The United States District Court of Kansas, in Gudenkauf v. Stauffer, Znc., granted the defendants motion for summary judgment for the plaintiff's claims of pregnancy-related discrimination under the Americans with Disabilities Act and the Family and Medical Leave Act of 1993, but the court denied a similar motion for the plaintiff's claim under the Pregnancy Discrimination Act. The court found summary judgment to be appropriate for the ADA claim based on its finding that the plaintiff's pregnancy did not constitute an (...) impairment as required by the statute; as for the FMLA claim, it determined that the defendants failure to grant the plaintiff's leave request did not violate the statute. However, the court determined that summary judgment was inappropriate for the PDA claim because of material questions of fact about whether the defendant had acted with discriminatory intent.In considering the motions for summary judgment, the court accepted the following facts as incontrovertible. Plaintiff Michaela Gudenkauf worked for the defendant Stauffer, Inc. (shrink)

The Indiana Court of Appeals, in JKB, Sr. v. Armour Pharmaceutical Co. ), held that the state's Blood Shield Act does not protect pharmaceutical companies that produce blood-derived products from product liability suits based on injuries attributable to tainted blood supplies. Blood shield statutes help to guarantee adequate blood supplies by limiting the liability of blood banks. This holding limits the defenses available to pharmaceutical companies sued under product liability theory.The defendant, Armour Pharmaceutical, produces and sells clotting factor agents, which (...) are derived through plasmapheresis. Plasmapheresis is a costly and complex donation process through which the plasma and red blood cells of a donor's blood are separated. After separation, the process returns the red blood cells to the donor but retains the plasma. (shrink)

It has been over two decades since Miranda Fricker labeled epistemic injustice, in which an agent is wronged in their capacity as a knower. The philosophical literature has proliferated with variants and related concepts. By considering cases in popular music, we argue that it is worth distinguishing a parallel phenomenon of art-interpretive injustice, in which an agent is wronged in their creative capacity as a possible artist. In section 1, we consider the prosecutorial use of rap lyrics in court as (...) a central case of this injustice. In section 2, we distinguish art-interpretive injustice from other categories already discussed in recent literature. In section 3, we discuss the relationship between genre discourse and identity prejudice. The case for recognizing the category of art-interpretive injustice is that it allows one to recognize a class of harms as being importantly related in ways that one would otherwise overlook. (shrink)

This article, written by a former justice of the Supreme Court of India and chairman of the Press Council of India, describes the media accountability system in India and argues for the global necessity for such systems. It declares the need for free press systems for the survival of democratic institutions and claims that society has an obligation to monitor media systems so they remain free. The alternative will be government regulation, which will suspend the vital characteristics of a free (...) press. A press council, on the other hand, can work more cooperatively with the press to assure responsibility. Global forces make it important for the mass media to explore the virtues inherent in media accountability systems, such as press councils. This article suggests why those systems are increasingly important, proposes structures and functions for such councils, and uses the Press Council of India as an example of a working organization. (shrink)

Several cases which have been considered by the courts in recent years have highlighted the legal dilemmas facing doctors whose decisions result in the ending of a patient's life. This paper considers the case of Dr Cox, who was convicted of attempting to murder one of his patients, and explores the roles of motive, diminished responsibility and consent in cases of "mercy killing". The Cox decision is compared to that of Tony Bland and Janet Johnstone, in which the patients were (...) in a persistent vegetative state. In all three cases, the doctors believed that their patients' quality of life was so poor that their continued existence was of no benefit to them, and decided that their lives should not be unduly prolonged, yet the doctor who was prosecuted was the one whose dying patient had requested that her death be hastened. The paper examines the law's seemingly contradictory approaches to such cases. (shrink)

Stories from and about David's reign provide the background and justification for the accession of Solomon.

