Law

El presente artículo analiza la técnica del fracking como una solución a la problemática que en materia hidrocarburos se había dado en las últimas dos décadas, y los impactos negativos que conlleva para la salud y el ambiente. Se plantea como solución la aplicación del principio de precaución que le permite al Estado actuar ante una situación de riesgo e incertidumbre. La metodología escogida fue de corte analítico-deductivo a partir de la normatividad vigente y de los postulados teóricos de algunos (...) autores que son referentes en la materia. Como resultados se presentan algunas reflexiones que invitan a considerar la aplicación de este principio, hasta tanto no se tengan estudios suficientes que garanticen que esta práctica preservará el ambiente y no afectará la salud humana. (shrink)

The proposition that “promises ought to be kept is one of the most important normative ideas or value judgements in our daily lives. But what about “illegal promises”? That is to say, what about promises that are, legally or morally speaking, malum in se or inherently wrongful, such as voluntary exchanges that are inherently immoral or wrongful, like bribes, blackmail, murder, etc.? In short, what moral obligations, if any, do such promises impose? Although many of the greatest thinkers in Western (...) civilization have offered a wide variety of theories to explain the source of promissory obligations, it turns out there is a blind spot in this centuries-old conversation, for few theorists have given the problem of illegal or immoral promises any sustained thought. Nevertheless, illegal or immoral promises should be of theoretical interest to us because such promises may help us delimit the outer boundaries of promissory obligations. (shrink)

The article presents a critical reassessment of the legal philosophical writings of Ronald Dworkin. Relying in part upon the author’s previous argument that law is – contra the recent near-consensus – best understood as “the command of the sovereign, backed by force,” the author identifies fundamental difficulties, and ultimately incoherency, in Dworkin’s work.

A second look at a global ethics forum of several years ago can be a good start for examination of ethics of countries we deal with today. This global ethics forum had been financed by the United Kingdom’s DFID, The World Bank, USAID and AusAid to enable delegates from seventy countries to meet and discuss ethics policies.

This article addresses a few moments in the evolution of human security law in Iraq, focusing in particular on the Coalition Provisional Authority, the new Iraqi Constitution, Iraqi High Tribunal (successor to the Iraqi Special Tribunal), and the International Criminal Court. It synthesizes the results of some existing research on ongoing impunity for certain crimes against political candidates, journalists, anti-corruption activists, and ethnic and religious minorities, a situation which may have tainted Iraq’s transition to a more democratic republic, while aggravating (...) other conflicts, such as those in Syria. In theory, the institutions of human and national security can help reconcile peoples whose tenuous unity had been shattered in wartime. The sometimes competing priorities and policies of Iraqi politicians, civil society groups, and judges resulted in swift justice for Iraqi officials responsible for mass killings involving Shi’a Arab, Kurdish, and other victims, but a lack of justice for other segments of the population. The emphasis of some claims of injury over others may have "reenchanted" some sectors of Iraqi society with the state and its institutions, while alienating others and contributing to ruptures in the social fabric. The Coalition Provisional Authority, Iraqi leaders, and international community ensured that the high-profile proceedings against former regime officials would not be accompanied or followed by others that some Iraqis might perceive as being as pressing as those of the Iraqi High Tribunal, relating to the impact of sanctions and aerial bombardment, the legality of Iraq's occupation, torture, etc. (shrink)

Does browsing the world through a screen change a person, especially in the context of COVID-19? Recent studies indicate that self-care, psychological well-being, and empathy may suffer. The “Californian ideology” privileges expression of the self even as digital technology tends to interrupt the modern trend towards elaborating distinct selves via texts that convey knowledge. Meanwhile, digital browsing may be fracturing attention and empathy. -/- As these changes proceed, legislators react to a medical and social crisis. Relaxation of business, community center, (...) and school closures prevailed, under pressure from advocates of liberty, jobs, and pro-market economics. A rival set of regulatory reforms would prioritize fighting the virus and providing more relief to its victims as being forms of care for others. In the international domain, nationalist ideology and economic warfare intensify disparities in access to medical care, imported goods, and livelihoods. At stake is how best to take beings into care. (shrink)

