Legally enforceable commitments

A continuing issue of contract law is what purported contracts should be legally enforced. This article considers what principles rational persons would want courts to use in enforcing commitments in a society in which they expected to live. By reviewing the promise, economic value, and reasonable expectations approaches, the principles of freedom of transfer, enforceable commitments, and collective good are developed. Then, less general principles of consideration, past benefits, reliance, gratuitous commitments, and contract modification are presented. These latter principles specify the more general principle of legally enforceable commitments. The resulting set of principles provide the basic outlines of legally enforceable commitments that would be acceptable to rational persons living in a contemporary, industrialized Western common-law society.     

Looking at Prediction from an Economics Perspective: A Response to Harcourt's Against Prediction

This article discusses Bernard E. Harcourt's Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age (2007 ). The book opposes the use of probabilistic methods, such as profiling, on efficiency, equity, and jurisprudence grounds. By contrast I argue that profiling is always efficient, that there is no theoretical flaw in reliance on actuarial methods, as long as they are implemented properly. I also show that the equity-based criticism of reliance on actuarial methods (Harcourt's ratchet effect argument) is based on two questionable assumptions: that profiling is perfectly efficient (as zero deterrence is assumed), and that the police are making an obvious logical mistake, by gradually increasing the extent to which they target the group with the higher offending rate instead of targeting only them in the first place.     

不动产适用善意取得制度的限度

不动产登记簿的公信力和善意取得制度是两种构造迥异的物之交易信赖保护机制。善意取得制度以占有不足以充分表征动产所有权为构造前提,以竭力衡量所有权人与善意第三人的利益关系为轴心;不动产登记簿的公信力制度以不动产登记簿可以作为权利外观为构造前提,以完备的不动产登记制度为根基。善意取得制度的效果只能是第三人由无权利人取得物权;不动产登记簿的公信力所具有的效果不但有积极信赖保护与消极信赖保护之分,且其积极信赖保护的内容除由无权利人取得物权外,还包括由有权利人取得物权、受领给付、获得权利顺位等。因此,以善意取得制度保护不动产交易的便捷与安全,其局限非常明显。物权法第106条应限缩解释为主要适用于动产,不动产交易的信赖保护可通过解释物权法第16条来实现。     

宏观调控公益诉讼起诉资格的构建

公益诉讼起诉资格作为“谁”有资格提起诉讼的问题,在性质上属于案件的程序性要件,而迥异于民事诉讼法中建立在案件实体性f．-j题基础上的当事人适格理论。根据政策的动态不一致性理论,宏观调控主体违背承诺,调控受体建立在合法预期理论基础上的信赖利益因此受到了损害,从而满足了公益诉讼起诉资格的核心要件“实际损害”。直接授予遭受“实际损害”的调控受体以公益诉讼起诉资格不仅不会产生学界最为关注的讼累问题,还为调控受体提起公益诉讼提供了激励机制。事实上,此种公益诉讼起诉资格类型化的构建路径也为当下的公益诉讼的立法提供了另外一种可能。     

Friendship, Identity, and Solidarity. An Approach to Rights in Plant Closing Cases

Abstract. My focus is on the problem of plant closings, which have become increasingly common as the deindustrialization of America has proceeded since the early 1980s. In a well‐known article, Joseph William Singer proposed that workers who sued to keep a plant open in the face of a planned closure might appropriately be regarded as possessing a reliance‐based interest in the plant that merited some protection. I seek to extend this sort of argument in two ways. In the first half of the paper, I point to the way in which “tacit obligation” emerges in friendship between persons in the absence of explicit commitments. Employers and employees are of course not as such friends. But I argue that the development of tacit obligations binding friends provides a useful analogy for understanding the growth of similar tacit obligations binding plant owners to workers and local communities. In the second half, I draw on Margaret Radin's work on property and identity to ground a related argument. I suggest that the potential contribution of plants—and the traditions and networks of relationships they help to create and sustain—to the identities of workers and communities provides reason for at least some legal protection of employee and community interests.     