Courts and jurors sometimes refuse to assign liability to defendants on the basis of statistics alone, despite their apparent reliability. I argue that this refusal is best understood as a recognition of defendants’ right to security. Understood as a robust good in Philip Pettit’s sense, security requires that someone risking harm to others’ protected interests adopt a disposition of concern that controls against wrongfully harming them. Since trials risk harm, the state must adopt such a disposition. Statistics leave open the (...) possibility of innocence and so wrongful harm in a way that the state cannot ignore; if it does use such statistics, it makes defendants wrongfully insecure. This explanation of the problem of bare statistical evidence is especially apt because security grounds the right to a fair trial and judicial procedural rights more generally. (shrink)

The “family rule” paper by Dr Foreman proposes a way of resolving the present uncertainty about medical law on children's consent and refusal. This commentary reviews how doctors' decisions are already well protected by English law and respected by the courts. The “family rule” appears to be likely only to complicate the already diffuse law on parental consent, and to weaken further the competent minor's position in cases of uncertainty and disagreement. It leaves the difficult questions about defining and assessing (...) children's competence unanswered. This commentary suggests that these questions would be better resolved through professionally determined standards of good practice that respect children and parents, rather than through rules or laws. (shrink)

Part 1 shows that 'remedy' destabilizes analysis. It has at least five different meanings loosely grouped around the relationship between disease and medicine. In three of those meanings it is functionally synonymous with 'right', which, for all its own instabilities, ought to be preferred. Blackstone encouraged the use of 'remedy'. He stabilized it by putting 'remedies' in a particular relationship with 'wrongs'. However, he built that relationship on an unsound foundation, namely, the proposition, in which John Austin followed him, that (...) every cause of action was a wrong. Part 2 demonstrates the error of that position. The rights which courts realize arise from wrongs and from not-wrongs. The word 'remedy' cannot easily cope with not-wrongs, and its tendency is to destroy the classification of the events from which rights arise. Part 2 also concludes that the habit of thinking of the law in terms of wrongs and remedies encourages a malignant, criminal model of the civil law, here called discretionary remedialism. In that model 'rights' dissolve. Instead, 'liability', as the equivalent of guilt, invites the court to respond with an appropriate remedy, selected by itself, by way of sentence. (shrink)

What does the law demand when it requires citizens to conform to standards of reasonableness? I propose and defend the view that the law should demand that citizens conform their behavior to some actual conduct in society. I contrast this idea against what might be called the ``empty vessel'' view of reasonableness, where the standard is understood to function like an empty vessel in the law, allowing courts to use various norms and moral judgments to determine what seems reasonable in (...) the circumstances. The empty vessel account is the more common approach for understanding reasonableness, but it leaves obscure whether and how assessments about appropriate conduct connect with facts about citizens' actual conduct. I argue for a ``binocular'' view that focuses our attention on actual practices and thereby establishes how these standards provide a stable guide to conduct and support the rule of law. (shrink)

A fourteen year old is diagnosed with aplastic anemia. The teen and his parents are Jehovah’s Witnesses. An ethics consult is called on the day of admission by an ethically sophisticated social worker and attending. The patient and his parents see this diagnosis as “a test of their faith.” The ethical analysis focuses on the mature minor doctrine, i.e. whether the teen has the capacity to make this decision. The hospital chooses to take the case to court, with a result (...) that is at odds with the ethics consultation recommendations. Ethics was never deposed or otherwise invited to be involved with the hearing. Thus the larger question of the relation of ethics and law was brought into stark relief. (shrink)

People who wish to end their lives when they consider that they cannot endure further pain and suffering cannot legally obtain help to produce a peaceful death. The reality of practice seems to be that, covertly, physician-assisted suicide and voluntary euthanasia do take place. The value of personal autonomy in issues of consent has been clarified in the courts in that a competent adult person has the right to refuse or choose alternative treatments even if death will be the outcome. (...) This issue needs open discussion and regulation in order to protect those vulnerable people in our society. (shrink)

Creon's ghost -- Shadows and light -- Rule and measure -- The ancient courts of ancient men -- Law breaking -- Law's practical theory -- Timeliness and justice -- A poet dies.