The ‘expropriation of the expropriators’ is a delicious turn of phrase, one that Marx even compares to Hegel’s infamous ‘negation of the negation’. But what does it mean, and is it still relevant today? Before I analyse the content of Marx’s expression, I briefly consider contemporary legal understandings of expropriation, as well as some examples of it. In the remainder of the essay, I spell out different kinds of expropriation in Marx and focus on an ambiguity at the core of (...) the notion of ‘expropriating the expropriators’, namely, whether it describes an immanent and objective tendency within the development of the capitalist mode of production or else actively prescribes a form of revolutionary political praxis for the working class. My answer is that it does both, though not without tension. Finally, I develop some implications of these reflections by showing how the concept of expropriation can be put to use today, in struggles around housing, climate and work. (shrink)

This article argues that law is an inherently modernist normative practice. Constructing a vision of Modernism which is at once an epistemology and an attitudinal disposition to doubt and make anew our assumptions about the world, the authors demonstrate that legal practice encounters the world through individual cases, ‘examples’. Through these examples the law is capable of both interacting with and comprehending that world, while also being forced to question the law’s own precepts and their application. In this manner, the (...) law’s generalisations and abstractions become concrete, and can indeed be upended, through fleeting, impressionistic and highly case-specific examples. This exemplarity within law explains how law is able to navigate its apparently contradictory aspirations and natures which have bedevilled legal philosophy for millennia. In reality, law exists within a series of polarities, rather than contradictions, which are navigated through the law’s encounters with examples from the extra-legal world. The authors conclude that this aspect of the law’s nature also has practical consequences, requiring the law to maintain the fora in which new and novel cases are heard, and through which law’s modernist spirit can thrive. (shrink)

Responding to recent calls made within UK Parliament for a government-backed definition of Islamophobia, this article considers the unanticipated consequences of such proposals. I argue that, considered in the context of related efforts to regulate hate speech, the formulation and implementation of a government-sponsored definition will generate unforeseen harms for the Muslim community. To the extent that such a definition will fail to address the government’s role in propagating Islamophobia through ill-considered legislation that conflates Islamist discourse with hate speech, the (...) concept of a government-backed definition of Islamophobia appears hypocritical and untenable. Alongside opposing government attempts to define Islamophobia (and Islam), I argue that advocacy efforts should instead focus on disambiguating government counter-terrorism initiatives from the government management of controversies within Islam. Instead of repeating the mistakes of the governmental adoption of the IHRA definition of antisemitism by promoting a new definition of Islamophobia, we ought to learn from the errors that were made. We should resist the gratuitous securitization of Muslim communities, rather than use such definitions to normalize compliance with the surveillance state. (shrink)

Law is ‘sovereign’, it has been said. Since the poet Pindar expressed this fulminating thought in the 6th century B.C., the whole western tradition, from Aristotle to Cicero, from Heidegger to Schmitt, hasn’t stopped raising questions about the ambivalent relationship connecting law, strength and violence...

Brian Z. Tamanaha has written extensively on realism in jurisprudence, but in his Realistic Theory of Law (2018), he uses "realism" in a commonplace way to ground a rough outline of legal history. While he refers to his method as genealogical, he does not acknowledge the complex tensions in the development of the philosophical use of that term from Nietzsche to Foucault, and the complex epistemological issues that separate them. While the book makes many interesting points, the methodological concerns outweigh (...) them in the overall assessment of the value of the work. (shrink)

