This chapter contains sections titled: An Economic Model of Carroll Towing Relaxing the Model's Initial Assumptions Efficiency as a Norm Some Limitations of Law and Economics Conclusion References.

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Sport Realism: A Law-Inspired Theory of Sport by Aaron HARPERTim ElcombeHARPER, Aaron. Sport Realism: A Law-Inspired Theory of Sport. Lanham, Md.: Lexington Books, 2022. viii + 172 pp. Cloth, $95.00At a crucial moment in the 2019 World Series all six on-field umpires, in communication with Major League Baseball’s headquarters, engaged in an 8-minute discussion to determine if a baserunner should be called out for interference. The deliberation stemmed (...) from a tension between the formal rules of baseball and the game’s unwritten rules about a baserunner’s traveled path to first base. This example of a “hard case” in sport officiating sets Aaron Harper’s book Sport Realism: A Law-Inspired Theory of Sport in motion. Harper’s aim in Sport Realism is to provide a new “theory of sport” drawing primarily from American legal realism—and supplemented by philosophical pragmatism and virtue jurisprudence. Sport realism, Harper argues, serves as the best resource to understand how rules are applied in sport and how officials make in-game decisions, and it highlights the importance of participants being able to develop an expectation for how calls will be made in the future and to make difficult normative judgments.In chapter 1, Harper provides an excellent overview of the sport philosophy literature related to “theories of sport.” Using a chronological approach, he develops a clear and extensive “history” of the evolution of the field’s most influential theories and their connections to legal theory. Harper summarizes how formalism’s rigid commitment to “constitutive” rules that supposedly define a sport led to criticisms from conventionalists who alternatively generated their account of how nonwritten rules or a sporting ethos defines how a sport is played. However, the laissez-faire nature of conventionalism, as well as the inflexibility of formalism, gave rise to now-dominant interpretivist theories of sport that Harper covers in significant detail. Primarily inspired by Ronald Dworkin, philosophers developed theories that relied on the interpretation of principles that affirmed a sport’s point and purpose. Emergent formulations of interpretivism—from realist accounts to antirealist/historicist versions—all relied on the interpretation of some essential starting point (rules, principles, ethos, deep conventions) to both explain sport and provide officials with normative guidance.Harper regularly lauds interpretivism as the best theory of sport developed to date. However, in chapter 2 he highlights deficiencies with interpretivist accounts via two case studies: New York Yankees’ pitcher Michael Pineda’s “illegal” use of pine tar to improve his grip on the [End Page 147] baseball, as well as Tiger Woods taking a favorable drop after hitting his golf ball into a water hazard. From these two cases, Harper concludes that all variations of interpretivism (from realist to antirealist accounts) fall short in the purpose of developing a theory of sport: to both explain sport (Pineda case) and give a wide swath of formal and informal decision-makers tools to make difficult ethical judgments (Woods case).Harper turns to American legal realism in chapter 3 to develop a superior theory of sport. Crucial to Harper’s sport realism account is Oliver Wendell Holmes’s resistance to understanding law as a set of rules or principles, and instead as an ongoing process of “policymaking” best characterized by the role of the appellate courts. “Understanding the law” from a Holmes perspective, Harper writes, “entails successful prediction of how courts will act in deciding cases... which actions will, in fact, prompt sanction by a court.” This alternative view of the law led to the rise of American legal realism—and subsequently serves as the source of Harper’s sport realism account sketched out in the latter half of chapter 3. According to sport realism, sport ought to be explained by how “it is actually played in order to provide a more accurate account of sport as an activity.” This “best explanation of sport” therefore “provides normative guidance” for sporting challenges.Continuing his development of sport realism, Harper sets out in chapter 4 to define cheating as “an instance of rule-breaking [that] warrants a restorative sanction given by sport officials, and we would expect such sanction to be given if the action... (shrink)

