https://kumu.tru.ca/api.php?action=feedcontributions&user=Lagroixr13&feedformat=atomKumu Wiki - TRU - User contributions [en]2024-03-29T06:08:05ZUser contributionsMediaWiki 1.35.8https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Liberty-Paternalism&diff=2483Course:Law3020/2014WT1/Group M/Liberty-Paternalism2014-03-21T18:09:01Z<p>Lagroixr13: </p>
<hr />
<div>== '''Paternalism and the restriction of liberty''' ==<br />
<br />
http://www.eastwestbank.com/english/images/Fiduciary.jpg<br />
<br />
<br />
Where Mills philosophy provides the government with very little latitude to pass laws for an individuals own protection Dworkin accepts that such legislation may be appropriate where a pressing social objective exists. Although H v S does not deal with coercive legislation passed by parliament but instead with a common law rule regulating business transactions the debate between liberty and paternalism is relevant to the question of whether such a rule is legitimate. Dworkin said in his article Paternalism: “in addition to laws which attach criminal or civil penalties to certain kinds of actions there are laws rules regulations and decrees which make it either difficult or impossible for people to carry out their plans which are also justified on paternalistic grounds” (Dworkin, paternalism part 2). These include cases of impure paternalism, rules which aim to “ protect the welfare of a class of persons” by “restricting the freedom of other persons besides those who are benefited” (Dworkin Paternalism part 3). <br />
<br />
http://www.globalhealthpolicy.net/wp-content/uploads/2012/06/Paternalism-cartoon1.jpg<br />
<br />
Although the rule in H v S is not a direct government legislation, it does fall under the* of a common law rule which attempts to protect one class of persons by limiting the liberty of another. Specifically H v S imposes an fiduciary obligation on financial planners to disclose any conflict of interest or potential conflict of interest they might have. This is not an outright prohibition, the common law rule in question would almost certainly be justifiable according to Dworkin’s philosophy because it aims to address the harmful affect of vulnerable investors relying on bad advice based on the ulterior motives of financial planner. The common law rule described in H v S also falls within Dworkin’s principle of “least restrictive alternative” namely that liberty should be restricted as little as possible in achieving the desired effect. The fiduciary duty does not prohibition a financial planner with the possible conflict of interest from giving advice but simply requires that he or she disclose the conflict of interest to the Client. <br />
The reason for this is to create a level playing field between the parties through open information and disclosure. There is an inherent reliance in expert relationships. <br />
<br />
Even according to Mills philosophy the fiduciary obligation to disclose potential conflicts of interest would likely justifiable as a precaution against fraud. For Mills an individual’s ability to exercise liberty depends upon knowledge of his or her own best interests. “With respect to his own feelings and circumstances the most ordinary man or woman has mean of knowledge immeasurably surpassing those that can be possessed by anyone else” (On Liberty, Chapt 4 para 4). In order for this prop to hold true an individual making a decision must have full knowledge of its implications. To base an important investment decision on incomplete information could seriously harm an investor’s interest therefore by withholding relevant information an investment advisor might well violate the harm principle articulated by Mills. In Mills perhaps this would be a form of harm to a vulnerable person.</div>Lagroixr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Liberty-Paternalism&diff=2477Course:Law3020/2014WT1/Group M/Liberty-Paternalism2014-03-21T18:08:10Z<p>Lagroixr13: </p>
<hr />
<div>== '''Paternalism and the restriction of liberty''' ==<br />
<br />
http://www.eastwestbank.com/english/images/Fiduciary.jpg<br />
<br />
<br />
Where mills philosophy provides the government with very little latitude to pass laws for an individuals own protection Dworkin accepts that such legislation may be appropriate where a pressing social objective exists. Although H v S does not deal with coercive legislation passed by parliament but instead with a common law rule regulating business transactions the debate between liberty and paternalism is relevant to the question of whether such a rule is legitimate. Dworkin said in his article Paternalism: “in addition to laws which attach criminal or civil penalties to certain kinds of actions there are laws rules regulations and decrees which make it either difficult or impossible for people to carry out their plans which are also justified on paternalistic grounds” (Dworkin, paternalism part 2). These include cases of impure paternalism, rules which aim to “ protect the welfare of a class of persons” by “restricting the freedom of other persons besides those who are benefited” (Dworkin Paternalism part 3). <br />
