‘Revenge porn’ is a pervasive social problem which is constantly evolving to adapt to new technologies; consequently, it has an infinite number of potential incarnations. It causes a myriad of harms both to individuals, and to wider society. Understanding the scale of the problem and the extent of the harms it causes are crucial in understanding how the law should respond, so that victims are provided with the most robust legal solutions possible. This thesis aims to evaluate the effectiveness of relevant existing legal responses to revenge porn, in England and Wales, in the civil and criminal law regimes, identifying gaps in provision and making suggestions for reform. The study also provides the theoretical foundations to justify addressing the conduct in the civil and criminal law regimes and offers robust theoretical support for the reform proposals it offers. The central argument running through the thesis is that neither the civil or criminal law regimes, in isolation, in England and Wales, is capable of vindicating all victims’ interests. While the civil law can offer victims a useful mechanism to claim damages or injunctive relief, the seriousness of the conduct also requires the blaming voice of the criminal law and the greater deterrent effect and retributive response that criminal sanctions can bring. It is suggested that adopting a hybrid approach would offer a good solution, as such an approach would enable prosecutors and victims to efficiently access the benefits of both regimes. The thesis thus recommends the availability of a criminal law that prohibits the creation and distribution of all private sexual images, with a tailored statutory tort running alongside it. This solution would provide victims with the most effective means of obtaining both criminal and civil redress, using one single, comprehensive piece of legislation.

The regulation of 'revenge porn' in England and Wales : are existing legal solutions effective?

Scholars have shown that written constitutions may be informally amended in various ways, for instance by judicial interpretation, statute, or executive action. But scholars have yet to fully appreciate that written constitutions may also be informally amended by desuetude. Informal amendment by constitutional desuetude occurs when a constitutional provision loses its binding force upon political actors as a result of its conscious sustained nonuse and public repudiation by political actors. Though it is a species of informal amendment, constitutional desuetude possesses unique properties. Constitutional desuetude reflects the informal repeal of a constitutional provision as a result of the establishment of a new constitutional convention. Despite its obsolescence, the desuetudinal constitutional provision remains entrenched in the constitutional text. Consequently, although informal amendment generally leaves the constitutional text entrenched, unchanged and politically valid, this particular variation of informal amendment leaves the text entrenched and unchanged but renders it politically invalid. In this paper, I illustrate and theorize the phenomenon of informal amendment by constitutional desuetude with reference to the Canadian Constitution, I construct an analytical framework for identifying constitutional desuetude in other jurisdictions, I distinguish constitutional desuetude from other forms of obsolescence, and I also explore the costs of constitutional desuetude.

Constitutional Amendment by Constitutional Desuetude

This Article offers a new theory of contractual obligation, one which remedies the weaknesses of prior autonomy-based contract theories. Contracts should be understood as transfers of property in a promisor's future actions. Understanding contracts as transfers allows for a theory of contract obligations consistent with two basic features of common law adjudication: the harm principle and corrective justice. Under the harm principle, courts should only enforce an agreement if doing so will remedy or prevent a harm to the promisee. Under a corrective justice rubric, the remedy selected should correspond to the wrong committed by the promisor. Other theories, including promise-based and reliance-based theories, have struggled to meet these criteria. This Article argues that contractual obligations depend on the making of a conditional promise. Assuming the promisor's consent, a promisee is then able to acquire the contractual performance by meeting the conditions of the promise. Applying principles of just property acquisition, the promisee comes to deserve contractual performance once she has acted in accordance with the promisor's terms. When this occurs, the result is a transfer of the promisor's ownership of her future actions to the promisee. Reconceptualizing contracts in these terms renders coherent existing doctrine. This theory provides a justification for the doctrine of consideration and the expectation remedy, and it supports the enforceability of both unilateral contracts and bilateral executory contracts. Prior theories have had difficulty explaining these doctrinal features under a single, consistent rubric. Moreover, recognizing property concepts as a foundation for contract obligations offers important new insights for further refinement of legal doctrine.

