Scholarship in experimental jurisprudence has reported surprising findings about various concepts of legal significance: _acting intentionally_, _causation_, _consent_, _knowledge, recklessness_, _reasonableness,_ and _law_ itself. Often, these studies examine laypeople’s ordinary concepts and draw broader conclusions about legal experts’ concepts. This Article questions such inferences, from empirical findings about ordinary concepts to conclusions about the concepts of those with legal expertise. It presents a case study concerning what it means to act _intentionally._ An experiment examines intentionality judgments (...) across four populations (N = 774): laypeople, law students, non-law students, and United States judges. Legal training affected judgments in three ways that are consistent with the acquisition of a distinctive legal concept. This case study supports the Article’s broader claim: Laypeople’s ordinary concepts are not equivalent to experts’ legal concepts. The acquisition of legal concepts is an important form of legal expertise. (shrink)

A recent wave of empirical legal scholarship reports surprising findings about various concepts of legal significance, including the concept of acting intentionally, causation, consent, knowledge, recklessness, reasonableness, and law itself. These studies typically examine laypeople, but often draw broader conclusions about legal experts or law. Findings about laypeople’s (“ordinary”) concepts have been taken to reflect the concepts of trained legal theorists, reveal biases affecting judges’ decision-making, and clarify subtle doctrinal features. -/- This Article questions the validity (...) of such inferences, from empirical findings about ordinary concepts to conclusions about the concepts of those with legal expertise. It presents a case study concerning what it means to act intentionally. An experiment examines the judgments of four populations (N = 774): lay people, law students, non-law students, and United States judges. Legal training affected judgments in three ways, all of which suggest the acquisition of a distinctive legal concept. This case study supports the Article’s broader conclusion: empirical evidence about laypeople’s ordinary concepts does not necessarily carry straightforward legal implications. This defuses provocative empirical challenges regarding biased judging, raises new questions about the relationship between judges and juries, and provides a broader proof of principle: The acquisition of legal concepts is an under-studied but central form of legal expertise. (shrink)

While some descriptive and normative theories of legislation account for an extensive role of legal interpretation in legislation, others see its legislative role as marginal. Yet in contemporary constitutional democracies, where legislation is limited and guided by constitutional norms, as well as international and supranational law, legal interpretation must play some role in legislation—even if all or most of legislative activity may not be adequately described and evaluated as legal interpretation. In this chapter, I aim to explore (...) some implications of recognizing the role of legal interpretation in legislation—notably, for the conceptualization and significance of legal expertise in the legislative process, as well as for determining the moral duties of legislative representatives. First, I argue that the role of legal interpretation in legislation calls for institutional reforms in legislatures in order to ensure that legal expertise is adequately channeled into the legislative process, including agenda-setting. Second, I argue that interpreting legal norms through legislation implies specific moral duties for legislative representatives, both in their relations to one another and in their relations vis-à-vis their constituents. I show that giving legal interpretation its due in a descriptive and normative account of legislative activity does not imply an elitist understanding of legislation, and it does not compromise our conception of legislatures as loci of political and moral disagreement and democratic representation. (shrink)

A cross-cultural survey experiment revealed a dominant tendency to rely on a rule’s letter over its spirit when deciding which behaviors violate the rule. This tendency varied markedly across (k = 15) countries, owing to variation in the impact of moral appraisals on judgments of rule violation. Compared with laypeople, legal experts were more inclined to disregard their moral evaluations of the acts altogether and consequently exhibited stronger textualist tendencies. Finally, we evaluated a plausible mechanism for the emergence of (...) textualism: in a two-player coordination game, incentives to coordinate in the absence of communication reinforced participants’ adherence to rules’ literal meaning. Together, these studies (total n = 5,794) help clarify the origins and allure of textualism, especially in the law. Within heterogeneous communities in which members diverge in their moral appraisals involving a rule’s purpose, the rule’s literal meaning provides a clear focal point—an identifiable point of agreement enabling coordinated interpretation among citizens, lawmakers, and judges. (shrink)

A cross-cultural survey experiment revealed a widespread tendency to rely on a rule’s letter over its spirit when deciding which acts violate the rule. This tendency’s strength varied markedly across (k = 15) field sites, owing to cultural variation in the impact of moral appraisals on judgments of rule violation. Compared to laypeople, legal experts were more inclined to disregard their moral evaluations of the acts altogether, and consequently exhibited more pronounced textualist tendencies. Finally, we evaluated a plausible mechanism (...) for the emergence of textualism: In a two-player coordination game, incentives to coordinate in the absence of communication reinforced participants’ adherence to rules’ literal meaning. Together, these studies (Ntotal = 5495) help clarify the origins and allure of textualism, especially in the law. Within heterogeneous communities in which members diverge in their moral appraisals involving a rule’s purpose, the rule’s literal meaning provides a clear focal point—an easily identifiable point of agreement enabling coordinated interpretation among citizens, lawmakers and judges. (shrink)

