Saturday, June 12, 2021

New Book: From Hackney to Hong Kong — The Story of a Lucky Man (by Clive Grossman SC)

Published by HKU Law, this is the anecdotal story of Clive Grossman SC and his travels from his birthplace in Hackney in London during the Second World War to what was then Southern Rhodesia. He describes his life in Rhodesia and what later became Zimbabwe, growing up there, schooling, working as a clerk then university in Cape Town, practice at the Bar, his time in the military, and eventually his trip to Hong Kong which resulted in an invitation to work in the Attorney General’s Office and a life thereafter at the Hong Kong Bar.

Click HERE for online order.

Friday, June 4, 2021

HKU Law and Technology Centre launched HKU AI Lawyer: Sentencing Predictor for Drug Trafficking



Recent advances in artificial intelligence (AI) and machine learning bring disruptive changes to legal practice. AI can be used to draw insights from past judicial decisions to predict future outcomes. In the criminal justice system, one essential aspect is sentencing. Much attention has been placed on how AI informs decisions about sentencing and how to use AI to assist people to obtain and make use of sentencing information.

Professor Anne Cheung of the Faculty of Law and Professor Ben Kao of the Department of Computer Science at the University of Hong Kong and their research team have developed a Stage-1 model of HKU AI Lawyer - an AI-assisted sentencing predictor for the offence of trafficking in dangerous drugs in Hong Kong. The predictor is based on an innovative combination of legal domain knowledge and machine learning techniques. Users only need to provide relevant information through responding to four simple questions, and the predictor will generate an estimated term of imprisonment. Another useful feature of the predictor is that it will at the same time show the links to court decisions which are most relevant to the given facts. The sentencing predictor is a pragmatic tool for professionals including lawyers, social workers and teachers. It also serves to inform the public of likely legal consequences of committing drug trafficking offences.

A workshop was held on May 18 (Tuesday) to introduce the background of HKU AI Lawyer, with a demonstration of how to use the sentencing predictor, to lawyers, social workers and members of the community. Mr. Chan Man Ho, Deputy Director of the Hong Kong Federation of Youth Groups, also shared his experience.

Media representatives were cordially invited to attend the workshop, with details as follows:
Date: May 18, 2021 (Tuesday)
Time: 2:00 – 3:15pm
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, Centennial Campus, HKU (map)
Language: Cantonese

Speakers:
Professor Anne Cheung
Co-Director, Law and Technology Centre
Professor of Law, Faculty of Law, HKU

Professor Ben Kao
Co-Director, Law and Technology Centre
Professor, Department of Computer Science, Faculty of Engineering, HKU

Mr. Michael Cheung
Research Officer
Law and Technology Centre, Faculty of Law, HKU

Mr. Chan Man Ho
Deputy Director
The Hong Kong Federation of Youth Groups

** The workshop was simultaneously aired through Zoom:
Meeting ID: 961 8639 6394

For media enquiries, please contact:
Ms. Grace Chan, Secretary, Law and Technology Centre, Faculty of Law, HKU (Tel: 3917-4727; Email: mcgrace@hku.hk)

SCMP article links to the event: 
"Hong Kong drug offenders get clearer view of options as new computer program scans thousands of cases to determine likely sentences"
SCMP
19 May 2021
                                                   

Thursday, June 3, 2021

Urania Chiu and Daisy Cheung on Claiming Wrongful Diagnosis under the Mental Health Ordinance: The Impossibility of Building a Reasonably Arguable Case (HKLJ)

