This chapter contains sections titled: Why Authority? The Forms and Limits of Authority The Paradoxes of Authority The Justification of Authority Authority and the Obligation to Obey the Law Legal Authority Conclusion References.

Public health legal preparedness begins with effective legal authorities, and law provides a key foundation for public health practice in the United States. Laws not only create public health agencies and fund them, but also authorize and impose duties upon government to protect the public's health while preserving individual liberties. As a result, law is an essential tool in public health practice and is one element of public health infrastructure, as it defines the systems and relationships within which public health (...) practitioners operate.For purposes of this paper, law can be defined as a rule of conduct derived from federal or state constitutions, statutes, local laws, judicial opinions, administrative rules and regulations, international codes, or other pronouncements by entities authorized to prescribe conduct in a legally binding manner. Public health legal preparedness, a subset of public health preparedness, is defined as attainment of legal benchmarks within a public health system. (shrink)

Public health legal preparedness begins with effective legal authorities, and law provides a key foundation for public health practice in the United States. Laws not only create public health agencies and fund them, but also authorize and impose duties upon government to protect the public's health while preserving individual liberties. As a result, law is an essential tool in public health practice and is one element of public health infrastructure, as it defines the systems and relationships within which public health (...) practitioners operate.For purposes of this paper, law can be defined as a rule of conduct derived from federal or state constitutions, statutes, local laws, judicial opinions, administrative rules and regulations, international codes, or other pronouncements by entities authorized to prescribe conduct in a legally binding manner. Public health legal preparedness, a subset of public health preparedness, is defined as attainment of legal benchmarks within a public health system. (shrink)

It is well known that experts’ opinion and testimony take on a decisive weight in judicial fact-finding, raising issues and perplexities that have long been under scholarly scrutiny. In this paper I argue that expert’s opinions have a much wider impact on legal decision-making. In particular, they may generate a problem that I will call ‘the opacity of law’. A legal text, such as a statute or regulation, becomes opaque if a legal authority is not able (...) to grasp its full linguistic content but is nevertheless in a position to use it, thanks to an expert’ opinion, in legal decision-making. When this occurs, not only do experts contribute to fact-finding but also to determining the content of the law. In the paper I analyse the linguistic and cognitive sources of this phenomenon, its characteristics and troublesome consequences, and the different kinds of opacity that may affect legal decision-making. (shrink)

Ch. 1 defines activism as involving four judicial practices: refusing to take an attitude of deference for legislative or executive power or judgment; relaxing requirements for justiciability; breaking precedent; and loosely or controversially construing constitutions, statutes or precedents. I defend each element, through , in later chapters. I defend primarily in Ch. 2A-B, primarily in Ch. 2C, primarily in Ch. 3 and in Chs. 2 and 4. Ch. 1 concludes that - seem to have knowing change of the law (...) in common. Ch. 1 considers and rejects different definitions of activism. My definition explains what I call The Crossover Thesis, which says that two types of activism, and , are quite distinct, and what I call The Political Neutrality Thesis, which says activism and passivism are politically neutral in that neither is necessarily conservative or liberal, and neither is necessarily politically superior to the other. ;Ch. 2 defends activism against objections based on democracy by reconciling activism with democracy somewhat and by supporting some activism based on the Constitution's supreme legal authority. I give what I call The Ashwander Defense and the Carolene Defense of activism, which are named after famous judicial opinions I use to defend activism. ;Ch. 3 argues against stare decisis, which requires following precedent. The passivists' version of stare decisis is inadequately supported by arguments that stare decisis increases: the fairness of treating like cases alike; the predictability of the law; thereby the efficiency of judges in making decisions. ;Ch. 4 argues that courts should use due process more to support activism which clarifies the law. I show how much activism is justified by the vagueness doctrine, which constitutionally requires law's meaning to be reasonably accessible to ordinary people. ;Ch. 5 summarizes earlier chapters and shows how my defense of activism is restrained. (shrink)

It is well known that experts’ opinion and testimony take on a decisive weight in judicial fact-finding, raising issues and perplexities that have long been under scholarly scrutiny. In this paper I argue that expert’s opinions have a much wider impact on legal decision-making. In particular, they may generate a problem that I will call ‘the opacity of law’. A legal text, such as a statute or regulation, becomes opaque if a legal authority is not able (...) to grasp its full linguistic content but is nevertheless in a position to use it, thanks to an expert’ opinion, in legal decision-making. When this occurs, not only do experts contribute to fact-finding but also to determining the content of the law. In the paper I analyse the linguistic and cognitive sources of this phenomenon, its characteristics and troublesome consequences, and the different kinds of opacity that may affect legal decision-making. (shrink)

Criticism of court decisions is a favored American pastime. Typically, such criticisms are grounded in extra-legal criteria such as common sense (or lack of it) and morality (or immorality). Thus Tennessee Valley Authority v. Hill (1978) in which the Supreme Court halted the construction of the nearly completed Tellico Dam because it endangered the habitat of the snail darter, an action forbidden by the Endangered Species Act, was said to confound common sense; and many have called immoral Roe v. (...) Wade (1973) which said the right to abortion, at least through the first trimester, was constitutionally guaranteed. 1 However, even if such criticisms are justified, they do not address the legal issue, which is whether the court got the law wrong. (shrink)

This article is the first attempt to justify the "next" milestone in the development of legal realism: hyperrealism. The implications of digitalization have become the new fuel for the legal realist's jurisprudence prediction theory, that is, empirical research to predict the judge's or the court's decision. Indeed, that was impossible for American realists in the early twentieth century, and all the attempts failed. Therefore, tools such as Judicial Analytics allow us to prove that personal motives and prejudices affect (...) a dispute's resolution. Based on a systemic, comparative, and interdisciplinary analysis that intermingles legal theory, data analytics and digital technologies, the article substantiates the concept of hyperrealism itself. It evaluates the advantages and disadvantages of its primary tool—judicial analytics. The authors state the necessity of creating regulatory mechanisms of "curbing" to use them to improve justice and minimize the risk of rights violations. They propose using tools of expert evaluation, standardization, and ethical regulation of forensic analysis. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Landmark Legal Cases in BioethicsSusan Cartier Poland (bio)Only a few decades old, the interdisciplinary field of bioethics has developed surrounded by centuries of legal tradition and moral philosophy. Bioethics and the law have weaved back and forth over time influencing each field. Sometimes ethics leads the debate on problematical issues; for example, the Recombinant DNA Advisory Committee at the National Institutes of Health established regulations prior to initiating human (...) gene therapy. At other times, law takes over; Roe v. Wade, for example, has polarized and closed public discussion on abortion. Most frequently, however, scientific developments initiate discussion in both fields, as when the announcement of the birth of Dolly—the first cloned mammal—sparked President Clinton to ask the National Bioethics Advisory Commission for a report on cloning.A back-and-forth pattern also exists within the law itself, this time between legislator and judge. Legislators enact statutes, which apply universally to regulate conduct in society. Judges, on the other hand, interpret statutes and apply them to particular cases to resolve disputes between parties. Case law, as judge-made law is called, that grows in the absence of legislation becomes the common law. Legislatures can change the course of common law development by enacting more law, usually as amendments, but sometimes as repeals. A judge who sees the facts of a case or the law differently may also change the common law. And so the counterpoint between legislator and judge goes.A legal case becomes a landmark in bioethics because of its historical or precedential value to the field. Historical cases reflect judicial reasoning or rationalization that lays the conceptual foundation for a bioethical principle. Perhaps the best known example of this is the focus on the right to self-determination in Schloendorff that led to the development of informed consent. The principle of autonomy in bioethics derives its legal impetus from this line of cases.A case that acquires landmark status because of its precedential value does so for one of two reasons based on legal precedents. First, the case may be one of “first impression.” In the legal sense, that means that the particular case with its [End Page 191] facts or issues is the first one that a particular court has confronted within that court’s jurisdiction or area of decision-making authority. To be a landmark in bioethics, however, the ordinary sense of “first impression” applies. The first time that a particular bioethical topic has appeared in court for legal resolution makes a case one of “first impression” for bioethics. The case of Baby M on surrogacy contracts illustrates this.The second way in which a case can achieve landmark status based on precedents involves legal precedent and the jurisdictional basis of the court system. Under the common law system, a preceding case that involves the same or similar facts or issues as a current case must be followed by lower—i.e., less authoritative—courts in the same jurisdiction. That judicial rule of decision making is called stare decisis. It creates an institution of continuity, yet allows for change due to differences in judicial interpretation of facts and issues, which is called distinguishing the case.All courts under United States jurisdiction must follow the U.S. Supreme Court. By its sheer power of authority, the Court issues opinions that, if they concern bioethical topics, make cases landmarks in bioethics. For example, Roe v. Wade made abortion legal and set off the debate between maternal and fetal rights. Casey later refined, or to some redefined with a discussion of stare decisis, the bioethical underpinnings of Roe by framing the debate as one between maternal rights and state interests.In law, precedents concern only appellate cases. Trial courts, like that in McFall v. Shimp, handle questions of both fact and law. Appellate courts, like that in Brotherton, hear appeals from the lower trial courts and address legal issues only. Trial judges apply the law to facts, and appellate judges reason about the trial judge’s legal interpretation.Appellate court decisions are the ones most frequently published, either in print or electronically online, for citation. Consequently they are the easiest to locate and retrieve. “Reporters” as... (shrink)

