The Darfur Report and Genocidal Intent

The author argues that the Commission of Inquiry on Darfur,in excluding any genocidal intent in the Government authoritiesof the Sudan, while leaving open the possibility for individualstate officials or members of militias to entertain such intent,did not duly take into account the various views on genocidalintent put forward in legal literature. In the author's opinion,genocide — typically, that is, for all practical purposes— requires a collective activity of a group, state orentity — activity in which individual perpetrators participate.As for the genocidal intent of individual perpetrators —in this typical scenario, according to the author — oneshould distinguish between (i) the view, upheld by the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) and the InternationalCriminal Tribunal for Rwanda (ICTR), as well as the Commissionof Inquiry, that such intent is the aim physically to destroya protected group, and (ii) the more correct view that suchintent consists of the individual's (a) knowledge of a genocidalcampaign and (b) at least dolus eventualis as regards the atleast partial destruction of a protected group. This legal constructionof genocidal intent does not, however, lead to conclusions substantiallydifferent from those reached by the Commission of Inquiry withregard to the mental attitude of the Sudanese Government andmilitias: as they did not act pursuant to a collective goalto destroy a protected group, no genocidal intent could materialize.However, contrary to the Commission's conclusions, it followsfrom this proposition that no genocidal intent could be foundeither if, in some instances, single individuals were held tohave acted with the desire to see the protected group destroyed.For, in this event, the two requirements for individual genocidalintent would be lacking, namely knowledge of a genocidal campaign(on the premise that no such campaign was carried out), anda fortiori dolus eventualis.     

Tort Law and Corrective Justice

This article offers arefutation of the corrective justiceinterpretation of tort law – the view that itis essentially a system of corrective justice. It introduces a distinction between primary andsecondary tort duties and claims that tort lawis best understood as the union of its primaryand secondary duties. It then advances twoindependent criticisms of the correctivejustice interpretation. The article firstargues that primary tort duties have nothingfundamentally to do with corrective justice andthat, if one understands what is meant by``primary tort duties,' one is compelledto regard this fact as a decisive objection tothe corrective justice interpretation. Second,it argues that, whatever relation thereis between secondary tort duties and correctivejustice, that relation also holds betweencorrective justice and secondary duties ofother legal branches. In sum, the concept ofcorrective justice is neither capable ofunifying tort law nor of demarcating it fromother legal branches.The article also offers a general alternativeinterpretation of tort law. Rather thanbeing essentially corrective, tort law isessentially protective. Under this picture, iftort law has a most important point, it is theprotection of legal subjects and valuablesocial interests from harm. This is theoverarching ambition that unifies primary andsecondary tort duties. It does not, however,demarcate tort law from other legal branches.     

European group taxation-the role of exit taxes

The European Commission’s proposal to establish a Common Consolidated Corporate Tax Base reduces both compliance and administrative costs for European groups. The proposal would replace separate entity accounting with a profit allocation based on formula apportionment. Since formula apportionment rests on the source principle, the group faces an incentive to invest in low tax member states. Residence-based group taxation based on separate entity accounting could be an alternative. The subsidiaries’ profits and losses are attributed to the parent of the group (current inclusion), and the European group’s profit is taxed at the corporate income tax rate of the parent. The parent’s state of residence grants a foreign tax credit. Current inclusion prevents tax distortions regarding the location of investments, if no limitations on the foreign tax credit exist. A serious drawback of residence-based taxation is the incentive to move the group’s headquarter to a low tax member state. At present, this incentive is mitigated by exit taxation. Applicable exit taxation rules, however, most likely infringe upon European law. Rules that conform to European law probably abolish unfavourable liquidity effects upon exit. In net present value terms, however, exit taxes still render it burdensome for the group to move the headquarter to another member state.

WHEN DOES AN OPTIONAL TARIFF NOT LEAD TO A PARETO IMPROVEMENT? THE AMBIGUOUS EFFECTS OF SELF-SELECTING NONLINEAR PRICING WHEN DEMAND IS INTERDEPENDENT OR FIRMS DO NOT MAXIMIZE PROFIT