<br />
http://www.globalhealthpolicy.net/wp-content/uploads/2012/06/Paternalism-cartoon1.jpg<br />
<br />
Although the rule in H v S is not a direct government legislation, it does fall under the* of a common law rule which attempts to protect one class of persons by limiting the liberty of another. Specifically H v S imposes an fiduciary obligation on financial planners to disclose any conflict of interest or potential conflict of interest they might have. This is not an outright prohibition, the common law rule in question would almost certainly be justifiable according to Dworkin’s philosophy because it aims to address the harmful affect of vulnerable investors relying on bad advice based on the ulterior motives of financial planner. The common law rule described in H v S also falls within Dworkin’s principle of “least restrictive alternative” namely that liberty should be restricted as little as possible in achieving the desired effect. The fiduciary duty does not prohibition a financial planner with the possible conflict of interest from giving advice but simply requires that he or she disclose the conflict of interest to the Client. <br />
The reason for this is to create a level playing field between the parties through open information and disclosure. There is an inherent reliance in expert relationships. <br />
<br />
Even according to Mills philosophy the fiduciary obligation to disclose potential conflicts of interest would likely justifiable as a precaution against fraud. For Mills an individual’s ability to exercise liberty depends upon knowledge of his or her own best interests. “With respect to his own feelings and circumstances the most ordinary man or woman has mean of knowledge immeasurably surpassing those that can be possessed by anyone else” (On Liberty, Chapt 4 para 4). In order for this prop to hold true an individual making a decision must have full knowledge of its implications. To base an important investment decision on incomplete information could seriously harm an investor’s interest therefore by withholding relevant information an investment advisor might well violate the harm principle articulated by Mills. In Mills perhaps this would be a form of harm to a vulnerable person.</div>Lagroixr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=2464Course:Law3020/2014WT1/Group M/Separation Thesis2014-03-21T18:05:24Z<p>Lagroixr13: </p>
<hr />
<div>== Separation thesis, Hart and Fuller ==<br />
<br />
http://www.marketingpilgrim.com/wp-content/uploads/2013/08/simpsons-angel-devil.jpg<br />
<br />
The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
<br />
<br />
=== '''Role of Judges''' ===<br />
http://www.lustratusrepama.com/litebytes/wp-content/uploads/2009/09/judge1.jpg<br />
<br />
<br />
<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
<br />
<br />
http://1.bp.blogspot.com/-OS08iYq3pek/URQZs3TNCwI/AAAAAAAAMws/u83K7ZZsMJE/s1600/1976_cap_super_8.jpg<br />
<br />
Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Lagroixr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=2457Course:Law3020/2014WT1/Group M/Separation Thesis2014-03-21T18:03:57Z<p>Lagroixr13: </p>
<hr />
<div>== Separation thesis, Hart and Fuller ==<br />
<br />
http://www.marketingpilgrim.com/wp-content/uploads/2013/08/simpsons-angel-devil.jpg<br />
<br />
The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
<br />
<br />
=== '''Role of Judges''' ===<br />
http://www.lustratusrepama.com/litebytes/wp-content/uploads/2009/09/judge1.jpg<br />
<br />
<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
<br />
<br />
http://1.bp.blogspot.com/-OS08iYq3pek/URQZs3TNCwI/AAAAAAAAMws/u83K7ZZsMJE/s1600/1976_cap_super_8.jpg<br />
Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Lagroixr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=2443Course:Law3020/2014WT1/Group M/Separation Thesis2014-03-21T17:59:15Z<p>Lagroixr13: </p>
<hr />
<div>== Separation thesis, Hart and Fuller ==<br />
<br />
http://www.marketingpilgrim.com/wp-content/uploads/2013/08/simpsons-angel-devil.jpg<br />
<br />
The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
<br />
<br />
'''Role of Judges''' http://www.lustratusrepama.com/litebytes/wp-content/uploads/2009/09/judge1.jpg<br />
<br />
<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
<br />
Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Lagroixr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=2436Course:Law3020/2014WT1/Group M/Separation Thesis2014-03-21T17:57:18Z<p>Lagroixr13: </p>
<hr />
<div><br />
'''Separation Thesis, Hart and Fuller<br />
'''<br />