An essay in normative jurisprudence where the author is concerned with delineating and evaluating legal decision procedures. The appeal to precedent and equity are critically examined and found to be deficient. Wasserstrom proposes as an improvement a two-level decision procedure, which is like precedent in appealing to a rule of law as a necessary condition for deciding a case, and like equity "in that considerations of justice are directly relevant to the justification of any decision." He frankly (...) admits that this decision procedure is an improvement at the "price of becoming imprecise at certain crucial points." The discussion is informed throughout with an appreciation of both legal and philosophical treatments of the issues.--S. M. W. (shrink)

A current focus of legal debate is the proper role of the courts in the interpretation of statutes and the Constitution. Are judges to look solely to the naked language of an enactment, then logically deduce its application in simple syllogistic fashion, as legal formalists had purported to do? Or may the inquiry into meaning be informed by perhaps unbridled and unaccountable judicial notions of public policy, using legal realism to best promote the general welfare? Judge Posner considers the (...) concepts of formalism and realism to be meaningful and useful in common law reasoning but in interpretation to be useless and, worse, forbidden. He analogizes unclear "orders" from a legislature to garbled battlefield communications, and argues that the duty of the recipient of those orders (the judge) is to advance as best he can the enterprise set on foot by the superiors. Case studies elaborate this thesis. Judicial decisions interpreting fixed texts, Judge Posner concludes, can be neither logically correct or incorrect, philosophically sound or unsound, until the ultimate jurist, time, has adjudged their results. (shrink)

"Best interests" is widely accepted as the appropriate foundation principle for medico-legal decisions concerning treatment withdrawal from patients in persistent vegetative state (PVS). Its application appears to progress logically from earlier use regarding legally incompetent patients. This author argues, however, that such confidence in the relevance of the principle of best interests to PVS is misplaced, and that current construction in this context is questionable on four specific grounds. Furthermore, it is argued that the resulting legal inconsistency is distorting both (...) the principle itself and, more particularly, individual patient interests. (shrink)

In the article these are considered ethical and legal problems caused by the ongoing pandemic of the new coronavirus disease. New challenges for health care, economy, education not only revealed rather a high level of stability and mobility, but also showed a poor readiness of response to sudden risks, which had a certain impact on all spheres of life of the whole society. The authors have conducted a brief cross-cultural analysis of the issue basing on data quoted by the international (...) network of UNESCO chairs in bioethics, sessions of the Bioethics Committee within the RF Commission on UNESCO affairs, as well as official open sources of the health care system and judicial sphere of the Russian Federation. Strong reciprocal link of legal risks in the interdisciplinary field of medicine and law are made discernable: on the one hand, introduction of sanitary and hygienic regulations are aimed at the realization of the right of protecting the health, while on the other hand they represent a violation of basic human rights. Besides the theoretical approach to the problem of the observance of the constitutional rights of citizens in the pandemic conditions there exists a real threat of their violation due to absence of special mechanisms of their realization in frames of sanitary and hygienic measures with regard to the vulnerable and socially disadvantaged sections in the society. It is made conclusion about necessity of the international collaboration for the purpose of joint decision-making and action in the sphere of health care taking into account an international character of ethical and legal challenges triggered by COVID-19 pandemic, as well as national, economic, cultural and confessional peculiarities. (shrink)

H. L. A. Hart’s The Concept of Law (Hart 1994) contains many passages that have become iconic for legal theory. This essay focuses on Chapter 7, sections 1 and 2, and Hart’s comments about judicial discretion in the context of Ronald Dworkin’s well-known attack on the idea of judicial discretion in his essay “The Model of Rules”. Specifically, the paper undertakes three projects. The first project is to defend the importance of the fundamental picture that Hart presents in (...) Concept, Chapter 7 of Common-Law judicial rule-making. Hart represents such rule-making as a balance of certainty and flexibility, and he is correct to do that. The second project is to argue that Dworkin’s attack on the positivist model of common-law judicial rule-making as an exercise of “strong discretion” fails. The idea, central to the meaning of “strong discretion” that courts are not “not bound by standards set by the authority in question” cannot be established. The third is to argue that Hart is his own worst enemy. The language, metaphors and images he uses to present his account of common-law judicial rule-making open the way to Dworkin’s critique. They also reveal Hart, if the language, metaphors and images are taken seriously, to be precisely the kind of formalist or deductivist about adjudication that he is ostensibly in Concept Chapter 7 criticising.Resumen:El concepto de derecho (1994) de H. L. A. Hart, contiene muchos pasajes que se han convertido en íconos de la teoría jurídica. Este artículo se concentra en el capítulo 7, sección 1 y 2, y en los comentarios que realizara Hart sobre la discreción judicial en el contexto de la bien conocida crítica de Dworkin a esta misma idea en su ensayo “El modelo de las normas”. Específicamente, el artículo emprende tres proyectos. El primero de ellos consiste en defender la importancia del esquema fundamental que ofrece Hart en el capítulo 7 de su obra, esto es, la creación judicial de normas en el Common Law. Hart representa tal creación de normas como un balance de certeza y flexibilidad; y él está en lo correcto al presentarlo de tal modo. El segundo proyecto consiste en argumentar que la crítica de Dworkin al modelo positivista de la creación judicial de normas en el Common Law, como un ejercicio de “discreción fuerte”, no está sustentada. La idea —central para el significado de “discreción fuerte”— de que los tribunales no están “sujetos a criterios establecidos por la autoridad en cuestión” no puede ser establecida. El tercer proyecto consiste en argumentar que Hart es su peor enemigo. El lenguaje, las metáforas e imágenes que emplea para exponer su teoría de la creación judicial de normas en el Common Law abre la puerta a la crítica dworkiniana. Si tomamos en serio el lenguaje, las metáforas y las imágenes, encontraremos a un Hart del tipo formalista o deductivista sobre la adjudicación, justo como el que él mismo está abiertamente cuestionando en el capítulo 7 de El concepto. (shrink)

Legal reasoning settles morally pressing matters through a technique that largely bypasses open-ended moral argument. That technique makes central what certain persons validly decided in the past, for example in creating statutes, judicial resolutions, contracts, or wills. Identifying valid decisions is a lawyerly skill and, echoing legal practice, legal philosophy has paid considerable attention to validity criteria. But it has neglected to explore validity's point: whether, and if so exactly how, the special technique of validity contributes to a legal (...) system's ability to realise justice and human rights. Even the most sensible defences of the moral need for positive law have insufficiently probed this key step in the argument. This book lays bare the workings of legal validity, and shows why, and within what general limits, this technique equips legal systems with privileged tools to foster human well-being. In so doing, the book explains how power-conferring norms setting out validity criteria endow agents' intentions with 'performative' effect ('I hereby.') and can secure the requirement of justice that there be widespread convergence on specific patterns of conduct shaped through a cooperative effort. Legal meaning is accordingly systemic, resulting from the valid acts of multiple agents whose decisions can, by virtue of exercising legal power, also exercise moral power (authority). In short, the book articulates why it is morally necessary that validity does not primarily turn on moral considerations. (shrink)