Urania Chiu and Daisy Cheung
Hong Kong Law Journal
2020, Vol. 50, Part 3 of 2020, pp. 837-850
Abstract: In the recent Court of First Instance decision Bhatti Bhupinder Singh v Hospital Authority, the judge refused to grant leave under s 69 of the Mental Health Ordinance (Cap 136) (MHO) to the claimant for his wrongful diagnosis and wrongful detention claims against the Hospital Authority. This article considers this decision in detail, arguing that the judge’s reasoning was highly flawed due to its lack of consideration of a crucial factual context of the case, as well as its lack of scrutiny of the decisions made by the various medical professionals involved, in particular in relation to whether the criteria specified by each relevant section of the MHO was satisfied. The resulting approach demonstrates an unacceptable level of deference towards the judgment of medical professionals, to the extent that it is difficult to see how a reasonably arguable case could ever be mounted under s 69 of the MHO — a problematic outcome, given the implications of s 69 on the important right to access to courts. Given that compulsory admission and treatment is a highly draconian regime involving deprivation of liberty and the administration of powerful, mind-altering drugs, the court cannot simply be a rubber stamp and must exercise its supervisory role in a much more meaningful manner.

Wednesday, June 2, 2021

Say Goo and Heather Lee on Lawful Traditional Right and Sustainability: An Unbalanced Interest in the Customary Ding Right in Hong Kong? (HKLJ)

"Lawful Traditional Right and Sustainability: An Unbalanced Interest in the Customary Ding Right in Hong Kong? "
Say H Goo and Heather Lee
2020, Vol. 50, Part 3 of 2020, pp. 961-982
Abstract: A customary ding right granted to male indigenous villagers to erect small houses in the New Territories has caused discontent amongst non-indigenous villagers and indigenous women and attracted attention from international organisations concerned with equality and non-discrimination. Claiming it to be a de jure property right, a lawful traditional right protected under the Basic Law and mingling this with complaints about historical land expropriation, indigenous villagers are advancing their claim for the recognition of and respect for Chinese customs and practices. Given the shortage of land resources and the indeterminate number of male indigenous villagers who will apply to build small houses over an indefinite period of time, as well as the recurrent abuse of the ding rights by means of tao ding and the unauthorised structures resulting from insufficient ex-ante and ex-post supervision, the equitable distribution of land resources has been an important unresolved issue in Hong Kong. This article discusses the legal issues and sustainability of the ding right and suggests possible solutions.

Tuesday, June 1, 2021

Dr Felix Chan et al on How Much Is a Leg Worth in Hong Kong? Proposal for Reforming Personal Injury Compensation (HKLJ)

"How Much Is a Leg Worth in Hong Kong? Proposal for Reforming Personal Injury Compensation"
Felix WH Chan, Wai Sum Chan and Johnny SH Li
2020, Vol. 50, Part 3 of 2020, pp. 983-1004
Abstract: This article examines the rationale for and effectiveness of compensation awarded for pecuniary and non-pecuniary loss in Hong Kong personal injury disputes. Special consideration is given to the assessment of damages for pain, suffering and loss of amenity (PSLA). In addition, the potential use of structured settlements or periodic payment orders (PPOs) as a substitute for (or together with) lump-sum awards is explored. The primary sources of data are the full texts of judgments issued in personal injury cases by the Hong Kong judiciary since 1976. In catastrophic personal injury cases, lump-sum awards hinge on estimates of the claimants' life expectancy and investment returns adjusted for inflation. However, claimants may exhaust their funds by exceeding their projected life expectancy or receiving lower-than-expected investment returns. PPOs provide for regular payments over a claimant's lifetime, adjusted annually based on an inflation index. Reforms focused on PSLA and the use of PPO are recommended.

New Book by Dr Felix Chan et al: Personal Injury Tables Singapore 2021 (Sweet and Maxwell)

Personal Injury Tables Singapore 2021
Dr Wai-sum Chan, 
Dr Felix W.H. Chan, and Dr Johnny S.H. Li
Sweet and Maxwell
Published in March 2021
Book Description: This book contains actuarial tables for use in personal injury and fatal accident cases in Singapore. The value of these tables lies in the scientific basis upon which loss is estimated, and using them is akin to having expert witness evidence to guide the court in its decision.

Key features
  • Essential reference information to assist lawyers in determining appropriate compensation levels for losses suffered through personal injury and fatal accident cases.
  • Actuarial tables are based on various Life Tables for Singapore Resident Population 1980–2018, published by the Singapore Department of Statistics.
  • Clear explanatory notes guide users on the proper and effective use of the tables.
  • Adopts life expectancy figures and tables that reflect the proper and true value of money.
  • Applies the methodology used in constructing the UK Ogden Tables in the context of unique local circumstances.

Monday, May 31, 2021

New Issue of Hong Kong Law Journal (Vol. 50 - Celebrating 50 Years of Legal Scholarship, Part 3 of 2020)


Editor-in-Chief: Professor Rick Glofcheski
Associate Editor: Professor Albert Chen
Publisher: Sweet & Maxwell

TABLE OF CONTENTS


Analysis

Gay Rights in Hong Kong after Infinger v Hong Kong Housing Authority: A Step Backwards in Principle but a Step Forward in Practice? Kai Yeung Wong ... 831

Claiming Wrongful Diagnosis under the Mental Health Ordinance: The Impossibility of Building a Reasonably Arguable Case Urania Chiu and Daisy Cheung ... 837

Pecuniary Penalties for Anti-Competitive Conduct: Absolutely Deterrent? Alex C.H. Yeung and Joshua Yeung ... 851

The Singapore Convention: Is This the New York Convention for Mediation? Suraj Sajani ... 863

Hong Kong Law Journal: A Citation Analysis Antonia CH Yiu ... 877

Articles

Threats to Hong Kong's Autonomy from the NPC's Standing Committee: The Role of Courts and the Basic Structure Doctrine Surya Deva ... 901

Is Hong Kong's Riot Law "Respectable"? Margaret Ng, Jason Ko and Kin Lau ... 935

Lawful Traditional Right and Sustainability: An Unbalanced Interest in the Customary Ding Right in Hong Kong? Say H Goo and Heather Lee ... 961

How Much Is a Leg Worth in Hong Kong? Proposal for Reforming Personal Injury Compensation Felix WH Chan, Wai Sum Chan and Johnny SH Li ... 983

Re-examining the World Bank's Doing Business Report in the Light of its Pro-deregulation Bias Miriam Anozie, Festus Ukwueze, Louis Enu-Tampie, Benjamin Mukoro, Uju Beatrice Obuka, Obinne Oguejiofor and Ndubuisi Nwafor ... 1005

Treatment Standards of State-Owned Enterprises as Public Entities: A Clash or Convergence across International Economic Laws? Bin Gu and Chengjin Xu ... 1025

Shareholder Control in the Context of Corporate Social Responsibility: A Fundamental Challenge to the Modern Corporation Min Yan ... 1057

China Law

Pre-empting Court–Civil Society Synergy: How China Balances Judicial Autonomy and Legal Activism Yueduan Wang ... 1081

The Change of Government's Role in Reorganisation of Listed Companies in China: A Contrast of the Empirical Evidence in the Periods Between 2007–2013 and 2013–2019 Huimiao Zhao and Wei Cai ... 1107

Legal Personality and the Evolution of the Rule of "Debts-Follow-Assets" in China: Complicating the Theory of Interest Group James Si Zeng ... 1133

Compelling Filial Support: The Experience of the Elderly Law in China's Courts Luxue Yu ... 1155

Chinese Characteristics and Universalist Insolvency Ideals Chuyi Wei, Gerard McCormack and Xian Huang ... 1183

Book Review Law

Criminal Appeals in Hong Kong Amanda Whitfort ... 1215

Friday, May 28, 2021

Daniel Matthews on Reframing Sovereignty for the Anthropocene (Transnational Legal Theory)

"Reframing sovereignty for the anthropocene"
Daniel Matthews 
Transnational Legal Theory
Published on 20 May 2021
Abstract: Writing on sovereignty has failed to address the challenges associated with planetary climatic change. As debates about the nature of sovereignty return to the fore, there remains little attention paid to how our newly unstable environmental conditions might call for sovereignty to be imagined anew. Drawing on Neil Walker’s account of the ‘sovereignty frame’–as a means of understanding the enduring relevance of sovereignty for contemporary law and politics – this article understands sovereignty as an aesthetic device which constitutively inures political subjects to the ecological forces and relations central to the climate crisis and the broader challenges associated with the Anthropocene. In taking up the task of reframing sovereignty in a way that properly attends to these issues, this article introduces how sovereignty’s spaces, subjects and modes of governance might be reimagined in light of the Anthropocene thesis and the various disruptions it heralds for social life.

Thursday, May 27, 2021

Eric Ip on Law, Virtue, and Public Health Powers (Public Health Ethics)

"Law, Virtue, and Public Health Powers"
Eric Ip
Public Health Ethics
Published on 20 May 2021
Abstract: This article contributes to philosophical reflections on public health law by drawing on virtue jurisprudence, which rests on the straightforward observation that a political community and its laws will inevitably shape the character of its officials and subjects, and that an excellent character is indispensable to fulfilment. Thus, the law is properly set to encourage virtue and discourage vice. This opens a new perspective onto the ultimate purpose of public health law that is human flourishing. The means of pursuing this end is to entrust public health powers to officials to virtuously serve the common good, of which population health is one of its most important constituents, within the bounds of the law of the land. This article calls for the adoption of a Prudent Public Health Official standard into the law, in order to cultivate prudent, just, courageous and temperate characters in officialdom. Interestingly, this standard already chimes with certain pre-existing core principles of public health judicial doctrine in the USA, the European Union and the UK.

Wednesday, May 26, 2021

Jane Richards (PhD candidate) on An Incremental Approach to Filling Protection Gaps in Equality Rights for Persons with Disabilities (Human Rights Law Review)

"An Incremental Approach to Filling Protection Gaps in Equality Rights for Persons with Disabilities"
Jane Richards (PhD candidate)
Human Rights Law Review
Published on 15 May 2012
Abstract: The Convention on the Rights of Persons with Disabilities (CRPD) guarantees that persons with disabilities (‘PWD’) are to be equal before and under the law. There are almost identical equality guarantees in the Canadian Charter of Rights and Freedoms and Hong Kong's mini constitution – the Basic Law. Australia boasts similar legislative equality guarantees for PWD. The CRPD Committee has interpreted the right broadly, whereas constitutional courts have taken a proportionality approach, balancing the right to substantive equality against competing concerns. The tension between these methods of rights protection means the CRPD is being positioned as an alternative model of rights protection, but it is not an alternative mechanism for enforcement. This article calls on the Committee to modify its guidance to make suggestions to state parties as to how incremental advances in rights protection can be immediately implemented, even if in the short-term, these advances fall short of full inclusion.

Tuesday, May 25, 2021

He Xin on Why Don’t Chinese Divorce Courts Better Protect Women? Efficiency and Stability Matter More (U.S.-Asia Law Institute)

U.S.-Asia Law Institute blog, Volume 1, Number 22
Published on 13 May 2021
Why do so many Chinese women suffer or even die from domestic violence? Why are personal safety protection orders rarely issued? Why are women still at a disadvantage in Chinese divorce courts when property is divided and child custody is awarded? Why are the laws protecting women’s rights not well implemented? 
     Based on extensive fieldwork and interviews in various court settings over more than a decade, I argue that institutional constraints to which Chinese judges are subject, a factor largely ignored by the existing literature, play a crucial role in generating outcomes unfavorable to women. The bureaucratic incentives of the court distort the implementation of the divorce law. Judges are responding to two sets of interrelated institutional constraints: efficiency concerns and stability concerns. 
      Click here to view the full text.

Thursday, May 13, 2021

2021 HKU Legal and Political Theory Postgraduate Conference

The first joint postgraduate conference in Legal and Political Theory, co-organized by the Faculty of Law and the Department of Politics and Public Administration of the University of Hong Kong, successfully took place via Zoom on May 5, 6, and 7 2021. 

      On May 5th, the conference started with an inspiring talk by Professor Jonathan Wolff from the University of Oxford on 'The Point is to Change It', followed by 12 presentations by selected participants. The second day of the conference started with a wonderful talk by Dr Kieran Oberman from the University of Edinburgh on 'Immigration and the Hohfeldian Fallacy', followed by another 12 presentations by selected participants. The last day of the conference started with an information session by Chandran Kukathas from Singapore Management University on 'John Rawls and the Immigrant' , followed by 12 more presentations by selected participants.

     Over, the conference attracted over 70 applications from academics and students all over the world, including Europe, North America, Australia and Asia. 

Wednesday, May 12, 2021

Jingyi Wang and Wilson Chow on The Reformed Individual Income Tax Law in China: A Move towards Equity (HKLJ)

"The Reformed Individual Income Tax Law in China: A Move towards Equity"
Jingyi Wang and Wilson W.S. Chow
Hong Kong Law Journal
2021, Vol. 51, Part 1 of 2021, pp. 249-272
Abstract: China’s 2018 individual income tax (IIT) law reform introduced itemised deductions, increased the standard deduction and expanded lower tax rate bands. On the one hand, this may help reduce the income tax burden for the relatively low-income group, but, on the other hand, the tax base of IIT would be further reduced, which may also reduce the redistributive effect of income taxation. However, the dominance of income tax extracted from wages and salaries remains the same. This may be related to the different treatment of income from labour and income from capital, which benefits those with more financial resources and thus discriminate against the less prosperous. Income from employment is also subject to strict tax administration. This article evaluates the sufficiency and equity of the reformed IIT law in China. Given that the Chinese government intends to gradually increase the proportion of direct taxation in its total tax revenue, the fairness of its income tax system should be one of the prioritised areas for any future reform.

Shiling Xiao (PhD candidate) on Proportionality, Unreasonableness and a Unified Model: Reframing the Spectrum of Intensity of Judicial Review (HKLJ)

Shiling Xiao (PhD candidate)
Hong Kong Law Journal
2021, Vol. 51, Part 1 of 2021, pp. 85-114
Abstract: One of the most contested issues in common law public law is the relationship between proportionality and unreasonableness in judicial review. Neither the bifurcated model that draws a rigid line between the two standards nor the parallel mode that recognises both as general standards of review seems to be satisfactory, as courts always swing between these two standards resulting in legal uncertainty. This article attempts to suggest a unified model that is based on the jurisprudence of the Court of Final Appeal. First, it argues that as proportionality and unreasonableness have overlapping elements, proportionality can replace unreasonableness and serve as a single standard of review by organising these elements within a more structured framework, which ultimately increases legal certainty. Second, this article highlights the similarities between Wednesbury unreasonableness and “manifestly without reasonable foundation”, which is a deferential standard for assessing proportionality. The similarities create an opportunity for Wednesbury unreasonableness being merged into unified proportionality and being part of the spectrum of intensity of proportionality review.

Jiang Zixin (JD 2018) on "Explosive Substances” that cannot Explode? (HKLJ)

Explosive Substances” that cannot Explode?"
Jiang Zixin (JD 2018) 
Hong Kong Law Journal
2021, Vol. 51, Part 1 of 2021, pp. 15-22
Abstract: In HKSAR v Kwan Ka Hei, the Court of Final Appeal held that an “explosive substance” under s 55(1) of the Crimes Ordinance (Cap 200) (CO) includes “any substance used or manufactured with a view to producing a practical effect by explosion or a pyrotechnic effect”, applying by analogy the definition under s 2 of the Dangerous Goods Ordinance (Cap 295). This note (1) criticises the court’s view that ss 52 and 54(b) of the CO support this interpretation and (2) argues that insufficient attention was paid to the interaction between the principle that statutes in pari materia should be read together and the principle against doubtful penalisation.