This paper addresses the relation between explicitation and translation expertise in the rendition of nominalisation and participles in the legal Qurʾānic verses specific to purification and prayer. It uses a corpus-based method: _The Qurʾānic Arabic Corpus_. The paper argues that most of the expert Qurʾān translators explicitate in rendering nominalisation and participles in the legal verses specific to purification and prayer into English in the said corpus. They explicitate in the form of both addition and specification with (...) varying degrees as the former is adopted twice as much as the latter. The paper claims that most explicitations specific to the rendition of nominalisation and participles in the legal Qurʾānic verses peculiar to purification and prayer in the corpus have been superfluous, albeit justifiable. This may confirm the relation between explicitation and translation expertise in _The Qurʾānic Arabic Corpus_ in the sense that although the meaning of nominalisation and/or participles is wholly translated into English, the Qurʾān translators still explicitate through addition or specification to further facilitate the comprehension process. This paper offers a baseline for examining explicitation exercised on nominalisation and participles in the legal Qurʾānic verses particular to purification and prayer, which may have implications for future studies conducted on the same topic in other similar legal contexts. (shrink)

This brief essay explores how understanding the treatment of expert evidence requires engaging with its legal and political contexts, and not just focusing on its epistemological aspects. Although the law of evidence and thus its treatment of experts is significantly informed by epistemological considerations, it is also informed by concerns over the organization of trials, larger issues of intelligent governance, social concerns, and enforcement issues. These five aspects to the law of evidence give rise to principles to guide the (...) explicit structuring of the law of evidence that are identified here as well. This complexity helps to explain why the central issue of expert testimony is not the epistemological one of knowledge and belief but instead the conflict between educational and deferential modes of trial. (shrink)

L’expertise se trouve bien souvent au cœur des dossiers judiciaires relatifs à la responsabilité en matière de santé publique. L’expert est chargé de reconstituer les faits ou d’évaluer le travail de ses collègues agissant comme conseillers des décideurs, pour établir si la qualité de l’expertise et du conseil a été à la hauteur des enjeux sanitaires. En France, les experts judiciaires ont un statut officiel à l’issue d’un processus réglementé et de contrôles spécifiques réguliers. Si cette procédure permet (...) d’identifier clairement les compétences des experts agréés, elle rend difficile, par sa lourdeur, l’accès des chercheurs à ce statut. Par ailleurs, des procédures plus claires permettant de séparer expertise et lobby devraient être mises en place.Expert appraisals are often crucial in legal proceedings concerning liability in matters of public health. Experts are required to reconstruct facts or to appraise the work of colleagues who act in an advisory capacity to policy-makers, in order to establish whether the quality of the expert studies and advice provided have been adequate to the importance of the health issues. In France, expert witnesses have an official status subject to a regulated procedure that includes specific and regular audits. Although this procedure clearly identifies the competences of court-appointed experts, it is far too lengthy and cumbersome for researchers to gain access to this status. Clearer procedures capable of distinguishing expert appraisals from lobbying also need to be established. (shrink)

In 1902, the Calabrian brigand Giuseppe Musolino was tried on several counts of murder and many crimes of lesser magnitude. While the tale of the brigand’s 1898 false conviction, imprisonment, escape and then revenge sparked a national debate about the political and cultural meaning of brigandage, the trial came to focus on Musolino’s emotional state at the time of his crimes. Was he a cold-blooded and calculating killer who manipulated southerners into believing he was a folk hero? Or was he (...) an angry, passionate and insane murderer victimized by his own feelings? Both jurists and scientists weighed in to determine his culpability. By turning a political question of banditry or brigandage into a psychological question of morbid or criminal emotions, the trial politicized the criminal character. This article examines the perspectives on emotions that shaped Musolino’s trial, and how psychiatric knowledge came to challenge legal notions of insanity and culpability. It argues that the determination of emotions as motives served to de-legitimize the rationale and political motives of the defendant, in turn politicizing his emotions and character. At the same time, the cause of Musolino’s crime and his culpability represented the failures of national unification and the ongoing tensions between the North and South of Italy. The introduction of psychiatric expertise into the criminal court pushed judgement and punishment to examine increasingly who a person was as opposed to what that person had done. The court’s definition of who a person ‘was’, was a matter of how that person felt. (shrink)

How do institutions respond to expert contests over epistemologies of sex and gender? In this article, I consider how epistemological ascendancy in debates over the regulation of women athletes with high testosterone is established within a legal setting. Approaching regulation as an institutional act that defines forms of embodied difference, the legitimacy of which may be called into question, I show how sexed bodies are enacted through and as part of determinations of expertise. I focus on proceedings from (...) 2015 when the Court of Arbitration for Sport was asked to decide whether an Indian sprinter, Dutee Chand, could compete as a female athlete. Despite acknowledging that sexed bodies are unruly, the court ultimately endorsed the use of testosterone as seemingly essential to women’s athletic performance, thereby reasserting a two-category model of biological difference. The legitimacy of these regulatory efforts was established through the concurrent narrowing of expertise and the body, a process that is also revealed to be gendered. (shrink)

Name der Zeitschrift: Studies in Logic, Grammar and Rhetoric Jahrgang: 45 Heft: 1 Seiten: 51-67.