Background: Debates over legalisation of physician-assisted suicide or euthanasia often warn of a “slippery slope”, predicting abuse of people in vulnerable groups. To assess this concern, the authors examined data from Oregon and the Netherlands, the two principal jurisdictions in which physician-assisted dying is legal and data have been collected over a substantial period.Methods: The data from Oregon comprised all annual and cumulative Department of Human Services reports 1998–2006 and three independent studies; the data from the Netherlands comprised all four (...) government-commissioned nationwide studies of end-of-life decision making and specialised studies. Evidence of any disproportionate impact on 10 groups of potentially vulnerable patients was sought.Results: Rates of assisted dying in Oregon and in the Netherlands showed no evidence of heightened risk for the elderly, women, the uninsured , people with low educational status, the poor, the physically disabled or chronically ill, minors, people with psychiatric illnesses including depression, or racial or ethnic minorities, compared with background populations. The only group with a heightened risk was people with AIDS. While extralegal cases were not the focus of this study, none have been uncovered in Oregon; among extralegal cases in the Netherlands, there was no evidence of higher rates in vulnerable groups.Conclusions: Where assisted dying is already legal, there is no current evidence for the claim that legalised PAS or euthanasia will have disproportionate impact on patients in vulnerable groups. Those who received physician-assisted dying in the jurisdictions studied appeared to enjoy comparative social, economic, educational, professional and other privileges. (shrink)

At least since the publication of the monumental Strategic Management: A Stakeholder Approach, the "stakeholder theory" originated by R. E. Freeman has engrossed much of the business ethics literature. Subsequently, some advocates have moved a bit too quickly and without proper definition or argument. They have exceeded Freeman's intentions which are more libertarian and free-market than is often thought. This essay focuses on the versions of stakeholder theory directly authored or coauthored by Freeman in an effort to recover Freeman's intentions (...) and the argumentative justification of stakeholder theory. It then argues that Freeman's appeal to legal, economic, and ethical constraints ultimately produce arguments that are invalid. One can thoroughly support legislation constraining corporations or seeking to prevent age discrimination, market monopolies, and externalities and regret the extent that capitalism is heir to such shortcomings without it following that business beneficiaries should be changed from stockholders to stakeholders and the latter should be given serious decision-making power. Further, stakeholder theory neither defines nor battles any obvious opposition. Hence, it is difficult to see what it changes about business management. In short, stakeholder theory either changes too much about business, or nothing important at all. Efforts to supplant or improve the reigning theory of capitalism will have to do better. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:A Bibliography of the New Rhetoric ProjectDavid A. Frank and William DriscollScholars do not have access to a complete bibliography of the new rhetoric project. We have redressed this problem by compiling what we believe is the most comprehensive bibliography to date of the works of Chaïm Perelman and of those he coauthored with Lucie Olbrechts-Tyteca. The bibliography includes all the English and French titles, as well as titles (...) that saw first publication in other languages. Translations we believe Perelman may have authorized or endorsed are included.With this bibliography, scholars can now better understand how the new rhetoric project was conceived and how it unfolded. Within the larger constellation of the project, Perelman's bibliography is the most extensive, numbering almost three hundred entries. The trajectory of Perelman's scholarship reveals the origins of the new rhetoric project and how it evolved between the time of his announcement in 1949 that he and Olbrechts-Tyteca had embarked on a program designed to rehabilitate reason and the period of his final articles in the 1980s. A review of the articles and books that came out of the Perelman and Olbrechts-Tyteca collaboration reveals both a phase of conceptualization and development of the project and a phase of culmination. In the first phase, commencing with Rhétorique et philosophie, the authors established the need for a rhetorically grounded philosophy. As they built toward the publication of the Traité, [End Page 449] the culmination of their ten-year effort, they wrote articles elaborating on "notions" in argumentation (1955) and on the tenets of the "new rhetoric" (1956). In 1958, the year the Traité appeared, they published articles on classical and romantic loci in argumentation and on time in argumentation. With the exception of a 1983 tribute to the theorist Pareto, they did not write together after 1958 but instead pursued separate lines of research out of their collaboration. A significant number of theses entries rehearse and embellish notions introduced between 1947 and 1958, the years of the genesis, development, and culmination of Chaïm Perelman and Lucie Olbrechts-Tyteca's new rhetoric project.AbbreviationsChALe champ de l'argumentationDMPDroit, morale, et philosophieEDEthique et droitIJPAThe Idea of Justice and the Problem of ArgumentJLAJustice, Law, and Argument: Essays on Moral and Legal ReasoningNRHThe New Rhetoric and the Humanities: Essays on Rhetoric and Its ApplicationsJJusticeJRJustice et raisonRPRhétorique et philosophie pour une théorie de l'argumentation en philosophieBibliography1931 "Esquisse d'une logistique des valeurs." Revue de l'Université de Bruxelles 36 (3–4): 486–96. Google Scholar1932 "A propos de la philosophie de M. Dupréel." Revue de l'Université de Bruxelles 37 (3): 385–99. Google Scholar1933 "De l'arbitraire dans la connaissance." Archives de la Société belge de philosophie 5 (3): 5–44. Google Scholar"Le statut social des jugements de vérité." Revue de l'Institut de sociologie 13 (1): 17–23. Google Scholar1935 "Réflexions sur l'assimilation." La tribune Juive 12:51–52. [End Page 450]Google Scholar1936 "L'antinomie de M. Gödel." Bulletins de l'Académie royale des sciences, des lettres et des beaux-arts de Belgique 22 (6): 730–36. Google Scholar"Les paradoxes de la logique." Mind 45 (178): 204–8. Google Scholar1937 "L'équivalence, la définition et la solution du paradoxe de Russell." L'enseignement mathématique 36 (5–6): 350–56. Google Scholar"Metafizyka fregego." Kwartalnik filozoficzny 12 (2): 121–42. Google Scholar"Réponse à MM. Grelling et Beth." Mind 46 (182): 278–79. Google Scholar"Une solution des paradoxes de la logique et ses conséquences pour la conception de l'infini." In Congrès Descartes: IXe Congrès international de philosophie, 6:206–10. Paris: Hermann. Google Scholar1938 "Etude sur Frege." PhD diss., Université Libre de Bruxelles.1939 "Etude sur Gottlob Frege." Revue de l'Université de Bruxelles 44 (2): 224–27. Google Scholar"De logica en het vrije onderzoek." Revue de l'Université de Bruxelles 44 (2): 209–19. Google Scholar"La morale des forts et la morale... (shrink)

The two grand theories of judging – legal realism and legal formalism - have their differences set around the importance of legal rules. For formalists, judging is a rule-bound activity. In its more extreme versions, a judge is seen as an operator of a giant syllogism machine. Legal realists, in contrast, argue that legal rules, at least formal legal rules, do not determine outcomes of cases. Legal realism has been misunderstood almost everywhere outside its birthplace – the United States. Continental (...) legal theory, for one, views legal realism as practical, down-to-earth, hard-nosed school of thought which is opposed to the more “scientific” theories. The purpose of this article is two-fold. First, to show what legal realists really stood for - that contrary to the popular myth, they did not maintain that formal legal rules do not matter at all; that most of them considered legal rules to be important, only many of those rules are informal rules. Second, contrary to the popular understanding in Continental legal theory, legal realism by its nature was not an antiscientific theory of judging - in fact, it was either a first scientific theory of judging or at least its prototype. (shrink)