While artificial intelligence (AI) has been a subject of great debate in spaces such as due process, discrimination, and privacy, an area that is lacking in legal scholarship is the technology’s environmental impact. AI promises to be a silver bullet in the increasingly urgent fight against climate change, yet it comes with a considerable cost to our planet. Current industry trends involve AI models being trained on increasingly larger datasets and training methodologies that prioritize brute-force over efficiency. Thus, as AI (...) models increase in complexity and size, so too does the computing power—and energy—required to train and deploy them. Every stage of AI research and development, from training the model, storing its data, and deploying it in the real world, consumes the Earth’s resources. The interplay between AI and climate change is further complicated by the fact that AI is often lauded as an essential component of the new clean energy economy. -/- If AI is meant to be a critical component of our new clean energy economy, its ever-increasing energy consumption must be addressed. By analyzing the processes and industry trends that cause AI to be a burden on the environment, this Article argues for mandating transparency around energy usage; empowering the newly formed National Artificial Intelligence Initiative Office to direct sustainable AI design; and pushing data centers to adopt clean energy. The Article then proposes a policy framework that not only minimizes AI’s carbon footprint but maximizes its potential to address key climate change concerns. For if we remain complacent, the very technology that could save our planet could very well be one of its greatest antagonists. -/- This Article will be published in the Fordham Environmental Law Review, Volume XXXIV. (shrink)

Accountability is a cornerstone of the governance of artificial intelligence (AI). However, it is often defined too imprecisely because its multifaceted nature and the sociotechnical structure of AI systems imply a variety of values, practices, and measures to which accountability in AI can refer. We address this lack of clarity by defining accountability in terms of answerability, identifying three conditions of possibility (authority recognition, interrogation, and limitation of power), and an architecture of seven features (context, range, agent, forum, standards, process, (...) and implications). We analyse this architecture through four accountability goals (compliance, report, oversight, and enforcement). We argue that these goals are often complementary and that policy-makers emphasise or prioritise some over others depending on the proactive or reactive use of accountability and the missions of AI governance. (shrink)

‘Crime is a prohibited act from which results in more evil than good’ is how Jeremy Bentham described crime. ‘Crime is a serious anti-social action to which the State reacts consciously by inflicting pain’, is how W.A.Bonger describes crime. Morality and its lack thereof are related to crime. Morality is so closely interwoven with social conduct and immorality interwoven with criminal conduct that it is desirable to investigate this matter further and so this shorter version of a paper by Sally (...) Ramage is the vehicle by which to look further into this issue of moral crime which notion is based on accepted moral code and common sense. We need to urgently study moral crime if we are to arrest the current moral decline in society and restore integrity and trust to the human race. In this example we see that maturity does not mellow the human psyche as modern criminal law states. It was Sir Norwood East who stated that ‘acquisitiveness, aggressiveness and sexuality are often closely associated but the maturity which changes criminality is never going to be present until one is conscious of one’s own maturity by beginning to live in that consciousness’. Social conduct must be cultivated. Crucially, sociologists argue that social conduct may vary with time and place. However, the case of maturity is different when considering those in formative early life and also in declining periods of life. It must be cultivated. It does not happen automatically with age and some people can never change since their greed, selfishness and criminal inclinations remain steadfast. To these types, there is no resilience learnt because resilience is characteristic of the formative period of life when the disappointments of today are counterbalanced by the anticipations of tomorrow. (shrink)

This article explores the many offences (e.g. noise pollution, unlicensed performances, and Health and Safety offences) that may be committed by personnel in the music industry and their employers. It also explores the many breaches of Intellectual Property law that may be committed by others against the musician’s rights.

Criminal juries make decisions of great importance. A key criticism of juries is that they are unreliable in a multitude of ways, from exhibiting racial or gendered biases, to misunderstanding their role, to engaging in impropriety such as internet research. Recently, some have even claimed that the use of juries creates injustice on a large-scale, as a cause of low conviction rates for sexual criminality. Unfortunately, empirical research into jury deliberation is undermined by the fact that researchers are unable to (...) study live juries. The indirect sources of evidence used by researchers suffer from various problems, the most important of which is dubious levels of ecological validity. Real jury research—studying live jury deliberation—is controversial. However, as I argue, the objections to it are unconvincing. There is in fact a moral imperative to facilitate real jury research. (shrink)