Our courts are regularly confronted with the claims of expert witnesses. Since experts are permitted to present testimony in the courtroom, we have to assume that judges and juries understand what it means to have expertise and can consistently recognize someone who has it. Yet these assumptions need to be examined, for the legal system probably underestimates the difficulty of identifying expertise. In this paper, several philosophical issues pertaining to expertise will be discussed, including what (...) class='Hi'>expertise is, why we rely on experts, what measures can be taken to verify expertise, and how we determine whether a particular individual is an expert. (shrink)

RésuméContrairement aux États-Unis et au Royaume-Uni, la reconnaissance de l’expertise en linguistique en contexte judiciaire canadien francophone semble, à première vue, marginale. Toutefois, l’état réel de la situation est inconnu puisque le portrait global de la nature des interventions des linguistes lors de procès en tant que témoins experts devant ces tribunaux n’a jamais été réalisé. Notre article a donc pour objectif de contribuer à combler en partie cette lacune. Plus spécifiquement, à l’aide de jugements de tribunaux québécois et (...) fédéraux canadiens, nous dresserons un portrait global de la nature des interventions des linguistes lors de procès en tant que témoins experts devant ces tribunaux. Ensuite, nous discuterons des résultats de notre analyse dans un contexte plus large, soit le contexte judiciaire, afin de tenter d’évaluer l’impact des chercheurs œuvrant en linguistique légale. Notre article se terminera par un appel à la vulgarisation scientifique de la linguistique légale, au dialogue entre les professionnels du système judiciaire et les chercheurs, et à la collaboration interdisciplinaire entre les chercheurs. (shrink)

Fire safety expertise was in great demand following the Grenfell Tower fire in London in June 2017. The government established a review of building regulations and an expert panel to inform its responses to Grenfell, and many other relevant organisations also formed their own expert panels. However, expert knowledge in fire safety is a highly contested domain, with knowledge claims based on differing sources. Fire fighters can claim expertise based on their experience of fighting fires, scientists and science-based (...) engineers can claim expertise from experimentation, and those who create and enact regulations can claim expertise in what can termed ’codespeak’—the language of regulation. Although distanced from fundamental empirical experience of fire, codespeak is powerful because of its relative clarity and certainty, and legal status. Building users also bring their own form of ‘local’ expertise—they have first-hand experience of the practicalities of the solutions wrought by the other experts. Policy-makers thus face many competing forms of expert advice on fire safety, and their ability to judge what is most relevant in any particular case rests on the existence of a sufficient range and depth of in-house government expertise. (shrink)

Legal codes, such as the Uniform Commercial Code (UCC) examined in this article, are good points of entry for AI and ontology work because of their more straightforward adaptability to relationship linking and rules-based encoding. However, approaches relying on encoding solely on formal code structure are incomplete, missing the rich experience of practitioner expertise that identifies key relationships and decision criteria often supplied by experienced practitioners and process experts from various disciplines (e.g., sociology, political economics, logistics, operations research). (...) This research focuses on the UCC because it transcends the limitations of a formal code, functioning essentially as a composite. AI work can benefit from real-world codes like the UCC, which are essentially formal codes enlightened from a more realistic experience-base from centuries of development in international commercial transactions settings. This paper then describes our initial work in converting an expert system on the U.S. law governing the sale of goods from Article II of the Uniform Commercial Code (UCC), into a knowledge-based system using the Web Ontology Language OWL. (shrink)

Whether or not there is such a thing as moral expertise, and, if so, what constitutes it, is much debated. Empirical expertise bestows epistemic authority over propositional content; that is not the case in moral domains, technical expertise notwithstanding. This article identifies three types of agencies with some authority over decisions in moral matters. It shows that the source of the authority wielded by such agencies, while varying across the three forms identified, is based on empirical and (...) technical knowledge and does not derive solely from any moral expertise of its members. The article examines, and finds wanting, two recent arguments for giving others authority over moral content. (shrink)

The importance of legal epidemiology in public health law research has undoubtedly grown over the last five years. Scholars and practitioners together have developed guidance on best practices for the field, including: placing emphasis on transdisciplinary collaborations; creating valid, reliable, and repeatable research; and publishing timely products for use in decision-making and change. Despite the energy and expertise researchers have brought to this important work, they name significant challenges in marshalling the diverse skill sets, quality controls, and funding (...) to implement legal epidemiology activities. The Centers for Disease Control and Prevention has worked to develop cross-cutting research and translation on issues of national priority in legal epidemiology, and has explored ways to overcome some of these challenges. As such, this article describes a case study of the use of law to characterize states' prior authorization policies regarding medication used to treat attention-deficit/hyperactivity disorder, a central component of a broader effort to improve behavior therapy options for young children with ADHD. This article highlights the types of legal epidemiology work we have undertaken, the application of this work to an emerging public health problem, and the lessons learned in creating impactful research for the field. (shrink)