A Property Theory of Contract

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Ever since the publication of Scanlon’s Promises and Practices and What We Owe to Each Other, expectations have become an important topic within discussions on promises. However, confining the role of expectations to promises does not do justice to their importance in creating obligations more generally. This paper argues that expectations are one of the major sources of obligations created within our personal relationships. What we owe to our friends, partners, or siblings very often follows neither from the duties associated with the given role, nor from our explicit promises, commitments, declarations, or consents. The obligations that our close relationships create often arise from a shared understanding of those relationships—and subsequent mutually acknowledged expectations.

Expectations and Obligations

It’s generally wrong to break promises. But it’s not obvious why. T.M. Scanlon gives an influential answer, proposing that breaking promises involves violating what he calls a moral duty of fidelity. Niko Kolodny and R. Jay Wallace have offered a sophisticated criticism of Scanlon’s account, arguing that it’s circular, and that his attempt to avoid the circularity won’t work. In this paper, I defend Scanlon against their attack. The second goal will be to explain why Scanlon’s theory nevertheless faces serious problems. In particular, Scanlon’s approach incorrectly implies that some people lack the ability to make binding promises, even though it’s clear that they have this ability. Given this objection, this paper then presents and defends a modified Scanlonian approach to promissory obligation that preserves his key insights, avoids the problems, and removes the risk of circularity pointed out by Kolodny and Wallace.

Reviving the Assurance Conception of Promising

Many tort theorists claim that tort law’s basic structure must be understood in terms of moral principles of corrective justice. Formulations of these principles vary, but they hold (roughly) that one person who injures another wrongfully has a duty to repair the losses associated with that injury. In the last decade, several tort theorists have criticized traditional corrective justice theories for, among other things, failing to account for key structural features of tort practice. This article outlines and defends an alternative conception of corrective justice called the making amends conception. By understanding corrective justice as just another name for the familiar moral phenomenon of making amends, and by viewing tort law as a formalization of that informal phenomenon, we can arrive at a conception of corrective justice that can resist the criticisms while providing an independently attractive picture of tort law.

/pdf/corrective-justice-as-making-amends-3179e17igm.pdf

Corrective Justice as Making Amends

Sometimes officials fail to enforce a statute despite its widespread violation over a long period of time. Under the doctrine of desuetude, such statutes are considered void and therefore may be abrogated by judges. This paper articulates and defends a version of the doctrine that would prevent arbitrary and capricious enforcement of obsolete morals legislation, while simultaneously preserving the residual symbolic value that otherwise obsolete morals legislation may retain for citizens. Judges would accomplish this by invalidating the punishment-enabling provisions of morals legislation as desuetudinal, while preserving the offense defining provisions that may still have symbolic value.

Desuetude-Based Severability: A New Approach to Old Morals Legislation

Many assume that lawmakers should design contract law with the goal of facilitating commercial promises, but neglect the question of which promises qualify as a commercial in nature. This Article argues that this question matters more than one might initially expect. Once we understand commerciality in terms of commodification — roughly, treating something as subject to market norms — surprising recommendations for reform follow. First, if contract law should enforce commodified promises, we should demote the consideration doctrine to a presumption of enforceability rather than a formal requirement. Second, we should adopt a rule, contrary to current doctrine in most jurisdictions, that intending to make a promise legally binding renders it presumptively enforceable. Beyond these reforms, understanding contracts as commodified promises also provides a new lens through which to view recurring debates about the limits we place on the power to contract, including limits on enforcing donative promises, remedies, and efficient breaches. We can even understand the 2008 financial crisis as caused in part by over-commodifying promises. In short, this Article shows how debates about the moral limits of markets, which might have seemed peripheral to contract theory, belong at its very core.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3220589_code512155.pdf?abstractid=2926225&mirid=1

Erik Encarnacion

Papers

Reviving the Assurance Conception of Promising

Corrective Justice as Making Amends

Reviving the Assurance Conception of Promising

Desuetude-Based Severability: A New Approach to Old Morals Legislation

Contract as Commodified Promise