http://www.marketingpilgrim.com/wp-content/uploads/2013/08/simpsons-angel-devil.jpg<br />
<br />
The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
<br />
<br />
'''Role of Judges''' http://www.lustratusrepama.com/litebytes/wp-content/uploads/2009/09/judge1.jpg<br />
<br />
<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
<br />
Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Lagroixr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Separation_Thesis&diff=2431Course:Law3020/2014WT1/Group M/Separation Thesis2014-03-21T17:54:01Z<p>Lagroixr13: </p>
<hr />
<div><br />
'''Separation Thesis, Hart and Fuller<br />
'''<br />
<br />
<br />
The separation thesis by H.L.A Hart builds on previous discussions by legal positivists that the law and morality are separate systems. Although the two may at times run parallel, they are distinct and a law need not be moral to be obeyed. Instead, Hart asserts that valid laws are rooted in the rule of recognition and must be supported by an enforcing system. This rule requires that in order to be recognized as valid, a law must be followed obeyed by a group for reasons other than fear of punishment. This theory can certainly be applied to the case of Hodgkinson v Simms as the established rules surrounding fiduciary duties and regulation of stock brokers would be considered valid laws in Hart’s opinion. The rule of recognition can be upheld as a majority of practicing stock brokers choose to follow the regulations and may do so for reasons such as personal integrity, societal benefit or economic benefit. Although the fear of punishment (losing one’s license) may be a factor in considering to obey the regulations, it is not the only motivating factor and thus the rule is upheld.<br />
<br />
<br />
'''Role of Judges''' http://www.lustratusrepama.com/litebytes/wp-content/uploads/2009/09/judge1.jpg<br />
<br />
<br />
Within the separation theory Hart also discusses the role of judges. He divides law into two areas: a settled core of meaning and the penumbra. The settled core is established law and undisputed. The penumbra however is the area of ambiguity, and thus the area where judges are most useful. We see the penumbra issue in Hodgkinson v Simms as the court is attempting to decide whether the principles of fiduciary duty should be extended to cover this broker client relationship. Within the penumbra judges must use the principles of justice to determine whether new applications of law should be recognized as to reflect changes in society. In Hodgkinson v Simms the majority of the court looked at prior applications of fiduciary duties and determines that for policy reasons the relationship should be extended to brokers and clients. In this case the broker had trust over a vast amount of money and there was a clear power dependency relationship. Imposing a duty would be consistent with the norms of loyalty in professional codes and self-regulatory bodies and thus the judicial interpretation would be in line with societal values.<br />
<br />
Another scholar, Lon Fuller, critiques Hart’s theory as impractical and simply wrong when taking place against the backdrop of WWI. He attacks Hart’s theory with four distinct arguments: social acceptance is grounded in morality and that is what produces good order; second, law itself has an inner morality; third immoral laws cannot be explained by the separation thesis; and fourth that the core/penumbra theory is flawed. The most relevant of Fuller’s points to Hodgkinson v Simms is the fourth that there can be no settled core of law and that all law can be ambiguous within the right context. Fuller asserts that it is actually the judges that make the law what it ought to be through collaborative interpretation. This idea is consistent with Hodgkinson v Simms as the appeal arose from the fiduciary duty issue and whether it should be extended or not. The dissent argues that it should not and cites that historically courts have not extended fiduciary duties to these types of relationship. As the Supreme Court ultimately split 4:3 in favor of establishing a duty based on public policy reasons, this strongly supports Fuller’s argument that there is no established core without context.</div>Lagroixr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Liberty-Paternalism&diff=1996Course:Law3020/2014WT1/Group M/Liberty-Paternalism2014-03-14T17:30:26Z<p>Lagroixr13: </p>
<hr />
<div>'''Paternalism and the restriction of liberty'''<br />
<br />
http://www.eastwestbank.com/english/images/Fiduciary.jpg<br />
<br />
<br />