A decision by the Supreme Court of California in the case Conservatorship of Wendland, issued in August 2001, forces us once again to confront the all-too-common situation in which an individual has, on multiple occasions, expressed strongly held personal convictions about life-sustaining interventions but failed to incorporate those convictions into a formal advance directive. Many courts have recognized that lay citizens do not consistently resort to written legal formalities in their day-to-day lives, and reasonable accommodation must be made to (...) this fundamental fact about human nature. However, a small but apparently growing minority of courts adamantly insist on either formal written directives or prescience and prophetic precision on the part of the patient before a surrogate can direct the withdrawal of life-sustaining treatment. The chronology of cases that comprise this minority position in American medical jurisprudence raise important ethical issues. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:These Things I BelieveA. M. ShuhamI am a health care professional who has worked in the field for two decades. I have been part of small miracles and heartbreaking events, which kept me up at night. Although I do not [End Page 120] provide direct patient care, my advanced education and expertise allows me to advise members of the health care team when difficult questions arise about the goals (...) of treatment, questions about competency and interpreting patient preferences. I believe my interest in the field was shaped by my family’s experience dealing with the challenges that come with terminal illness and advancing age. I am humbled to have been part of their journey as they faced death with dignity and grace.Living in a small community presents significant challenges that may never occur in a large urban setting. The team you work with knows your family or the names of your children because in their spare time they are the piano teacher or soccer coach for your children, friends that knew you growing up. This close knit atmosphere can be a blessing when things go well and unbearable when mistakes are made or professionals disagree, because you still interact with one another outside the context of your professional role and this is when moral distress begins.I began working with A. J. ten years ago to facilitate the completion of a health care directive. At the time A. J was beginning to show the signs of a neuro–muscular disease experienced by other members of the family. In early 2000 most directives were fairly straightforward with the option to choose artificial nutrition and hydration or not. A. J. very specifically checked “none.” Years went by living independently for A. J. but as most illnesses progress so did A. J’s, and admission to a health care institution became necessary. In many situations medically assisted nutrition and hydration would be indicated, but in this case the wishes of the patient were known in the form of a health care directive. The decision makers inability to honor the directive was the purpose for my involvement almost a decade after my initial work with A. J.No matter where you stand in the debate regarding medically assisted nutrition and hydration being burdensome or ordinary care, most people believe in the importance of a health care directive given the histories of Nancy Cruzan, Karen Quinlan and Terri Schiavo. My objective was to compile the legal information that would elucidate the patient preferences and help staff and the decision maker understand it was time to honor the directive given the advanced stage of disease. Numerous attempts were made with the surrogate and health care professionals to help them understand state statutes on health care directives supporting a patient’s right to chose. It became clear that some of the team seemed disinterested in my concerns or my responsibility as a professional, and I began to believe the difficulty was a failure on my part to communicate clearly.During that first year conversations and meetings were scheduled with the patients decision makers and they felt unable to make a decision and requested the entire family provide input. Although they understood A. J’s wishes, they felt everyone should be in agreement. In my experience when leaving decisions of this magnitude to a large extended family, communications deteriorate and little can be accomplished. Some members in the family held fundamental religious beliefs and thought a miracle could change the prognosis. While I believe as health care professionals we must respect individual religious beliefs and values, we are also morally obligated to advocate on behalf of our patients a fundamental principle I hold dear.The health care team was no more eager to address the issue than the family. I had produced specific state statutes regarding the health care directive of a previously competent person and even in light of this information, some individuals continued to believe the surrogates decision took precedence over the directive. This growing tension left me feeling angry and ineffective, questioning my role in the organization, while watching A. J. linger in a state not chosen. I believed I had failed... (shrink)

The same research proposal was submitted to 24 district health authority (DHA) research ethics committees in different parts of the country. The objective was to obtain permission for a multi-centre research project. The study of neonatal care in different types of unit (regional, subregional and district), required that four health authorities were approached in each of six widely separated health regions in England. Data were collected and compared concerning aspects of processing, including application forms, information required, timing and (...) class='Hi'>decision-making. The key finding was that ethics committees received and processed the applications variably, reflecting individual factors and local problems. To improve consensus and facilitate multicentre studies, standard forms and instructions are suggested and the establishment of a national committee or advisory group advocated. (shrink)

International criminal tribunals established by the UN Security Council in the 1990s have been widely acclaimed as active participants in the modern system of dynamic criminal justice. One of their best known achievements is the prosecution of rape and sexual assaults. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set an example for other tribunals to follow. By interpreting a variety of international laws, the community of international legal professionals has been (...) able to shift the prevailing understanding of rape and sexual violence away from that of an “unfortunate byproducts of war.” Not only has the epistemic community of legal professionals been able to end impunity for these crimes, but case-law of international tribunals has become a basis for subsequent trials at quasi-international tribunals. Decisions of the tribunals have been instrumental in drafting the Statute of the International Criminal Court and can be regarded as an example of the formation of new international norms by means of judicial decisions. (shrink)

At least since the publication of the monumental Strategic Management: A Stakeholder Approach (1984), the “stakeholder theory” originated by R. E. Freeman has engrossed much of the business ethics literature. Subsequently, some advocates have moved a bit too quickly and without proper definition or argument. They have exceeded Freeman’s intentions which are more libertarian and free-market than is often thought. This essay focuses on the versions of stakeholder theory directly authored or coauthored by Freeman in an effort to recover (1) (...) Freeman’s intentions and (2) the argumentative justification of stakeholder theory. It then argues that Freeman’s appeal to legal, economic, and ethical constraints ultimately produce arguments that are invalid. One can thoroughly support legislation constraining corporations or seeking to prevent age discrimination, market monopolies, and externalities and regret the extent that capitalism is heir to such shortcomings without it following that (1) business beneficiaries should be changed from stockholders to stakeholders and (2) the latter should be given serious decision-making power. Further, stakeholder theory neither defines nor battles any obvious opposition. Hence, it is difficult to see what it changes about business management. In short, stakeholder theory either changes too much about business, or nothing important at all (depending on one’s interpretation). Efforts to supplant or improve the reigning theory of capitalism will have to do better. (shrink)

