The Restricting Claims Principle Revisited: Grounding the Means Principle on the Agent–Patient Divide

In an earlier article, I introduced the “restricting claims principle” (RCP) to explain what is right about the means principle: the idea that it is harder to justify causing or allowing someone to suffer harm if using him as a means than if causing or allowing harm as a side effect. The RCP appeals to the idea that claims not to be harmed as a side effect push to restrict an agent from doing what she would otherwise be free to do for herself or others, given an appropriate account of her baseline freedom. Claims not to be harmed as a means are not in that way ‘‘restricting.’’ The original RCP relied on a counterfactual account of the agent’s baseline freedom: What could the agent permissibly do if the patient were not present? I argue here that that counterfactual baseline fails. The revised RCP relies instead on a ‘‘toolkit baseline’’: Do the patient claims concern the property the agent needs to use? This toolkit baseline reflects the different ways that agents relate to others: as fellow agents with whom they divide up the resources of the world, and as patients who might be affected by their actions. The toolkit baseline, resting on this agent-patient divide, provides a superior account of an agent’s baseline freedom, and a better account of the moral ground for the means principle     

In Defense of Patient-Centered Theories of Deontology: A Response to Liao and Barry

S. Matthew Liao and Christian Barry argue that the patient-centered approach to deontology that I have developed—the restricting claims principle (RCP)—‘is beset with problems.’ They think that it cannot correctly handle cases in which a potential victim sits in the path of an agent doing what she needs to do for some greater good, or in which a person’s property is used to benefit others and harm her. They argue that cases in which an agent does what would be permissible but acts on a malicious reason show that agent intentions, rather than patientclaims, are fundamental to deontology. And they claim that the RCP presupposes the means principle in a way that shows that it is not really offering anything new. I argue here that all of these charges are mistaken. Doing so allows me to offer important refinements to the RCP, to highlight two common mistakes in reasoning about cases, and to set challenges for agentcentered approaches to deontology.

     

Wrongdoing Without Motives: Why Victor Tadros is Wrong About Wrongdoing and Motivation

A central principle in Victor Tadros’s book, The Ends of Harm, is the means principle (MP) which holds that it is, with limited exceptions, impermissible to use another as a means. Tadros defends a subjective, intention-focused interpretation of the MP, according to which to use another as a means is to form plans or intentions in which the other serves as a tool for advancing one’s ends. My thesis here is that Tadros’s defense of the subjective interpretation of the MP is unsuccessful. To make that case I argue for three claims. First, the subjective interpretation has implausibly harsh implications in certain cases, implying that certain people would be guilty of much more serious wrongs than they can plausibly be thought to have committed. Second, the cases that Tadros offers to argue that the subjective interpretation of the MP must be right are better interpreted as showing that it is impermissible to act on an illicit intention – one that would direct an agent under certain, foreseeable circumstances to perform impermissible acts – than that it is impermissible to act for an illicit reason. Third, while Tadros correctly rejects the objective, causal-role-focused interpretation of the MP – according to which to use another as a means is for the other to play the causal role of means to the good which might be offered to justify the act one performs – there is another way of defending the significance of causal roles, one that has implications that track those of the MP fairly closely. I argue elsewhere at length for this other principle, which I call the Restricting Claims Principle. Here I simply sketch the basic idea in a way sufficient to show that one can escape the dilemma that the MP faces without grabbing either the subjective or the objective horn, and without moving into a consequentialist world in which it is permissible to punish the innocent for the sake of the general welfare.     

仲裁实施权配置论视阈下的撤回仲裁请求制度研究

针对同一仲裁标的,纠纷当事人均享有积极仲裁实施权与消极仲裁实施权,但一方行使积极仲裁实施权的,对方只能且必须行使消极仲裁实施权。撤回仲裁请求是申请人处分积极仲裁实施权的自由,但申请人处分其积极仲裁实施权涉嫌损害被申请人合法权益的,被申请人可以无缝衔接地行使相应的积极仲裁实施权,以捍卫其通过本次仲裁程序彻底解决纠纷的利益。被申请人不同意申请人撤回仲裁请求的,仲裁庭应当允许或将其视为被申请人提出了相应的反请求,并由被申请人负责垫付确保仲裁程序继续进行的案件处理费。     

意思自治、交易秩序与利益平衡——南怀瑾作品著作权纠纷上诉案评析

知识产权案件的裁判,应当体现意思自治的民法基本原则、稳定交易秩序的司法导向、平衡相关方利益的价值取向。对于行为人的真实意思,应当通过行为外观探求其内心真意。著作权许可使用合同的法律性质应综合合同条款文义、著作权人之行为、代理人之权限、出版合同及其履约过程进行判断。对于代理人在著作权人授权范围之内签署的许可使用合同,其法律后果应直接归属于作为被代理人的著作权人,而不应认定为转委托。著作权人死亡后,在对其作品著作财产权归属发生争议的情况下,被许可人暂缓支付著作权许可使用费,不存在拒不支付之主观过错,因此不应认定其构成侵权。对于权利人通过合同关系行使处分权已经构建的稳定交易结构及交易秩序,应予以尊重。     