Among Bryan Norton’s most influential contributions to environmental philosophy has been his analysis and evaluation of democratic processes for environmental decision-making. He examines actual cases of environmental decision-making in their legal, political, ethical and scientific contexts, and, with contextual constraints and goals in mind, he theorizes concerning what they accomplish and how they can be improved. Informed by the political theories of both John Dewey and Jürgen Habermas, Norton’s pragmatist approach holds that appropriate democratic decision procedures will generate broadly (...) defensible decisions. Thus, his view of environmental decision-making is based in—and requires—inclusive, democratic, empirical inquiry. While accepting these criteria, I examine how, in practice, it is difficult to identify when these conditions have been adequately met. I investigate the limitations of Norton’s proceduralist approach through a case study in community-based forest management in a New York State urban old-growth park. I argue that Norton’s procedural priorities are too rigid given the contextual constraints of local decision-making. While they are useful for guiding an ideal, high standards sense of the decision-making process, less rigid Deweyan considerations of social learning and community engagement often provide sufficient guidelines for evaluating success. (shrink)

Well-functioning modern democracies depend largely on expert knowledge and expert arrangements, but this expertise reliance also causes severe problems for their legitimacy. Somewhat surprisingly, moral and political philosophers have come to play an increasing role as experts in contemporary policymaking. The paper discusses different epistemic and democratic worries raised by the presence of philosopher experts in contemporary governance, relying on a broad review of existing studies, and suggests measures to alleviate them. It is argued that biases philosophers are vulnerable (...) to may contribute to reducing the quality of their advice, and that the characteristics of philosophers’ expertise, and controversies around what their competences amount to, make it hard to distinguish proper from less proper philosopher experts. Reliance on philosopher experts may also intensify democratic worries not least due to the depoliticization pressures that the introduction of ethics expertise tends to give rise to. Still, philosophers have competences and orientations that policy discussions and democratic deliberations are likely to profit from. Worries about philosopher experts may moreover be mitigated by means of a proper design of expert arrangements. Confronted with the genuine epistemic risks and democratic challenges of contemporary governance any quick fix is obviously unavailable, but when institutionalized in the right way philosophers’ involvement in present-day policymaking bears significant promise. (shrink)

This article draws on ethnographic data from a field leading university licensing office to document and explain a key step in the process of institutionalization, the abstraction of standardized rules and procedures from idiosyncratic efforts to collectively resolve pressing problems. I present and analyze cases where solutions to complicated quandaries become abstract bits of professional knowledge and demonstrate that in some circumstances institutionalized practices can contribute to the flexibility of expert reasoning and decision-making. In this setting, expertise is rationalized (...) in response to institutional tensions between academic and business approaches to deal making and professional tensions between relational and legal approaches to negotiation. Abstraction and formalization contribute both to the convergence and stability of routines and to their improvisational use in professional work. Close attention to these processes in a strategic research setting sheds new light on an interesting tension in sociological theories of the professions while contributing to the development of a micro-level, social constructivist institutional theory. (shrink)

Building on a functionalist framework for decision-making in legal translation, a holistic approach to quality is presented in order to respond to the specificities of this field and overcome the shortcomings of general models of translation quality evaluation. The proposed approach connects legal, contextual, macrotextual and microtextual variables for the definition of the translation adequacy strategy, which guides problem-solving and the rest of the translation process. The same parameters remain traceable between the translation brief and the translation product (...) both in pre-delivery revision and in post-delivery assessment. They are the yardstick for identifying predictable evaluative criteria and competence requirements for translators and quality controllers. The implications of the approach on quality assessment and quality management practices are also discussed. Overall, the model illustrates the potential benefits of enhancing predictability and reducing subjectivity on the basis of specific legal translation methodologies. It supports the need for legal translation expertise in quality evaluation and the relevance of Legal Translation Studies to raising standards in professional practice. (shrink)

This book explores the transformational impact of new technological developments on legal practice. More specifically, it addresses knowledge management, communication, and e-discovery related technologies, and helps readers develop the project management and data analysis skills needed to effectively navigate the current, and future, landscapes. It studies the impact of current trends on business practices, as well as the ethical, procedural, and evidentiary concerns involved. Introducing novel interactive technologies as well as traditional content, the book reflects expertise from across (...) the legal industry, including practitioners, the bench, academia, and legal technology consultants. All of the contributing authors currently teach aspiring lawyers and/or paralegals and have identified a gap in the available instructional material. Rapid technology advances have radically changed the way we all live and work, and the legal profession is by no means exempt from the impact of these changes. In order to better assist their clients, and to better compete on the legal market, it is imperative for lawyers to understand the ethical, functional, and business consequences of new technologies on their respective practices. This book provides the necessary content by including legal technology texts, information about novel pedagogical technologies, helpful tools for managing legal technologies and IT staff, statistical methods, tips and checklists. (shrink)