行政法上正当期待形成的法理基础

起源于英国行政法的正当期待原则,具有赋予相对人正当期待权利以抵御行政权恣意行事之功能。弄清行政法上正当期待的概念及产生途径,透视正当期待形成所需的信任关系和法律安定性原则这两个法理基础,就可以看出,信任关系是行政法上正当期待形成的深厚的精神基础和利益保障;而法律安定性原则则是行政法上正当期待形成的法律保障。     

预期利益损失与信赖利益损失

分析预期利益损失与信赖利益损失的内涵、区别，归纳针对预期利益损失与信赖利益损失关系的各种观点，探讨与信赖利益损失有关的举证责任、归还与预期利益损失的分别、替代商品等问题，并结合案例提出建议。     

The Intersection of Crime Seriousness,Discretion, and Race: A Test of the Liberation Hypothesis

Spohn and Cederblom’s interpretation of the liberation hypothesis asserts that with trivial crimes, judges are “liberated” to consider extra-legal attributes such as race when making sentencing decisions. The current study posits that this perspective may be too theoretically simplistic because it fails to distinguish between the concepts of discretion and uncertainty. In light of this argument, we examine the sentencing decisions of felony cases in the Florida circuit courts. Results indicate that blacks and Hispanics are more likely to be imprisoned than whites, and males more so than females. Contrary to expectations, this disparity increases with crime seriousness. Consistent with the imprisonment model, blacks and males receive longer sentences and the effect increases with case seriousness. We found no evidence that the effect of offender extra-legal attributes depends upon the characteristics of the judges handling the cases. Suggestions for future research and implications for the liberation hypothesis are discussed.     

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.     

The grammar of administrative justice values

The debate concerning administrative justice in the UK often involves reliance upon a certain set of values. Examples of such values include openness, confidentiality, timeliness, transparency, secrecy, fairness, efficiency, accountability, user-friendliness, consistency, participation, rationality and equal treatment. These values are often deployed, both in academic and policy contexts, without much precision. This produces confusion which can hamper debate. This article therefore argues there is a need to reflect on how these oft-used values are deployed, and consider the particular concerns which underlie them. In this sense, this article suggests there is a need to refine the grammar of administrative justice. This argument is demonstrated through an extended analysis of the value of ‘user-friendliness’: a site of emerging disagreement in recent years. It proposes that an important distinction must be drawn between two understandings of the value: the ‘accessibility’ and ‘consumerist’ understandings. This article concludes by suggesting that, going forward, it is important to consider whether the use of abstractions is helpful at all in administrative law and justice debates.     

Restitutionary Remedies in the Contractual Context

Contracting parties sometimes have a claim to recover money paid in advance, or for reasonable payment for work done under the contract, commonly described as restitutionary remedies. This claim arising out of a contract is nowadays generally regarded as a non‐contractual, unjust enrichment claim governed by the modern law of unjust enrichment, by contrast with a contractual claim for damages or specific performance. The article argues that the claim is contractual, and that this is relevant to determining when it should be available and what the measure of recovery should be. In particular, it is argued that this follows from the proper understanding of the form of agreement made by contracting parties. The argument involves discussion of doctrinal categories such as contract and unjust enrichment, the relationship between primary and remedial rights in contract, the nature of contractual agreement, and the protection of reliance in contract.     

