In John Locke's Two Treatises of Government, the state of nature, and more particularly natural man, are created within the tradition of natural law. Several commentators, such as James Tully and Karl Olivecrona, have recognized this legacy in Locke's political thought.1 While providing an analysis of Locke's thought in relation to natural law, such studies, however, have not fully examined the global context within which both the Two Treatises and seventeenth-century natural law developed. Consequently the extent to which natural law (...) theorists, such as Hugo Grotius and Samuel Pufendorf, were influenced by the colonial interests of their particular countries of origin has been largely overlooked. The development of natural law theory, which can be traced back to the time of Cicero and beyond, is transformed during the sixteen hundreds by the need to answer new questions posed, both on sea and land, by the expanding colonial empires of Europe. Thus, in considering the natural law theorists who influenced Locke, it will be necessary to examine how colonialism influenced both the questions which were posed and the answers that were given. (shrink)

Everyone agrees that law is a constituent of social reality. Law seems to be a system by which conduct is governed and guided. Its usefulness consists, in part, on its ability to govern and guide conduct in its characteristic way. If laws guides the conduct of lay law subjects, then it must be (really) possible for the content of the laws governing their conduct to be known by them under standard social conditions. Moreover, if some degree of efficacy in guiding (...) and governing the conduct of lay law subjects is an existence condition for a legal system, then in existing legal systems enough of the content of directive law is epistemically accessed by enough law subjects so that they can apply it to their situations and correctly determine the act-tokens required of them. In this chapter, I argue that these modest epistemic reflections have important implications for a theory of legal content that have been largely ignored. Holistic theories of legal content, such as Greenberg’s and Dworkin’s, are inconsistent with an adequate account of epistemic access. After demonstrating the same problem in two mainstream non-holistic theories of legal content -- the view that legal content is set entirely by official interpretive conventions, and the view that legal content is set entirely by official intentions – I propose a theory of legal content that meets the epistemic access challenge. On my approach, law is, at its core, centered upon the understandings of law subjects. (This view is meant to exempt constitutional provisions.) More precisely, the legal content of statutes and judicial decisions is built around, and preserves, a core of understandings and meaning-assignments that is the province of anyone with sufficient linguistic ability and relevant socialization. The details of this view are, roughly: (1) in the case of judicial decisions in a common law system, the social salience of the example the decision sets concerning behavior sets the default legal content; (2) in the case of statutory directives, the set of socially salient applications (behavior in situations) sets the default legal content. I say `default’ because my account of legal content is a two-stage account beginning with the default content and permitting a second stage in which considerations from other sources can operate on the default. Yet if a certain amount of efficacy in guiding lay law subjects’ behavior is a requirement for the existence of a legal system, there must be a core of legal content undistorted from its default social salience by a second stage operation. There is and must be a `law of the street’. -/- . (shrink)

In this essay I defend functional explanations in sociobiology against the charge that they are exercises in speculative story-telling. I distinguish proximate and ultimate biological functions, and discuss their role in functional explanations. I characterize functional explanations as a kind of "consequence explanation", and argue that sociobiologists need to justify a "functional fact" in addition to a "consequence law". Two methods used to supply evidence for functional hypotheses, the technique of optimality analyses and the comparative method, are discussed and illustrated (...) with examples. I argue that adequate evidence for hypothesis about the function of a trait can be provided by the method of comparison, but not by optimality analyses. The comparative method contains an inductive phase that provides independent warrant for, and so serves to establish the high probability of, functional hypotheses. Independent warrant cannot be provided by optimality analyses alone: the model-building approach itself mandates the sacrifice of the truth of a hypothesis to its predictive power. I conclude that while the sociobiologist may wish to employ the optimality analysis as a heuristic strategy, reliable functional explanations are better sought through the use of the comparative method. (shrink)

Delivering high quality genomics-informed care to patients requires accurate test results whose clinical implications are understood. While other actors, including state agencies, professional organizations, and clinicians, are involved, this article focuses on the extent to which the federal agencies that play the most prominent roles — the Centers for Medicare and Medicaid Services enforcing CLIA and the FDA — effectively ensure that these elements are met and concludes by suggesting possible ways to improve their oversight of genomic testing.

International Studies in the Philosophy of Science, Volume 25, Issue 1, Page 83-86, March 2011.