This article investigates the question of how forensic toxicologists established the credibility of chemical analytical methods in poisoning lawsuits in the nineteenth century. After encountering the problem of laypersons in court, forensic toxicologists attempted to find strategies to make their evidence compelling to an untrained audience. Three of these strategies are discussed here: redundancy, standard methods, and intuitive comprehensibility. Whereas redundancy was not very practical and legally prescribed standard methods were not very popular with most forensic toxicologists, intuitive comprehensibility proved (...) effective and popular. This strategy relied on employing methods which did not require chemical knowledge to be understandable. The methods aimed to generate a visual aid and to be obvious in their results. Two forms of this strategy are discussed here: the presentation of the actual material and explicit comparison. I argue that this shift towards presenting forensic toxicology expertise as evident represents an important step in the history of forensic expertise. (shrink)

A common objection to a pragmatist perspective on scientific expertise is that, while there is a well-known pragmatist theory of inquiry, which was formulated first by Peirce, then refined by Dewey and others, this theory cannot provide a clear-cut account of scientific expertise. In this paper, after addressing this objection in the second section, I claim that, on the contrary, pragmatism offers robust tools to think scientific expertise. In Sections 3 to 7, I present five important insights (...) that one can derive from a pragmatist epistemology when responding to contemporary problems posed by expertise: about science and scientific expertise in a legal context (sections 3 and 4), about collective expertise (sections 5 and 6), and even about expertise on ignorance (section 7). (shrink)

Ordinary arguments from authority have the following structure: A says p; A is authoritative on such things; so p. Legal actors use such arguments whenever they ground their decisions on the sheer “say-so” of legislators, judges, scholars, expert witnesses, and so on. This paper focuses on arguments appealing to the authority of scholars, “doctrinal” or “dogmatic” legal scholars in particular. Appeal to doctrinal authority is a puzzling feature of legal argumentation. In what sense are doctrinal scholars “authorities”? (...) Is p, as advanced by a scholar, descriptive or prescriptive? Is scholarly authority grounded on expertise or something different? The paper addresses these questions. (shrink)

The fiftieth volume of the Current Legal Problems series contains the now customary selection of high quality essays by a group of outstanding scholars. To celebrate the golden anniversary of the work, contributors were each asked to take stock of developments in their particular area of expertise over the past fifty years, and to give a critical analysis of where the law now stands. It therefore contains a particularly valuable and broad-ranging set of contributions. A paperback version of (...) this book is being published simultaneously. (shrink)

Even though Corporate Social Responsibility (CSR) has become a widely accepted concept promoted by different stakeholders, business corporations' internal strategies, known as corporate self-regulation in most of the weak economies, respond poorly to this responsibility. Major laws relating to corporate regulation and responsibilities of these economies do not possess adequate ongoing influence to insist on corporate self-regulation to create a socially responsible corporate culture. This book describes how the laws relating to CSR could contribute to the inclusion of CSR principles (...) at the core of the corporate self-regulation of these economies in general, without being intrusive in normal business practice. It formulates a meta-regulation approach to law, particularly by converging patterns of private ordering and state control in contemporary corporate law from the perspective of a weak economy. It proposes that this approach is suitable for alleviating regulators' limited access to information and expertise, inherent limitations of prescriptive rules, ensuring corporate commitment, and enhance the self-regulatory capacity of companies. This book describes various meta-regulation strategies for laws to link social values to economic incentives and disincentives, and to indirectly influence companies to incorporate CSR principles at the core of their self-regulation strategies. It investigates this phenomenon using Bangladesh as a case study. (shrink)

Before the advent of fibrinolytic therapy as a gold standard method of care for cases of acute ischemic stroke in Romania, issues regarding legal medicine aspects involved in this area of medical expertise were already presented and, in the majority of cases, the doctors seem to be unprepared for these situations. The present research illustrates some of the cases in which these aspects were involved, that adressed a clinical center having 6 years of professional experience in the application (...) of fibrinolytic treatment for stroke. The following cases report either situations in which the afore mentioned therapy was not rightfully administrated or legal aspects regarding the obtainment of informed consent. Obtaining informed consent is a mandatory procedure, which takes time, to the detriment of application of fibrinolytic treatment. (shrink)