The article is concerned with the question of how legal institutions are structured with the use of constitutive, institutive, consequential, and terminative rules. To that end, the regulation of international treaties as laid down in the Vienna Convention on the Law of Treaties of 1969 is analysed. This leads to the discovery of two additional categories of rules: content rules and invalidating rules. Finally, the special status of unique legal institutions is investigated. Unique legal institutions – for example, heads of (...) state, parliaments, and supreme courts – enjoy validity in a legal system to the exclusion of the validity of any other legal institution of the same category in that system. (shrink)

Throughout this paper PJ Kearney attempts to balance the risks and benefits of different approaches in paediatric oncology. Decisions have to be considered both in the short and the long term. Where religious beliefs, such as those held by Jehovah's Witnesses in relation to blood transfusions, conflict with normal medical practice the decision is often removed from the doctor, parents or patient to the courts. This sort of solution can be counter-productive, especially as good health care and subsequent recovery rely, (...) to a large extent, on good relationships between and among the parties concerned. Destruction of these relationships, for whatever reason, often has a detrimental effect on the patient, in whose best interest everyone believes they are acting. (shrink)

Introduction to, and overview of, the contents of the Symposium on consent and confidentialityThe papers in this symposium are based on a meeting held by the Academy of Medical Sciences in London on 12 February 2002. The decision to hold this meeting, and to explore in detail these important and contentious issues, arose from a number of concerns that the Academy felt about what may reasonably be called “impediments to medical research”.These include: The regulations arising from the implementation of the (...) European data protection directive and their effect on the gathering and holding of data needed for disease surveillance as well as for research. Phil Boyd, in his paper, presents the views and the work of the Information Commission, the responsible UK body in this area. The “Source Informatics” case where the Department of Health requested a judicial review on the use, by this company, of anonymised prescribing data from general practitioner records for informing the pharmaceutical industry about patterns of drug use. Mr Justice Latham ruled that the use of even this anonymised data for commercial purposes could be a breach of patients' rights to confidentiality. The Court of Appeal, however, emphatically reversed his decision and, no further appeal having been made to the House of Lords, the law of the land is now clear that there is no breach of confidentiality in the use of anonymised data. It did seem to us, …. (shrink)

Dobbs v. Jackson Women’s Health continues a trajectory of U.S. Supreme Court jurisprudence that undermines the normative foundation of public health — the idea that the state is obligated to provide a robust set of supports for healthcare services and the underlying social determinants of health. Dobbs furthers a longstanding ideology of individual responsibility in public health, neglecting collective responsibility for better health outcomes. Such an ideology on individual responsibility not only enables a shrinking of public health infrastructure for reproductive (...) health, it facilitates the rise of reproductive coercion and a criminal legal response to pregnancy and abortion. This commentary situates Dobbs in the context of a long historical shift in public health that increasingly places burdens on individuals for their own reproductive health care, moving away from the possibility of a robust state public health infrastructure. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Literature 26.1 (2002) 57-74 [Access article in PDF] An American Novelist in the Philosopher King's Court Thomas P. Crocker I MORAL PHILOSOPHY has languished long within the confines of something like the following purported dilemma: either moral discourse is the discourse of principles and rules rationally grounded, or moral discourse is the discourse of passions and personal preferences, clothed in the garments of rational justification. Alasdair MacIntyre's (...) disquieting suggestion—that our language of moral debate is nothing more than the "simulacra of morality"—provides a grim outlook for moral philosophy. 1 Indeed, when moral inquiry is conducted in terms of ethical theory, without independent grounds upon which competing arguments can meet, philosophical discourse, embedded in competing theories, seems to be only so much cacophonous clamor, rationally convincing no one except those who already accept the terms employed by their own theory. One way to avoid this philosophical effluvium produced by moral philosophy is to follow Ludwig Wittgenstein in rejecting the very terms upon which it is made (the distinction between the particular perspective and the universal standpoint), recognizing that moral inquiry begins from where we already are—the everyday world in which we find ourselves.Towards the end of avoidance here, I wish to add to this simmering background of ethical discord Mark Twain's story of The Adventures of Huckleberry Finn. 2 Twain's controversial voice provides a place for moral thinking unavailable through strictly theoretical discourse. 3 And reading Huck and Jim's story through the philosophical avoidance of Wittgenstein's latent ethical thought provides the transformative possibility of seeing the domain of the ethical in a new light. 4 [End Page 57]Although Twain boldly states at the beginning of his novel that "persons attempting to find a moral in it will be banished," 5 he does show us without the need of theory or dogma how a change in one's way of seeing is intertwined with a change in one's way of living; this connection between ways of seeing and ways of living makes possible a kind of moral transformation that characterizes the change in Huck's perception of Jim, from that of a slave to that of a friend. This moral conversion is much like the perceptual transformations that Ludwig Wittgenstein considers in his discussions of "noticing an aspect," 6 in which a shift in what one sees is connected to the background against which the perceptual object is seen and to the ways in which one is prepared to respond to it. When confronting perceptual ambiguity, as in the case of Jastrow's ambiguous duck/rabbit figure, one looks to the context and background to clarify what one sees, just as one does with semantic ambiguity. In coming to see in one way or the other, nothing is explicitly stated, nothing is put into argumentative form. And in Twain's narrative, we are not given arguments for why we should see Jim as human, nor does the narrative recount Huck's confrontations with moral arguments; rather, through his interactions with Jim, Huck is shown Jim's humanity, his friendship, and we, the readers, are shown the possibility of a moral transformation that is not determined by or grounded in rules or philosophical arguments.The moral realist might agree that such a transformation could be motivated in ways other than rational arguments, but to be legitimate, it must be possible to reconstruct the transformation according to rational considerations. The ability to "get behind" the transformation in some justificatory way is what I am denying here (as is Wittgenstein); for what one finds when one "gets behind" is another situated language game that is itself not open to question (though it could be if we direct our attention towards it). There is no final "getting behind" the things we do and the situations in which we do them, and hence there is no final justificatory argument one can give—as Wittgenstein famously says, "If I have exhausted the justifications I have reached bedrock, and my spade is turned. Then I am... (shrink)