Dworkin's theoretical disagreement argument, developed in Law's Empire, is presented in that work as the motivator for his interpretive account of law. Like Dworkin's earlier arguments critical of legal positivism, the argument from theoretical disagreement has generated a lively exchange with legal positivists. It has motivated three of them to develop innovative positivist positions. In its original guise, the argument from theoretical disagreement is presented as ‘the semantic sting argument’. However, the argument from theoretical disagreement has more than one version. (...) This article briefly discusses two versions and the leading replies to them, then focuses on the most influential version, directed at Hartian positivism. The article surveys the leading positivist rejoinders to the recast version, indicating key Dworkinian replies or assessing the strength of these rejoinders, and concludes with a rejoinder of its own, making a new case that the argument from theoretical disagreement isn't fatal for Hartian legal positivism. (shrink)

This paper will examine the effects of gender, age, work experience, academic status and legality on certain ethical decisions. Six scenarios representing ethical dilemmas were presented to both undergraduate and MBA students in an attempt to determine if various demographic factors influenced ethical decision making. While some past studies have suggested that gender has an important effect on ethical decision making, this study does not completely support this conclusion and suggests that age and/or length of work experience should be included (...) in any study of ethical decision making.The legality of the decisions was determined and compared to the reason given by the students for their decisions. In some cases the choice made by a majority of the students was not the one that was supported by the legal authorities which suggests that there may be conflicts between the ethical system of the respondents and the behavior expected of them by society. (shrink)

Intelligent design creationism (ID) is a religious belief requiring a supernatural creator's interventions in the natural order. ID thus brings with it, as does supernatural theism by its nature, intractable epistemological difficulties. Despite these difficulties and despite ID's defeat in Kitzmiller v. Dover Area School District (2005), ID creationists' continuing efforts to promote the teaching of ID in public school science classrooms threaten both science education and the separation of church and state guaranteed by the U. S. Constitution. I examine (...) the ID movement's failure to provide either a methodology or a functional epistemology to support their supernaturalism, a deficiency that consequently leaves them without epistemic support for their creationist claims. My examination focuses primarily on ID supporter Francis Beckwith, whose published defenses of teaching ID, as well as his other relevant publications concerning education, law, and public policy, have been largely exempt from critical scrutiny. Beckwith's work exhibits the epistemological deficiencies of the supernaturally grounded views of his ID associates and of supernaturalists in general. I preface my examination of Beckwith's arguments with (1) philosopher of science Susan Haack's clarification of the established naturalistic methodology and epistemology of science and (2) discussions of the views of Beckwith's ID associates Phillip Johnson and William Dembski. Finally, I critique the religious exclusionism that Beckwith shares with his ID associates and the implications of his exclusionism for public policy. (shrink)

Featuring an impressive roster of contributors, this book will serve as a bold and irreplaceable source of information for legal scholars, lawyers, and ...

The paper considers the legal tools that have been developed in German pharmaceutical regulation as a result of the precautionary attitude inaugurated by the Contergan decision. These tools are the notion of “well-founded suspicion”, which attenuates the requirements for safety intervention by relaxing the requirement of a proved causal connection between danger and source, and the introduction of the reversal of proof burden in liability norms. The paper focuses on the first and proposes seeing the precautionary principle as an instance (...) of the requirement that one should maximise expected utility. In order to maximise expected utility certain probabilities are required and it is argued that objective Bayesianism offers the most plausible means to determine the optimal decision in cases where evidence supports diverging choices. (shrink)

Abortion is one of the most controversial issues in today's world. People tend to turn to the law when trying to decide what is the best possible solution to an unwanted pregnancy. Here the author's views on abortion are discussed from a lawyer's and a woman's point of view. By taking into consideration the rights of the fetus an “antagonistic relationship” between the woman and her unborn child may occur. Therefore, women should have more autonomy in the issue. The article (...) concludes with examples of cases in the United States and Ireland where the rights of the fetus are considered more important than those of the mother because of existing laws. This article suggests that a more inclusive ethics of abortion is required rather than a new ethics of abortion when “translating fetal life into law”. (shrink)

A rare systematic thinker, Habermas has furthered our understanding of modernity, social interaction and linguistic practice, societal institutions, rationality, morality, the law, globalization, and the role of religion in multicultural societies. He has helped shape discussions of truth, objectivity, normativity, and the relationship between the human and the natural sciences. This volume provides an accessible and comprehensive conceptual map of Habermas' theoretical framework and its key concepts, including the theory of communicative action, discourse ethics, his social-political philosophy and their applications (...) to contemporary issues. It will be an invaluable resource for both novice readers of Habermas and those interested in a more refined understanding of particular aspects of his work. (shrink)

An increasingly long line of high-profile scientific misconduct cases raises the question of whether regulatory policy ought to incorporate more rigorous sanctions for investigators and their institutions. Broad and Wade graphically describe these cases through the early 1980s. They continue to recent times with the cases of Evan Dreyer, Kimon Angelides and Robert Liburdy, Justin Radolf, and others. In addition, recent Congressional investigation into conflict of interest concerns surrounding consulting by National Institutes of Health scientists has raised further questions about (...) ethical standards. The record of continuing scandal suggests that current policy may not be optimal for controlling scientific misconduct. Would an alternative policy better minimize its incidence and associated costs?What should we expect of public policy governing misconduct by American scientists? Surely the public has a right to presume that its tax money is being spent wisely and that any economic rewards from taxpayer funded research are used prudently and in the public interest. (shrink)

An increasingly long line of high-profile scientific misconduct cases raises the question of whether regulatory policy ought to incorporate more rigorous sanctions for investigators and their institutions. Broad and Wade graphically describe these cases through the early 1980s. They continue to recent times with the cases of Evan Dreyer, Kimon Angelides and Robert Liburdy, Justin Radolf, and others. In addition, recent Congressional investigation into conflict of interest concerns surrounding consulting by National Institutes of Health scientists has raised further questions about (...) ethical standards. The record of continuing scandal suggests that current policy may not be optimal for controlling scientific misconduct. Would an alternative policy better minimize its incidence and associated costs?What should we expect of public policy governing misconduct by American scientists? Surely the public has a right to presume that its tax money is being spent wisely and that any economic rewards from taxpayer funded research are used prudently and in the public interest. (shrink)

Intelligent design creationism (ID) is a religious belief requiring a supernatural creator’s interventions in the natural order. ID thus brings with it, as does supernatural theism by its nature, intractable epistemological difficulties. Despite these difficulties and despite ID’s defeat in Kitzmiller v. Dover Area School District (2005), ID creationists’ continuing efforts to promote the teaching of ID in public school science classrooms threaten both science education and the separation of church and state guaranteed by the U.S. Constitution. I examine the (...) ID movement’s failure to provide either a methodology or a functional epistemology to support their supernaturalism, a deficiency that consequently leaves them without epistemic support for their creationist claims. My examination focuses primarily on ID supporter Francis Beckwith, whose published defenses of teaching ID, as well as his other relevant publications concerning education, law, and public policy, have been largely exempt from critical scrutiny. Beckwith’s work exhibits the epistemological deficiencies of the supernaturally grounded views of his ID associates and of supernaturalists in general. I preface my examination of Beckwith’s arguments with (1) philosopher of science Susan Haack’s clarification of the established naturalistic methodology and epistemology of science and (2) discussions of the views of Beckwith’s ID associates Phillip Johnson and William Dembski. Finally, I critique the religious exclusionism that Beckwith shares with his ID associates and the implications of his exclusionism for public policy. (shrink)

B. Kowalzig, « Broken Rhythms in Plato's Laws. Materialising Social Time in the Chorus » in A.-E. Peponi, Performance and Culture in Plato's Laws, Cambridge, Cambridge University Press, 2013. Le texte de Barbara Kowalzig est en partie accessible en ligne ici. - Philosophie – Nouvel article.

A crucial step in economic development is the depersonalization of business, which enables an enterprise to operate as a separate entity from its owners and managers. Until the emergence of a de iure depersonalization of business in the 19th century, business activities were eminently personal, with managing partners bearing unlimited liability. Roman law even restricted agency. Yet, the Roman legal system developed a form of de facto depersonalized business entity, where depersonalization was achieved by making the fulcrum of the business (...) a non-person: the slave. Although radically different from a legal perspective, this format exhibited all the distinctive features of modern corporations, thereby providing for a functional equivalent of the modern corporate form. The development of the de iure format was hindered by strong cultural, technological and institutional constraints. In contrast, slave-run businesses exhibited features that were largely compatible with these constraints and emerged along the path of least resistance to legal change. The end of slavery and the fall of the Roman Empire closed off this alternative path of legal evolution; consequently, the modern corporate form could only appear once these constraints had been overcome. (shrink)

An analysis of current biomedical research misconduct policy that proposes a new approach emphasizing the context of misconduct and improved oversight. Federal regulations that govern research misconduct in biomedicine have not been able to prevent an ongoing series of high-profile cases of fabricating, falsifying, or plagiarizing scientific research. In this book, Barbara Redman looks critically at current research misconduct policy and proposes a new approach that emphasizes institutional context and improved oversight. Current policy attempts to control risk at the (...) individual level. But Redman argues that a fair and effective policy must reflect the context in which the behavior in question is embedded. As journalists who covered many research misconduct cases observed, the roots of fraud “lie in the barrel, not in the bad apples that occasionally roll into view.” Drawing on literature in related fields—including moral psychology, the policy sciences, the organizational sciences, and law—as well as analyses of misconduct cases, Redman considers research misconduct from various perspectives. She also examines in detail a series of clinical research cases in which repeated misconduct went undetected and finds laxity of oversight, little attention to harm done, and inadequate correction of the scientific record. Study questions enhance the book's value for graduate and professional courses in research ethics. Redman argues that the goals of any research misconduct policy should be to protect scientific capital (knowledge, scientists, institutions, norms of science), support fair competition, contain harms to end users and to the public trust, and enable science to meet its societal obligations. (shrink)

In this paper I discuss how, given the complexity of biological systems, reliance on theoretical models in the development and testing of biological theories leads to an uncomfortable form of anti-realism. I locate the source of this discomfort in the uniqueness and hence diversity of biological phenomena, in contrast with the simplicity and uniformity of the subject matter of physics. I have argued elsewhere that the use of theoretical models creates an unresolvable tension between the explanatory strength and predictive power (...) of hypotheses, and I review this argument again here. My discussion parallels that of Nancy Cartwright, who claims that the use of ceteris paribus laws in physics creates an antagonism between truth and explanation that requires theoretical models to figure centrally in scientific explanation, thereby precluding realism. I argue instead that in biology it is the use of theoretical models that creates this conflict, and conclude that adequate biological explanation cannot rely on the modeling approach alone. Finally, I claim that if we accept the semantic view of theories, which makes theoretical models an integral part of our conception of theories, we must accept anti-realism as well. (shrink)

* Why should offenders be punished - what should punishments be designed to achieve? * Why has imprisonment become the normal punishment for crime in modern industrial societies? * What is the relationship between theories of punishment and the actual penalties inflicted on offenders? This revised and updated edition of a highly successful text provides a comprehensive account of the ideas and controversies that have arisen within law, philosophy, sociology and criminology about the punishment of criminals. Written in a clear, (...) accessible style, it summarises major philosophical ideas - retribution, rehabilitation, incapacitation - and discusses their strengths and weaknesses. This new edition has been updated throughout including, for example, a new section on recent cultural studies of punishment and on the phenomenon of mass imprisonment that has emerged in the United States. This second edition includes a new chapter on restorative justice, which has developed considerably in theory and in practice since the publication of the first edition. The sociological perspectives of Durkheim, the Marxists, Foucault and their contemporary followers are analysed and assessed. A section on the criminological perspective on punishment looks at the influence of theory on penal policy, and at the impact of penal ideologies on those on whom punishment is inflicted. The contributions of feminist theorists, and the challenges they pose to masculinist accounts of punishment, are included. The concluding chapter presents critiques of the very idea of punishment, and looks at contemporary proposals which could make society's response to crime less dependent on punishment than at present. Understanding Justice has been designed for students from a range of disciplines and is suitable for a variety of crime-related courses in sociology, social policy, law and social work. It will also be useful to professionals in criminal justice agencies and to all those interested in understanding the issues behind public and political debates on punishment. (shrink)

The conservation of energy law, a law of physics that states that the total energy of any closed system is always conserved, is a bedrock principle that has achieved both broad theoretical and experimental support. Yet if interactive dualism is correct, it is thought that the mind can affect physical objects in violation of the conservation of energy. Thus, some claim, the conservation of energy grounds an argument for physicalism. Although critics of the argument focus on the implausibility of causation (...) requiring the transference of energy, I argue that even if causation requires the transference of energy, once we accept the other required premises of the argument that lie behind any supposed argument from the conservation of energy the law of the conservation of energy is revealed as irrelevant to the question of whether the mental is physical. (shrink)

A familiar jurisprudential view is that a judicial decision functions as a legal precedent by laying down a rule and that the content of this rule is set by officials. Precedents can be followed only by acting in accordance with this rule. This view is mistaken on all counts. A judicial decision functions as a precedent by being an example. At its best, it is an example both for officials and for a target population. Even precedents outside of law function (...) as examples when they have conduct-guiding significance. Examples may be rule-like in their scope, but need not be. Their import is independent of their justification; this point has implications for coherence theories of precedent meaning. The content and scope of a legal decision’s extension is not set exclusively by officials. It is socially set and depends upon social salience. (shrink)

Contemporary public art is still in the process of defining its artistic and legal identity. Indeed to juxtapose the terms public and art is a paradox. Art is often said to be the individual inquiry of the sculptor or painter, the epitome of self-expression and vision that may challenge conventional wisdom and values. The term public encompasses a reference to the community, the social order, self-negation: hence the paradox of linking the private and the public in a single concept. A (...) goal of any general or jurisprudential theory concerning government sponsorship or ownership of art in the public context must reconcile, through state institutions and law, this tension between art’s subjectivity with hits potential for controversy and government’s need to promote the public good.This essay critically examines and discusses existing contemporary legal doctrine and its failure to accommodate or even adequately define the issues and competing values at stake in the public art context. Such failure may be attributed in part to the fact that neither legal theory nor art policy have been inspired by the vision of or located in the broader context of a sociopolitical public realm. Barbara Hoffman practices arts and entertainment law in New York and is counsel to the College Art Association. She is a former professor of constitutional law at the University of Puget Sound, and she has served as chair of the Public Art Committee of the Art Law Committee of the Association of the Bar of the City of New York, and president of the Washington Volunteer Lawyers for the Arts. (shrink)

A rare systematic thinker, Habermas has furthered our understanding of modernity, social interaction and linguistic practice, societal institutions, rationality, morality, the law, globalization, and the role of religion in multicultural societies. He has helped shape discussions of truth, objectivity, normativity, and the relationship between the human and the natural sciences. This volume provides an accessible and comprehensive conceptual map of Habermas' theoretical framework and its key concepts, including the theory of communicative action, discourse ethics, his social-political philosophy and their applications (...) to contemporary issues. It will be an invaluable resource for both novice readers of Habermas and those interested in a more refined understanding of particular aspects of his work. (shrink)

The paper addresses charges of risk and loss aversion as well as of irrationality directed against the precautionary principle, by providing an epistemic analysis of its specific role in the safety law system. In particular, I contend that: 1) risk aversion is not a form of irrational or biased behaviour; 2) both risk and loss aversion regard the form of the utility function, whereas PP rather regards the information on which to base the decision; 3) thus PP has formally nothing (...) to do with risk or loss aversion but rather with risk awareness; 4) PP removes a fictional construct in the legal system, according to which any hazard should be ignored and denied until it is scientifically proven; 5) the quandary originates in the tension between current methods of evidence evaluation, and the logic underlying PP which demands for a probabilistic epistemology. (shrink)

The conservation of energy law, a law of physics that states that the total energy of any closed system is always conserved, is a bedrock principle that has achieved both broad theoretical and experimental support. Yet if interactive dualism is correct, it is thought that the mind can affect physical objects in violation of the conservation of energy. Thus, some claim, the conservation of energy grounds an argument for physicalism. Although critics of the argument focus on the implausibility of causation (...) requiring the transference of energy, I argue that even if causation requires the transference of energy, once we accept the other required premises of the argument that lie behind any supposed argument from the conservation of energy the law of the conservation of energy is revealed as irrelevant to the question of whether the mental is physical. (shrink)

The safeguarding of credit represents one of the most important economic and juridical challenges for every complex society. Just by reading the news we can realize how current this topic is for us. By thinking back over the history of ideas and the social, economic, and political reasons that got Law makers to legislate on this subject, we can better understand what’s happening today and in which direction our societies are going. An analysis of the Italian juridical system’s development on (...) bankruptcy proceedings, starting from the attitude of ancient Roman law on over-indebtedness, can effectively shine light on the current regulation, reformed in 2006. This new bankruptcy law transforms the previous public nature of bankruptcy proceedings into a prevailingly private management of enterprises’ financial problems, completely changing the course of credit policy. The “Italian way” is just one result of an international trend, the guiding lines of which can be seen throughout the whole EU and also in the regulation of the USA. This historical-comparative perspective, in all its positive and negative potentiality, is an important paradigm. The final hope is that historians can perhaps give their contribution to more conscious reflections on important topics like this one, offering to other scholars the possibility to have a wider view on this juridical phenomenon. (shrink)

What is the political meaning of justice combined with aletheia, that is, the truth understood as revealing, disclosing, and unconcealment? On the basis of an immanent analysis of certain excerpts from Plato’s work we could find the answer. First of all, in Plato the question of justice is not a technical issue, a question of good or bad ruling over the polis, a good or bad law. It concerns matters of much greater significance: existential issues. That is why justice is (...) more important than wealth, both to a man and to a political community. Only through other people, in a political community, is man capable of acquiring an identity, a unity between what he is by nature and what he becomes through education, during the process of adapting to a community to which he belongs. If we succeed in creating such a structure of a political community in which people recognize their proper place and can identify with it, then they will be able to identify with the whole political community. Only a political community thus united can be true, that is, just. Internal unity, which is an expression of justice, is the source of a political community’s power, it is the basis for coexistence and cooperation. When there is no justice, bonds among people die out. Through injustice they become above all incapable of cooperating. (shrink)

In line with the concept of politics developed by ancient Greeks, the political sphere is identified with transparency and overtness. However, it has always been hiding secret actions, conspiracies and collusions. The emergence of the modern model of the state, along with the rationalisation of its structures, enabled the secret equivalents of authority to transform into organisations, i.e. institutions alternative to official organisations, established by law and having specific powers. Rather than talking about actual organisations, the author discusses the process (...) whereby these secret, underground structures turn into organisations that influence the sphere of overt politics. She tries to show that this is a specific kind of game between what is explicit and public and what is concealed and secret. This game is constantly present in political activities, although we seldom realise it. (shrink)

Many contemporary philosophers of law agree that a necessary condition for a decision to be legally justified, even in a hard case, is that it coheres with established law. Some, namely Sartorius and Dworkin, have gone beyond that relatively uncontroversial claim and described the role of coherence in legal justification as analogous to its role in moral and scientific justification, on contemporary theories. In this, I argue, they are mistaken. Specifically, coherence in legal justification is sometimes specific to a branch (...) of law, and there is nothing isomorphic to this in the models of moral and scientific justification. Although Dworkin and Sartorius rely on the concept of coherence, they do not explicate it. In the course of examining their views, this essay offers a partial analysis of coherence on their models. Finally, two canons of relevance, governing when global coherence considerations are appropriate to legal justification, are presented. (shrink)

The origins of Vico's social theory : Vichian reflections on the Neapolitan Revolt of 1701 and the politics of the metropolis -- Vico's cosmopolitanism : global citizenship and natural law in Vico's pedagogical thought -- Vico's social theory : the conundrum of the Roman metropolis and the struggle of humanity for natural rights -- From social theory to philosophy : Vico's disillusions with the Neapolitan magistracy and the new frontier of philosophy.

Children deserve optimal medical care. Although prescription drugs play a prominent and essential role in pediatric health care delivery, health care providers often must make prescribing decisions for their young patients based on imperfect or absent safety and efficacy data for pediatric populations. Until relatively recently, the Food and Drug Administration made surprisingly little effort to improve the quality or quantity of clinical research data for this patient group. Despite recent agency efforts to improve the situation, only one-third of drugs (...) prescribed to children currently have been studied for safety and efficacy in pediatric populations. Moreover, recent agency initiatives to encourage pediatric drug research have generated mixed results and unintended consequences. The complex of issues surrounding the testing and prescribing of prescription drugs used for children will require that pharmaceutical companies, the FDA, and health care providers examine current practices, acknowledge their shortcomings, and consider cooperative, creative solutions. (shrink)

The individual right of access to one’s own data is a crucial privacy protection long recognized in U.S. federal privacy laws. Mobile health devices and research software used in citizen science often fall outside the HIPAA Privacy Rule, leaving participants without HIPAA’s right of access to one’s own data. Absent state laws requiring access, the law of contract, as reflected in end-user agreements and terms of service, governs individuals’ ability to find out how much data is being stored and how (...) it might be shared with third parties. Efforts to address this problem by establishing norms of individual access to data from mobile health research unfortunately can run afoul of the FDA’s investigational device exemption requirements. (shrink)

Rodolfo Sacco has devoted much of his research to the relations between law and language. His analysis were focused on the problem of legal translation for comparative law research, on mute law, and on the importance of understanding the dynamics of the different languages in Europe today.

A rare systematic thinker, Habermas has furthered our understanding of modernity, social interaction and linguistic practice, societal institutions, rationality, morality, the law, globalization, and the role of religion in multicultural societies. He has helped shape discussions of truth, objectivity, normativity, and the relationship between the human and the natural sciences. This volume provides an accessible and comprehensive conceptual map of Habermas' theoretical framework and its key concepts, including the theory of communicative action, discourse ethics, his social-political philosophy and their applications (...) to contemporary issues. It will be an invaluable resource for both novice readers of Habermas and those interested in a more refined understanding of particular aspects of his work. (shrink)

Regulatory policy for genomic testing may be subject to biases that favor reliance on existing regulatory frameworks even when those frameworks carry unintended legal consequences or may be poorly tailored to the challenges genomic testing presents. This article explores three examples drawn from genetic privacy regulation, oversight of clinical uses of genomic information, and regulation of genomic software. Overreliance on expedient regulatory approaches has a potential to undercut complete and durable solutions.

An extended analysis and account of the psychological/social/cognitive dynamics of intellectual controversy. The immediate focus is the recurrent failure of intellectual engagement, in encounters having to do with with truth, knowledge, language, science, and/or objectivity, between, on the one hand, rationalist-realist-objectivist philosophers and/or those they have instructed and, on the other hand, constructivist-pragmatist ("postmodern") theorists and/or those persuaded by their critiques and/or alternative views. Individual chapters examine critiques and defenses of objectivist-rationalist views in law, politics, literary studies, ethics, communication theory, (...) and philosophy of science. Theorists whose views are discussed critically at some length include legal scholar Robin West and philosophers Jürgen Habermas, Karl-Otto Apel, and Philip Kitcher. (shrink)

Aboriginal Australians have traditionally enjoyed little protection from the law. The matter of land has been at the heart of white settler/Aboriginal relations since the nation was first founded. It is only recently that recognition has been given to the land rights of Australian indigenous people. This recognition was finally made at the property law level in 1992 through the High Court decision in Mabo v. Queensland (n. 2) ([1992] 175 CLR 1). The 1993 High Court decision in The Wik (...) Peoples v. Queensland ([1996] 71 ALJR 173) reinforced that recognition. It did so through the principle that pastoral lessees' and native title holders' rights might co‐exist except that, in the event of any inconsistency, the pastoralists' rights were to prevail, provided pastoral activity was being pursued. The most recent legal change is the parliamentary revision of the Native Title Act so that the Wik co‐existence principle was put to rest, mainly through permitting the State governments to upgrade pastoral holdings to a form of freehold, thus immunising them from native title claims, and minimising the payment of compensation. In this paper we argue that the country must consider what has been lost in this about‐turn from the recognition of native title to land in Mabo. We argue that the nation must consider the emphases in the Mabo judgments upon the significance of international law and the need for the common law not to be locked into a racist past. From that point, we contend for the need to recognise not only native title to land but what lies beyond that: indigenous political and human rights. (shrink)

In various works, Mark Greenberg has positioned himself as an important critic of legal positivism. He has made a transcendental attack on a metaphysical position that some notable legal positivists have held -- namely, that law is ultimately grounded in social facts. He has pressed legal positivism at a point of perceived vulnerability – the failure of such positivists to develop and defend a compelling theory of legal content. Moreover, in his Moral Impact Theory of law, he preserves a necessary (...) connection between legal obligations and good reasons for action that is absent in legal positivism. This last point may seem particularly attractive, even to those with positivist sympathies. One of his arguments against legal positivism relies heavily on what he calls "the bindingness hypothesis"—namely, the claim that it is part of the “nature of law” that it is “supposed to operate” so as to “arrange matters” to “reliably ensure” that its legal obligations are genuinely, all-things-considered, binding. I argue that Greenberg’s defense of the bindingness hypothesis fails. I attack two other defenses he raises for the Moral Impact theory: the assertion that the Moral Impact Theory makes it easy to account for our concern with law, with the implication that legal positivism cannot so easily account for that concern; and the claim that his Moral Impact Theory fits appellate practice better than some views. I show that these the arguments for the Moral Impact Theory are inadequate. In response to Greenberg’s further argument that the Moral Impact Theory rescues the idea of legal obligation as genuine obligation, I argue that the Moral Impact Theory does so at a very steep price – one that is not worth paying. (shrink)