Stay up-to-date on the ethical and legal issues that affect your clinical and professional decisions! Ethical and Legal Issues for Mental Health Professionals: A Comprehensive Handbook of Principles and Standards details the ethical and legal issues that involve mental health professionals. Respected authorities with diverse backgrounds, expertise, and professional experience discuss contemporary theories emphasizing professional ethics, the ramifications of professional actions and decisions, and ethical standards on teaching, training, research, and publication. This informative handbook provides invaluable (...) up-to-date information and guidelines vital for every mental health professional. This book is a thorough examination of ethical behavior which can be used as a reference source for the professional or a textbook for graduate students. The handbook itself is divided into five sections. The first section is a detailed introduction of ethics, law, and licensing. The second section presents general ethical principles like competence, integrity, and respect for individual rights and dignity. The third section examines confidentiality, privilege, consent, and protection. The fourth section focuses on general ethical standards in practice, including sexual contact, multiple relationships, and bartering. The fifth section presents the ethical principles and standards in teaching, training, and research. Appendices include the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 2002) and the Code of Ethics of the National Association of Social Workers (National Association of Social Workers, 1999). Ethical and Legal Issues for Mental Health Professionals: A Comprehensive Handbook of Principles and Standards discusses: the history of basic approaches and issues in ethical philosophy five fundamental areas in the process of developing competence the necessary ingredients for the mental health professional's practice of integrity aspirational versus enforceable standards of ethics concern for the welfare of others as a core ethical principle the notion of social responsibility in the ethics codes of psychologists and social workers ethical principles, statutes, and case law protecting privacy and confidentiality issues involving the therapist-patient privilege the "duty to protect" doctrine and relevant legal issues the dynamics of multiple relationships and boundary violations sexualized dual relationships between psychologists and patients possible conflict of interest in bartering for services the requirements and implementation of maintaining patient records to avoid ethical and legal problems possible ethical dilemmas involving referrals and fees much, much more This Handbook is an essential resource for all mental health professionals, including psychologists, psychiatrists, social workers, counselors, therapists, and graduate students in mental health and the related fields. Ethical and Legal Issues for Mental Health Professionals: A Comprehensive Handbook of Principles and Standards is the first of three volumes under this title. The following volumes will focus on forensic settings and special populations/special treatment modalities. (shrink)

Vaccine mandates played a critical role in the success of New York City’s COVID-19 response. By relying on evidence as a substantive basis for the mandates and adhering to procedural requirements and precedent, New York City leveraged its position and expertise as a local governmental authority to devise mandatory vaccine policies that withstood numerous legal challenges. New York City’s experience highlights the role of municipal government in mounting a meaningful public health response, and the strategies adopted by NYC (...) may provide a blueprint for municipalities around the world facing the ongoing COVID-19 pandemic and the threat of future public health emergencies. (shrink)

This book offers a transnational perspective of evidentiary problems, drawing on insights from different systems and legal traditions. It avoids the isolated manner of analyzing evidence and proof within each Common Law and Civil Law tradition. Instead, it features contributions from leading authors in the evidentiary field from a variety of jurisdictions and offers an overview of essential topics that are of both theoretical and practical interest. The collection examines evidence not only as a transnational field, but in a (...) cross-disciplinary context. Each chapter engages with the interdisciplinary themes cutting through the issues discussed, benefiting from the expertise and experience of their diverse authors. (shrink)

This paper looks at Alexander Guerrero’s epistemic case for ‘lottocracy’, or government by randomly selected citizen assemblies. It argues that Guerrero fails to show that citizen expertise is more likely to be elicited and brought to bear on democratic politics if we replace elections with random selection. However, randomly selected citizen assemblies can be valuable deliberative and participative additions to elected and appointed institutions even when citizens are not bearers of special knowledge or virtue individually or collectively.

This ambitious book examines the notion of legal transparency from a unique cultural and historical perspective. Drawing from their combined academic and practical experience with both Chinese and Western legal traditions, authors John Head and Xing Lijuan explore how an intense debate — pitting legal transparency against legal opaqueness — unfolded in dynastic Chinese law, which began in the dark mists of history and ended formally just over a hundred years ago. They rely on a wide (...) range of both Western and Chinese sources to explain how that great debate was resolved in the early Han Dynasty (around the third century BCE) in a way that molded Chinese law into a sophisticated legal system that for roughly two millennia balanced definitiveness with vagueness, predictability with flexibility, and egalitarianism with privilege — and that reflected cultural values still resonating in China today. Legal Transparency in Dynastic China presents a clear narrative that assumes no prior expertise in Chinese law or history, and it caters to readers interested in issues of good governance, comparative studies, China, history, and law. The book begins by defining “legal transparency” and explaining where it fits into the larger context of the transparency-in-government movement that has gained such momentum in recent years, especially at the urging of Western powers. Then the book explains the fundamentally different values espoused by early Confucianists, for whom society is best governed not through written law but through the exemplary behavior of a highly educated, virtuous, and enlightened elite. After tracing the political and ideological challenges that the Confucianists faced from the Legalists, Head and Xing examine the compromise that resulted in the so-called “Confucianization of the Law” around 200 BCE. They then show how that alloy of competing ideologies characterized Chinese dynastic law for many centuries, resulting in what some would consider the most enduring and effective legal system in human history. (shrink)

