Parallel moral luck problems exist in three different normative domains: criminal law, tort law, and conventional moral thinking. In all three, the normative status of an actor’s conduct seems to depend on matters beyond the actor’s control. Criminal law has historically imposed greater punishment on the murderer who kills his intended victim than on the identically behaved would-be murderer whose shot fortuitously misses. Tort law imposes liability on the negligent driver who injures someone, but no liability if, through good fortune, (...) the negligence injures no one. And, as BernardWilliams and Thomas Nagel have famously argued, conventional moral thinking often attributes greater blame to an actor for wrongful conduct if that conduct ripens into a terrible event than if it fortuitously causes no harm at all. This Article distinguishes two different dimensions of responsibility and then uses this distinction to explain the problem in all three areas. One dimension is called "fault-expressing responsibility": it is a matter of the degree to which one’s acts constitute conduct that can express one’s character or faultiness. A second dimension of responsibility is called "agency-linking responsibility." In this dimension, the degree to which a person is responsible for some event is dependent upon whether that event is an action of that person. Responsibility can differ in the agency-linking dimension even if it remains the same in the fault-expressing dimension. (shrink)

This chapter contains section titled: Pushed by Problems in Law and Policy The Nature of the Criminal Law Jurisprudence and Legal Theory Moral and Political Philosophy Conclusion References.

Lon Fuller’s classic The Morality of Law is an exploration of the basic principles of a legal system: the law should be publicly promulgated, prospective, clear, and general. So deep are these principles, he argued, that too great a deviation from them would not simply create a bad legal system and bad law, but would render the products of such a system undeserving of the name “law” at all. In this essay, I argue that Fuller’s basic principles are not in (...) fact desiderata for all of law, observing that much of private law plainly flouts them; it is unwritten, retroactive, inchoate, and often limited to particular cases. Far from undercutting its status as law or its legitimacy, these attributes have sometimes been regarded as giving the common law its special character as a kind of law. Fuller’s principles are fundamental only given a certain conception of how law functions, what gives lawmakers their authority, and what renders citizens vulnerable to the imposition of liability through the courts. This conception does not fit private law, which has a distinctive inner morality. Understanding the inner morality of private law tells us a great deal about the nature of private law and about the different ways in which morality can be part of law. (shrink)

With gratitude for our commentators’ thoughtful and generous engagement with Recognizing Wrongs, we offer in this reply a thumbnail summary of their comments and responses to some of their most important questions and criticisms. In the spirit of friendly amendment, Tom Dougherty and Johann Frick suggest that a more satisfactory version of our theory would cast tort actions as a means of enforcing wrongdoers’ moral duties of repair. We provide both legal and moral reasons for declining their invitation. Rebecca Stone (...) draws a particular link between civil recourse in private law theory and the right of self-defense as recognized in criminal law and moral theory. While we share Stone’s basic inclination, we argue for a different version of the link than the one that she draws. Veronica Rodriguez-Blanco provides a critique of our model of negligence law based on action theory. In response, we explain – in a way that we hope sheds light on debates over moral luck – how it is possible for the law to define negligence such that its commission depends simultaneously on the character of the defendant’s conduct and on the consequences that result from it. Though generally sympathetic to our approach, Stephen Smith faults us for failing satisfactorily to explain important remedial dimensions of tort law. Stubbornly, we insist that we can account for these, and indeed can do so on more satisfactory terms than corrective justice theorists. Finally, Erin Kelly challenges us to consider how our work might inform the analysis of two pressing issues of racial justice: overcriminalization and reparation payments. While we question whether our work to date has as much to offer on these matters as she suggests, we also maintain that the core principle of civil recourse theory – where there is a right there is a remedy – provides grounds for critiquing modern law’s failure to provide adequate accountability when police officers use excessive force against persons of color. (shrink)

Walter Benjamin's Politics of 'bad tasteMichael Mac Modernity as an unfinished Project: Benjamin and Political RomanticismRobert Sinnerbrink Violence, ...

To what risks may children participating in research be subjected? Institutional review boards can stand surrogate for parents by filtering out studies whose risk is unacceptably high.

Placebo-controlled trials are held by many, including regulators at agencies like the United States Food and Drug Administration, to be the gold standard in the assessment of new medical interventions. Yet the use of placebo controls in clinical trials has been the focus of considerable controversy. In this two-part article, we challenge a number of common beliefs concerning the value of placebo controls. Part I critiques statistical and other scientific justifications for the use of placebo controls in clinical research. The (...) continued use of placebo controls in clinical trials on diseases for which accepted treatment exists raises equally important ethical, legal, and regulatory issues for which various justifications have been given. Defense of this practice relies on normative as well as empirical myths.In their attack on the prevailing use of placebo controls, Kenneth Rothman and Karin Michels emphasize that this practice stands in violation of the World Medical Association's guidelines on the ethics of human experimentation, most commonly known as the Helsinki Declaration. (shrink)

The use of statistics in medical research has been compared to a religion: it has its high priests, supplicants, and orthodoxy. Although the comparison may be more unfair to religion than to research, a useful lesson can nonetheless be drawn: the practice of clinical research may benefit—as does the spirit—from critical self-examination. Arguably, no aspect of the conduct of clinical trials is currently more controversial—and thus in as dire need of critical examination—than the use of placebo controls. The ethical and (...) scientific controversies associated with placebo-controlled trials, never far below the surface, have once again seized public attention. Clearly, concern about these issues within the professional community runs deep and wide, as evidenced by the volume of response generated by Kenneth Rothman and Karin Michels's recent Critique. Criticisms of the use of placebo controls in clinical research are scattered through the literatureo; our objective is to present the case against placebos in a compendious form that takes account of scientific and statistical as well as normative issues. (shrink)

The use of statistics in medical research has been compared to a religion: it has its high priests, supplicants, and orthodoxy. Although the comparison may be more unfair to religion than to research, a useful lesson can nonetheless be drawn: the practice of clinical research may benefit—as does the spirit—from critical self-examination. Arguably, no aspect of the conduct of clinical trials is currently more controversial—and thus in as dire need of critical examination—than the use of placebo controls. The ethical and (...) scientific controversies associated with placebo-controlled trials, never far below the surface, have once again seized public attention. Clearly, concern about these issues within the professional community runs deep and wide, as evidenced by the volume of response generated by Kenneth Rothman and Karin Michels's recent Critique. Criticisms of the use of placebo controls in clinical research are scattered through the literatureo; our objective is to present the case against placebos in a compendious form that takes account of scientific and statistical as well as normative issues. (shrink)

In summary, the usual elements of a typical health care ethics consultation note might reasonably accommodate the needs and expectations of relevant parties, and would therefore include: 1. identification of the relevant ethical issues, questions, or dilemmas; 2. reference to any relevant facts--medical, nursing, social, psychological, spiritual, legal, political, etc.; 3. a prioritized list of recommendations to improve coordinated care; 4. a clear and concise articulation of relevant arguments, wtih specific reference to the list of recommendations as well as to (...) the institution's overall ethos; 5. a contextual statement, identifying the perceived degree of consensus or support for the recommendations and conclusions, as well as any inherent agendas. (shrink)

OBJECTIVE: Pilot study to characterize treatment differences between patients treated in clinical trials and those treated in a clinical setting. Previous studies have shown higher survival rates for participants in trials of cancer therapy. This difference is observed even after rates are adjusted for important covariates such as age and stage of disease. DESIGN: Retrospective chart review. SETTING: Oncology outpatient department in a tertiary care hospital. PATIENTS: Ninety women 18 to 70 years of age with early-stage breast cancer who were (...) diagnosed in 1990. Fifty-one of the women were treated through clinical trials and 39 were treated outside of clinical trials. OUTCOME MEASURES: Number of blood tests, telephone calls, clinic visits and imaging procedures as well as intensity of chemotherapy and use of radiation therapy. The age of the patient and the stage of disease were important covariates. RESULTS: After the analysis was controlled for patient age and stage of disease, patients treated through a clinical trial were more likely to receive standard-dose chemotherapy (p = 0.020, 95% confidence interval 1.20 to 200.73) and more frequent blood tests (p < 0.001, 95% confidence interval 1.02 to 1.13) than other patients treated in the clinic. CONCLUSIONS: Our results provide a plausible mechanism for the observed survival advantage for participants in clinical trials in oncology. Further study is called for. If these results are confirmed, they have important implications for informed consent to participate in clinical trials and for clinical practice. (shrink)

OBJECTIVE: To investigate whether eligibility criteria that exclude the elderly, persons with psychiatric disease, and persons with substance abuse problems from participation in randomized controlled trials (RCTs) are subjective and hence a source of variability in enrolment decisions and investigator uncertainty. DESIGN: Survey questionnaire. PARTICIPANTS: Cancer investigators from the United States and Canada. INTERVENTIONS: Investigators were presented with clinical vignettes from 3 patient categories--eligible, ineligible and uncertain--for each of 5 eligibility criteria--3 subjective and 2 objective--and were asked whether they would (...) enrol the patient in a trial and how sure they were of this decision. Demographic characteristics of the investigators were also collected. OUTCOME MEASURES: The difference in enrolment decisions between subjective and objective criteria, and the difference in the certainty associated with these decisions. RESULTS: Of 365 questionnaires sent out, 224 usable ones were returned. Compared with the objective criteria, the subjective criteria were associated with more variable enrolment decisions (p = 0.07 for the "eligible" scenario and p = 0.0001 for the "ineligible" and "uncertain" scenarios), and investigators were less sure about the decisions they made (p = 0.0001 for all scenarios). Demographic characteristics of the investigators failed to explain the observed differences. CONCLUSIONS: Subjective eligibility criteria may interfere with the conduct and interpretation of RCTs and, therefore, their use ought to be justified explicitly in the study protocol. RCT designers, funding agencies and research ethics boards have an important role in reviewing eligibility criteria for their necessity. (shrink)

Throughout his excellent book One Body, Alex Pruss relies upon the view that there is a requirement of universal love: each and every one of us is required to love each and every one of us. Although he often appeals to revealed truth in making arguments for his various theses, he supports the requirement of universal love primarily through a philosophical argument, an argument that I call the “argument from responsiveness to value.” The idea is that all persons bear a (...) sort of nonrelational value, and because this value gives every agent reasons to respond to it positively, each and every person is bound to love each and every person. The aim of this paper is to criticize this argument. Pruss’s argument has two important gaps, one concerning the sort of reasons that the value of persons gives and one concerning whether the required response is the response of love. (shrink)

We studied changes in eligibility criteria--the largest impediment to patient accrual--in two samples of clinical trials. Trials from the NSABP (National Surgical Adjuvant Breast and Bowel Program) and POG (Pediatric Oncology Group) were analyzed. After eliminating duplications, the criteria in each protocol were enumerated and classified according to a novel schema. NSABP trials contained significantly more criteria than POG trials, and added precision criteria (making study populations homogeneous) at a faster rate than POG studies. The difference between NSABP studies (explanatory (...) trials) and POG studies (pragmatic trials) suggest that large numbers of eligibility criteria are not necessary for quality studies. We recommend that: (1) the inclusion/exclusion criteria distinction be abandoned; (2) eligibility criteria be explicitly justified; (3) the need for each criterion be assessed when new trials are planned; (4) criteria in phase III trials restricting patient accrual be minimized; and (5) further research be done to assess the impact of criteria on generalizability. (shrink)

In contrast to attempts that have been made to measure the clarity of reporting of the methods of clinical trials in journal articles, we report here an attempt to measure the accuracy of methods reporting. We focus in this article on eligibility criteria as a test case for the reporting of clinical trial methods. We examined the reporting of eligibility criteria in the protocol, methods paper (if applicable), journal article, and Clinical Alert for articles appearing in print between January 1988 (...) and September 1994 for which a Clinical Alert had been issued. Eligibility criteria were further classified into five categories in order to examine the content of information loss, if any. On average, 82% of protocol eligibility criteria were reported in methods papers. Journal articles and Clinical Alerts fared somewhat worse: 63% of criteria were reported in journal articles, 19% in Clinical Alerts. In all three categories of medical communication, the reporting of criteria that defined the study disease tended to be complete; reporting of criteria relating to trial precision, patient safety, legal and ethical concerns, and administrative considerations, was not complete. We found that criteria for clinical trial eligibility are frequently under-reported in medical communications. Moreover, some of the criteria omitted are of considerable clinical importance. We suggest that in the design phase of clinical trials, proposed eligibility criteria be scrutinized closely. Those criteria that survive this scrutiny and that have clinical import must be reported upon fully and accurately when communicating trial results. (shrink)

No consensus yet exists on how to handle incidental fnd-ings in human subjects research. Yet empirical studies document IFs in a wide range of research studies, where IFs are fndings beyond the aims of the study that are of potential health or reproductive importance to the individual research participant. This paper reports recommendations of a two-year project group funded by NIH to study how to manage IFs in genetic and genomic research, as well as imaging research. We conclude that researchers (...) have an obligation to address the possibility of discovering IFs in their protocol and communications with the IRB, and in their consent forms and communications with research participants. Researchers should establish a pathway for handling IFs and communicate that to the IRB and research participants. We recommend a pathway and categorize IFs into those that must be disclosed to research participants, those that may be disclosed, and those that should not be disclosed. (shrink)

The conversation seeks to extend and complicate Charles Taylor’s (2004) account of three constitutive formations of modern social imaginaries: market, the public sphere, and the nation-state based on popular sovereignty in two critical respects. First, it seeks to show how these key imaginaries, especially the market imaginary, are not contained and sealed within autonomous spheres. They are portable and they often leak into domains beyond the ones in which they originate. Second, it seeks to identify and explore the new (...) incipient and/or emergent imaginaries vying for recognition and demanding consideration in the constitution (as well as analysis) of contemporary social life, such as the risk-reward entrepreneurial culture. (shrink)

Résumé éditeur : This book tells two intertwined stories, centered on twentieth-century moral philosophers Elizabeth Anscombe, Mary Midgley, Philippa Foot, and Iris Murdoch. The first is the story of four friends who came up to Oxford together just before WWII. It is the story of their lives, loves, and intellectual preoccupations; it is a story about women trying to find a place in a man's world of academic philosophy. The second story is about these friends' shared philosophical project and their (...) unintentional creation of a school of thought that challenged the dominant way of doing ethics. That dominant school of thought envisioned the world as empty, value-free matter, on which humans impose meaning. This outlook treated statements such as “this is good” as mere expressions of feeling or preference, reflecting no objective standards. It emphasized human freedom and demanded an unflinching recognition of the value-free world. The four friends diagnosed this moral philosophy as an impoverishing intellectual fad. This style of thought, they believed, obscured the realities of human nature and left people without the resources to make difficult moral choices or to confront evil. As an alternative, the women proposed a naturalistic ethics, reviving a line of thought running through Plato, Aristotle, and Aquinas, and enriched by modern biologists like Jane Goodall and Charles Darwin. The women proposed that there are, in fact, moral truths, based in facts about the distinctive nature of the human animal and what that animal needs to thrive.". (shrink)