Promises Schmomises

In this piece, I argue that promises need not be kept just because they were made. This is not to say, however, that unwise, unhappy, and unfortunate promises do not generate obligations. When broken promises will result either in wrongful gains to promisors or wrongful losses to promisees, obligations of corrective justice will demand that such promises be kept if their breach cannot be fully repaired. Thus, when a broken promise will constitute a deliberate loss transfer for personal gain, the duty not to exact unjust enrichment (a wrongful gain) will require a promisor either to honor her promise or craft a means of ensuring that the promisee’s impoverishment is not traded for her enrichment. And when a broken promise will constitute the culpable imposition of a reliance-based injury on a nonculpable promisee (a wrongful loss), the duty to make others whole when one has purposefully, knowingly, or recklessly injured them will require one either to keep one’s promise or to fashion a remedy for its breach that ensures that the promisee is left no worse off than he would be had the promise not been made. This account explicitly parts ways with normative powers theories of promising. It places no weight at all on the raw fact that a promise has been made. Instead, it locates the gravamen of a promissory violation in the harm that is caused to a promisee who nonculpably relies upon and changes her position in anticipation of the prediction about the promisor’s future conduct that is embedded in his promise. Absent any adverse reliance on the part of a promisee, there is nothing that gives rise to an obligation of performance or repair on the part of the promisor. But this account is also to be distinguished from utilitarian theories that take promises to be instruments of wealth maximization that properly give way whenever the reason for honoring them speaks in favor of violating them. On my account, the balance of reasons for action that determines the morality of performance includes deontological rights and duties, agent-relative permissions, and Hohfeldian liberties. As I shall argue, even if one rightly concludes that one has no duty either to keep a promise or to craft a remedy for its breach, one must nevertheless remember that virtue requires one to be or become the kind of person who often goes beyond the call of duty. But the fact that virtue often requires us to do what we have no duty to do should not cause us to confuse its conditions with the conditions of right and wrong action. We have a duty to keep promises or to otherwise protect the reliance interests that they generate only when failing to do so will lead either to our own unjust enrichment or to others’ unjust injury. And this means that we have a duty to keep promises in far fewer circumstances than is commonly believed.     

Shoe print examinations: effects of expectation, complexity and experience

Even though trace evidence is becoming more and more important in legal cases, only little is known about the influence of task and context factors on comparative judgments. In the present study we investigated how expectations and complexity affect shoe print examinations and to what extent differences exist between beginners and experienced examiners. Twelve examiners assessed similarity between a shoe print and a shoe for eight different cases. For half the cases expectation was induced by providing additional incriminating evidence. A complex case meant that the print was relatively noisy, for example because the perpetrator rotated his foot. A simple case meant that the print was clear. The results showed that there was no effect of expectation and no effect of experience. Only complexity affected the examiners' assessments: when the background was noisy, the acquired features received a lower evidential value than when the background was clear. Apparently, examiners compensated for the quality of the print and were more cautious in drawing conclusions when prints were less clear. Even though the results allow for some optimism with regard to the influence of expectations on shoe print examinations, it has to be taken into account that the Dutch procedure is supported by a formal guideline, which may (partly) explain the present findings.     

A Dive into Deep Constitutional Waters: Article 50, the Prerogative and Parliament

This article analyses the Article 50 TEU debate and the argument that for the UK Government to trigger the formal withdrawal process without explicit parliamentary authorisation would be unlawful, because it would inevitably result in the removal of rights enjoyed under EU law and the frustration of the purpose of the statutes giving those rights domestic effect. After a brief survey of Article 50, this article argues first of all that the power to trigger Article 50 remains within the prerogative, contesting Robert Craig's argument in this issue that it is now a statutory power. It then suggests a number of arguments as to why the frustration principle may be of only doubtful application in this case, and in doing so it re‐examines one of the key authorities prayed in aid of it ‐ the Fire Brigades Union case.     