This article maintains that it is the constitutional responsibility of the courts, here the courts of the State of Michigan, to engage in judicial policymaking in the process of formulating common law rules. The article is written in response to the views expressed by some Justices of the Michigan Supreme Court that separation of powers concerns should impose significant limits on the power of the courts to establish and develop the common law of Michigan. Specifically, the contention is that (...) policymaking is exclusively the province of the legislature, so that the courts cannot properly formulate common law rules that may have significant social and economic effects. The article strongly disagrees with the proposition that there is any kind of constitutional constraint, either prudential or structural, on the power, and indeed, the constitutional responsibility of the Michigan courts (or the courts of any state) to engage in judicial policymaking in the process of formulating common law rules.The judicial power given to the Michigan courts by the Michigan Constitution includes the power to do what courts have always done in the Anglo-American legal system. The judicial power gives the courts the responsibility to adjudicate controversies between private persons and in the process to develop a common law through the workings of binding precedent and stare decisis. In so doing, the courts may properly take into account considerations of social and economic policy just as the legislature does when it engages in the process of enacting legislation. The difference between what the courts do and what the legislature does is a difference in process, not a difference in substance. Judicial policymaking takes place within the judicial process, that is, in the adjudication of controversies between persons in which the courts promulgate common law rules. The common law develops in a line of growth through the workings of binding precedent and stare decisis, and to the extent that there are limitations on the development of the common law, these are limitations that inhere in the judicial process itself. When the courts, for example, consider whether a new claim or a new defense should be recognized by the common law, they must consider whether that new claim or defense properly follows in the line of growth from existing doctrine and precedent. But if the courts conclude that it does, that is, if the claim or defense is consistent with the line of growth of existing doctrine and precedent, the courts are not constrained from recognizing the claim or defense on the ground that the substance of the claim or defense is a matter for the legislature rather than for the courts or that the resulting common law rule may have significant social and economic effects. The legislature, in contrast, enacts legislation through the legislative process. That process is a freewheeling one, often dependent on political compromise and completely unrestrained by the kind of limitations that inhere the judicial process. There is no legislative concept of line of growth, and the legislature can and often does enact legislation that brings about fundamental societal change or reverses the course of public policy. In our constitutional system, the most important questions of public policy are, of course, determined by the Legislature. Where the legislature disagrees with the policy choices reflected in a common law rule, the legislature has the power to enact legislation changing the common law rule. But there are many areas of private law where the legislature has not acted. In our constitutional system, where the matter in issue is not covered or preempted by legislation, the courts may formulate a common law rule to cover that matter, and in so doing may engage in judicial policymaking. Judicial policymaking is a part of the development of the common law, and the courts cannot avoid their responsibility to engage in judicial policymaking to the extent that it is necessary in the process of formulating the common law. As a constitutional matter, there are no separation of powers considerations that prohibit the courts from engaging in judicial policymaking. This part of the article traces judicial policymaking and the common law back to the seminal writings of Oliver Wendell Holmes, Roscoe Pound and Benjamin Cardozo.The article then discusses at length judicial policymaking and the development of the common law in Michigan. It shows that the clearest history of judicial policymaking in development of the common law is the liability-limiting rules of the late nineteenth century that were promulgated in the wake of the Industrial Revolution to protect the newly-emerging industries. During that time the courts in Michigan and elsewhere grafted on to the general principles of negligence law liability rules such as assumption of risk, contributory negligence, and the fellow servant doctrine, all of which had the effect of denying recovery to workers and other victims of industrial accidents. Beginning in the middle of the twentieth century, however, the Michigan Supreme Court began excising its constitutional power to make changes in the common law, expanding significantly the scope of tort liability in Michigan. Emphasizing that "rules created by the court could be altered by the court," and that the court had a "corrective responsibility when dealing with judge-made law," the Court, in approximately a 30 year period: eliminated the imputed negligence doctrine, under which the driver's negligence was imputed to the passenger in the passenger's suit against a third party; eliminated charitable immunity as a defense to a tort action; held that a wife could maintain at tort action for loss of her husband's consortium; abrogated the defense of assumption of risk, which had been applied outside of the employment area, held that there could be recovery for pre-natal injuries and finally abolished contributory negligence as a complete bar to recovery in favor of a comparative negligence approach. In these cases the Court discussed the relevant policy considerations influencing their decisions with respect to the common law rule at issue. In the last quarter century, the Court continued to take into account policy considerations in developing the common law, but not infrequently there was disagreement on the Court as to where policy considerations should lead, with some Justices arguing that policy considerations supported the imposition of tort liability, while other Justices argued that they did not.The article concludes that it has been demonstrated that in the development of the common law of Michigan, the Michigan Supreme Court has at all times engaged in judicial policymaking. From the liability-limiting rules of the late nineteenth century designed to protect the newly-emerging industries in this state, to the Court's exercise of its power to change the common law in Michigan over a 30 year period by expanding significantly the scope of tort liability in Michigan, to its recognition of new claims, such as a child's right to recover for loss of a parent's consortium caused by a negligent injury, to its imposition of limits on tort recovery, such as the open and obvious doctrine, the Court has invoked considerations of policy in support of its decisions. In these cases, the Court's invocation of policy considerations was sometimes accompanied by substantial disagreement among members of the Court over where policy should lead, but at no time did the Court ever suggest that separation of powers considerations should somehow operate as a kind of restraint on the Court's use of policy in the development of the common law. It is the power and responsibility of the Michigan Courts under the Michigan Constitution to make policy choices in formulating the common law. (shrink)

This book is about the use of legal scholarship by judges. It discusses the possibility that legal scholarship may function as a genuine source of law in modern municipal legal systems. The book advances a number of claims, some conceptual, some empirical, some normative. The major conceptual claims are found in Chapters 2 and 3, where a general account of the notion of a source of law is provided. Roughly, sources of law are documents or practices (e.g. statutes, judicial (...) decisions, official customs) from which norms can be derived that function as sources of content-independent reasons for judges to decide legal cases one way or another. The relevant notion of content-independence is derived (with qualifications) from H.L.A. Hart's jurisprudence. Indeed, the book's analysis of the concept of a source of law relies at various points on Hartian insights about law and legal reasoning. Chapter 4 argues that legal scholarship - or, more precisely, a particular type of legal scholarship that might be described as standard or doctrinal - can be, and indeed is, used as a source of law in modern legal systems. The conclusion that legal scholarship is used as a source of law (and thus as a source of content-independent reasons for action) may come as a surprise to those who associate judicial recourse to legal scholarship with judicial activism. This association is discussed and criticized in Chapters 5 and 6. It is argued that, in spite of a relatively common opinion to the contrary, legal scholarship can be used to mitigate discretion. In fact, it is precisely because it can be used in this way that judges sometimes refer to scholarship deceptively and suggest that it limits discretion in situations in which it really does not. The concluding chapter addresses potential objections not explicitly discussed in earlier chapters.. (shrink)

The application of artificial intelligence (AI) to judicial decision-making has already begun in many jurisdictions around the world. While AI seems to promise greater fairness, access to justice, and legal certainty, issues of discrimination and transparency have emerged and put liberal democratic principles under pressure, most notably in the context of bail decisions. Despite this, there has been no systematic analysis of the risks to liberal democratic values from implementing AI into judicial decision-making. This article sets (...) out to fill this void by identifying and engaging with challenges arising from artificial judicial decision-making, focusing on three pillars of liberal democracy, namely equal treatment of citizens, transparency, and judicial independence. Methodologically, the work takes a comparative perspective between human and artificial decision-making, using the former as a normative benchmark to evaluate the latter. -/- The chapter first argues that AI that would improve on equal treatment of citizens has already been developed, but not yet adopted. Second, while the lack of transparency in AI decision-making poses severe risks which ought to be addressed, AI can also increase the transparency of options and trade-offs that policy makers face when considering the consequences of artificial judicial decision-making. Such transparency of options offers tremendous benefits from a democratic perspective. Third, the overall shift of power from human intuition to advanced AI may threaten judicial independence, and with it the separation of powers. While improvements regarding discrimination and transparency are available or on the horizon, it remains unclear how judicial independence can be protected, especially with the potential development of advanced artificial judicial intelligence (AAJI). Working out the political and legal infrastructure to reap the fruits of artificial judicial intelligence in a safe and stable manner should become a priority of future research in this area. (shrink)

I discuss the attitude of Jewish law sources from the 2nd–:5th centuries to the imprecision of measurement. I review a problem that the Talmud refers to, somewhat obscurely, as impossible reduction. This problem arises when a legal rule specifies an object by referring to a maximized measurement function, e.g., when a rule applies to the largest part of a divided whole, or to the first incidence that occurs, etc. A problem that is often mentioned is whether there might be hypothetical (...) situations involving more than one maximal value of the relevant measurement and, given such situations, what is the pertinent legal rule. Presumption of simultaneous occurrences or equally measured values are also a source of embarrassment to modern legal systems, in situations exemplified in the paper, where law determines a preference based on measured values. I contend that the Talmudic sources discussing the problem of impossible reduction were guided by primitive insights compatible with fuzzy logic presentation of the inevitable uncertainty involved in measurement. I maintain that fuzzy models of data are compatible with a positivistic epistemology, which refuses to assume any precision in the extra-conscious world that may not be captured by observation and measurement. I therefore propose this view as the preferred interpretation of the Talmudic notion of impossible reduction. Attributing a fuzzy world view to the Talmudic authorities is meant not only to increase our understanding of the Talmud but, in so doing, also to demonstrate that fuzzy notions are entrenched in our practical reasoning. If Talmudic sages did indeed conceive the results of measurements in terms of fuzzy numbers, then equality between the results of measurements had to be more complicated than crisp equations. The problem of impossible reduction could lie in fuzzy sets with an empty core or whose membership functions were only partly congruent. Reduction is impossible may thus be reconstructed as there is no core to the intersection of two measures. I describe Dirichlet maps for fuzzy measurements of distance as a rough partition of the universe, where for any region A there may be a non-empty set of - _A, where the problem of impossible reduction applies. This model may easily be combined with probabilistic extention. The possibility of adopting practical decision standards based on -cuts is discussed in this context. I propose to characterize the uncertainty that was presumably capped by the old sages as U- uncertainty, defined, for a non-empty fuzzy set A on the set of real numbers, whose -cuts are intervals of real numbers, as U = 1/h 0 h log [1+]d, where h is the largest membership value obtained by any element of A and is the measure of the -cut of A defined by the Lebesge integral of its characteristic function. (shrink)

