未负光阴未负卿

窗外的夕阳透过窗纱,倾泻在我两鬓的白发上,我揉了揉僵化的眼睑,为2019年的最后一份大材料画上了句号。回首在中院从事文字工作的3年多里,不觉已拟文数百,始得从一名材料的初级工擢升为一名略开窍的中级工。     

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.     

Neither Confirm nor Deny: Secrecy and Disclosure in Undercover Policing

Recent scandals in U.K. undercover policing have prompted a public re-examination of the basis for continued secrecy with respect to cases in which serious historical misconduct is suspected. As part of its approach to balancing the competing demands of secrecy and accountability, the current legal process requires the police to provide case-by-case risk assessments of the harm to policing threatened by disclosure. This article considers the role of risk assessments in this process. It critically examines two arguments put forward by police in support of their claim that such assessments will nearly always support a refusal to disclose and thus a “neither confirm nor deny” response to requests for information about undercover policing. It argues that these arguments apply in fewer cases and/or less conclusively than police routinely suppose, and that their obligation to provide detailed case-by-case risk assessments therefore cannot be thereby evaded.     

Neither Here nor There: Of the Female in American Legal Education

In this Critical Review Essay, Professor Obiora brings together work from many traditions to address the issue of how differences among students beyond gender–and, in particular, differences in terms of race–might affect legal education. After situating the question in terms of the literature on legal education generally (including standard critiques), she delves into work on gender–in law generally, in kgal education, in moral development and learning, in language use, and in education generally–to elucidate hypothesized differences between men and women that might affect differential experience in law school. She then moves on to make the picture more complex by drawing on work that indicates cross-cultural and class-based variation around conceptions of gender. Using research by sociolinguists on educational processes and work by historians and feminists of color on the intersection of gender, race, and class, Professor Obiora suggests specific ways in which women of color and working-class women might diverge from middle-class white women in their approach to kgal education. In particular, she notes: (1) different speech patterns and linguistic socialization lend different meaning to “voice,”“silence,” and “interruption” in classroom interactions; (2) the historical distinction between public and private spheres has been much more sharply drawn for upper-middle-class white women than it has been for black and working-class women; (3) the exclusion of black women from male “chivalry” and feminine idealization necessitated the development of agency; black women could not afford to be passive. Given these points of divergence, but also given convergences among the experiences of women, Obiora suggests a complex and contextually sensitive approach to the issue of gender in legal education, one that takes seriously the differences that exist among women. Because of the richness of the literature reviewed here, we include a Bibliography at the end of the article.     

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.     

Neither aider nor abettor be: attorneys become prosecutorial targets for federal healthcare crimes

Attorneys representing healthcare entities are not immune to federal criminal prosecution for the assistance that they give their clients. This Article focuses on potential attorney liability for aiding and abetting a client's violation of law. The author examines the securities, tax, and white-collar crime fields for guidance regarding the interpretation and application of the federal aiding and abetting statute to attorneys practicing in the health law field. Based on these analogous areas, and upon the federal criminal statutes applicable in the healthcare field, he recommends steps that can be taken to minimize the possibility of aiding and abetting liability. In addition, he recommends that the courts require a prosecutorial showing of both actual knowledge of wrong-doing and wrongful intent before imposing aider and abettor liability upon health law practitioners.     

A Full Stop to Amnesty in Argentina: The Simon Case

In Simón, the Argentine Supreme Court held that two amnestylaws, adopted in the late 1980s in order to shield authors ofserious human rights violations committed during the so-called‘Dirty War’ (1976–1983), were unconstitutionaland void. Although the Argentine Congress had already repealedthe two laws in 2003, uncertainty about the validity of thisparliamentary decision had led to some controversy. With itsdecision in Simón, the Supreme Court puts an end to thelegal uncertainty concerning the prosecution of serious humanrights violations committed under the military regime and definitivelyclears the path for judicial actions against their authors.Setting aside deeply rooted national legal principles —such as statutory limitations, the principle of legality andamnesties — the Argentine Supreme Court has confirmedthe role of human rights principles and of public internationallaw in general in dealing with the most heinous crimes againsthumanity.     

Lesser-Evil Justifications: A Reply to Frowe

Sometimes one can prevent harm only by contravening rights. If the harm one can prevent is great enough, compared to the stringency of the opposing rights, then one has a lesser-evil justification to contravene the rights. Non-consequentialist orthodoxy holds that, most of the time, lesser-evil justifications add to agents’ permissible options without taking any away. Helen Frowe rejects this view. She claims that, almost always, agents must act on their lesser-evil justifications. Our primary task is to refute Frowe’s flagship argument. Secondarily, it is to sketch a positive case for nonconsequentialist orthodoxy.