Legal translation between English and Arabic is under researched. However, the growing need for it, due to immigration and asylum seeking, among other reasons, necessitates the importance of more research. The asymmetry between English and Arabic poses many difficulties for legal translators, be they linguistic-based, culture-specific or system-based. The aim of this research is to discuss ways of translating lexical items between English and Arabic. In this current discussion I will present, exemplify and analyse the common difficult areas (...) of translating English/Arabic legal texts and suggest ways of dealing with them. These areas involve culture-specific and system-based terms, archaic terms, specialised terms and doublets and triplets. With this aim in mind, the paper answers the following research questions: 1.What are the common difficulties of translating legal texts between English and Arabic? 2.What are the common lexical difficulties between English and Arabic legal texts? 3.What are the procedures of translating lexical legal terms between English and Arabic? The paper concludes that translating the above-mentioned lexical terms requires expertise, professional training, robust knowledge of the linguistic and legal systems of languages, as well as up-to-date electronic dictionaries and well-defined parallel corpora. (shrink)

Le différend commercial sur les OGM dans le cadre de l’OMC a mobilisé une expertise scientifique de façon quelque peu inédite. Dès le départ, le Groupe spécial a situé le différend dans le cadre de l’Accord sur l’application des mesures sanitaires et phytosanitaires de l’OMC grâce à une nouvelle ontologie juridique. Ce groupe a mis en scène l’expertise scientifique en suivant des approches spécifiques définissant de quelle manière les experts seraient interrogés, les réponses qu’ils donneraient, leur rôle spécifique (...) dans le domaine juridique et la façon dont leurs déclarations viendraient compléter ses conclusions. De plus, le Groupe spécial a procédé à un tournant procédural en présentant ses conclusions sous forme d’un jugement purement juridico-administratif tout en gardant implicites ses propres jugements sur les questions de fond liées aux risques.The high-profile WTO trade dispute on GMOs brought in scientific expertise in somewhat novel ways. From the outset, the Panel placed the dispute under the WTO Sanitary and Phytosanitary Agreement by drawing on a new legal ontology. The Panel brought scientific expertise into play in specific ways that defined how experts were questioned, the answers they would give, their specific role in the legal arena, and the way their statements would complement the Panel’s findings. Furthermore, the Panel created a procedural turning point in WTO jurisprudence by representing its findings as a purely legal and administrative assessment of whether the EC’s regulatory procedures violated the SPS Agreement, with its own assessments on substantive risk issues remaining implicit. (shrink)

ArgumentIn the United States, scientific knowledge is brought before the courts by way of testimony – the testimony of scientific experts. We argue that this expertise is best understoodfirstas related to the quality of the underlying scienceand thenin terms of who delivers it. Bloodstain pattern analysis (BPA), a contemporary forensic science, serves as the vaulting point for our exploration of objectivity as a metric for the quality of a science in judicial contexts. We argue that BPA fails to meet (...) the minimal standard set by Helen Longino’s social-procedural account of objectivity (1990, 2002). In light of some pressing issues for social-procedural accounts, we offer an infrastructural account of objectivity. This account offers what amounts to a friendly amendment to Longino’s account and adds to the ways in which we might analyze social-procedural objectivity. Finally, we address an issue that is pressing in the legal context: given that scientific knowledge is delivered by individuals, not communities, at least in U.S. courts, we (may) need a way to evaluate individual scientific and epistemic agents. We suggest a means for making this evaluation that is derived from our infrastructural account of objectivity. (shrink)

This article explores innovative legal tools in built environment settings. Using tangible examples, the discussion will leverage the authors' expertise in the law, public health, and architecture to explore strategies in domestic and international settings to explain how healthy spaces make a direct public health impact on people's lives.

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain conditions which (...) render certain norms, but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (shrink)

Contemporary legal philosophers commonly understand the normative force of law in terms of practical reason. They sharply disagree, however, on how exactly it translates into practical reason. Notably, some have argued that the directives of an authority that meets certain prerequisites of legitimacy generate reasons for action that exclude some otherwise applicable reasons, while others have insisted that such directives can only give rise to reasons that compete with opposing ones in terms of their weight . Does the weighing (...) model provide a normative framework within which law could adequately facilitate correct decision-making? At first glance, the answer appears to be ‘yes’: there seems to be nothing about law-following values—such as coordination reasons, the desirability of social order, deferential expertise, etc.—which prevents them from being factored into our decision-making in terms of normative weight that tips the balance in favor of compliance with law inasmuch as it is worthwhile to comply with it. This impression, however, turns out to be incorrect when, drawing on a body of empirical work in psychology, I observe that many of the practical difficulties law typically addresses are difficulties that have part of their root in biases to which we are systematically susceptible in the settings of our daily activity. I argue that the frequent presence of those biases in contexts of activity which law regulates, and the pivotal role law has in counteracting them, emphatically militate against the weighing model and call for its rejection. (shrink)