Optional or self-selecting tariffs allow customers to choosebetween an established tariff and an alternative outlay schedule.The possibility of making the vendor and at least one consumerbetter off, without making any other consumer worse off, makesoptional tariffs appealing to both economists and regulators.In economic terms, the introduction of optional tariffs makespossible a Pareto improvement in the allocation of resources.Unfortunately, the presumed desirability of such tariffs dependscrucially on assumptions that may not be fulfilled in the caseof a state-owned enterprise—in particular, profit-seekingbehavior on the part of the monopoly vendor and independenceof consumer demand functions. We analyze the economic implicationsand potential consequences, in general, of introducing negotiatedrate and service terms available to a sole user into a preexistingregulatory regime of uniform tariff rates and conditions ofservice. We identify the conditions under which it is economicallydesirable to introduce declining-block rates or other rate structuresthat discriminate among users of the affected services, withor without any basis in identifiable cost differences. We addressthe specific economic implications and potential consequencesof introducing negotiated rate and service terms available toa sole user where the affected service is provided under a monopolyestablished by federal statute, taking into account that suchnegotiated arrangements may include preferential pricing terms;that access to the negotiated terms may be limited to a smallnumber of users for administrative or other reasons; and thatcompetition may exist among users of the affected service orservices. Finally, we identify and describe regulatory measuresthat might be taken to accommodate potential concerns regardingthe impact of such negotiated rate and service arrangementson fairness in regulation and competition. We conclude thatit is not possible to derive sweeping propositions about theefficiency of optional tariff offerings. Instead, the welfareeffects of such pricing plans must be evaluated empiricallyon an individual basis. Our analysis has practical significancefor pricing policies in network industries, particularly thoseindustries served by state-owned enterprises that enjoy statutorymonopolies.     

Laws for Sale: Evidence from Russia

How does regulatory capture affect growth? We construct measuresof the political power of firms and regional regulatory captureusing microlevel data on the preferential treatment of firmsthrough regional laws and regulations in Russia during the period1992–2000. Using these measures, we find that: (1) politicallypowerful firms perform better on average; (2) a high level ofregulatory capture hurts the performance of firms that haveno political connections and boosts the performance of politicallyconnected firms; (3) capture adversely affects small-businessgrowth and the tax capacity of the state; and (4) there is noevidence that capture affects aggregate growth.

"oligarchy ... throws a close network of dependence relationshipsover all the economic and political institutions of present-daybourgeois society without exception... ." —Vladimir Lenin,"Imperialism: The Highest Stage of Capitalism" (1916)

     

Contract Damages, Corrective Justice and Punishment

This article re-examines the established principle that contract damages compensate but do not punish from the theoretical perspective of corrective justice and, in particular, the version advocated by Professor Ernest Weinrib. Weinrib argues that corrective justice affirms the traditional view that contract damages should be circumscribed by compensatory functions, and the notion of punitive damages is inconsistent with the structure of corrective justice and hence contractual rights. The correctness of this conclusion depends, however, on what is understood by punishment. This article argues that punishment is not necessarily explicable only as a form of state punishment, but may (adopting the retributive idea of punishment expounded by Jane Hampton) also be understood as a form of correlatively-structured response that redresses the moral injury inflicted by one's conduct on another. If that is the case, punitive damages for breach of contract may be justified even within the framework of corrective justice.     

Taxes,Tradable Rights and Transaction Costs

With respect to market-based policy approaches, it is a widely held view that corrective taxation entails substantial, though far fewer transaction costs than tradable permit systems. This conclusion only holds if set-up costs are singled out. This paper explores all relevant market, managerial and political transaction costs associated with environmental taxes and tradable emission rights. It is argued that the prevalence of transaction costs is largely dependent on the design of the policy instrument, respectively the tax base or the trading regime chosen. Comparative analysis further shows that a cap-and-trade program of emission permits distributed for free, traded on a brokered market and monitored upstream is not only more effective, but also likely to entail fewer transaction costs than environmental taxes. Any attempt, in turn, to save the huge information, enforcement and compliance costs incurred by corrective taxation impairs its efficacy by severing the link between the environmental externality and the tax base.JEL Classification: K32, K34     

Industry self-regulation,subversion of public institutions,and social control of torts

We characterize the comparative efficiency of industry self-regulation as means of social control of torts. Unlike liability, which is imposed by courts ex post, industry self-regulation, much like government regulation, acts before the harm is done. As compared to government regulators, however, the industry regulates with superior information. Furthermore, a pro-industry bias inherent to self-regulation also arises under alternative institutional arrangements when adjudicators are vulnerable to pressure by industry members. We show when industry self-regulation is socially desirable and feasible, and clarify when it could be an attractive institutional arrangement for developing and transition countries.     

Constitutional Limitations on State Tax Exportation

The notion that there are constitutional limitations on the power of the states to export their tax burdens to residents of other states has been the predicate of recent court challenges to state taxing schemes. The concept of state tax exportation and its implications for constitutional analysis have not, however, been systematically explored by the courts. The economics of state tax exportation suggest that a judicial inquiry into the extent of state tax exportation would be a formidable if not an insuperable task. And the Supreme Court, when recently confronted with an opportunity to constitutionalize a principle of excessive state tax exportation, flatly declined to do so. It is nevertheless possible that the concept of state tax exportation may have a role to play in constitutional analysis as a vague admonition to the states not to transgress some yet to be defined norms of fiscal balance in our federal system.     

