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.     

Keeping mum about dad: "contracts" to protect gamete donor anonymity

This article considers the legal status of so-called contracts for anonymity between fertility clinics and donors of gametes that were made in the period before legislation authorising disclosure. It notes that while clinics frequently cite the existence of these "contracts" to argue against retrospective legislation authorising disclosure of the donor's identity, they may be nothing more than one-sided statements of informed consent. However, the article notes that even if an agreement between a donor and a clinic is not contractual, it does not follow that a person conceived through assisted reproductive technology has any right of access to the identity of the donor. The writer has not been able to locate examples of written promises by the clinics promising anonymity. There are written promises by the donors not to seek the identity of the recipients. These promises do not bind the resulting offspring nor do they appear to be supported by consideration. The article suggests that the basis for any individual donor to restrain a clinic from revealing their identity may be found in promissory estoppel. Nevertheless, there is no real issue in Australia concerning clinics revealing these details absent legislative authority. The issue is whether parliaments will legislate to authorise the disclosure. The article notes that it would be rare for parliaments to legislate to overturn existing legal contracts but suggests that the contract argument may not be as strong as has been thought.     

The Doctrine of Legitimate Expectation & Proportionality: A Public Law Principle Adopted into the Private Law of Employment

This article examines the possible adoption of the public law principles of ‘legitimate expectation’ and the standard of ‘proportionality’ as the appropriate and cohesive legal approach to voluntary promises that are normally found in ostensibly non-contractual documents. The article argues that, allowing a further development into the principle of legitimate expectation, which has already been adopted in employment relations as a further development of the implied duty of trust and confidence, could enhance the courts’ approach to the issue of voluntary promises and avoid the unsatisfactory contractual solution that appears to produce inconsistent results. Giving particular consideration to the courts’ application of the proportionality test, thereby recognises an employee’s hierarchy of interests, when seeking to justify an employer’s decision, this article assesses how the influence of the proportionality standard can, and should, offer a more satisfactory solution when applied to resolving disputes.     

Promises to keep: Enforcement of prepublication agreements and first amendment rights

Since the Supreme Court's ruling in Cohen v. Cowles Media, several courts have found that prepublication agreements are legally binding promises between journalists and their sources of information, and that the First Amendment does not protect journalists from civil sanction for the breach of such agreements. An agreement between a journalist and a private individual not to disclose a source's information or the source's identity might constitute a legally binding commitment, especially if the plaintiff is able to show that a clear and specific commitment was made not to reveal certain information and that as a result of the breach of promise the plaintiff suffered specific harm.

However, the Court's analysis of enforcement of confidentiality promises as having merely incidental effects is flawed. Because it did not balance the enforcement of prepublication agreements against the First Amendment interests in nonenforcement of the agreements, the Court in Cohen departed from its compelling interest analysis of prepublication agreements in Snepp v. United States as well as its previous standards in finding incidental effects of generally applicable laws.     

Contracts,promises and meaning the question of intent

Conclusion In this article, I have argued against an intentionalistic theory of promises, such as the theory of Searle, and of others inspired by him. Such a theory leads to a one sided approach, and is unable to account for all the phenomena that count as promises. I have argued that in contract law both the promissor and the promissee play a role of importance, but also that the influence of their intentions is rather limited. I have then extrapolated my argument to extralegal promises.In the last section, I have offered some conjectures as to what may have contributed to the intentionalistic aspect of Searle's theory. My last conjecture was that the ambiguity of the word meaning may play a role. Let me end, in all modesty, by offering a suggestion that might help English philosophers in solving the problems of linguistics, and their translators in interpreting their solutions: the introduction of the word speaning for speaker's meaning!     

Expectations in a Joyless Landscape

“Ahead there stretches—to the farthest horizon—the joyless landscape of the public interest state. The life it promises will be comfortable and comforting. It will be well planned—with suitable areas for work and play. But there will be no precincts sacred to the spirit of individual man.” (Charles Reich, “The New Property”¹)     

劳动合同的法律构造与功能分析

劳动合同是雇主与劳动者之间就劳动条件与劳动力的相互给付为内容的合意,其特点在于劳资双方的允诺无法依靠合同的允诺规则获得强制执行的正当性,这决定了劳动合同的法律构造与合同有本质区别,就其功能而言,劳动合同不过是合同的"镜像",并不具备通过劳资个体自由合意达致劳动关系稳定运行的制度功能.     