Relying on a powerful collective narrative through which political, legal and social decision-making is guided in the name of science, the authority of scientific experts reaches beyond the boundaries of their certified knowledge base. Therefore, expertise constitutes and is constituted by transgressive competence. The author argues that (1) changes in the decision-making structure of liberal Western democracies and changes in the knowledge production system diminish the authority of scientific expertise while increasing the context-dependency of expertise - (...) thereby altering the nature of its predictive claims; (2) the societal distribution of expertise, while displaying emancipatory features of empowerment of citizens, also raises issues of quality control; and (3) in order to regain a balance between public and private, i.e. individual-based societally distributed expertise, future expert systems will need to adopt a longer time-perspective. The author also reflects on directions in which future expert systems might evolve. (shrink)

Las denuncias por responsabilidad médica en Ecuador se incrementaron en la última década a raíz de la penalización de la mala práctica profesional establecida en el Código Orgánico Integral Penal; la investigación es compleja y el peritaje médico legal se convierte en una pieza fundamental en el conflicto. Aquí analizamos 10 informes periciales de casos de mala práctica médica en Ecuador, se analiza la legislación ecuatoriana y revisión de la literatura referente al tema. Se identificó la falta de protocolos (...) o guías de procedimientos, los informes no cuentan con estructura y es el resultado de la discrecionalidad del perito designado. Se propone un protocolo de actuación pericial que facilitará la actividad del perito y mayor objetividad en la investigación. (shrink)

The continuing existence and operation of the traditional law of Aboriginal and Torres Strait Islander peoples has – relatively recently – been explicitly acknowledged in Australian law. In emerging case law on the subject, the High Court of Australia has confirmed the common law recognition of the survival of Indigenous Australian law. However, in determining what it is that is recognized by the common law – in interpreting Indigenous Australian ‘traditional laws and customs’ – the High Court has disregarded the (...) knowledge reposed in those with authority or expertise in Indigenous Australian law, relying instead upon concepts and assumptions from the jurisprudence of English legal philosopher, HLA Hart. The influence of Hart’s theory in the Australian High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’ is problematic, because it contains an obvious pre-legal–legal dualism reminiscent of the ‘state of nature’ – ‘civil society’ mechanism that was instrumental in the application of terra nullius to Australia. At the heart of The Concept of Law lies the notion of progression from a ‘primitive community’ with only primary rules, to an advanced legal system with a combination of both primary and secondary rules. In this article, I investigate how Indigenous Australians are positioned in relation to Hart’s pre-legal–legal dualism. I examine the ‘primitive’, pre-legal society in The Concept of Law, and its counterpart, the advanced legal system, to analyze the position of Indigenous Australian societies and law in Hart’s scheme. Finally, I analyze the construction of the dualism and consider its impact on the High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’. (shrink)

This paper looks at Alexander Guerrero’s epistemic case for ‘lottocracy’, or government by randomly selected citizen assemblies. It argues that Guerrero fails to show that citizen expertise is more likely to be elicited and brought to bear on democratic politics if we replace elections with random selection. However, randomly selected citizen assemblies can be valuable deliberative and participative additions to elected and appointed institutions even when citizens are not bearers of special knowledge or virtue individually or collectively.

This article reflects on the author's modest experience as an expert witness in two trials: Osheroff vs. Greenspan (1983), and In the Matter of Baby K (1994). Bioethicists' expertise as scholar-teachers and consultants on particular issues merits qualification by judges as expert witnesses. The article argues that a different kind of expertise – strong moral advocacy – is required to be an effective expert witness. The major lessons of expert witnessing for the author concern the demands and strains (...) on the bioethicist's role as scholar, teacher, and consultant. The Baby K case is analyzed in some detail, due to its importance for bioethics, ethics consultation, and the testimony of bioethicists on either side of the case. Rules of thumb are offered to guide decisions as to choices regarding expert witnessing, as well as a discussion of the interaction of law and bioethics. (shrink)

There has been much talk of the need to build intermediate models of the expertise required preparatory to constructing a knowledge-based system in the legal domain. Such models offer advantages for verification, validation, maintenance and reuse. As yet, however, few such models have been reported at a useful level of detail. In this paper we describe a method for conceptualising legal domains as well as its application to a substantial fragment of the Dutch Unemployment Benefits Act (DUBA).We (...) first discuss the intermediate models (called expertise models), then present a three-stage method for their construction, drawing on the CommonKADS work in knowledge acquisition, conceptual models of statute law, and the KANT method of knowledge analysis. Subsequently, we describe how these techniques were applied to the DUBA, and provide detailed examples of the resulting model. Finally, conclusions on the framework and guidelines are given as well as means of recording and presenting the various design choices. (shrink)

Legal liabilities pertaining to the identification and selection of domain experts is an issue that could adversely impact expert systems developers. Problems pertaining to flawed knowledge, improperly defined expertise, and behavioural and psychological impediments are just some of the issues. This paper examines the torts of strict products liability and negligence that system developers could incur as a result of expert-related difficulties. Parallels from legal scholars and federal and state court decisions are discussed relevant to expert system (...) projects and developers. The paper concludes with a presentation of steps that systems developers can take to minimize potential legal liability. (shrink)