Where mills philosophy provides the government with very little latitude to pass laws for an individuals own protection Dworkin accepts that such legislation may be appropriate where a pressing social objective exists. Although H v S does not deal with coercive legislation passed by parliament but instead with a common law rule regulating business transactions the debate between liberty and paternalism is relevant to the question of whether such a rule is legitimate. Dworkin said in his article Paternalism: “in addition to laws which attach criminal or civil penalties to certain kinds of actions there are laws rules regulations and decrees which make it either difficult or impossible for people to carry out their plans which are also justified on paternalistic grounds” (Dworkin, paternalism part 2). These include cases of impure paternalism, rules which aim to “ protect the welfare of a class of persons” by “restricting the freedom of other persons besides those who are benefited” (Dworkin Paternalism part 3). <br />
<br />
http://www.globalhealthpolicy.net/wp-content/uploads/2012/06/Paternalism-cartoon1.jpg<br />
<br />
Although the rule in H v S is not a direct government legislation, it does fall under the* of a common law rule which attempts to protect one class of persons by limiting the liberty of another. Specifically H v S imposes an fiduciary obligation on financial planners to disclose any conflict of interest or potential conflict of interest they might have. This is not an outright prohibition, the common law rule in question would almost certainly be justifiable according to Dworkin’s philosophy because it aims to address the harmful affect of vulnerable investors relying on bad advice based on the ulterior motives of financial planner. The common law rule described in H v S also falls within Dworkin’s principle of “least restrictive alternative” namely that liberty should be restricted as little as possible in achieving the desired effect. The fiduciary duty does not prohibition a financial planner with the possible conflict of interest from giving advice but simply requires that he or she disclose the conflict of interest to the Client. <br />
The reason for this is to create a level playing field between the parties through open information and disclosure. There is an inherent reliance in expert relationships. <br />
<br />
Even according to Mills philosophy the fiduciary obligation to disclose potential conflicts of interest would likely justifiable as a precaution against fraud. For Mills an individual’s ability to exercise liberty depends upon knowledge of his or her own best interests. “With respect to his own feelings and circumstances the most ordinary man or woman has mean of knowledge immeasurably surpassing those that can be possessed by anyone else” (On Liberty, Chapt 4 para 4). In order for this prop to hold true an individual making a decision must have full knowledge of its implications. To base an important investment decision on incomplete information could seriously harm an investor’s interest therefore by withholding relevant information an investment advisor might well violate the harm principle articulated by Mills. In Mills perhaps this would be a form of harm to a vulnerable person.</div>Lagroixr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Liberty-Paternalism&diff=1995Course:Law3020/2014WT1/Group M/Liberty-Paternalism2014-03-14T17:29:39Z<p>Lagroixr13: </p>
<hr />
<div>'''Paternalism and the restriction of liberty'''<br />
<br />
http://www.lapfforum.org/TTx2/news/fiduciary-duties-and-investment-intermediaries/image<br />
<br />
<br />
Where mills philosophy provides the government with very little latitude to pass laws for an individuals own protection Dworkin accepts that such legislation may be appropriate where a pressing social objective exists. Although H v S does not deal with coercive legislation passed by parliament but instead with a common law rule regulating business transactions the debate between liberty and paternalism is relevant to the question of whether such a rule is legitimate. Dworkin said in his article Paternalism: “in addition to laws which attach criminal or civil penalties to certain kinds of actions there are laws rules regulations and decrees which make it either difficult or impossible for people to carry out their plans which are also justified on paternalistic grounds” (Dworkin, paternalism part 2). These include cases of impure paternalism, rules which aim to “ protect the welfare of a class of persons” by “restricting the freedom of other persons besides those who are benefited” (Dworkin Paternalism part 3). <br />
<br />
http://www.globalhealthpolicy.net/wp-content/uploads/2012/06/Paternalism-cartoon1.jpg<br />
<br />