合同成立探微

本文赞同当事人、意思表示一致和标的共同构成合同成立要件。无视标的作为合同的元素会带来不小的负面后果。意思表示一致即合意,对其判断和把握,在绝大多数的情况下,客观说/表示内容的一致论对双方当事人的利益平衡得更好,在合同欺诈、胁迫等场合采主观说/内心意思的一致论较为妥当。中国法及其理论也应当如此区分类型,确定有所差异的法律后果。在通常情况下,沉默不构成承诺,因为要约人没有理由因为受要约人的沉默而相信受要约人做出了承诺。而且,要约人无法通过约定沉默构成承诺以免受要约人不经意间做出承诺。但在特殊的情况下,可以将沉默视为承诺,如双方当事人之间已经形成如下交易惯例,或当地业已存在着如下交易习惯:一方当事人向相对人发出要约,相对人未在要约指定的期间内答复也视为接受。在这种背景下,受要约人在收到要约后沉默,视为已经承诺。关于确认书的地位及效力,本文认为,在有确认书的场合,合同何时成立,首先由当事人的意思表示来决定,由于于此场合不涉及公序良俗的问题,应当贯彻意思自治原则。如果通过解释当事人的意思这条路径仍难得出妥当的结论,则有必要借鉴德国和美国的立法、判例和学说所形成的规则或意见,丰富中国民法的理论,服...     

Punishment and Proportionality: Part 2

This article is a companion to an article by the same author in issue 33.3 of Criminal Justice Ethics on the question of the standard by which the severity of punishment is determined to be proportional to the seriousness of the crime for which it is inflicted. Its chief argument is that basing the determination on what the offender deserves to suffer is morally problematic because it conflicts with principles of humanity that call for our taking the good of human beings as our end. By contrast, it is also argued, basing the determination on promoting public safety or preserving civil order is not similarly problematic because punishment inflicted to serve either of these ends is compatible with principles of humanity. The article concludes with a comment on how the harsh sentencing laws enacted in the United States in the past 40 years should be seen as a product of the former mode of determining punishment and not the latter.     

法律经济学视野中的赠与承诺——重解《合同法》第186条

《合同法》第186条关于赠与承诺的规定无法诉诸"权利义务相一致"的简单说辞获得解释,笼统地认为强制执行有利于受诺人而不利于承诺人的观念是错误的。未经公证的赠与承诺之所以不会被法院强制执行,在程序上,是因为证据匮乏而导致法律实施成本过高;在实体上,是因为受诺人承诺的信任超出了合理的限度。合同法只鼓励人们对他人的承诺付出合理的信任,而不是过度的信任。同样的逻辑可以解释,为什么经过公证的赠与承诺应当被法院强制执行。强制执行捐赠承诺,除了上述因素之外,还包括阻止捐赠活动中的搭便车。     

在宪法与政党之间

宪法与政党之间的内在关联是:一方面,宪法源于政党,宪法是政党活动的产物,不同文化背景之下的政党制度塑造了不同类型的宪法制度;另一方面,政党依赖于宪法,执政党的执政地位尤其依赖于宪法提供的正当性与合法性。在当代中国的语境下思考宪法与政党之间的关系,可以发现这样一个现实:中国宪法是中国共产党领导人民制定的,中国宪法是党的主张的法律化——这种判断,已经得到了承认,但是,中国共产党享有的执政地位对于宪法的依赖关系,却没有引起足够的重视;因此,应当认真对待“中国共产党依宪执政”这样一个重大的时代课题。     

Personhood,property rights,and the permissibility of abortion

The purpose of this paper is to argue that the tactic of granting a fetus the legal status of a person will not, contrary to the expectations of opponents of abortion, provide grounds for a general prohibition on abortions. I begin by examining two arguments, one moral (J. J. Thomson's ‘A Defense of Abortion’) and the other legal (D. Regan's ‘Rewriting Roe v. Wade’), which grant the assumption that a fetus is a person and yet argue to the conclusion that abortion is permissible. However, both Thomson and Regan rely on the so-called bad samaritan principle. This principle states that a person has a right to refuse to give aid. Their reliance on this principle creates problems, both in the moral and the legal contexts, since the bad samaritan principle is intended to apply to passive refusals to aid; abortion, however, does not look like any such passive denial of aid, and so it does not seem like the sort of action covered by the bad samaritan principle. In defense of the positions outlined by Thomson and Regan, I argue that the apparent asymmetry between abortion and the usual type of case covered by the bad samaritan principle is only apparent and not a genuine problem for their analyses. I conclude with a defense of the morality of the bad samaritan principle.