The First Decision of the ICC Pre-Trial Chamber: International Criminal Procedure Under Construction

By its decision of 17 February 2005 to convene a status conferenceon the situation in Democratic Republic of Congo, the ICC Pre-TrialChamber I broadened its role by referring to and interpretingthe general provision contained in Article 57(3)(c) of the ICCStatute. It resorted to the status conference in order to exercisegeneral control over the work of the Prosecutor that is notrelated to a specific occasion, with a view to obtaining informationabout the investigations seven months after their initiation.During this time, the Prosecutor had not let the Chamber knowanything about his progress and results. Arguably, the mainreason behind the Chamber's decision was its intention to bothspeed up the investigations and to take care of the rights ofthe ‘prospective suspects’ — a special aspectof the ‘interest of justice’ — to whom thedelay could, obviously, be prejudicial. Thus, the Chamber somewhatshifted the ‘equilibrium’ between legal traditionsreached in Rome, arguably taking on a role more closely resemblingan investigating judge than provided for in the Statute andICC Rules of Procedure and Evidence.     

The Mass Media, Crime and Terrorism

The mass media play a large role in the public perception andacceptance of criminal behaviour by the United States of America.Public acceptance of illegal actions by the US government inthe Iraq War, as well as steps taken to combat terrorism, havebeen influenced by entertainment media content and media logicabout crime and fear. The focus of the article is on the culturaland mass communication contexts that have promoted fear of crimeon the one hand, while also justifying illegal state actionsto combat crime — and now terrorism — on the other.Propaganda and news management (e.g. the military-media complexand the failure of journalism) contribute to a discourse offear and symbolic negation of the ‘other’ —as criminal or terrorist — and, in the process, valorizecriminal conduct as necessary and heroic.     

Corrective Justice as A Principle of Criminal Law: A Prolegomenon

This article argues that corrective justice is an adequate principle of criminalization. On my interpretation, corrective justice holds that, in order for an action to count as a crime, there needs to be a plausible normative story about an offender having violated the interests of a victim in a way that disturbs their relationship as equal persons and a subsequent story about responding to crime in a way that corrects this disturbance. More specifically, I claim that corrective justice is concerned with the protection of interests that persons have in owning private goods throughout standard interactions with other persons. The argument proceeds in three steps. First, I specify the subject-matter that principles of criminal law need to ground and provide an outline of the idea of corrective justice. Second, I show that corrective justice can account for the main cases of crime and the salient modes of criminal responsibility. I also argue that corrective justice can make sense of two prima facie recalcitrant types of cases (rape and inchoate offenses). Third, and finally, I address two objections to my corrective justice theory of criminal law. The first concerns the implications corrective justice has for locating criminal law along the private/public law divide. The second objection raises the putatively problematic consequences corrective justice has for understanding the separation between criminal and civil law.     

Detecting Manipulation in Futures Markets: The Ferruzzi Soybean Episode

Manipulation—the exercise of market power in a futuresmarket—is a felony, but recent court and regulatory decisionshave made conviction of a manipulator problematic. Instead,regulators attempt to prevent manipulation. Deterrence by convictionis more efficient than prevention if manipulations can be detectedwith high probability. An analysis of the Ferruzzi soybean episodeof 1989 demonstrates how to detect manipulation with standardstatistical techniques. It is exceedingly unlikely that theprice and quantity relations observed in May and July 1989 werethe result of competition; they instead reflect market power.The ability to detect manipulation reliably suggests that existingregulation of manipulation in futures and securities marketsis inefficient because it relies on costly prevention ratherthan deterrence.     

Self-Representation versus Assignment of Defence Counsel before International Criminal Tribunals

After examining the drafting history of Article 14 of the UNCovenant on Civil and Political Rights, which lays down a defendant'sright ‘to defend himself in person or through legal assistanceof his own choosing’ — the relevant national andinternational case law and scholarly commentary — theauthor argues that the underlying purpose of the right at issueis to ensure a fair trial. This objective can best be met incases of former leaders accused of international crimes by assigningthe defendant a highly qualified attorney who is vigilantlycommitted to representing his client's interests. In his view,there are two main reasons why a court in international crimestrial should be able to require the defendant to work throughcounsel: (1) the likelihood that a defendant will act in a disruptivemanner; and (2) the unique need in a complex international crimescase for an orderly trial.     