Discussions of the constitution of the Principate are usually focused on the powers of the emperor, and relatively little attention is given to the role of the senate; by exception much has been written on its jurisdiction, with which I shall not be concerned. Despite his theory of a dyarchy of emperor and senate, which I do not wish to revive, Mommsen, partly because he devoted separate volumes to each, did I not exhibit the extent to which Augustus and Tiberius (...) at least worked through the senate, and on occasions attributed to them legal powers to act by their own authority, when in reality they caused the senate to take action as the only proper means of effecting their wishes. More recently, F. de Martino in his admirable account of the Principate dedicates only one out of twenty-seven chapters to the composition, functions and procedure of the senate. For Syme it was simply an ‘organ that advertised or confirmed the decisions of the government’. This description does not bring out the truth that it was performing a role essential to Augustus' design. For though in effect he founded a monarchy, he commonly thought it expedient on necessary obtain for his measures senatorial approval. That this was the practice of Tiberius in his early years is clearly attested, and some suppose that he behaved in an entirely different manner from Augustus. This view seems to be mistaken, and the mistake is of some consequence. (shrink)

Cigarette smoke is by far the leading preventable cause of death and disease in the United States. It has been estimated to kill between 419,000 and 589,000 smokers and up to 65,000 non-smokers each year. This premier status is hardly a new development, having been true for most of the last century, and known to be true at least since the first Surgeon General’s Report in 1964.Why then are tobacco products exempt from any significant federal oversight or control? Why do (...) cigarette advertisements, pitched to young smokers and non-smokers, continue to be plastered on every available surface inside and outside many convenience stores and to adorn the pages of popular magazines? Why, decades since the makers of far less dangerous products began to be held accountable in tort law, was the first payment by a cigarette company on a products liability judgment not made until 2001? (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Future Directions for Oversight of Stem Cell Research in the United States: An UpdateMary A. Majumder (bio) and Cynthia B. Cohen (bio)On 9 March 2009, President Barack Obama (2009a) signed an executive order revoking the statement issued by President George W. Bush during a televised speech in August 2001, in which the latter had sharply restricted the scope of federally funded human embryonic stem cell (hESC) research to cell (...) lines derived (without federal funding) prior to 9:00 P.M. EDT on 9 August 2001. Action by President Obama to remove the cut-off date had been expected. It came as a surprise, however, that he gave authority to determine the scope of eligible research to the Director of the National Institutes of Health (NIH), referencing only general concerns of responsibility, scientific worth, and legality.1 This contrasted not only with the approach of former President Bush, but also with that of former President Clinton, who had expressed personal opposition to the creation of embryos for research and had a distinction between hESCs derived from embryos created for research and those derived from spare embryos enshrined in NIH policy.President Obama’s remarks upon signing the executive order give some insight into the thinking behind his approach. Implicit in them are the views that earlystage human embryos outside the womb do not have full moral status and that the destruction of human embryos in the effort to care for and ease the suffering of human beings who do have full moral status does not devalue human life. The President also stressed that the decision to pursue hESC research reflected not only his opinion, but also a broad social consensus. He concluded with strong ethical commitments on two fronts:We will develop strict guidelines, which we will rigorously enforce, because we cannot ever tolerate misuse or abuse. And we will ensure that our government never opens the door to the use of cloning for human reproduction. It is dangerous, profoundly wrong, and has no place in our society, or any society.(Obama 2009b)The specific guarantee that President Obama gave against government support for the development of cloning techniques for human reproductive purposes made his silence on the use of cloning for research seem significant. Comments he had made in the course of the campaign (Obama 2008) suggested that he would affirm [End Page 195] the Clinton-era policy of limiting federal funding to hESCs derived from spare embryos. Did this silence mean that President Obama was opening the door to federal funding of research cloning when and if scientists might manage that feat?2009 NIH GuidelinesThe answer to this question and several others came on 17 April, when Raynard Kington, the acting director of NIH, released Draft NIH Guidelines for Human Stem Cell Research (NIH 2009), developed by an NIH Stem Cell Task Force, along with a request for public comment within 30 days of their publication in the Federal Register.2 The 2009 Draft Guidelines exclude from federal funding the derivation of hESCs, a restriction mandated by the reenactment of the Dickey-Wicker Amendment as part of the 2009 Omnibus Appropriations Act (Public Law 111-8, Division F, Title V, § 509). The 2009 Draft Guidelines also exclude the use of hESCs derived from embryos created for research purposes, and so represent a refusal to open the funding door as broadly as the NIH interpretation of the Dickey-Wicker Amendment might allow, at least for the time being.It appears that the drafters used as their starting point the 2000 NIH Guidelines for Research Using Human Pluripotent Stem Cells (NIH 2000) dating from the Clinton Administration, rather than more recent guidelines from the National Academy of Sciences (National Research Council 2005; 2007; 2008) and other private bodies. Both the format and content of the 2000 and 2009 NIH efforts are similar, making the departures in the latter stand out in high relief. We highlight departures related to informed consent to embryo donation, creation of human-nonhuman chimeras, and the role of an NIH task force, updating our original comment (Cohen and Majumder 2009).Informed Consent to Embryo DonationThe 2009 NIH Draft Guidelines require that certain statements... (shrink)

The wording of major human rights texts—constitutions and international treaties—is very similar in those provisions, which guarantee everyone the right to family, privacy, protection against discrimination and arbitrary detention, and the right to access the court. However, judges of lower national courts, constitutional judges and judges of the European Court of Human Rights often read the same or seemingly the same texts differently. This difference in interpretation gives rise not only to disputes about the hierarchy of interpretative authorities, but to (...) more general disputes about limits of judicial construction and validity of legal arguments. How it may happen, that the national courts, which apply constitutional provisions or provisions of national legislative acts, which are seemingly in compliance with the international human rights standards, come to different results with the international judges? Do they employ different interpretative techniques, share different values or develop different legal concepts? Do international judges ‘write’ rather than ‘read’ the text of the Convention? Who is, in Plato’s terms, a name-giver and who has a power to define the ‘correctness’ of names? The answers to these questions from the rhetorical and semiotic perspectives are exemplified by the texts of the judicial decisions on the rights of persons with mental disabilities. (shrink)

The authors discuss law and ethics when medical decisions are to be taken by patients who are unable in any valid sense to express their own wishes. The main problem in legal terms is to protect an individual's free will as far as possible and ensure that his or her wishes, if known, are respected. If a patient's independent wishes cannot be known, then we must at least ensure that nothing is imposed which is not in his interest. Legal measures, (...) however, are far from adequate in resolving all the concrete problems that emerge. The field of ethics does bring some better adapted solutions, but none is laid down in law. One such approach, involving a multidisciplinary advisory group in a department of geriatrics, is discussed. (shrink)

We were delighted to be asked by the editors of the American Journal of Bioethics to provide this editorial in response to Dr. Ariane Lewis’s paper “An Overview of Ethical Issues Raised by Medicole...

Artificial intelligence plays an increasingly important role in legal disputes, influencing not only the reality outside the court but also the judicial decision-making process itself. While it is clear why judges may generally benefit from technology as a tool for reducing effort costs or increasing accuracy, the presence of technology in the judicial process may also affect the public perception of the courts. In particular, if individuals are averse to adjudication that involves a high degree of automation, (...) particularly given fairness concerns, then judicial technology may yield lower benefits than expected. However, the degree of aversion may well depend on how technology is used, i.e., on the timing and strength of judicial reliance on algorithms. Using an exploratory survey, we investigate whether the stage in which judges turn to algorithms for assistance matters for individual beliefs about the fairness of case outcomes. Specifically, we elicit beliefs about the use of algorithms in four different stages of adjudication: (i) information acquisition, (ii) information analysis, (iii) decision selection, and (iv) decision implementation. Our analysis indicates that individuals generally perceive the use of algorithms as fairer in the information acquisition stage than in other stages. However, individuals with a legal profession also perceive automation in the decision implementation stage as less fair compared to other individuals. Our findings, hence, suggest that individuals do care about how and when algorithms are used in the courts. (shrink)