Stem cell frontiers: science, ethics and regulation

The isolation of human stem cells and the cloning of "Dolly" in the late 1990s, based on primate and other animal studies in the previous 20 years, created an explosion of interest that continues with daily reports in much of the world's press. The science has progressed steadily but not always smoothly, with promising discoveries in the potency and flexibility of cells derived from embryonic, umbilical cord and adult tissues. The promise of a revolutionary new era in health and medical sciences and systems requires careful scientific method, ethical debate and supportive legal and regulatory frameworks to achieve success. The frontiers of the science are focusing on the regulation of cell lineage choice and the development of designer stem cells for therapeutic cloning; the ethical debate focuses on the special status of the human embryo and the pathways to applications; while legal and regulatory frameworks differ around the world. There is some risk that the promises are overtaking the reality of progress, with the rush for results and premature offering of dubious remedies compromising scientific method and credibility. Stem cells should not be the snake oil of our times, nor should short cuts and short sell promises, fuelled by illusions of fame and fortune, risk the trust of the public in science and medicine.     

Performance measures as forms of evidence for science and technology policy decisions

Amidst current widespread calls for evidence based decision making on public investments in science and technological innovation, frequently interpreted to imply the employment of some bundle of output, outcome, productivity, or rate-of-return measures, the promises and limitations of performance measures, singly or collectively, varies greatly across contexts. The promises reflect belief in, scholarly research supportive of, and opportunistic provision of performance measures that respond or cater to executive and legislative branch expectations or hopes that such measures will facilitate evidence-based decision-making. The limitations reflect research on the dynamics of scientific discovery, technological innovation and the links between the two that even when well done and used by adepts, performance measures at best provide limited guidance for future expenditure decisions and at worst are rife with potential for incorrect, faddish, chimerical, and counterproductive decisions. As a decision-making enhancement, performance measurement techniques have problematic value when applied to the Big 3 questions of U.S. science policy: (1) what is the optimal size of the Federal government’s investments in science and technology programs; (2) the allocation of these investments among missions/agencies/and programs (and thus fields of science); and (3) the selection of performers, funding mechanisms, and the criteria used to select projects and performers.     

自然之债源流考评

自然之债是经由诉讼不能实现的债,债务人的履行或者承诺履行将激活债对债务人的强制力,债务人一旦自动履行即不得请求返还。自然之债是债的"亚类"。用"自然"加"债"来表达有两个含义:一是它不同于一般的作为法定之债的民事债,无论是债因还是效力;二是它不同于非债,不是纯粹的社会、道德或者宗教义务。用"自然之债"将"债"与"自然"连接可以体现出,这一类债的债务人可以拒绝履行,但一旦履行它就是债的履行而非不当得利或者赠与。这一点同罗马人区分契约与准契约的思路如出一辙。罗马人将"准"与"契约"相连,就将介于契约与侵权之间的地带统一起来。同样,"自然之债"也统一了处在法定义务与纯粹的社会义务之间的灰色地带。     

WTO规则与中国反补贴立法

补贴和反补贴协定属于货物贸易部分,WTO成员协商达成了《补贴与反补贴措施协定》和《农业协定》。WTO规则对发展中国家反补贴措施作出了特别规定,对禁止性补贴救济措施作出了专门规定。中国政府在《中国加入工作组报告书》中对反补贴作出了具体承诺。为了维护对外贸易秩序和公平竞争,中国正在实施《反补贴条例》。     

论公私合作伙伴关系在我国的实践及其法律框架构建

自1992年在英国正式问世以来,公私合作伙伴关系(PPP)已成为许多国家政府实现经济目标及提升公共服务水平的核心理念和措施之一。尽管PPP在中国实践中遭遇到某些制度性困惑,但其在中国的发展正当其时,前景广阔,是中国公用事业领域改革必选的制度安排之一。PPP法律框架的建立必须遵守透明、公正和长期承诺的原则。     

The regulation of civilian drones' impacts on behavioural privacy

Surveillance technologies have burgeoned during the last several decades. To surveillance's promises and threats, drones add a new dimension, both figuratively and literally. An assessment of the impacts of drones on behavioural privacy identifies a set of specific threats that are created or exacerbated. Natural controls, organisational and industry self-regulation, co-regulation and formal laws are reviewed, both general and specific to various forms of surveillance. Serious shortfalls in the regulatory framework are identified. Remedies are suggested, together with means whereby they may come into being.     