Although the rule in H v S is not a direct government legislation, it does fall under the* of a common law rule which attempts to protect one class of persons by limiting the liberty of another. Specifically H v S imposes an fiduciary obligation on financial planners to disclose any conflict of interest or potential conflict of interest they might have. This is not an outright prohibition, the common law rule in question would almost certainly be justifiable according to Dworkin’s philosophy because it aims to address the harmful affect of vulnerable investors relying on bad advice based on the ulterior motives of financial planner. The common law rule described in H v S also falls within Dworkin’s principle of “least restrictive alternative” namely that liberty should be restricted as little as possible in achieving the desired effect. The fiduciary duty does not prohibition a financial planner with the possible conflict of interest from giving advice but simply requires that he or she disclose the conflict of interest to the Client. <br />
The reason for this is to create a level playing field between the parties through open information and disclosure. There is an inherent reliance in expert relationships. <br />
<br />
Even according to Mills philosophy the fiduciary obligation to disclose potential conflicts of interest would likely justifiable as a precaution against fraud. For Mills an individual’s ability to exercise liberty depends upon knowledge of his or her own best interests. “With respect to his own feelings and circumstances the most ordinary man or woman has mean of knowledge immeasurably surpassing those that can be possessed by anyone else” (On Liberty, Chapt 4 para 4). In order for this prop to hold true an individual making a decision must have full knowledge of its implications. To base an important investment decision on incomplete information could seriously harm an investor’s interest therefore by withholding relevant information an investment advisor might well violate the harm principle articulated by Mills. In Mills perhaps this would be a form of harm to a vulnerable person.</div>Lagroixr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Liberty-Paternalism&diff=1992Course:Law3020/2014WT1/Group M/Liberty-Paternalism2014-03-14T17:28:18Z<p>Lagroixr13: </p>
<hr />
<div>'''Paternalism and the restriction of liberty'''<br />
<br />
Where mills philosophy provides the government with very little latitude to pass laws for an individuals own protection Dworkin accepts that such legislation may be appropriate where a pressing social objective exists. Although H v S does not deal with coercive legislation passed by parliament but instead with a common law rule regulating business transactions the debate between liberty and paternalism is relevant to the question of whether such a rule is legitimate. Dworkin said in his article Paternalism: “in addition to laws which attach criminal or civil penalties to certain kinds of actions there are laws rules regulations and decrees which make it either difficult or impossible for people to carry out their plans which are also justified on paternalistic grounds” (Dworkin, paternalism part 2). These include cases of impure paternalism, rules which aim to “ protect the welfare of a class of persons” by “restricting the freedom of other persons besides those who are benefited” (Dworkin Paternalism part 3). <br />
<br />
http://www.globalhealthpolicy.net/wp-content/uploads/2012/06/Paternalism-cartoon1.jpg<br />
<br />
Although the rule in H v S is not a direct government legislation, it does fall under the* of a common law rule which attempts to protect one class of persons by limiting the liberty of another. Specifically H v S imposes an fiduciary obligation on financial planners to disclose any conflict of interest or potential conflict of interest they might have. This is not an outright prohibition, the common law rule in question would almost certainly be justifiable according to Dworkin’s philosophy because it aims to address the harmful affect of vulnerable investors relying on bad advice based on the ulterior motives of financial planner. The common law rule described in H v S also falls within Dworkin’s principle of “least restrictive alternative” namely that liberty should be restricted as little as possible in achieving the desired effect. The fiduciary duty does not prohibition a financial planner with the possible conflict of interest from giving advice but simply requires that he or she disclose the conflict of interest to the Client. <br />
The reason for this is to create a level playing field between the parties through open information and disclosure. There is an inherent reliance in expert relationships. <br />
<br />