En este artículo se debaten tres aspectos del concepto de la moral: el primero se refiere a la puesta en duda de la existencia misma, no sólo del concepto sino de la posible o imposible fundamentación de lo moral per se. En segundo lugar, la positivización del término llevado a lo normativo como una búsqueda de objetividad de lo moral y, el tercer aspecto, la crítica a la moral imperativa desde posturas dogmáticas. Se defiende que no es suficiente la perfectibilidad (...) de las leyes desde un punto de vista de la moralidad, sino que existe lo que podríamos llamar un fundamento personal, y al mismo tiempo, colectivo de comprensión del Derecho; entendido como el bienestar individual y colectivo para la realización de una vida plena en la polis. La moralidad, por tanto, si bien no es posible definirla en modo explicativo, racional, necesita de una base en valores compartidos con aspiraciones objetivistas y, al mismo tiempo, universalistas. (shrink)

Analyses of factual causation face perennial problems, including preemption, overdetermination, and omissions. Arguably, the thorniest, are cases of omissive overdetermination, involving two independent omissions, each sufficient for the harm, and neither, independently, making a difference. A famous example is Saunders, where pedestrian was hit by a driver of a rental car who never pressed on the (unbeknownst to the driver) defective (and, negligently, never inspected) brakes. Causal intuitions in such cases are messy, reflected in disagreement about which omission mattered. What (...) these analyses mistakenly take for granted, is that at issue is the 'efficacy' of each omission. I argue, on the contrary, the puzzle of omissive overdetermination favors taking the act/omission distinction seriously. Factual causation, properly understood precludes omissions (i.e. omissions are not causal). Of course, the law also attaches liability to omissions, but this works differently from liability for real causes (e.g. omissions have a duty requirement, they also respond differentially to difference-making considerations). The manner in which liability attaches for omissions differs from that of straightforward causal liability, and is entirely dependent on the underlying causal structure. Attention to that structure (e.g. that the driver's hitting the pedestrian with his car is what actually caused the injury) sheds light on which omissions matter (e.g. driver's failure to press on the brakes) and why (because that failure removes a defense the driver would have to liability for the accident he caused). Other cases, where the parties' connection is entirely omissive (e.g. two physicians fail to detect independently lethal conditions), come out differently (tracking moralized elements). The analysis offered makes better sense of both why omissive determination cases are puzzling and how to resolve them. (shrink)

Reasoning by default is a relevant aspect of everyday life that has traditionally attracted the attention of many fields of research, from psychology to the philosophy of logic, from economics to artificial intelligence. Also in the field of law, default reasoning is widely used by lawyers, judges and other legal decision-makers. In this paper, a philosopher of language (Carlo Penco) and a philosopher of law (Damiano Canale) attempt to explore some uses of default reasoning that are scarcely considered by legal (...) theory. In particular, the dialogue dwells on the notion of literal meaning, witness testimony, and the problem of disagreement among experts in legal proceedings. The paper is intended as a sort of brain storming useful to identify new lines of research straddling philosophy of law, cognitive psychology and philosophy of language. (shrink)

Open science (OS) is considered the new paradigm for science and knowledge dissemination. OS fosters cooperative work and new ways of distributing knowledge by promoting effective data sharing (as early and broadly as possible) and a dynamic exchange of research outcomes, not only publications. On the other hand, intellectual property (IP) legislation seeks to balance the moral and economic rights of creators and inventors with the wider interests and needs of society. Managing knowledge outcomes in a new open research and (...) innovation ecosystem is challenging and should become part of the EU’s IP strategy, underpinning EU policies with the new open science–open innovation paradigm. (shrink)

The ability of videos to serve as evidence of racial injustice is complex and contested. This essay argues that scrutiny of the Black body has come to play a key role in how videos of police violence are mined for evidence, following a long history of racialized surveillance and attributions of threat and superhuman powers to Black bodies. Using videos to combat injustice requires incorporating humanizing narratives and cultivating resistant modes of looking.