Cigarette smoke is by far the leading preventable cause of death and disease in the United States. It has been estimated to kill between 419,000 and 589,000 smokers and up to 65,000 non-smokers each year. This premier status is hardly a new development, having been true for most of the last century, and known to be true at least since the first Surgeon General’s Report in 1964.Why then are tobacco products exempt from any significant federal oversight or control? Why do (...) cigarette advertisements, pitched to young smokers and non-smokers, continue to be plastered on every available surface inside and outside many convenience stores and to adorn the pages of popular magazines? Why, decades since the makers of far less dangerous products began to be held accountable in tort law, was the first payment by a cigarette company on a products liability judgment not made until 2001? (shrink)

In this paper, we assume that organ donation policy in the United States will continue to be based on an opt-in model, requiring express consent to donate, and that families will continue to have the prerogative to make donation decisions whenever the deceased person has not recorded his or her own preferences in advance. The limited question addressed here is what should be done when a potential donor dies unexpectedly, without any recorded expression of his or her wishes at hand, (...) while a family decision is being sought. (shrink)

Riggs v. Palmerhas become famous since Dworkin used it to show that legal positivism is defective. The debate over the merits of Dworkin's claims is still very lively. Yet not enough attention has been paid to the fact that the content of the statute at issue inRiggswas given by thecounterfactual intentionof the legislature. According to arguments from legislative intent, a judicial decision is justified if it is based on the lawmaker's intention. But can legislative intentions be determined (...) counterfactually? More generally, what are the discursive commitments undertaken by a lawyer or a judge, in an exchange of legal reasons, when using this interpretive methodology? This paper addresses these issues considering, in particular, David Lewis's “resemblance” condition and “relevant similarity” between possible worlds in the evaluation of counterfactual statements. The analysis sheds some new light on the debate on theoretical disagreements and shows that Dworkin's conception of law as an argumentative practice is not necessarily at odds with legal positivism. It rather allows us to look at it under a better light. (shrink)

Context Opioid treatment agreements (OTAs) are documents that clinicians present to patients when prescribing opioids that describe the risks of opioids and specify requirements that patients must meet to receive their medication. Notwithstanding a lack of evidence that OTAs effectively mitigate opioids’ risks, professional organizations recommend that they be implemented, and jurisdictions increasingly require them. We sought to identify the jurisdictions that require OTAs, how OTAs might affect the outcomes of lawsuits that arise when things go wrong, and instances in (...) which the law permits flexibility for clinicians and health care institutions to adopt best practices. -/- Methods We surveyed the laws and regulations of all 50 states and the District of Columbia to identify which jurisdictions require the use of OTAs, the circumstances in which OTA use is mandatory, and the terms OTAs must include (if any). We also surveyed criminal and civil judicial decisions in which OTAs were discussed as evidence on which a court relied to make its decision to determine how OTA use influences litigation outcomes. -/- Findings Results show that a slight majority (27) of jurisdictions now require OTAs. With one exception, the jurisdictions’ requirements for OTA use are triggered at least in part by long-term prescribing. There is otherwise substantial variation and flexibility within OTA requirements. Results also show that even in jurisdictions where OTA use is not required by statute or regulation, OTA use can inform courts’ reasoning in lawsuits involving patients or clinicians. Sometimes, but not always, OTA use legally protects clinicians from liability. -/- Conclusions -/- Our results show that OTA use is entwined with legal obligations in various ways. Clinicians and health care institutions should identify ways for OTAs to enhance clinician–patient relationships and patient care within the bounds of relevant legal requirements and risks. (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)

The extent to which the legal doctrine addresses manifestations of constitutionalism has been constantly growing. However, the majority of research in constitutionalism focuses on the analysis of the power of the Constitution and the fundamental principles entrenched in it whereas ordinary branches of law, including civil procedure, affected by the constitutional law remains outside the scope of a deeper analysis. The author of the present paper is convinced that certain aspects of the impact of constitutional justice on such branches as, (...) in particular, civil procedure deserve deeper interest. The modest scope of the paper precludes an extensive analysis of the role of the Constitution as a fundamental binding Act and today’s abundant doctrine of Lithuania’s Constitutional Court in civil procedure. Therefore, the present paper is confined to an analysis of individual aspects of direct application of the Constitution and the doctrine of the Constitutional Court. The article analyses the power of the Constitution and its impact on the civil procedure as an Act laying down the fundamental principles binding the legislator in adopting procedural instruments and principles to be followed by courts and as a remedy for violations of rights or a tool to address loopholes and collisions of law. Courts of general jurisdiction perform the control of legitimacy of legal Acts by checking their compliance with the Constitution in individual cases and by applying to the Constitutional Court for repeal of anticonstitutional norms or by applying the Constitution as an Act of direct effect to eliminate loopholes, interpret statutes and deal with collisions of legal norms. The author believes that the fact that the courts of general jurisdiction frequently raise questions of incompliance of legal Acts with the Constitution and decisively apply to the Constitutional Court evidences a high level of legal culture and legal consciousness of the judges. That fact may also serve as a precondition for the growth of confidence in the judiciary as judicial procedures may contain no uncertainties as to the constitutionality of the statutes to be followed in litigation. (shrink)

In this paper the author deals with collegial judicial decisions as a form of human action. The scope is, however, limited to three questions: What is the structure and the status of the general theory of action; Is this theory applicable to such performative acts as judicial decisions; and finally, Is it possible to speak about action in connection with collective agents such as collegial courts? The author defends the thesis that general theory of action as such is (...) applicable to collective action, too, because the difficulty is not in the structure of that theory, or in its “individual character,” but specifically in the notion of “collective will.” This kind of “will” is epistemologically always a result of a political procedure, and speaking about the “collective will” presupposes the analysis of these procedures, because in practice they and only they formulate “collective motives,”“collective beliefs” and the like. (shrink)

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)

In recent years, a growing body of work has emerged in legal theory that focuses on the relationship between law and virtue. Part of this virtue jurisprudence literature deals with the role of virtue in adjudication and judicial decision-making, with leading authors claiming that virtue plays a central explanatory and normative role. This article engages with this literature on virtue in adjudication, and connects it with a contemporary phenomenon that poses a risk for courts and judges, namely the (...) politicisation of judiciaries. In particular, the question emerges whether virtue jurisprudence is able to provide practical guidance to judges and courts in order to help them avert such politicisation. I sketch the outlines of two contrasting answers to this question, by exploring two alternative approaches to understanding the politicisation of judiciaries from within a broadly virtue-ethical framework. On the first approach, it appears that judges may help prevent politicisation, by becoming more attentive to the tragic character of particular cases and by deciding as civic friends. However, on the other approach, which builds on Alasdair MacIntyre’s critique of modern moral discourse, politicisation appears to be intractable, and the practical recommendations following from the first perspective may even aggravate it. (shrink)

This dissertation argues for a position called "legal pluralism". According to legal pluralism, most legal decision-making, especially decision-making by judges in "hard cases", is best analyzed as the application of a plurality of legal values which often conflict. Moreover, legal pluralism claims that these conflicts often cannot be resolved, and therefore decision-making in law is genuinely indeterministic in many cases. The position contrasts with two common accounts of judicial decision-making in hard cases: the claim that (...) judicial decision-making is significantly determinate and the claim that it is radically indeterminate . ;The first chapter argues for the first part of pluralism, namely that there is a plurality of legal values which typically conflict in hard cases of legal interpretation. It also argues against the doctrine of "intentionalism" which claims that determinacy can be achieved in legal interpretation by identifying the correct legal answer with the author's intended answer. The second chapter provides an extended analysis of Dworkin's doctrine of "law as integrity". It argues that Dworkin's theory of law is "monistic" in two senses. First, his theory attempts to provide a method for achieving deterministic decision-making; and secondly, his theory is committed to treating a single legal value--the value of "integrity"--as overriding. I claim that neither form of monism can plausibly be maintained. The third chapter argues that pluralism provides the best account of the special features of legal disagreement in hard cases and attempts to rebut counter-arguments suggesting that disagreement is epistemic disagreement only. The fourth and final chapter focuses on the nature of the values over which judges disagree. It proposes that the conflicts between values in some cases are genuine legal dilemmas because legal conflicts are often conflicts between "generically different" values or "incommensurable" values. In particular, "institutional" values--values which enhance the operation of law conceived as an institution having a certain function in society--are incommensurable with the values of substantive justice. (shrink)

Judicial process is an integral part of legal systems. The process rests primarily on established principles of constitutional governance and responsibility. In the last ten years, the dynamism within judicial institutions and the judicial process has gained considerable attention. The dynamism is often viewed in light of the diversity of claims being addressed, the openness of courts to foreign material, and the use of non-legal studies and findings in court proceedings. How one views the judicial process (...) in the traditional sense, and in the light of the new experiences is an important question today. Also, what new theories explain this public sphere of activity? -/- In this regard, Dr. Pathak’s book "Judicial Process" is a noteworthy contribution. The book explores the complex nature of the judicial process, along with its wider constitutional, political, and social relevance. The book builds on an understanding that the judicial process, the courts, and the judges are central to constitutional governance. With that backdrop, it engages with four aspects of the judicial process, including (1) the nature of the judicial process, (2) the engagements and interactions within the judiciary, (3) the engagements and interactions between the courts and other institutions, and (4) the protection of rights and redressal of violations function performed by courts. -/- The book includes a detailed discussion on key concepts, practices, tests, and principles. The following chapters and discussions are particularly interesting. Chapter one involves a jurisprudential take on the subject while referring to the works of Blackstone, Holmes, and Cardozo. Particularly relevant in chapter one are Indian cases that have cited Cardozo while determining important judicial matters. Further, the chapter includes foreign case law which has been cited by the Indian courts to discuss the nature of the judicial process. Chapter three on Judicial Review discusses the scope of judicial review in India and its centralizing force in constitutional governance. The author carefully explores the expansion in a judicial capacity for review. The chapter highlights the dynamism attached to the practice of judicial review, moving from the review of constitutional amendments, to that of laws, administrative actions, and policy. Further, the chapter includes a discussion on the basic structure of the Indian Constitution. Chapter four on Law of Precedent includes a discussion on stare decisis, which the author refers to as a principle conferring legitimacy and stability to the judicial system. Recent scholarship on the nature of obiter dicta of higher courts and persuasive quality of foreign case law in domestic cases has been cited. Chapter five covers the Independence of the Judiciary debates in India. It discusses the issue of post-retirement appointments of judges and recusal from judicial matters. Chapter eight Judicial Activism traces the development of the concept from its early days to the present times. The chapter adopts the five core meanings offered by Keenan Kmiec to substantiate the old and the new avatars of judicial activism. The chapter discusses the role of social action litigation in India and its hand in defining the judiciary as a protector of rights and constitutional values. -/- The book provides sufficient guidance to study the nature of the judicial process. It also makes one curious about the changing nature of the judicial process and the new waves of constitutional ethics and governance. The following are some of the themes not attended to in the book. First, the judgments of the courts. The written judgments constitute an integral part of the judicial process. The judgments constitute public law reaching out to beneficiaries including litigants, people at large, as well as foreign institutions and courts. That being said, a discussion on judgements and the written or unwritten standards governing the same needs attention. Also included in this point is the role of dissenting judgments. How should one view or study dissent in judgments of constitutional significance? A normative framework to study the same is much needed. Second, the tools and indicators to measure judicial impact. The judicial impact can include (a) the impact of judicial decisions on the law, policy, and society (b) the impact of law/legislation on the judicial process, and (c) the impact of technological and scientific advancements on the judicial process. Tools like judicial impact assessment have been widely argued to be important to the working of the courts. Further, parameters to study compliance, policy integration, and the impact of judicial decisions on other state institutions have gained attention. (shrink)

Criminal law scholars approach legality in various ways. Some scholars eschew over-arching principles and proceed directly to one or more distinct “rules”: (1) the rule against retroactive criminalization; (2) the rule that criminal statutes be construed narrowly; (3) the rule against the judicial creation of common-law offenses; and (4) the rule that vague criminal statutes are void. Other scholars seek a single principle, i.e., the “principle of legality,” that they claim underlies the four rules. In contrast, I believe that (...) both approaches are misguided. There is no such thing as a single “principle of legality;” yet, the four aforementioned rules are not unrelated to each other. The so-called “principle of legality” consists of two distinct norms that derive, respectively, from two fundamental principles of criminal justice, viz., the principle, “No person shall be punished in the absence of a bad mind,” and the principle that underlies the maxim, “Every person is presumed innocent until proven guilty.” The first norm of legality explains the rules regarding ex post facto legislation, and rules regarding “notice” and “fair warning” of judicial decisions. When a person is punished for violating a rule that was non-existent or unclear at the time he acted, he is punished for conduct that the state now condemns and seeks to prevent by means of penal sanctions. Accordingly, at the time the person is prosecuted, his claim is not that he did not do anything that the state regards as wrong, but, rather, that he neither knew nor should have known that he was doing something that the state would come to regard as wrong. He ought, indeed, to be excused for his mistake, but only because of a principle that is common to excuses generally: “No person ought to be punished in the absence of a guilty mind.” He should be excused because even when a person does something the state condemns and seeks to prevent, he ought not to be blamed for it unless he was motivated in a certain way, namely, by an attitude of disrespect for the legitimate interests of the political community by whose norms he is bound.The second norm of legality informs several of the remaining rules, though not all of them. The second norm is that a person ought not to be punished in the name of a political community unless it can confidently be said that the community officially regards his conduct as warranting the criminal punishment at issue. It is a norm that is most commonly associated with the rule of lenity, but it is not confined to the construction of statutes that are ambiguous or vague. It can also be also violated when a person is punished for violating a statute that has fallen into desuetude, regardless of how widely promulgated or narrowly defined the statute may be. This second norm derives from a principle that also underlies the presumption of innocence - the only difference being that the presumption of innocence is a preference for acquittal in the event of uncertainty regarding the facts which an actor is charged, while the second norm of legality is a preference for acquittal in the event of uncertainty regarding the scope of the offense which he is charged.Nevertheless, one “rule” remains that this analysis throws into question - namely, the rule that “vague” criminal statutes are void. Criminal statutes are sometimes so broadly defined that they do, indeed, infringe constitutionally protected rights of speech, movement, etc. - in which event they ought to be invalidated on those very grounds. And criminal statutes are sometimes so broadly drafted that, before applying them, courts ought to construe them to apply only to constitutionally unprotected acts that courts can confidently say the relevant political community regards as warranting punishment. But once statutes are so construed to apply only to constitutionally unprotected conduct, courts have no further reason to invalidate them on grounds of “vagueness.” Lack of “notice” is no reason to invalidate them because, with respect to the narrowly defined conduct such statutes are construed to prohibit, “common social duty” alone ought to alert actors that their conduct is suspect. (shrink)

This paper approaches legal argumentation from a rhetorical perspective. It discusses the nature of the audiences that are targeted by judges in the legal process. Judicial opinions reach diverse groups of people with very different attitudes and expectations: other judges, lawyers, litigants, concerned citizens, etc. One important way in which these groups differ is that some of them are more likely to be persuaded by legalistic, precedent or statute-based arguments, while others expect judges to decide on grounds of (...) justice or equity. So, judges face the challenge of determining whether they should select particular groups for special attention, or whether they have alternative rhetorical means to approach the problem of audience diversity. One strategy that is likely to be recommended by rhetorical scholars is that judges should not try to accommodate the various preferences of their actual readership, but that they should rather invoke an idealized audience or some version of Chaïm Perelman’s universal audience. However, the paper tries to show that the universal audience is of limited value for a discussion about how judges ought to proceed in the face of audience diversity. In particular, the idea of a universal audience does not help judges to make the choice between a legalistic or an equity-based approach to legal decision-making. By showing that this is so, the paper also raises doubts about the common thought that to invoke the universal audience in law is to appeal to natural law. (shrink)

In legal theory, it is widely claimed that decisions in hard cases are based on weighing and balancing. However no reconstructions are given of the deep structure of the complex argumentation underlying the justification of these decisions. The author develops a model for the analysis of weighing and balancing of arguments in the justification of judicial decisions that are based on teleological-evaluative considerations. The justification is reconstructed as a complex argumentation that consists of different levels of argumentation and it (...) is explained how these levels of argumentation relate to the burden of proof of a judge who gives a decision that is based on a weighing and balancing in which teleological-evaluative considerations are invoked. (shrink)