Andy writes: >Why do we leave the decisions to the courts? Well, we >could leave to to arbitrators and sometimes do. Or to >administrative agencies, but that just generaly means >to administrative law judges. Who would you leave the >determination of liability to?
That is not what I asked. I like law. I have no problem with the judiciary as a concept. And, in disposition, I would not like a court which does not demand inquiry from the parties. What I asked, and do not feel I found an answer to in my research, is why we have this poorly defined CPD? It strikes me that the definition of it is very shifting and lacks cohesion. The courts make things up as they do along -- not in questions of facts, but in questions of law. Maybe things are starkly different there. You will recall that I am in Canada, and we will import UK decisions with greater weight than US decisions. Salomon and its offspring are perhaps not part of your caselaw. I did not raise the issue to compare caselaw, though. I think CPD is nebulous, purposefully, because the legislatures do not want to limit what business can do. And then one enters a scenario where judges are acting as equitable legislators when there seems to be no need to do so. >I have no ide what you mean by saying that the >criminal bar (of which I am part) would like as much >for their clients. Actually I think we'd prefer >precisely defined elements rather than vague standards >with lots of equities thrown in. It's hard to imagine >that operating in favor of criminal defendants. Are we talking across each other? I have been suggesting that the lack of precise definition, and the need to dip into the pond of equity when feeling a bit parched in doing something that the judge thirsts to do, is _not_ good for corporate law. I would rather see the clarity of the criminal code. I have quietly suggested that the reason this kind of nebulous statute can even exist is because the legislature does NOT want the clarity of criminal law. Lack of clarity simply makes it easier to do biz, and let's not worry too much how the dirt comes out in the washing. In the end, the courts will rely on the social need to "keep the gears of industry turning" as a sort of excuse for innumerable breaches. Ken.