We examine the short-term and long-term impact of bilateral agreements on migrant workers’ vulnerability during their employment in Israel. To do so, we developed the Vulnerability Index of Migrant Workers based on five dimensions: poor working conditions, poor living conditions, poor safety conditions, low wages, and dependence on migration costs. We focus on migrant workers arriving in Israel from two different countries, employed in two different sectors of the economy. Data was gathered through a survey conducted among workers arriving from (...) both countries before and after the implementation of the bilateral agreements. The study revealed that after the implementation of bilateral agreements, the working, living and safety conditions of migrant workers remained poor or even worsened. For Thai workers, there was a slight improvement in the working and living conditions in the short term after the bilateral agreement, but they worsened in the long run. The total Index of Vulnerability of both groups showed improvement due to the dramatic decrease in dependence on migration costs, despite the deterioration in some working and living conditions and the reduction in migrant workers’ relative wages. (shrink)

A review of Katharina Pistor's *The Code of Capital: How the Law Creates Wealth and Inequality* (2019, Princeton University Press).

The results of forensic science are believed to be reliable, and are widely used in support of verdicts around the world. However, due to the lack of suitable empirical studies, we actually know very little about the reliability of such results. In this paper, I argue that phenomena analogous to the main culprits for the replication crisis in psychology are also present in forensic science. Therefore forensic results are significantly less reliable than is commonly believed. I conclude that in order (...) to obtain reliable estimates for the reliability of forensic results, we need to conduct studies analogous to the large-scale replication projects in psychology. Additionally, I point to some ways for improving the reliability of forensic science, inspired by the reforms proposed in response to the replicability crisis. (shrink)

ABSTRACT Although there is much to commend in Sarch's Criminally Ignorant: Why the Law Pretends We Know What We Don't, in this piece, I invite Sarch to expand on his analysis by considering how English doctrine diverges from the US doctrine he takes as foundational, and raise some doubts by putting pressure on the theory of culpability that motivates his views on how ignorance supplies culpability. In particular, I question his defence of a motive-insensitive theory of culpability, set out some (...) worries with Sarch's strategy of running theories of inculpation and exculpation together, and suggest that he prematurely rejects motive-based explanations of why a person who is wilfully ignorant of an inculpatory proposition when performing the actus reus of a crime is as culpable as another who does the same thing with the requisite knowledge. (shrink)

If whatever counts as merit for some purpose is unevenly distributed, a decision procedure that accurately sorts people on that basis will “pick up” and reproduce the pre-existing pattern in ways that more random, less merit-tracking procedures would not. This dynamic is an important cause for concern about the use of predictive models to allocate goods and opportunities. In this article, I distinguish two different objections that give voice to that concern in different ways. First, decision procedures may contribute to (...) future social injustice and other social ills by sustaining or aggravating patterns that undermine equality of status and opportunity. Second, the same decision procedures may wrong particular individuals by compounding prior injustices that explain those persons’ predicted or actual characteristics. I argue for the importance of the first idea and raise doubts about the second. In normative assessments and legal regulation of algorithmic decisionmaking, as in our thinking about anti-discrimination norms more broadly, a central concern ought to be the prospect of entrenching harmful and unjust patterns—quite apart from any personal wrong done to the individuals about whom predictions are made. (shrink)

The rapid advancement of artificial intelligence systems has generated a means whereby assistive bionic prosthetics can become both more effective and practical for the patients who rely upon the use of such machines in their daily lives. However, de lege lata remains relatively unspoken as to the legal status of patients whose devices contain self-learning CIS that can interface directly with the peripheral nervous system. As a means to reconcile for this lack of legal foresight, this article approaches the topic (...) of CIS-nervous system interaction and the impacts it may have on the legal definition of “persons” under the law. While other literature of this nature centres upon notions of transhumanism or self-enhancement, the approach herein approached is designed to focus solely upon the legal nature of independent CIS actions when operating alongside human subjects. To this end, it is hoped that further discussion on the topic can be garnered outside of transhumanist discourse to expedite legal consideration for how these emerging relationships ought to be received by law-generating bodies internationally. (shrink)

A multilevel consultative approach to governmental decision-making is increasingly being adopted in the European Union. On the back of this shift, it is prudent to consider the use of such consultative approaches in reforming digital copyright law. The adoption of a multilevel consultative approach has the potential to significantly benefit European Member States and increase political integration in Europe. Such an approach can address the complex dispersion of power amongst different levels of public institutions in the European Union and support (...) effective decision-making. The 2014 Charter for Multilevel Governance (‘Charter’) established a sophisticated governance framework to enhance operational and institutional cooperation and decision-making mechanisms among European Member States. Subsequently, the Charter and the concept of multilevel consultation formed an important facet of the European Union’s review of copyright regulation. The objective of this article is to evaluate the merits of a multilevel consultative approach by analysing its use in the European Union digital copyright law review process. (shrink)

“When today’s technology relies on yesterday’s data, it will simply mirror our past mistakes and biases.” -/- AI and other high-tech tools embed and reinforce America’s history of prejudice and exclusion — even when they are used with the best intentions. Patrick K. Lin’s Machine See, Machine Do: How Technology Mirrors Bias in Our Criminal Justice System takes a deep and thorough look into the use of technology in the criminal justice system, and investigates the instances of coded bias present (...) at every level. -/- In this book, you’ll learn how algorithms and high-tech tools are used in unexpected ways: suggesting which neighborhoods to police, predicting whether someone is more or less likely to commit a crime, and determining how long someone’s prison sentence should be. -/- Machine See, Machine Do takes you on an eye-opening journey of discovery, encouraging you to think twice about our current system of justice and the technology that supposedly makes it more “objective” and “fair.” If you are someone who cares deeply about criminal justice reform, is curious about the role of technology in our day-to-day lives, and ultimately believes we should aspire to make both of these spaces more ethical and safe, this book is for you. (shrink)

Using real-life examples, this book asks readers to reflect on how we—as an academic community—think and talk about race and racial identity in twenty-first century America. One of these examples, Rachel Doležal, provides a springboard for an examination of the state of our discourse around changeable racial identity and the potential for “transracialism.” An analysis of how we are theorizing transracial identity (as opposed to an argument for/against it), this study detects some omissions and problems that are becoming evident as (...) we establish transracial theory and suggests ways to further develop our thinking and avoid missteps. Intended for academics and thinkers familiar with conversations about identity and/or race, Rethinking Rachel Doležal and Transracial Theory helps shape the theorization of “transracialism” in its formative stages. -/- Part I: The Current State of (Trans)racial Discourse The first half begins with five puzzle cases, all based on specific historical figures. Each case poses the problem of someone not being readily “black” or “white” (or “mixed”). The chapter asks readers to think about their assumptions and how/why they might classify any of the puzzle cases racially. Then, with those assumptions and classification processes in mind, Part I outlines particular challenges we face—conceptually, linguistically, politically, and theoretically—as we try to adapt the messy practice of race in the U.S. to a new effort to theorize potential transracial identity. The concerns this half addresses include: how Doležal’s case might be understood alongside the identities of other racial nonconformists; what we think “black identity” consists of and how our language and concepts for race need to be clarified; whether ancestry and phenotype should continue to dominate our discourse; the relevance of political orientation and action to racial identity; and the implications of motive and intention for racial identity. Ultimately, Part I argues that we need to improve the way we are thinking and talking about transraciality in the Doležal era. -/- Part II: Pathways for Further Developing (Trans)racial Discourse Where Part I uses the case of Rachel Doležal and other real-life examples to critique the strains of our existing scholarly discourse on the topic of transraciality, Part II offers broader discussion about some of the ideas that are at play and/or need to be more adequately addressed going forward. Part II outlines some of the problems that I anticipate will trip up the discourse going forward and argues that there are particular ways we (as academics) might navigate them responsibly. My intention here is to identify and explore some of the areas we could strengthen or pay more attention to in an effort to help steer our critical exploration of transraciality in productive directions as the conversation progresses in the future. The concerns raised in Part II include: the linguistic and conceptual problems of “passing”; the very real dangers of conservatism dominating our theorization of transracial identity; the complexities of identity in terms of individual and collective identity and how the process of self-identification affects them; the sensitive and controversial issue of transgender theory (as it relates to transracial theory); and the neglected area of ideal/non-ideal philosophy. Ultimately, Part II argues that we need to avoid significant and harmful mistakes as we decide how to go about theorizing transracial identity and articulates responsible ways we can move forward. (shrink)

The counter majoritarian difficulty is one of the main objections against the judicial review. In this paper, this objection is analyzed from the standpoint of the norm formulation/norm distinction. By stressing the distinc- tion between norm formulations and norms, I claim that when judicial review prevents the application of a norm to an individual case the counter majoritarian difficulty objection does not hold.