Even according to Mills philosophy the fiduciary obligation to disclose potential conflicts of interest would likely justifiable as a precaution against fraud. For Mills an individual’s ability to exercise liberty depends upon knowledge of his or her own best interests. “With respect to his own feelings and circumstances the most ordinary man or woman has mean of knowledge immeasurably surpassing those that can be possessed by anyone else” (On Liberty, Chapt 4 para 4). In order for this prop to hold true an individual making a decision must have full knowledge of its implications. To base an important investment decision on incomplete information could seriously harm an investor’s interest therefore by withholding relevant information an investment advisor might well violate the harm principle articulated by Mills. In Mills perhaps this would be a form of harm to a vulnerable person.</div>Lagroixr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Liberty-Paternalism&diff=1991Course:Law3020/2014WT1/Group M/Liberty-Paternalism2014-03-14T17:27:23Z<p>Lagroixr13: Created page with "'''Paternalism and the restriction of liberty''' Where mills philosophy provides the government with very little latitude to pass laws for an individuals own protection Dwork..."</p>
<hr />
<div>'''Paternalism and the restriction of liberty'''<br />
<br />
Where mills philosophy provides the government with very little latitude to pass laws for an individuals own protection Dworkin accepts that such legislation may be appropriate where a pressing social objective exists. Although H v S does not deal with coercive legislation passed by parliament but instead with a common law rule regulating business transactions the debate between liberty and paternalism is relevant to the question of whether such a rule is legitimate. Dworkin said in his article Paternalism: “in addition to laws which attach criminal or civil penalties to certain kinds of actions there are laws rules regulations and decrees which make it either difficult or impossible for people to carry out their plans which are also justified on paternalistic grounds” (Dworkin, paternalism part 2). These include cases of impure paternalism, rules which aim to “ protect the welfare of a class of persons” by “restricting the freedom of other persons besides those who are benefited” (Dworkin Paternalism part 3). <br />
<br />
Although the rule in H v S is not a direct government legislation, it does fall under the* of a common law rule which attempts to protect one class of persons by limiting the liberty of another. Specifically H v S imposes an fiduciary obligation on financial planners to disclose any conflict of interest or potential conflict of interest they might have. This is not an outright prohibition, the common law rule in question would almost certainly be justifiable according to Dworkin’s philosophy because it aims to address the harmful affect of vulnerable investors relying on bad advice based on the ulterior motives of financial planner. The common law rule described in H v S also falls within Dworkin’s principle of “least restrictive alternative” namely that liberty should be restricted as little as possible in achieving the desired effect. The fiduciary duty does not prohibition a financial planner with the possible conflict of interest from giving advice but simply requires that he or she disclose the conflict of interest to the Client. <br />
The reason for this is to create a level playing field between the parties through open information and disclosure. There is an inherent reliance in expert relationships. <br />
<br />
Even according to Mills philosophy the fiduciary obligation to disclose potential conflicts of interest would likely justifiable as a precaution against fraud. For Mills an individual’s ability to exercise liberty depends upon knowledge of his or her own best interests. “With respect to his own feelings and circumstances the most ordinary man or woman has mean of knowledge immeasurably surpassing those that can be possessed by anyone else” (On Liberty, Chapt 4 para 4). In order for this prop to hold true an individual making a decision must have full knowledge of its implications. To base an important investment decision on incomplete information could seriously harm an investor’s interest therefore by withholding relevant information an investment advisor might well violate the harm principle articulated by Mills. In Mills perhaps this would be a form of harm to a vulnerable person.</div>Lagroixr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Positivism&diff=1325Course:Law3020/2014WT1/Group M/Positivism2014-02-14T17:38:26Z<p>Lagroixr13: </p>
<hr />
<div>Legal positivism can largely be seen as a reaction to the central tenants of the natural law theory. Positivism is based on the proposition that law is separate from morality; therefore "positive law" is generally defined in negative terms, by what it is not. For this reason, it is perhaps not surprising that different positivist thinkers have proposed very different definitions for what positive law is:<br />
<br />
'''John Austin'''<br />
http://upload.wikimedia.org/wikipedia/commons/d/d9/John_Austin.jpg<br />
<br />
