Content and Viewpoint Discrimination: Malleable Terms Beget Malleable Doctrine

Recent scholarship has demonstrated that the Supreme Court of the United States has defined poorly and inconsistently applied two core First Amendment concepts-content and viewpoint discrimination. This article systematically explores the malleability of the Court's speech discrimination principles. Using data from The Supreme Court Compendium that categorize the ideological voting behavior of justices on the Court, the article studies decisions in three socially divisive areas of law in which content and viewpoint discrimination have been central issues of significant cases. Analysis shows that the Court's weak definitions and inconsistent applications leave the content and viewpoint concepts especially ripe for manipulation. The article concludes, therefore, by suggesting a new method of analysis that would offer more consistency.     

再论卡尔沃主义的复活——投资者—国家争端解决视角

晚近,一些国家为应对国际投资仲裁程序,修改宪法、法律和合同,限制或放弃国际投资协定中的投资者—国家争端解决条款,甚至终止双边投资条约和退出《解决国家与他国国民间投资争端公约》,这一系列现象是卡尔沃主义不同程度复活的表现。卡尔沃主义复活的原因在于经济危机引发的对新自由主义的质疑、解决投资争端国际中心为代表的国际投资仲裁制度本身的缺陷,以及各国对保留规制权的诉求。在这种国际潮流和背景下,中国应支持和提倡改革现行国际投资仲裁体制,在签订国际投资协定时,应审慎设计投资者—国家争端解决条款。     

美国雇佣自由规则在判例法中的确立及启示

在修改《劳动合同法》呼声愈演愈烈的背景下,不少学者将目光投向美国雇佣自由规则。在目前主要的工业化国家中,仅有美国适用雇佣自由规则,其私人部门中的雇主一般可随时以任何理由解雇雇员。19世纪中期前,不同州的法院或同一州不同系统的法院或适用一年雇佣规则,或适用劳动报酬规则,或适用雇佣自由规则处理劳动争议。19世纪末20世纪初,雇佣自由规则在判例法中得以确立,是学术理论、法律制度、经济制度、社会观念、工会因素、司法体制综合作用之结果。借鉴美国经验可知,我国不宜适用过于宽松的解雇保护制度,应继续将稳定劳动关系作为主要价值目标,并遵循社会公共利益>职业稳定权>经营管理权之法益保护位阶。     

世界贸易组织规则的阳光原则

阳光原则指WTO的成员方应公布并以统一公正合理的方式实施与贸易有关的法律、行政法规和政策措施 ,以期国际贸易交往的可预见性的立法行政行为规则。本文从WTO的阳光原则的含义入手 ,论述了其在部分WTO协定中的体现、其存在的法理基础及其意义。任何一项法律原则都有深刻的法学哲学基础。法学哲学多维度地阐述某项法律原则存在的必要性和合理性。阳光原则作为重要的法律原则亦是如此。对WTO阳光原则的法学哲学思考 ,就是为了揭示其存在的必要性、合理性和可能性。     

Belize It or Not: Implied Contract Terms in Marks and Spencer v BNP Paribas

In Marks and Spencer v BNP Paribas, the Supreme Court restated the law on the implication of terms in fact, rejecting the previously authoritative approach taken by Lord Hoffmann in Attorney General of Belize v Belize Telecom Ltd. This article examines two major departures from Belize in Lord Neuberger's leading judgment: the treatment of implication as a process separate from interpretation, and a return to the ‘traditional tests’ for the implication of terms. It argues that these are retrogressive steps in our understanding of contract terms, which risk fostering an incoherent and unprincipled approach to the law.     

Call for Papers: Psychology,Law, and the Workplace

Call for Papers

Call for Papers: Psychology, Law, and the Workplace     

Contract, Employment and the Contract of Employment

Many of the rights and duties of the parties in an employmentrelationship arise out of the characterisation of the contractof employment as such. Employment also occurs by virtue of thefact that a contract of employment has been entered into. Inconsequence, it is natural to think of the contract of employmentand the employment relationship as co-existent. It is thus ofsome importance, both in legal theory and in practice, to establisha logical account of the rights and obligations between theparties that exist because of the contract of employment otherthan during the period of employment, both after and possiblybefore that relationship exists. Various possible accounts areexplored, and the conclusion is reached that the theoreticalnexus between employment and contracts of employment shouldbe broken in order to provide a more logical conceptual framework.     

程序规范的解释:范畴、理念与方法

民事诉讼程序规范存在着解释的必要性。程序法定与程序自由、强行程序规范与任意程序规范、禁止任意诉讼原则与诉讼契约、法官的程序控制权与当事人的程序选择权等范畴是法院解释诉讼程序规范过程中必须斟酌的内容。对程序规范进行解释须以宪法规范和民事诉讼目的为出发点 ,以诉讼基本原则作为解释的基本框架。诉讼程序规范的解释方法有语义解释、体系解释、目的解释、诚信解释等。     

On Blame and Punishment: Self-blame,Other-Blame,and Normative Negligence

Law and Philosophy - Punishment should, at least normally, be reserved for blameworthy actions. But to make sense of that claim, we need an account of blame and of why it might license or even call...     

Pluralism,Deference and the Margin of Appreciation Doctrine

In this article it will be argued that good use of the instrument of deference might help the EU courts to deal with the situation of pluralism that is currently visible in the European legal order. By means of deferential judicial review, the EU courts can pay due respect to national constitutional traditions and to national legislative and policy choices, thus preventing situations of real conflict. In addition, deference enables the EU courts to take into account the intricacies related to judicial review of norms drafted by co‐equal institutions or by national elected bodies. Although the EU courts already make use of some form of deferential review, they may use the instrument in a clearer and more structured manner. As a basis for the development of a European ‘doctrine of deference’, a comparison will be made with the margin of appreciation doctrine devised by the European Court of Human Rights. Although this doctrine is certainly not fault‐free, it offers a number of advantages in terms of clarity and controllability. If improved and adapted on the basis of theoretical notions of procedural democracy, the doctrine might be put to good use by the EU courts.     

How Law Rules: Torture,Terror, and the Normative Judgments of Iraqi Judges

We present a factorial survey experiment conducted with Iraqi judges during the early military occupation of Iraq. Because U.S. soldiers are immune from prosecution in Iraqi courts, there is no opportunity for these judges to express their views regarding highly publicized torture cases. As legally informed representatives of an occupied nation, however, Iraqi judges arguably have a strong claim to a normative voice on this sensitive subject. We are able to give voice to these judges in this study by using a quasi‐experimental method. This method diminishes social desirability bias in judges' responses and allows us to consider a broad range and combination of factors influencing their normative judgments. We examine why and how the U.S. effort to introduce democracy with an indeterminate rule of law produced unintended and inconsistent results in the normative judgments of Iraqi judges. A critical legal perspective anticipates the influences of indeterminacy, power, and fear in our research. More specifically, we anticipated lenient treatment for guards convicted of torture, especially in trouble cases of Coalition soldiers torturing al Qaeda prisoners. However, the results—which include cross‐level, judge‐case interaction effects—were more varied than theoretically expected. The Iraqi judges responded in disparate and polarized ways. Some judges imposed more severe sentences on Coalition guards convicted of torturing al Qaeda suspects, while others imposed more lenient sentences on the same combination of guards and suspects. The cross‐level interactions indicate that the judges who severely sentenced Coalition guards likely feared the contribution of torture tactics to increasing violence in Iraq. The judges who were less fearful of violence were more lenient and accommodating of torture by Coalition forces. The implication is that the less fearful judges were freed by an indeterminate law to advance Coalition goals through lenient punishment of torture. Our analysis suggests that the introduction of democracy and the rule of law in Iraq is a negative case in the international diffusion of American institutions. The results indicate the need for further development of a nuanced critical legal perspective.     

Psychology,Law, and the Workplace: An Overview and Introduction to the Special Issue

Law and Human Behavior -     

农民、就业与法律父爱主义——以《就业促进法》为例

在现代化转型的大背景下,农民就业成为涉及全局的大问题,也是相关立法必须解决的难题。如果立法中的规定强调政府主导而不注重权利保护,就可能导致法律父爱主义的倾向。《就业促进法》浓厚的法律父爱主义色彩埋下了政府裁量权过大、农民就业权受侵蚀等隐患。为此,应彰显农民的就业权利和自由,以理性、确定和比例三原则来规制政府行为,淡化甚至褪去立法的父爱主义色彩,走出价值悖论的迷宫,使该法善始善终,最终实现其促进就业的目的。     

Revisiting Delinquent Attitudes: Measurement,Dimensionality and Behavioral Effects

Objective

This study examines whether single-item attitude measures commonly used in research adequately capture adolescent attitudes towards specific delinquent behaviors. It also explores whether delinquent attitudes form a unidimensional or multidimensional construct. Finally, this study tests Ajzen and Fishbein’s principle of compatibility to determine if delinquent attitudes have a behavior-specific and a situation-specific effect on behavior.

Methods

Data from a sample of 223 high school students in the Pacific Northwest (PNW) and from the Gang Resistance Education and Training (GREAT) evaluation are used. The means and correlations between single-item global attitude items are compared to situation-specific measures. Exploratory factor analysis is conducted to examine dimensionality, and logit regressions are used to predict the willingness to offend in the PNW and self-reported offending in the GREAT.

Results

The findings indicate that: (1) global attitude measures underestimate the degree of approval of delinquency and are not strongly correlated with situation-specific attitudes; (2) delinquent attitudes form a multidimensional construct that coalesce around crime-types; (3) there is some evidence that attitudes towards specific crimes have crime-specific effects on behavior, and; (4) situation-specific attitudes predict the willingness to offend in a specific situation above and beyond one’s overall approval of that behavior.

Conclusions

Attitudes towards fighting and theft are too complex to be captured by single-item measures. The findings also support the principle of compatibility which suggests that attitudes may be well-suited to explain why individual engage in specific types of crimes in specific situations. Other implications and limitations are discussed.

     

Normative challenges of identification in the Internet of Things: Privacy,profiling, discrimination,and the GDPR

In the Internet of Things (IoT), identification and access control technologies provide essential infrastructure to link data between a user's devices with unique identities, and provide seamless and linked up services. At the same time, profiling methods based on linked records can reveal unexpected details about users' identity and private life, which can conflict with privacy rights and lead to economic, social, and other forms of discriminatory treatment. A balance must be struck between identification and access control required for the IoT to function and user rights to privacy and identity. Striking this balance is not an easy task because of weaknesses in cybersecurity and anonymisation techniques. The EU General Data Protection Regulation (GDPR), set to come into force in May 2018, may provide essential guidance to achieve a fair balance between the interests of IoT providers and users. Through a review of academic and policy literature, this paper maps the inherent tension between privacy and identifiability in the IoT. It focuses on four challenges: (1) profiling, inference, and discrimination; (2) control and context-sensitive sharing of identity; (3) consent and uncertainty; and (4) honesty, trust, and transparency. The paper will then examine the extent to which several standards defined in the GDPR will provide meaningful protection for privacy and control over identity for users of IoT. The paper concludes that in order to minimise the privacy impact of the conflicts between data protection principles and identification in the IoT, GDPR standards urgently require further specification and implementation into the design and deployment of IoT technologies.