Three Pictures of Contract: Duty, Power and Compound Rule

A fundamental divide among theories of contract law is between those that picture contract as a power and those that picture it as a duty. On the power-conferring picture, contracting is a sort of legislative act, in which persons determine what law will apply to their transaction. On the duty-imposing picture, contract law puts duties on persons entering into agreements for consideration whether they want them or not. Until now, very little attention has been paid to the problem of how to tell whether a given rule is power conferring or duty imposing -- a question that should lie at the center of contract theory. This Article argues that two characteristic features of legal powers are an expectation that actors will satisfy the rule with the purpose of achieving the legal consequences and legal rules designed to facilitate such uses. A law might exhibit these features in either of two ways, which define two types of legal powers. Many power-creating laws employ conditions of legal validity, such as legal formalities, designed to ensure the actor\u27s legal purpose. The presence of such validity conditions is strong evidence that the law\u27s sole function is to create a legal power, and I suggest reserving the term power-conferring for such laws. Other laws anticipate and enable their purposive use without conditioning an act\u27s legal consequences on the actor\u27s legal purpose. The structure of such laws suggests that they function both to create powers and to impose duties. I coin the term compound for laws that satisfy this description, and argue that the contract law we have is a compound rule. The dual function of compound rules provides empirical support for pluralist justifications of contract law. An example of such a theory can be found in Joseph Raz’s comments on the relationship between contract law and voluntary obligations

What is Securitization? And for What Purpose?

In Re: Defining Securitization, Professor Jonathan Lipson attempts to define a “true” securitization transaction, ultimately characterizing it as “a purchase of primary payment rights by a special purpose entity that (1) legally isolates such payment rights from a bankruptcy (or similar insolvency) estate of the originator, and (2) results, directly or indirectly, in the issuance of securities whose value is determined by the payment rights so purchased.” There is much to admire in Lipson’s attempt but also much to question. Let me start with the admiration. Lipson’s article is by far the most systematic and thoughtful analysis of what securitization should mean. Importantly, he describes what he sees as the “essential elements of a securitization, its inputs (payment rights), structure (bankruptcy-proof legal isolation), and outputs (securities).” Dividing securitization into inputs, structure, and outputs is rhetorically, if not also conceptually, sensible. Indeed, in teaching courses about securitization I often have referred to the left-hand side of the structure--which Lipson more felicitously calls the inputs--and the right-hand side of the structure--which Lipson (again more felicitously) calls the outputs. To the extent such terminology is intuitively descriptive, it advances understanding. In future courses, I intend to refer to inputs and outputs. I would, however, make one change to Lipson’s use of the term “structure” to describe the portion of a securitization transaction between the inputs and the outputs. Because “structure” intuitively means an entire structure--which, in the case of securitization, would also include the inputs and outputs--I suggest using the term “intermediate structure” instead. Thus, I will refer to a securitization transaction’s inputs, intermediate structure, and outputs. Even with that change, I still have several concerns with Professor Lipson’s definition of securitization. This Article will next discuss those concerns, showing that the definition is overly restrictive and potentially inaccurat

What is Securitization? And for What Purpose?

In Re: Defining Securitization, Professor Jonathan Lipson attempts to define a “true” securitization transaction, ultimately characterizing it as “a purchase of primary payment rights by a special purpose entity that (1) legally isolates such payment rights from a bankruptcy (or similar insolvency) estate of the originator, and (2) results, directly or indirectly, in the issuance of securities whose value is determined by the payment rights so purchased.” There is much to admire in Lipson’s attempt but also much to question. Let me start with the admiration. Lipson’s article is by far the most systematic and thoughtful analysis of what securitization should mean. Importantly, he describes what he sees as the “essential elements of a securitization, its inputs (payment rights), structure (bankruptcy-proof legal isolation), and outputs (securities).” Dividing securitization into inputs, structure, and outputs is rhetorically, if not also conceptually, sensible. Indeed, in teaching courses about securitization I often have referred to the left-hand side of the structure--which Lipson more felicitously calls the inputs--and the right-hand side of the structure--which Lipson (again more felicitously) calls the outputs. To the extent such terminology is intuitively descriptive, it advances understanding. In future courses, I intend to refer to inputs and outputs. I would, however, make one change to Lipson’s use of the term “structure” to describe the portion of a securitization transaction between the inputs and the outputs. Because “structure” intuitively means an entire structure--which, in the case of securitization, would also include the inputs and outputs--I suggest using the term “intermediate structure” instead. Thus, I will refer to a securitization transaction’s inputs, intermediate structure, and outputs. Even with that change, I still have several concerns with Professor Lipson’s definition of securitization. This Article will next discuss those concerns, showing that the definition is overly restrictive and potentially inaccurat

Interpretation, translation and intercultural communication in refugee status determination procedures in the UK and France

This article explores the interplay between language and intercultural communication within refugee status determination procedures in the UK and France, using material taken from ethnographic research that involved a combination of participant observation, semi-structured interviews and documentary analysis in both countries over a two-year period (2007–2009). It is concerned, in particular, to examine the role played by interpreters in facilitating intercultural communication between asylum applicants and the different administrative and legal actors responsible for assessing or defending their claims. The first section provides an overview of refugee status determination procedures in the UK and France, introducing the main administrative and legal contexts of the asylum process within which interpreters operate in the two countries. The second section compares the organisation of interpreting services, codes of conduct for interpreters and institutional expectations about the nature of interpreters’ activity on the part of the relevant UK and French authorities. The third section then explores some of the practical dilemmas for interpreters and barriers to communication that exist in refugee status determination procedures in the two countries. The article concludes by emphasising the complex and active nature of the interpreter's role in UK and French refugee status determination procedures