For John Austin, the validity of a law is empirically provable. Positive law constitutes a command, issued by superiors to subordinates, and backed by sanctions. The superior, or sovereign, may be an individual (such as a monarch) or an aggregate body (such as Parliament). In order to be a sovereign the individual or body must command obedience from the bulk of the given society. A judicial decision maker, although not the sovereign, derives its authority from the sovereign. Under Austin's positivist legal theory, judicial decision makers may interpret and apply law and even create law so long as it does contradict positive law as expressed by the sovereign. Although the decision in ''Hodgkinsons v. Simms'' is based on the common law as opposed to written legislation, the development of common law regulations is not inconsistent with Austin's theory of legal positivism.<br />
<br />
However, the fiduciary duty described in ''Hodkinsons v. Simms'' does not take the form of law articulated by Austin, as it is not a "command" followed by "sanctions". Instead it is a civil regulation of commercial relationships between private actors. The law is expressed by the Supreme Court is an awkward fit with Austin's positive law, as it is regulatory and descriptive in nature as opposed to a command which must be followed on pain of punishment by the state. The fiduciary duty articulated in this case may actually be a better fit with Austin's concept of "positive morality" as it appears to be an example of how the judicial decisions makers believe people in commercial relationships should act. In addition, the fiduciary duty in this case arises in part from the professional standards imposed on accountants. These are perhaps more akin to "club rules" (a type of positive morality) than they are to positive law ''per se''.<br />
<br />
'''H.L.A. Hart'''<br />
<br />
http://www.mtholyoke.edu/~gerla22f/classweb/website/images/hart.jpg<br />
<br />
Another positivist thinker, H.L.A. Hart, breaks positive law down into primary rules (which tell us what we can and cannot do) and secondary rules (rules by which we can change the rules, adjudicate disputes about the rules, and figure out what the rules are). The law that stems from the instant case describes fiduciary liability and thereby is a primary rule as it tells a certain class of people (accountants) what they can and cannot do.<br />
<br />
For Hart, the rule of recognition requires that positive law must be recognized by officials, it must be consistently applied, and those that apply the law must believe in its application. Hart sees laws as more than just commands, and believes that those applying the laws must also believe that the laws are just. With regard to the instant case there has been much jurisprudence upholding fiduciary duties in the professional context, suggesting those who apply such duties also believe in them. Fiduciary duties are a well established principle of many professional organizations, and are accepted and obeyed by the vast majority of accountants and other professionals. On this basis, the common law fiduciary duty described in ''Hodkinsons v. Simms'' fits much more comfortably with Hart's conception of positive law than with Austin's.<br />
<br />
In short, Hart's theory provides us with a more flexible approach as to what constitutes law. Austin's theory focuses almost entirely on a specific form of law (i.e. a command followed by a sanction), and is really only applicable to criminal and regulatory restrictions imposed on individuals by the state. Hart's theory, on the other hand, encompasses any generally accepted rule for how individuals are expected to behave. Many of the rules and regulations which Austin might define as mere "positive morality" (including the fiduciary duty arising in ''Hodkinsons v. Simms'') would fall within Hart's more flexible and expansive definition of "positive law".</div>Lagroixr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Natural_Law&diff=1108Course:Law3020/2014WT1/Group M/Natural Law2014-02-07T18:41:24Z<p>Lagroixr13: </p>
<hr />
<div>'''Hodgkinson v Simms'''<br />
<br />
<br />
http://faculty.cua.edu/pennington/Canon%20Law/stthomas2.gif<br />
<br />
Case on Natural Law:<br />
According to the natural law theory as expressed by Thomas Aquinas, four elements are required for a law to be valid:<br />
<br />
1. Must be directed to the common good<br />
<br />
-what is the purpose of the law? <br />
<br />
The purpose of the law is to protect vulnerable parties entering into commercial transaction relationship. <br />
<br />
• to promote honesty in dependent business relationships<br />
<br />
Common Good:<br />
Protecting fiduciary relationships promotes the common good by protecting vulnerable parties in contracts and prevents the unjust enrichment of stronger parties who take advantage of the power imbalance in the relationship. (by in this case failing to disclose a conflict of interest)<br />
<br />
2. Must follow practical reason (reasonable steps leading to the common good)<br />
The court is awarding damages to the injured party for the purpose of compensating his losses and to deter dishonest conduct in reliance business relationships. <br />