Although most Asian states are signatories to UNCLOS, which offers options for dispute resolution by either voluntary or compulsory processes, in reality fewer than a dozen Asian states have taken advantage of such an approach. The decision to adopt third-party mechanisms comes under great scrutiny and deliberation, not least because of the entailing legal procedures and the politically sensitive nature of disputes. Vietnam claims the second-largest maritime area in the South China Sea dispute after China. A comparison of two recent (...) cases—the arbitration between the Philippines and China and the conciliation between Timor-Leste and Australia—highlights the importance of selecting between binding and nonbinding decisions and framing a complaint. In particular, any legal action under UNCLOS should specify China’s claims and actions in areas that encroach on Vietnam’s claimed exclusive economic zone (EEZ) and violate international law. (shrink)

In this Correspondence, I argue that given that scarcity has existed both for critical care resources and for vaccines, allocating critical care resources to prioritize the prevention of early COVID-19 deaths (i.e. COVID-19 deaths among younger patients) could valuably counterbalance the disproportionate exclusion of minority patients and those with life shortening disabilities that age-based vaccine allocation produces. -/- Covid-19 deaths early in life have overwhelmingly befallen minorities and people with life-shortening disabilities. Policies preventing early deaths prevent an outcome widely recognized (...) as worse—dying earlier in one’s life rather than later—while counteracting intersecting forms of injustice. Ultimately, prohibiting the use of age as a tiebreaker in critical care allocation, as Brown et al. propose, will worsen disparities and is not mandated by law. (shrink)

Recently, the practice of deciding legal cases on purely statistical evidence has been widely criticised. Many feel uncomfortable with finding someone guilty on the basis of bare probabilities, even though the chance of error might be stupendously small. This is an important issue: with the rise of DNA profiling, courts are increasingly faced with purely statistical evidence. A prominent line of argument—endorsed by Blome-Tillmann 2017; Smith 2018; and Littlejohn 2018—rejects the use of such evidence by appealing to epistemic norms that (...) apply to individual inquirers. My aim in this paper is to rehabilitate purely statistical evidence by arguing that, given the broader aims of legal systems, there are scenarios in which relying on such evidence is appropriate. Along the way I explain why popular arguments appealing to individual epistemic norms to reject legal reliance on bare statistics are unconvincing, by showing that courts and individuals face different epistemic predicaments (in short, individuals can hedge when confronted with statistical evidence, whilst legal tribunals cannot). I also correct some misconceptions about legal practice that have found their way into the recent literature. (shrink)

Nowhere in the works of what is called Aristotle is there a discussion of anything named Natural Law. Everywhere in the works of what is called Aristotle there are discussions of principles and there are discussion of laws; separately. And for this reason: Nature abides by principles. Humans make laws. By nature, aggression is the principle. Since aggression impedes each particular person in the same way, a universal manner, this universal offense is the impetus for a prescription of any law (...) at all. Law was first prescribed to prohibit that natural aggression. Hence, there is no non-aggression principle. Aggression is the principle, non-aggression is the law. The purpose of good law is to protect and maintain this natural justice of equality before any law. Unjust laws are an attempt to establish some other sort of equality that is not universal. Seeing this distinction of principles and laws as separate makes clear what is right by nature and wrong by law. However, at some places in the works of what is called Aristotle there is a discussion of what may be named natural rights, political rights, and natural justice. The preceding paragraph is the application of Aristotle’s CATEGORIES, INTERPRETATION, ANALYTICS, TOPICS, and RHETORIC as the means of separating the true from the false. (shrink)

In its recent opinion in Intel v. Sulyma, the U.S. Supreme Court clarified what qualifies as the “actual knowledge” required to trigger ERISA’s three-year statutory period. The Court’s opinion, however, left open whether establishing “actual knowledge” by a plaintiff in one case serves to time-bar otherwise timely suits that challenge subsequent breaches of the same character. This article argues that, under the continuing fiduciary duty analysis that the Court set forth in Tibble v. Edison, such suits should not be deemed (...) untimely. (shrink)

This article addresses the fiduciary issues raised by the current practice of plan fiduciaries of not only disclaiming any fiduciary responsibility for brokerage window investments, but also abdicating any role (fiduciary or otherwise) in assessing even the general suitability of those investments for a retirement plan, and concludes that the practice is in plain and notorious violation of what ERISA requires of fiduciaries.

