Thursday, August 28, 2014

DeMott on Agency Law's "Third Bottle"

One of the topics at a forthcoming conference on Opportunities for Law’s Intellectual History is “Legal Doctrine.”  Before you roll your eyes, cast them upon The Contours and Composition of Agency Doctrine: Perspectives from History and Theory on Inherent Agency Power, by Deborah DeMott, Duke University School of Law.  It is forthcoming in the University of Illinois Law Review (2014):
This Essay explores the history of formulations of agency doctrine, arguing that agency law can best be rationalized as a distinctive subject by recognizing that an agent acts as an extension of the principal. The Essay relies on historical material, some unpublished, related to the drafting of the Restatements of Agency, the disagreements among Reporters and other participants about the contours of agency law, and the intellectual backdrop against which these experts worked. Their disputes, preceded as they were by challenges to the fundamental coherence of agency law, led to successive formulations of agency doctrine; while attempting to provide a comprehensive level of generality, some formulations threatened to distort established limits on the scope of a principal's responsibility for the actions of a principal. The Essay develops in particular the history of the doctrine of inherent agency power, tracing its origins back to the early days of work on the first Restatement of Agency through to the Restatement Third, which jettisons the doctrine. Originating as a form of catch-all (termed a "third bottle" by those working on the first Restatement) inherent agency power as a doctrine was an over-generalization that responded to the narrowness with which other doctrine were formulated, in particular apparent authority.

No comments: