Wednesday, January 20, 2010
On January 8th I posted some comments on a very interesting article by Prof. Ofer Raban of the University of Oregon School of Law. I thought he might like to respond and invited him to do so; here are his remarks, for which I thank him. I have a response to this, which I will post in due course.
I was graciously invited to comment on Professor Clarke entry, so here goes.
First, my paper not only claims that vague legal standards may produce more certainty and predictability than bright-line rules, but also that in many areas of the law they are bound to do so (and the article goes to explain why).
Although the proper application of vague standards is, by definition, less predictable than the proper application of bright-line rules, the article argues that the predictability that actually matters – which pertains to the ability of real-life actors to predict the consequences of their actions – may still be enhanced by the use of vague standards rather than by clear rules. The full explanation can be found in the paper (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1419683).
Now the paper recognizes, as it must, that this proposition depends on the proper application of these standards. In other words, if lawyers and judges habitually misapplied the concept of “negligence” to perfectly prudent and cautious actions, predictability may certainly suffer. But that is true, of course, about the predictability of bright-line rules as well.
This short clarification places Professor Clarke’s claims in the context of the paper’s thesis. Professor Clarke does not dispute the thesis (which I was happy to learn…); but he does say that adopting vague legal standards in China would not produce more predictability even in those areas where I claim it would, because Chinese courts, unlike, say, American courts, are more likely to misapply (indeed, not to apply at all) vague standards. And he thinks that my paper pays insufficient attention to this important caveat (that in many countries courts are likely to misapply vague legal standards).
That claim, however, would hold true only if Chinese courts not only misapplied (or refused to apply altogether) vague standards, but also if they properly applied bright-line rules. Otherwise there is no basis for the claim that bright-line rules would do better than standards. Now why would that be the case???
The reluctance of Chinese courts to protect certain individual rights, or their willingness to subject their judgments to the Party’s will, or their rampant corruption, stand neither here nor there on this matter. If a court refuses to apply a standard of “fairness” because this would result in a politically unpalatable ruling, that very court, it seems to me, would similarly refuse to apply a perfectly clear rule that produces the same result. And vice-versa: just as Chinese courts may be willing to properly apply bright-line rules that lead to their desired results, they should be similarly willing to apply such vague standards (as in fact they do when convicting dissidents under exceedingly vague and indeterminate definitions of crimes.)
So, to repeat: if Chinese courts are more likely to misapply vague legal standards, they are also more likely to misapply bright-line rules. (Indeed our own law reports contain innumerable examples of how that is done.) Either way, the thesis on the predictability of vague legal standards in comparison to bright-line rules remains untouched.
University of Oregon School of Law