The Convention on the Elimination of all Forms of Discrimination Against Women 1979 (CEDAW) is beset with a substantial number of reservations, which is evidence of an antagonistic attitude towards the universalism of human rights. These reservations have largely been made on religious and cultural diversities that are incompatible with the core provisions of the Convention. The effect of this is that they make the overall purpose of the Convention to be defeated. This article examines the impact of the reservations (...) and the possible justifications bordering on the debate surrounding universalism, cultural relativism, tradition and religion. The article welcomes the extension of the Convention’s tentacles into controversial aspects of states’ public and private sphere to viciously tackle existing discriminatory practices against women. The article suggests that human rights should not be subjected to the superiority of one region, culture or religion over another because it has the effect of discrediting the intention of the rights. The article concludes by advocating for intense dialogue and continuous negotiations with states, to have many of such reservations withdrawn and for the intended reality of the Convention to be achieved. (shrink)

El capítulo parte por ubicar el contexto social y político en el que se enmarca el cambio constitucional de 1991 en Colombia, asimismo, sus antecedentes jurídicos-políticos, a fin de dar cuenta de las diversas estrategias utilizadas para su aprobación y desarrollo. Seguidamente, nos ocupamos de las discusiones que al interior de la ANC se dan sobre la salud, y la forma bajo la cual se configuran las políticas sociales bajo la nueva forma de Estado Social de Derecho, para presentar finalmente (...) algunos elementos de discusión. (shrink)

Este artigo visa fazer uma possível defesa ao abolicionismo penal com base nas análises durkheimianas acerca do Crime, expostas na obra As Regras do Método Sociológico, e nas confessas leituras que Nietzsche fez das escrituras cristãs, estabelecendo um paralelo entre si e Cristo. Desta maneira, a arguição se estruturará baseada no ponto relacional Nietzsche-Jesus sobre as análises sociológicas de Émile Durkheim. Para tal, apresentar-se-á quatro perspectivas, três do Novo Testamentos e uma do Velho Testamento, à fim de se expor pontos (...) que sustentariam, com esta metodologia, o abolicionismo. Conclui-se, então, que através de Nietzsche pode-se defender uma outra estrutura argumentativa possível neste embate contra a criminologia moderna. (shrink)

With the establishment of the World Trade Organization in 1995, the dispute settlement mechanism for international trade was greatly prepared unlike the old GATT system. It has a very different pattern from that of original GATT system. In our case, international trade is a matter of the future of nations, and in reality of the intense world economic competition, this system change may well be of concern to our government or legal experts. In this context, this paper examines the nature (...) and problems of the WTO appeal system under the premise of the rule of law, judicial prowess, and the role of a judge. The WTO dispute settlement mechanism is based on the domestic judicial system or other international judicial systems. In contrast to this, the comparative history is only short indeed, but according to the accumulation of future precedents, it is highly possible to provide a model for the achievement of the rule of law ideals in the international community. However, due to the inherent limitations of international agreement system, the reality of appellate body is not easy. In terms of the international trade and rule of law, the role of appellate body and judges is very broad. However, in this paper, we first look at the significance and nature of the launch of WTO and furthermore; 1) the rule of law and judicial system, 2) several issues related to the nature of WTO dispute settlement mechanism, 3) the importance of judge-made law and the scope and limitations of appellate jurisdiction, 4) issues of reference materials submitted by procedures outside the process, 5) the relationship between the appellate body and political authorities. Over the review, the penetrating thoughts will be focused on judicial activism. Those points of consideration will be discussed through the approach and method on the comparative legal studies and several significant WTO precedents. (shrink)