Packer in Context: Formalism and Fairness in the Due Process Model

Herbert Packer's The Limits of the Criminal Sanction (1968) has spawned decades of commentary. This essay argues that Packer's two‐model conceptualization of the criminal process is best understood within his professional milieu of doctrinal legal scholarship and the political context of the Warren Court revolution. Within this context, the essay suggests a distinction between two due process visions: formalism and fairness. This distinction is useful for illuminating debates and decisions on criminal procedure matters in the Supreme Court such as Terry v. Ohio (1968) and Apprendi v. New Jersey (2000) . I conclude by encouraging sensitivity to legal and historical context in future commentary on Packer's framework.     

Fairness in Bargaining

This paper uses historical and contemporary philosophical discussions of fairness to present a structural approach to the definition of fairness. After establishing a set of standards (not a specific definition), we assess the impact of fairness in negotiations and bargaining. Our analysis concludes that truly fair behavior is absent in bargaining and negotiations. Instead, behaviors that have been called just can also be characterized as self-interested. Our review suggests that the term fairness has been used rather loosely, as a convenient label or as a more palatable alternative to self-interested explanations for an individual's choices. For reasons of both parsimony and accuracy, we recommend that the self-interest of the actors be carefully considered before calling their bargaining behavior fair.     

论刑事诉讼中实体公正与程序公正之关系

程序公正近年来在我国法学理论界引起很大争论与探讨,就刑事诉讼中实体公正与程序公正之关系,各种观点百家争鸣,而该问题不仅为诉讼理论问题,且关系到诉讼中人权保障、诉讼模式等一系列实质内容,但有些提法抛开法律文化背景与法制现状,一味强调程序优先或过分坚持实体优先,有失偏颇。     

Fairness in Non-human Primates?

Humans have a sense of fairness, i.e. an interest in the ideal of equity. This sense allows them to compare their own efforts and subsequent outcomes with those of others, and thus to evaluate and react to inequity. The question is whether our closest living relatives, the non-human primates, show the behavioural characteristics that might qualify as necessary components to a sense of fairness, such as inequity aversion. In this article, we review the five different experimental approaches to studying behaviours related to fairness in non-human primates, including their underlying logic and main findings that represent the current state of research in this field. In the critical condition of all these studies, a subject and a conspecific partner have either to invest different efforts or receive different outcomes while observing each other. The main question is whether??and how??subjects react to unequal situations that humans would perceive as ??unfair??. Taken together, the results from all five approaches provide only weak evidence for a sense of fairness in non-human primates. Although apes and monkeys are attentive to what the partner is getting, they do not seem to be able or motivated to compare their own efforts and outcomes with those of others at a human level. Even though the debate is still on-going, we believe that a full sense of fairness is not essential for cooperation. Obviously, apes and monkeys are capable of solving problems cooperatively, without a strong, humanlike sense of fairness. They are mainly interested in maximizing their own benefit, regardless of what others may receive. It is thus possible that a sense of fairness only exists rudimentarily in non-human primates.     

Affect and Fairness in Economics

A strained relationship exists between mainstream economics and ethics. Over the last decade, behavioral economists have strongly argued for the importance of fairness in motivating behavior, based on substantial experimental evidence. Two main approaches to the modeling of fairness have been proposed: the outcome-based inequity aversion approach, and the intention-based reciprocity approach. Both approaches have been quite successful in explaining the experimental evidence. Nonetheless, this paper questions the role that is assigned to fairness in these models and the way fairness is incorporated, using recent experimental findings concerning emotions and fairness perceptions. The analysis supports the view that feelings are important for justice, also from a policy perspective, and pleads for closer attention being paid to the functioning of emotional brain systems.

Contract Law as Fairness

This article examines the implications for contract law of Rawls' theory of justice as fairness. It argues that contract law as an institution is part of the basic structure of society and as such subject to the principles of justice. Discussing the basic structure in relation to contract law is particularly interesting because it is instructive for both contract law and Rawlsian theory. On the one hand, justice as fairness has clear normative implications for the institution of contract law. On the other hand, this discussion forces us to critically assess the meaning and appeal of the concept of a basic structure in justice as fairness.     

On Fairness and Efficiency

Vanessa Finch, Corporate Insolvency Law – Principles and Perspectives, Cambridge: Cambridge University Press, xxxix + 616 pp, pb £35.00.     

Fairness and Ethics in Social Decision Making

Social Justice Research -     

Expertise, Counterfactual Thinking, and Fairness Perceptions: A Test of Fairness Theory

While fairness theory (Folger & Cropanzano, 1998, 2001) suggests perceptions of injustice are due to accountability judgments and counterfactual thinking, few studies have examined the influence of contextual variables on counterfactual thinking and the mediating role of counterfactual thought. Further, the few studies that have examined this have resulted in mixed findings, which may be attributable to the methodology used. The present research utilized a unique approach to examine fairness theory: the double-randomized design. Study 1 showed that agent expertise is related to would and should counterfactual strength and the generation of other-attributed counterfactuals (X → M). Study 2 showed that would and should counterfactuals are related to fairness perceptions (M → Y). This study integrates previous research examining fairness theory and highlights the importance of counterfactual thoughts on fairness perceptions when a person’s level of expertise is made salient. Additional implications for research and practice are discussed.     

Comparative Desert Vs. Fairness

In the recent book The Geometry of Desert, Shelly Kagan explores, with a rare degree of precision, how best to cash out two fundamental and widely shared intuitions. The first intuition says that virtuous people deserve to be doing well, and that less virtuous (or vicious) people deserve to be doing less well – and thus, that it’s good (other things equal) if virtuous people are doing well and if less virtuous (or vicious) people are doing less well (or even badly). The second intuition says that the distribution of the satisfaction of people’s desert claims across persons matters: that it’s good (other things equal) if people’s desert claims are satisfied in accordance with the demands of interpersonal fairness. The former intuition states the basis of what Kagan calls ‘absolute desert’. The latter articulates the basis of what he calls ‘comparative desert’. I advance an internal critique of Kagan’s conception of comparative desert; I argue that it contravenes the demands of interpersonal fairness in the domain of desert, and so fails on its own terms.     

Applying Fairness Principles in Climate Change Nuisance Litigation

The tort of public nuisance has been used in two recent climate change cases, Connecticut v. American Electric Power Co. and Comer v. Murphy Oil, USA, to single out a handful of American companies with deep pockets and hold those companies liable for global climate change. This article examines why these suits contravene judicially established procedural and substantive safeguards—including “but for” causation, proximate causation, remediability, and liability allocation—that are meant to ensure that when the judicial system holds a defendant liable, it is fundamentally fair to the defendant to do so.     

论一种作为公平的代际正义

在分析罗尔斯对代际正义证明的三种进路存在问题的基础上,通过对于人类存在的两个基本事实的确认和“同一时间入口”假设的区分,在正义环境要求获得满足的条件下,以最大最小原则可以证明代际正义在本质上仍然是一种作为公平的正义。     

论刑罚的公平性

刑罚的公平性有两种根据：一种是刑罚的报应根据，认为刑罚量的分配应该与已然之罪等量或等价；二是刑罚的预防根据，认为刑罚量的分配应该与未然之罪相适应。本文认为，刑罚分配的公平性既通过刑罚的报应根据（刑罚与主观恶性、客观危害相适应）体现出来，又通过刑罚的预防根据（刑罚与再犯可能、初犯可能相适应）体现出来，是二者对立统一的结果。     

Private Policing in Context

This article considers the development, growth and significance of private policing in a wider context. Section one suggests that the rebirth of private policing is associated with - and, in effect, demands - a change in the conceptual framework with which policing is analysed. While section one addresses the conceptual context of private policing, section two examines its theoretical context by considering various explanations for the post-war growth of commercial security. Moving from specific to general accounts, it is suggested that two explanations - one based upon sociological accounts of the development of modern societies, the other on genealogical accounts of developing mentalities - provide a crucial context for understanding contemporary changes in policing and governance. In the next section, two of these changes - the growing influence of risk-based policing and the increasing significance of diverse patterns of governance - are considered in the context of the fragmented forms of security provision (commercial, municipal, civil and state policing) which are prevalent today. A short concluding section offers some final thoughts on how these arguments impact on the governance of policing. One of the implications contained in this article is that the re-emergence of private policing needs to be considered not only as a problem, but also as an opportunity to identify and address critical questions of contemporary governance.     

Debt Restructuring and Notions of Fairness

This article examines concern for fairness in the way in which loss is distributed when a company or financial institution facing financial difficulties is restructured. It shows how this concern is often grounded in loose notions of fairness, or generalisations from one situation to another, rather than in detailed analysis. Adopting an interdisciplinary approach, it builds an analytical frame for the fairness debate in debt restructuring. It shows why rigour is important in identifying fairness concerns, in weighing them against other considerations, and in applying concerns which arise in one scenario to another, and illustrates the types of policy mistake or policy incoherence which can arise if this is not done.