Tuesday, May 11, 2021

Benjamin Chen, Alexander Stremitzer, and Kevin Tobia on Having Your Day in Robot Court (SSRN)

"Having Your Day in Robot Court"
Benjamin Chen, Alexander Stremitzer, and Kevin Tobia
SSRN & the University of California, Los Angeles School of Law, Public Law & Legal Theory Research Paper Series​.
Featured on the Legal Theory Blog  
Published in May 2021
Abstract: Should machines be judges? Some balk at this possibility, holding that ordinary citizens would see a robot-led legal proceeding as procedurally unfair: To have your “day in court” is to have a human hear and adjudicate your claims. Two original experiments assess whether laypeople share this intuition. We discover that laypeople do, in fact, see human judges as fairer than artificially intelligent (“AI”) robot judges: All else equal, there is a perceived human-AI “fairness gap.” However, it is also possible to eliminate the fairness gap. The perceived advantage of human judges over AI judges is related to perceptions of accuracy and comprehensiveness of the decision, rather than “softer” and more distinctively human factors. Moreover, the study reveals that laypeople are amenable to “algorithm offsetting.” Adding an AI hearing and increasing the AI interpretability reduces the perceived human-AI fairness gap. Ultimately, the results support a common challenge to robot judges: there is a concerning human-AI fairness gap. Yet, the results also indicate that the strongest version of this challenge — human judges have inimitable procedural fairness advantages — is not reflected in the views of laypeople. In some circumstances, people see a day in robot court as no less fair than day in human court.

Monday, May 10, 2021

New Issue of Hong Kong Law Journal (Vol. 51, Part 1 of 2021)


Editor-in-Chief: Professor Rick Glofcheski
Associate Editor: Professor Albert Chen
Publisher: Sweet & Maxwell

TABLE OF CONTENTS


Analysis

Judicial Responses to the National Security Law: HKSAR v Lai Chee Ying Johannes Chan ...1

“Explosive Substances” that cannot Explode? Jiang Zixin ...15

Lectures

The Right to Life Hon Mr Justice Kemal Bokhary GBM, NPJ ...23

Lesbian, Gay and Bisexual Human Rights in Europe, Taiwan and Hong Kong Robert Wintemute ...31

Articles

Copyright, Freedom of Speech and the Insult to the National Anthem Tianxiang He ...53

Proportionality, Unreasonableness and a Unified Model: Reframing the Spectrum of Intensity of Judicial Review Shiling Xiao ...85

Service Out and the Abela Interpretation in Hong Kong: The Triumph of Private Parties over Sovereignty Liam H. Y. Yuenw ...115

“The Court” Rises: The New Use of Depersonalised Opinions on the Hong Kong Court of Final Appeal Stuart Hargreaves ...141

Fragmented before a Global Menace: WHO, COVID-19 and the Fragmentation of International Law Jaemin Lee ... 169

Lord Reed and Unjust Enrichment: A Correct(ive) Retreat from Expansionism Nguyen Sinh Vuong ...203

China Law

The Reformed Individual Income Tax Law in China: A Move towards Equity? Jingyi Wang and Wilson W.S. Chow ...249

Departmental Protectionism and Local Protectionism in China’s WTO Disputes Chenxi Wang ...273

China’s Evolving Data Protection Law and the Financial Credit Information System: Court Practice and Suggestions for Legislative Reform Lu Yu and Bj√∂rn Ahl ...287

A Typology of Judicial Liability for Error in Chinese Courts Peter C.H. Chan and Huina Xiao ... 309

The Chinese Guiding Case System through the Lens of a CISG Case Qiao Liu339

The Influence of Pre-Conviction Detention on Probation in China Xifen Lin,Sihong Liu and Yong Ma363

Book Review

A Special Standing in the World: The Faculty of Law at The University of Hong Kong, 1969-2019John P. Burns ....395

The Construction of Guilt in China: An Empirical Account of Routine Chinese Injustice Xin He ... 401

Johannes Chan on Judicial Responses to the National Security Law: HKSAR v Lai Chee Ying (HKLJ)