Tort Liability Litigation Costs for Commercial Claims

This article analyzes tort liability litigation costs usingthe Texas Department of Insurance Commercial Liability InsuranceClosed Claim database for the years 1988–2004. Insurercosts to defend claims in which a suit was filed average $35,000per claim in 2004$, which corresponds to a share of 0.18 oftotal expenditures. Claims with higher stakes and complexitylead to greater reliance on outside counsel and less relianceon in-house counsel. Total transactions costs for each dollarreceived by claimants average $0.75 for all claims and $0.83for claims in which the claimant retained an attorney and asuit was filed.     

以权利制约权力的思考

以权利制约权力体现了政治文明的新发展。它实现了制约力量的对等性;体现了对少数人权利的尊重与保护;是法治精神的完整体现。以权利制约权力表现为消极制约和积极制约两种形式。而要有效地实现以权利制约权力,需要通过以下两个途径:一是细化个体权利主体的权利,形成权利群制约权力;二是权利主体之间的权利联合,形成权利群制约权力。     

论非物质文化遗产的私权保护

对非物质文化遗产,有必要在公权保护之外予以私权保护,私权保护有助于非物质文化遗产的保存、保护与弘扬。在具体权利的构建上,应重视精神权利的保护,非物质文化遗产所有人在文化遗产中所蕴含的人格利益需要得到尊重,享有以适当的方式表明非物质文化遗产来源的权利以及保护非物质文化遗产不被不适当使用和贬损性使用的权利;经济权利不宜过分强调,经济权利的授予与权利行使以惠益分享为原则,还应基于利益平衡原则予以一定的限制。     

证明负担动态论研究

当事人如果要求法院依其主张为裁判时,必须就其所主张的特定、重要、有关联的事实,负有主张和提出证据以为证明的负担,如果有不能提出证据或提出的证据不足以证明其主张事实成立的情形时.则负担事实审理者不能依其主张作出裁判的结果;如果提出的证据,导致事实审理者对案件事实认定存在真伪不明的情形时,即有不能依其主张的事实作出裁判的危险的负担。证明负担(burden of proof)的内容包括事实主张项下的证据方法的主张负担(behauptungs last,burden of pleading)、提出该证据方法的负担即举证负担(the burden of producing evidence)以及对证据进行辩论的负担即心证负担(the burden ofpersuasion)。     

论消费者权之法律边界

消费者权的行使可能会损害经营者的经营自由,权利冲突意味着权利的限制与边界,确立消费者权法律边界的理论依据主要有权利冲突理论和权利不得滥用原则。过错责任是消费者权利与经营者经济自由平衡保护的重要机制,特殊消费侵权行为适用无过错责任时,也应遵循法益衡量规则。     

Cherry-Picking Records in Independent Medical Examinations: Strategies for Intervention to Mitigate a Legal and Ethical Imbroglio

Independent medical examinations (IMEs) theoretically construe a means of “independently” assessing a claimant’s physical and psychological status, as well as to determine whether treatment that has been and will potentially be provided is reasonable and necessary. IMEs may be undertaken both for the plaintiff and defense or related adversaries. In the present case, we focus on IMEs that are requested by insurers. One can query the degree to which IMEs are actually “independent.” It has been posited that one of the ways in which claims managers contribute to potential bias against claimants is through a process of selectively providing examiners with medical records, which has been described as “cherry-picking.” Despite the existence of rules and laws that are designed to prevent cherry-picking, the practice still occurs. This analysis discusses the legal as well as ethical implications of cherry-picking and its potential to cause or exacerbate psychological injury that a claimant may experience. The authors propose that psychologists as well as attorneys can advocate for their vulnerable patients/clients in cases of cherry-picking. A recent case study from the clinical practice of the first author in which he so acted is provided. We conclude with a discussion of the ethical implications of the psychologist’s intervention.     

索赔人能否根据租约下的履约保函扣押担保人的船舶——the“Catur Samudra”案介绍

介绍新加坡高等法院有关船舶扣押的重要判例the＂Catur Samudra＂案。此案法官认为,索赔人在租约履约保函下的请求不是可以扣船的海事请求,因此,索赔人不能扣押担保人的船舶。从此案出发,简要讨论国际公约和主要国家立法关于索赔人可以扣押船舶的海事请求的范围。     

论侵权请求权的优先权保障

依据私权优先原则,《侵权责任法》第4条规定了侵权请求权的优先权保障制度。侵权请求权优先权是担保物权,就侵权人的全部财产而设立,其目的在于保障被侵权人在就同一行为应当承担侵权责任和刑事责任、行政责任,侵权人的财产不足以支付的情况下,优先实现侵权请求权。侵权请求权优先权能够对抗刑事责任或者行政责任中的财产性责任,对于税收优先权也应当具有对抗效力,但对其他债权则无对抗效力。     