In two recent court cases, Ms B, a paralysed competent adult, was allowed to end her life; Mrs Pretty, another paralysed competent adult, was not. In legal terms, the essential difference between the two cases is that Ms B was seeking the withdrawal of treatment, whereas Mrs Pretty was asking for assistance in ending her life. I argue that while this distinction may accurately state the law that governs these situations, it does not rest on a defensible moral basis. Both (...) the women should have been allowed to choose the manner in which they would die. (shrink)

L'article explore le sens que peut avoir le symbole du Règne de Dieu aujourd'hui dans le contexte asiatique. Après une courte histoire du symbole, l'article présente six défis que l'Asie pose à son usage en un discours théologique en contexte asiatique. La seconde partie passe en revue l'usage fait du symbole du Règne de Dieu par certains théologiens asiatiques contemporains: les théologiens Tissa Balasuriya et Aloysius Pieris du Sri Lanka, les théologiens Coréens du minjung, et le théologien presbytérien du Taiwan (...) Choan-Seng Song. En se basant sur les oeuvres de ces théologiens et à la suite de la théologie de la libération, la dernière partie essaie de montrer comment les six défis posés plus tôt peuvent être résolus dans la perspective de la philosophie confucianiste. (shrink)

"Case notes." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (198), pp. 35–36.

The 1973 archeological discovery of important documents of classical thought known as the Huang-Lao Boshu coupled with advancements in contemporary jurisprudence make possible a reassessment of the philosophies of pre-Qin and early Han China. This study attempts to elucidate the importance of the Huang-Lao school within the intellectual tradition of China through a comparison of the Boshu's philosophical position, particularly its understanding of the relation between law and morality, with the respective views of major thinkers of the period--Confucius, Han Fei, (...) Lao Zi, Zhuang Zi, and to a lesser extent, Shen Dao, Shen Buhai and the authors of the Guan Zi and He Guan Zi. So doing reveals Huang-Lao to be a unique and sophisticated social and political philosophy which, until its expulsion from court by Emperor Wu and subsequent adoption by Daoist religion, served as the ideological foundation for the post-Qin reforms of the early Han. (shrink)

Natural law, as a school of jurisprudence or a means to decide or consider legal cases, is considered by some as nothing more than an emotive reminiscence and by others as a foundational system upon which legal reasoning must depend.