Prospective payment in perspective

Prospective payment promises improvement for a health care system plagued by inefficiency and rising costs, but is likely to disappoint. Serious efforts to control costs threaten the system's access and quality objectives and will be resisted. Moreover, serious cost containment, whether the result of all-payer regulation or competition, requires a stronger civil service than America seems capable of providing. A comparison with the experience in defense demonstrates the important limitations in applying incentive-based models in policy areas with conflicting goals. The search for panaceas will go on, but there are none.     

The effects of mass media on crime prevention awareness,attitudes, and behavior: The case of crime stoppers

Research has been limited on the effects of mass media in increasing awareness of and participation in crime prevention programs. Mass media campaigns have been criticized as ineffective because they are neither informative nor motivating. Crime Stoppers is a program that appears responsive to these criticisms. The program involves dramatic reenactment of unsolved crimes and promises monetary rewards and anonymity for persons with information leading to the arrest or conviction of criminals. The present research examines the effects of Crime Stoppers on awareness, attitudes, and behaviors. Implications for theory and policy are discussed.     

Necroethics of Terrorism

This essay is an attempt to begin to think through the complex interlacing of Levinasian ethics, violence, terror and war. The question driving this essay is: in the midst of the harrowing debris of body parts that followed the synchronised explosions of bombs in a number of London train carriages and a bus, what can possibly remain of the ethical? This question will be examined in the context of what remains unspeakable in the face of such acts of violence. Framed by the authorising rubric of declarations of law—as ‘that which speaks in the language of legislation and promises certainty in the anxious aftermath of the loss of certainty’, and the attendant concerns with the question of the ‘enemy’ (as clandestine operative of terror and as object of fantasies)—this essay seeks to examine the ‘unspeakable remainder’ of declarations of law, as that which unsettles (legislated) promises of certainty in the anxious aftermath of a terrorist explosion and its ongoing trauma. In the course of this essay, I proceed to think through the contentious relation between violence and ethics in the context of a Levinasian framework, arguing for a Levinas that challenges and unsettles pietistic views of his ethical philosophy. In deploying the neologism necroethics, I attempt to examine anachronic and necrological violence and its relation to the ethical injunction to own responsibility for the dead.     

人牙咬痕同一认定数字化分析的盲法评定

目的评定人牙咬痕同一认定数字化分析方法的精确性。方法 采用数字化分析法对人牙咬痕及8名“疑犯”牙列模型进行双盲法分析实验,用Photoshop 5.5将获得的咬痕扫描图像生成overlay,用AutoCAD Rl4工程测量软件分析各项参数,比较人牙咬痕和“疑犯”牙列参数的匹配性。结果人牙咬痕及“疑犯”牙列模型数据化分析的各项参数分析结果一致。结论对于试验性咬痕,数字化分析是一种可行的认定方法,对法医学实践具有可行性及良好的应用前景。     

Motivating Juvenile Offenders Toward Making Responsible Choices in Daily Life

Based on the premise that the best deterrent to delinquent behavior is the offender's motivation to engage in moral reasoning and action, this article describes the value of teaching scientifically formulated principles of morality in the juvenile justice system. The authors review The Facts of Life Seminar, a program for teaching scientifically formulated principles of morality to delinquent youth. Outcome statistics demonstrate this approach is effective in providing incentives for adjudicated adolescents to refrain from theft and violence, to keep their promises, and to tell the truth.     

Clean Air the Natural Way: A Case for Harmonizing Global Auto Emissions Standards

Across the world, governments are grappling with the effects of global warming. Rising temperatures, increases in the number of natural disasters, and elevated sea levels are just some of the risks posed by Earth's weakening ozone. And yet solutions exist. This article discusses the contribution of auto emissions to global warming and proposes ways for manufacturers to adopt a single emissions standard across their fleets all over the world. As discussed, adopting a single standard based on the most stringent one available poses advantages for manufacturers and also promises to reduce the threat of global warming.     

Designing an International Liability Regime to Compensate Victims of Solar Radiation Management

Solar radiation management (SRM) is a geoengineering method that promises to forestall the devastating impacts of climate change by cooling the atmosphere. Although SRM could avert a climate disaster, it also carries the potential to cause numerous, grave, and unequally distributed harms. In fact, some of these harms are unavoidable. A carefully designed liability regime can resolve SRM-related disputes and compensate victims of SRM deployment. This article considers existing international liability regimes in the context of the practical and normative challenges posed by SRM to offer recommendations for an international liability regime to govern SRM.