Filing of applications and requirements for widow's and widower's benefits. Final rule

We are revising one of our regulations to clarify that we will protect a title II claimant's filing date as of the date the claimant or other proper applicant on the claimant's behalf completes and transmits to the Social Security Administration (SSA) the Personal Information Identification data on the Internet Social Security Benefit Application (ISBA). This revision addresses an aspect of implementing the ISBA to provide certain rights to Internet filers that we afford to other filers. In addition, we are correcting one word in a different title II regulation. The revision is necessary to correctly reflect the circumstances under which a claimant for widow's or widower's benefits as the insured person's surviving divorced spouse would be considered "unmarried."     

民主市场的交易规则——以代表机关的议决原则为中心

多数决原则把保护作用与效率融为一体 ,所以常常被选定为代表机关的最合适的议决规则 ,它不仅使多数人的意志得到贯彻和执行 ,同时还意味着对少数人意志和权利的平等尊重和保护。多数决原则在实践中有着不同的模式与变异 ;一个国家采用何种类别的多数规则 ,要看其要求何种程度的效率与保护才能确定。我国表决议案一律由代表机关全体成员的过半数通过 ,这是我国民主的广泛性和真实性的具体表现 ,但又存在着值得改进之处。     

Controlling large malpractice claims: the unexpected impact of damage caps.

Indiana's comprehensive malpractice reforms, inaugurated in 1975, include a cap on damages, a mandated medical review before trial, and a state insurance fund to pay claims equal to or greater than $100,000. We have found that the amount of compensation going to claimants with such large malpractice claims in Indiana is, on average, substantially higher than in Michigan and Ohio. Indiana's mean claim severity between 1977 and 1988 was $404,832, while the means for Michigan and Ohio were $290,022 and $303,220, respectively, with the difference between these three means being highly significant. Although data on claim and claimant characteristics reveal considerable interstate variation, the results of regression analyses show that Indiana claim payment amounts are higher than Michigan or Ohio payments, independent of the effect of factors such as sex, age, severity of injury, allegations of negligence, and year of settlement.     

ANTI-ABUSE OF INTELLECTUAL PROPERTY RIGHTS UNDER THE ANTI-MONOPOLY LAW: CHINA’S APPROACHES

Even though China’s first Anti-Monopoly Law (AML) was effective on August 1, 2008, the implementation of Article 55 has been delayed until 2014 when several actions were taken. For examples, several foreign giant intellectual property holders were investigated for possible abuse of their intellectual property rights and the State Administration for Industry and Commerce released the Rules on Prohibiting Conducts of Abusing Intellectual Property Rights by Excluding or Restricting. The underlying message is obvious: China starts to pay more and more attention to the protection of intellectual property (IP) rights on the one hand, she decides to seriously deal with the abuse of intellectual property rights by intellectual property owners, especially those giant international companies. Because the issue of how to balance the tension between IP law and the AML is a new topic in China, this paper intends to outline the prevailing experiences from foreign jurisdictions especially from the United States and European Union and to propose some useful strategies and approaches, which are fit into China’s reality.     

Intention and Attempt

Anglo-American criminal law traditionally demands a criminal purpose for an attempt conviction, even when the crime attempted requires only foresight or recklessness. Some legal philosophers have defended this rule by appeal to an alleged difference in the “moral character” or “intentional structure” of intended versus non-intended harms. I argue that there are reasons to be skeptical of any such differences; and that even if conceded, it is only on the basis of an unworkable view of criminal responsibility that such a distinction would support a rule restricting attempts to criminal purpose. I defend instead the “continuity thesis,” according to which attempts are functionally continuous with endangerment offenses: both are legal efforts to regulate unreasonably dangerous conduct. The upshot of the continuity thesis is that there is little substantive difference between attempt and endangerment in principle, no matter how they are labeled in law.     

完善司法机关内部司法职权的法律制约机制

司法机关内部检察权与审判权的相互制约 ,是依法独立行使司法职权的重要环节。制约的目的在于防止滥用其司法职权。但制约必须通过法定的程序与制度进行 ,否则构成对司法职权的不当影响和非法干扰     

The Indivisibility of Human Rights

This article defends a novel, normative conception of the indivisibility of human rights. Human rights are indivisible because normative commitment to one mutually entails normative commitment to another. The normative conception enables us to defend three important theoretical and practical corollaries. First, as a conceptual thesis normative indivisibility lets us see how human rights constitute a unified system not liable to the typical counter-examples to indivisibility as mutual indispensability. Second, as a dialectical thesis, normative indivisibility can support linkage arguments in defense of controversial human rights. And third, as a political thesis, normative indivisibility can show why the political thesis of indivisibility means that states lack discretion to ‘pick and choose’ which human rights to implement.