatement. Enterprise liability played an important role in tort accident law throughout the twentieth century, expanding the domain of strict liability relative to negligence and increasing the strictness with which certain doctrines (such as res ipsa loquitur) were interpreted. Even during the current renaissance of negligence liability, enterprise liability continues to exert a powerful subterranean influence on the way negligence doctrine is formulated in such disparate areas as medical malpractice, special relationships and duty. The proposed Restatement, Third's portrayal of strict liability as a set of isolated exceptions to a general regime of fault liability is thus untrue to the history and theory of the tort law of accidents as it has come down to us at the start of this century. More disturbingly, this slighting of enterprise liability and celebration of fault liability covertly contributes to its own realization. By writing enterprise liability out of our law and treating all instances of strict liability as special cases with particular histories and peculiar rationales, the proposed Restatement, Third fosters the triumph of negligence over strict liability, a triumph it purports merely to find.","PeriodicalId":390004,"journal":{"name":"University of Southern California Center for Law & Social Science (CLASS) Law & Economics Research Paper Series","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124889497","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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