-who’s common good?<br />
-people engaging in commercial transactions require the certainty of knowing that all accountants would be required to follow predetermined professional standards including the obligation to report conflicts of interest. <br />
-for the good of anyone engaging the services of accountants or employing financial professionals. <br />
<br />
3. Must be made by valid lawmaker (ruler within community, who hold this position by reason of the natural order)<br />
The fiduciary duty recognized by the court in this case is based not on written but on an equitable common law principle. Natural law according to TA would not agree with this decision because the court is expanding and redefining what a fiduciary relationship is in this situation. Despite the courts motivation to further the common good, TA would be skeptical of the courts ability to achieve this objective. The courts could have been influenced by sympathy for the plaintiff after he lost all his money. Aquinas would like to share the court’s underlying objective but would prefer pre-exisiting written rules created by “valid law makers”. Aquinas did not see judges as valid lawmakers. <br />
<br />
4. Must be promulgated<br />
This was a common law principle, expanded by the court’s decision. Aquinas believed that the law should be predetermined and certain. The common law is, by definition, ambiguous and uncertain until clarified in a given factual context. Aquinas would not have seen the dynamic and changeable nature of common law to be properly promulgated in advance. Furthermore, Aquinas felt that the law should be accessible to the average person, however, it could be argued that this 100 page judgment is not obscure and difficult for the average person to understand.</div>Lagroixr13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_M/Natural_Law&diff=1105Course:Law3020/2014WT1/Group M/Natural Law2014-02-07T18:40:13Z<p>Lagroixr13: </p>
<hr />
<div>'''Hodgkinson v Simms'''<br />
<br />
<br />
Case on Natural Law:<br />
According to the natural law theory as expressed by Thomas Aquinas, four elements are required for a law to be valid:<br />
<br />
1. Must be directed to the common good<br />
<br />
-what is the purpose of the law? <br />
<br />
The purpose of the law is to protect vulnerable parties entering into commercial transaction relationship. <br />
<br />
• to promote honesty in dependent business relationships<br />
<br />
Common Good:<br />
Protecting fiduciary relationships promotes the common good by protecting vulnerable parties in contracts and prevents the unjust enrichment of stronger parties who take advantage of the power imbalance in the relationship. (by in this case failing to disclose a conflict of interest)<br />
<br />
2. Must follow practical reason (reasonable steps leading to the common good)<br />
The court is awarding damages to the injured party for the purpose of compensating his losses and to deter dishonest conduct in reliance business relationships. <br />
-who’s common good?<br />
-people engaging in commercial transactions require the certainty of knowing that all accountants would be required to follow predetermined professional standards including the obligation to report conflicts of interest. <br />
-for the good of anyone engaging the services of accountants or employing financial professionals. <br />
<br />
3. Must be made by valid lawmaker (ruler within community, who hold this position by reason of the natural order)<br />
The fiduciary duty recognized by the court in this case is based not on written but on an equitable common law principle. Natural law according to TA would not agree with this decision because the court is expanding and redefining what a fiduciary relationship is in this situation. Despite the courts motivation to further the common good, TA would be skeptical of the courts ability to achieve this objective. The courts could have been influenced by sympathy for the plaintiff after he lost all his money. Aquinas would like to share the court’s underlying objective but would prefer pre-exisiting written rules created by “valid law makers”. Aquinas did not see judges as valid lawmakers. <br />
<br />
4. Must be promulgated<br />
This was a common law principle, expanded by the court’s decision. Aquinas believed that the law should be predetermined and certain. The common law is, by definition, ambiguous and uncertain until clarified in a given factual context. Aquinas would not have seen the dynamic and changeable nature of common law to be properly promulgated in advance. Furthermore, Aquinas felt that the law should be accessible to the average person, however, it could be argued that this 100 page judgment is not obscure and difficult for the average person to understand.</div>Lagroixr13