"Judicial Responses to the National Security Law: HKSAR v Lai Chee Ying"
Johannes Chan
Hong Kong Law Journal
2021, Vol. 51, Part 1 of 2021, pp 1-14
Abstract: Jimmy Lai, a media tycoon supportive of the democratic development of Hong Kong, is the most prominent person arrested under the National Security Law (NSL) since its coming into operation in June 2020. The Court of First Instance granted him bail under stringent conditions, but the decision was reversed on the prosecution’s appeal. The decision of the Court of Final Appeal (CFA), being its first on the NSL, will set the tone for the judiciary in its approach to this controversial piece of legislation. This article analyses the positive and the negative aspects of the CFA’s judgment. It argues that the Court has unnecessarily entered into a jurisdictional question when this could have been avoided. It criticises the Court for having too readily accepted that art 42 of the NSL has displaced the common law presumption in favour of bail, without sufficiently examining whether this acceptance is necessary or proportionate to the presumption of innocence and the right to bail that are also protected by the NSL. While the hands of the Court may be tied, it warns against the risk of the Court not holding a draconian provision to the utmost scrutiny.

Saturday, May 8, 2021

Benjamin Chen on The Expressiveness of Regulatory Trade-Offs (Georgia Law Review)

"The Expressiveness of Regulatory Trade-Offs"
Benjamin Chen
Georgia Law Review, Volume 55, Issue 3
Published online on 4 May 2021
Abstract: Trade-offs between a sacred value—like human life—against a secular one—like money—are considered taboo. People are supposed to be offended by such trade-offs and to punish those who contemplate them. Yet the last decades in the United States have witnessed the rise of the cost-benefit state. Most major rules promulgated today undergo a regulatory impact analysis, and agencies monetize risks as grave as those to human life and values as abstract as human dignity. Prominent academics and lawmakers advocate the weighing of costs and benefits as an element of rational regulation. The cost-benefit revolution is a technocratic coup, however, if citizens view regulatory trade-offs as a symbolic denial of the values they hold dear.
     This Article details three experiments that evaluate responses to a cost-benefit justification for regulatory policy. Across a range of conditions, the experiments revealed no evidence of diffuse hostility toward a consequentialist approach to saving lives. The final experiment found, however, that informing participants that they were expected to vindicate the sanctity of life resulted in them doing so. This result demonstrates the malleability of norms and expectations surrounding regulatory trade-offs.
       Taken together, the experiments suggest that people normally do not perceive regulatory trade-offs as symbolic affronts that call for an expressive defense of the value of life. While these results do not conclusively establish the normative desirability of the cost-benefit paradigm, they do suggest the absence of any broad opposition to consequentialism in public life. These findings have implications for the democratic legitimacy of the administrative state and its institutional design. They also bear on the relationship between tort and regulation as mechanisms for risk control. Insofar as tort judgments are expressive and regulatory decisions are not, regulation that preempts the common law of torts might help temper the tangible costs of symbolism.

Friday, May 7, 2021

Melissa Loja (PhD 2018) on Recent Engagement with International Human Rights Norms by the Courts of Singapore, Malaysia, and Philippines (International Journal of Constitutional Law)

International Journal of Constitutional Law
Published in March 2021
Abstract: This article makes two claims about international human rights norms in three English-speaking courts in Southeast Asia. First, the courts are engaging with the norms, contrary to the prevailing view that the four-walls and dualist doctrines maintain a stranglehold on the region. Singapore courts relied on foreign case law applying the European Convention on Human Rights to rationalize a liberal interpretation of arbitration agreements; Malaysia’s Court of Appeal based its decision on the Association of Southeast Asian Nations Human Rights Declaration, despite lack of legislative incorporation; and the Philippine Supreme Court applied the Convention on the Protection of Persons against Enforced Disappearances (CPPED) as evidence of customary international law, notwithstanding that the government had repeatedly refused to ratify CPPED. Second, their engagement is characterized by inconsistency and arbitrariness as it is governed more by exigency than by human rights philosophy. The Philippine court invoked universality to give direct but selective effect to the norms. In the name of pluralism, Malaysian courts gave direct effect to the norms, but the effect has been transitory. In Singapore, the norms have teleological effect in private law cases involving commercial and investment interests, but not in public law cases involving individual and political rights. The lack of principled practice and the ensuing uncertainty undermine the ethos of human rights and raise the question of whether more practice makes right.