Available for the first time in English, this is the definitive account of the practice of sexual slavery the Japanese military perpetrated during World War II by the researcher principally responsible for exposing the Japanese government's responsibility for these atrocities. The large scale imprisonment and rape of thousands of women, who were euphemistically called "comfort women" by the Japanese military, first seized public attention in 1991 when three Korean women filed suit in a Toyko District Court stating that they had (...) been forced into sexual servitude and demanding compensation. Since then the comfort stations and their significance have been the subject of ongoing debate and intense activism in Japan, much if it inspired by Yoshimi's investigations. How large a role did the military, and by extension the government, play in setting up and administering these camps? What type of compensation, if any, are the victimized women due? These issues figure prominently in the current Japanese focus on public memory and arguments about the teaching and writing of history and are central to efforts to transform Japanese ways of remembering the war. Yoshimi Yoshiaki provides a wealth of documentation and testimony to prove the existence of some 2,000 centers where as many as 200,000 Korean, Filipina, Taiwanese, Indonesian, Burmese, Dutch, Australian, and some Japanese women were restrained for months and forced to engage in sexual activity with Japanese military personnel. Many of the women were teenagers, some as young as fourteen. To date, the Japanese government has neither admitted responsibility for creating the comfort station system nor given compensation directly to former comfort women. This English edition updates the Japanese edition originally published in 1995 and includes introductions by both the author and the translator placing the story in context for American readers. (shrink)

Despite the relative ease and regularity with which it is used by policymakers and the functional role that it often plays in the policy development process, the concept of reasonableness has essentially been overlooked by public policy scholars in their analysis of the factors influencing the development of public policy. However, the maintenance of the analytical status quo is likely to prove increasingly difficult. As the issues that governments must address become increasingly complicated and controversial and it becomes correspondingly more (...) difficult to identify easily or clearly the most appropriate response to associated problems, policymakers will inevitably be forced to place greater reliance on the concept of reasonableness as the final court of appeal when seeking to determine the attractiveness and acceptability of policy decisions. Accordingly, it seems ‘reasonable’ to suggest that greater, explicit consideration be given to the concept of reasonableness and the role it does and should play in the development of public policy. This article simultaneously offers both a brief overview of the current situation with respect to the meaningful consideration of the concept of reasonableness by public policy scholars and practitioners and a preliminary argument for a reconsideration of the analytical status quo. (shrink)

For liberal political philosophers the notion of ?reasonableness? has provided a moral and legal standard for judging the acceptability and, by extension, legitimacy of government behaviour. In order for a government directive to constitute a legitimate obligation on citizens, it must be compatible with the dictates of reason and treat all citizens in a reasonable manner. Arguably, such an approach achieves its most powerful presentation (to date, at least) in the theories of ?political? liberals, who typically assert that reasonableness must (...) be the ?final court of appeal? in relation to decisions concerning matters of public import ? i.e., those that place demands upon all citizens of the polity. According to political liberals, only by adopting and maintaining a governance framework that assigns primacy to reasonableness is it possible to obtain and preserve the desired protection against the abuse of political power. The purpose of this essay is to offer a brief review of the ?reasonableness? paradigm promoted by political liberals (in particular), and in the course of doing so, identify and assess a number of difficulties that would seem to undermine its ability to achieve its stated goal. (shrink)

Difficult questions regarding the so-called limits of toleration or accommodation are inevitable in today’s diverse, immigration societies. Such questions cannot be satisfactorily answered through simple assertions of the majority’s will or by retreating to a defense of ‘core liberal values.’ Rather, dealing with the challenges of diversity in a manner consistent with liberal-democratic principles requires that decision-making concerning the terms of collective life be informed by sincere and respectful deliberation. But how and where do we go about engaging in such (...) deliberation? This essay suggests that the courts seem to offer an arena that is more conducive than other traditional democratic institutions in terms of enabling the type of dialogue and analysis essential to realizing meaningful deliberation. Paradoxically, then, the judicialization of politics can be understood to be an ally, not an enemy, of meaningful deliberation in diverse democracies. (shrink)