A Political Theory of Blackmail: A Reply to Professor Dripps

This essay was originally presented at the Rutgers Institute for Law and Philosophy as part of the Symposium on The Evolution of Criminal Law Theory. It is a Reply to Professor Donald Dripps’ politically-based justification for blackmail’s prohibition. Under Dripps’ account, by exacting payment from the victim blackmail is an impermissible form of private punishment that usurps the state’s public monopoly on law enforcement. This essay demonstrates that Dripps’ account is either under-inclusive or over-inclusive or both. Dripps’ account is applied to a number of the standard blackmail scenarios by which theories of blackmail are typically assessed. Dripps’ account is under-inclusive by failing to treat as blackmail Victim-Welcomed Blackmail, Non-Monetary Blackmail, Rebuffed Blackmail, and Non-Informational Blackmail which the law considers as blackmail. And it is over-inclusive by treating as blackmail Victim-Initiated Exchange and Unconditional Disclosure which the law does not recognize as blackmail.     

Pepper v Hart: A Footnote to Professor Vogenauer's Reply to Lord Steyn

This Note is intended to stand as a short supplement to thecompelling article by Stefan Vogenauer entitled, ‘A Retreatfrom Pepper v Hart? A Reply to Lord Steyn’ published inthe Journal at the end of 2005.¹ In his article, Professor Vogenauercalls in question the argument advanced by Lord Steyn in hisarticle in the Journal, entitled ‘Pepper v Hart: A Re-examination’.²In that article, Lord Steyn called for a retreat from the decisionof the House of Lords in Pepper v Hart³ concerning the circumstancesin which reference may be made to Hansard as an aid to statutoryconstruction and for a reinterpretation of the decision in linewith a theory that a Minister speaking in Parliament who givesan explanation of the meaning or effect of a clause in a Billshould be taken to create a binding legitimate expectation thatthe executive will apply the provision, once enacted, in thatsense. In this Note, I express my agreement with Professor Vogenauer’sargument, and seek to support it with some additional pointsunder three heads: (1) the proper interpretation of Pepper vHart and its status as authority; (2) the basis in principlefor adhering to that interpretation; and (3) conceptual difficultiesattached to Lord Steyn’s legitimate expectation thesis.     

Law School Instruction in Professional Responsibility: A Curricular Paradox

Legal ethics has recently become the focus of professional and public concern. One aspect of that concern has to do with the education and socialization of law students in professional responsibility. This study, using data from a sample of law students in diverse school settings, examines the influence of prevailing learning norms in legal education on student responses to courses in professional responsibility. The author also reviews the bases of ambiguous sentiments about the role of education in professional ethics and concludes with a discussion of the difficulties and dilemmas involved in attempts to alter the established mode of instruction.     

权利冲突论——一个法律实证主义的分析

权利冲突普遍存在于我们的法律生活、司法实践之中 ,而权利冲突本身却是一个尚未被我们深入研究的问题 ,目前国内法学界仅有几篇文章对此问题进行了探讨。有鉴于此 ,本文试图通过初步地讨论权利冲突的概念、原因及解决等几个相关问题来澄清人们对权利冲突的认识。     

Professional Divestiture: The Cession of Responsibility for Lawyer Discipline

Lawyer-discipline systems underwent substantial reorganization in a majority of states during the 1970s, with responsibility for their operation moving from the bar associations in which they had been located for almost a century to agencies of the state supreme courts. While this transfer of the locus of lawyer discipline resulted in a diminution of the power of the organized bar, it encouraged the professionalization of the process. In this paper the reasons for the willingness of the bar associations in Illinois to cede control over such a central component of professional regulation are examined and their implications for the sociology of the legal profession discussed. Unable to maintain the status quo in the face of extensive criticism, the Illinois bar associations chose not to meet the high costs of upgrading the discipline process but rather to divest themselves of a function that, although at one time central to their identity and authority, had become inconvenient and damaging to their image. It is suggested that the bar associations were willing to countenance such a divestiture because their positions as collective representatives of the profession in Illinois were secure and the major parameters of lawyer discipline well established. Whereas immediate control over self-regulation processes may be necessary during the developmental phase of professionalism, it is not so important once the profession has achieved a dominant market position.