The Uneasy Case for Comparative Negligence

This article questions, and in some contexts disproves, thevalidity of the efficiency justifications for the comparativenegligence rule. One argument in the literature suggests thatcomparative negligence is the superior rule in the presenceof court errors. The analysis here shows the analytical flawin this claim and conducts numerical simulations — a formof synthetic "empirical" tests — that prove the potentialsuperiority of other rules. The second argument in the literaturein favor of the comparative negligence rule is based on itsalleged superior ability to deal with private information. Thisarticle develops a general approach to liability rules as mechanismsthat induce self-selection among actors. It then shows thatself-selection can occur, not only under comparative negligence,but also under every other negligence rule. These conclusionsweaken the efficiency explanation for the growing appeal ofthe "division-of-liability" principle within tort law and beyond.     

Fly by Night or Face the Music? Premature Dissolution and the Desirability of Extended Liability

Premature dissolution can be a rational corporate response tothe threat of future liability. Although early dissolution iscostly to a firm, liability may be more so. The way in whichliability rules can exacerbate this extreme form of liabilityavoidance is of interest, since "fly-by-night" firms generateparticularly large social costs. In particular, we explore theconsequences of liability that is extended to the business partnersof an insolvent or absent tortfeasor—a relatively commonlegal response when tortfeasors abandon obligations. Extendedliability can be desirable; however, if extended liability isanticipated, business partners themselves may choose to flyby night. We show how the preferred liability rule, includingno liability, depends on the relative costs of premature dissolutionand future obligations. The analysis also sheds light on a setof interrelated legal issues, such as the role of the trustfund doctrine and state dissolution statutes.     

Optimal Discretion in the Application of Rules

Discretion is examined as a feature of the design of rule-guidedsystems. That is, given that rules have to be administered bysome group of persons, called adjudicators, and given that theirgoals may be different from society's (or a relevant organization's),when is it socially desirable to allocate discretionary authorityto the adjudicators and, if so, to what extent? The answer reflectsa tradeoff between the informational advantage of discretion—thatadjudicators can act on information not included in rules—andthe disadvantage of discretion—that decisions may deviatefrom the desirable because adjudicators' objectives are differentfrom society's. The control of discretion through limitationof its scope, through decision-based payments to adjudicators,and through the appeals process, is also considered.     

Necessity, Moral Liability, and Defensive Harm

A person who is liable to defensive harm has forfeited his rights against the imposition of the harm, and so is not wronged if that harm is imposed. A number of philosophers, most notably Jeff McMahan, argue for an instrumental account of liability, whereby a person is liable to defensive harm when he is either morally or culpably responsible for an unjust threat of harm to others, and when the imposition of defensive harm is necessary to avert the threatened unjust harm. Others may favour a purely noninstrumental account of liability: one that looks only to the past behaviour of the potentially liable person. We argue that both views are vulnerable to serious objections. Instead we develop and defend a new view of liability to defensive harm: the pluralist account. The pluralist account states that liability to defensive harm has at least two bases. First, if an attacker is morally or culpably responsible for an unjust attack then he has forfeited what we call his agency right, and in doing so he has made himself partially liable to defensive harm. Whether the attacker is fully liable to defensive harm depends, however, on whether the imposition of defensive harm would infringe a different right held by the attacker: his humanitarian right. Humanitarian rights are rights to be provided with urgently needed resources or to be protected from serious harms when others can do so at reasonably low cost. We argue the pluralist account avoids the objections to which the instrumental and noninstrumental views are vulnerable, coheres with our intuitive reactions in a wide range of cases, and sheds new light on the way different rights combine to determine a person??s liability to suffer harm.     

论土地资源生态补偿

生态补偿包括国家通过征收环境资源税以保证政府提供土地资源生态产品的公共服务职能;亦包括对因公共利益(生态保护)的需要而受到损失或者付出经济代价的人给予公正的补偿。土地资源生态补偿必须贯彻一种整体主义的生态补偿观。就我国现行的土地资源生态补偿立法和制度运作而言,其现实可行的模式只能是政府主导型。土地资源环境资源税收以生态受益者对国家所进行的环境经济行为机会成本进行补偿为征收标准;土地资源公益征收性质的生态补偿应当贯彻以被征收人生活水平不低于征收前为补偿标准,其补偿范围包括法律规范所规定并予以救济的维生上的财产性不利益和非财产性不利益。     

Tax planning and tax policy in China: Case study of the tainted milk scandal

No food safety crisis has ever stirred such a national sensation in China like the tainted milk powder scandal in 2008. A further exploration of the root cause of this crisis, however, reveals something more disturbing—it is the undeveloped tax system that causes the melamine milk crisis. Because of the tension between political logic and governance logic of tax reform in China, the vacuum of public good provision becomes a burning issue since the Agricultural Tax Regulation was abolished and farmers’ economic burden became heavier than before. Thus, in order to prevent any food safety incident in the future, a sound notion of tax and an integrated system of tax planning and expenditure should be established and reinforced in the Chinese tax law.