Growing research evidence on the ethic of care suggests that caring should be an integral part of the pedagogical methods implemented in schools. However, the colour blind ‘community of care’ often described in the literature does not disaggregate lines of ethnicity or race and much of this existing literature concerns elementary‐ and middle‐school students. This phenomenological study examined teacher care for African American secondary students, through a theoretical lens of critical race and care theory, as it was represented through (...) the counter stories of eight ‘successful’ African American teachers. Findings revealed that teachers’ definitions and perceptions of care reflected a blend of traditional care literature, critical race theory and the literature on African American teachers before and after the US Supreme Court’s landmark Brown decision on integration. Findings also reveal the possibility of a pedagogy that I refer to as ‘culturally relevant critical teacher care’. (shrink)

The dominant social scientific approach to studying judicial behavior treats judges as strategic actors pursuing their political preferences under institutional constraint. The intellectual roots of this rational choice approach are in American law’s long but sporadic engagement with pragmatist ideas. This article challenges that approach: a fully pragmatist account of judicial action provides a better description of the intellectual and social work of judging, and better explains how judges reach a decision in difficult cases that most affect the development (...) of law and its relationship to society. The article argues that the foundational intellectual problem for appellate judges is how to define the legal questions presented in a case. Definitions of legal questions arise from the interplay of habitual and creative action in the local social context of an appeals court. Professional and local interpretive habits and legal forms ordinarily do a great deal to define the key questions, which are not strictly determined when a case comes before a court. Unscripted small group interactions at oral arguments also figure in question definition; oral arguments are most important in the rare but legally important cases where habitual practices alone are insufficient to delimit the legal question judges must answer. Supported by extensive interviews with federal appeals judges and clerks, the article illustrates judges’ creative, interactional efforts to define an answerable question in a major asylum case decided in the Seventh Circuit Court of Appeals. Building from this case, the article describes the factors that shape judicial question definition, and describes the conditions when creative judicial action is likely to be most prominent. (shrink)

Since the Supreme Court of New Jersey decided the Quinlan case a quarter of a century ago, three American Supreme Court decisions and a host of state appellate decisions have addressed end-of-life issues. These decisions, as well as legislation addressing the same issues, have prompted a torrent of law journal articles analyzing every aspect of end-of-life law. In recent years, moreover, a number of law review articles, many published in this journal, have also (...) specifically addressed legal issues raised by palliative care. Much less is known in the United States, however, as to how other countries address these issues. Reflection on the experience and analysis of other nations may give Americans a better understanding of their own experience, as well as suggest improvements to their present way of dealing with the difficult problems in this area.This article offers a conceptual and comparative analysis of major legal issues relating to end-of-life treatment and to the treatment of pain in a number of countries. In particular, it focuses on the law of Australia, Canada, the United Kingdom, Poland, France, the Netherlands, Germany, and Japan. (shrink)

Since the Supreme Court of New Jersey decided the Quinlan case a quarter of a century ago, three American Supreme Court decisions and a host of state appellate decisions have addressed end-of-life issues. These decisions, as well as legislation addressing the same issues, have prompted a torrent of law journal articles analyzing every aspect of end-of-life law. In recent years, moreover, a number of law review articles, many published in this journal, have also (...) specifically addressed legal issues raised by palliative care. Much less is known in the United States, however, as to how other countries address these issues. Reflection on the experience and analysis of other nations may give Americans a better understanding of their own experience, as well as suggest improvements to their present way of dealing with the difficult problems in this area.This article offers a conceptual and comparative analysis of major legal issues relating to end-of-life treatment and to the treatment of pain in a number of countries. In particular, it focuses on the law of Australia, Canada, the United Kingdom, Poland, France, the Netherlands, Germany, and Japan. (shrink)

A good pragmatist's constitutional theory is inseparable from the legal disputes out of which it arises. John Paul Stevens's theory, that of deciding individual cases well instead of applying constitutional principles in the abstract to cases by category, thus lends itself to being studied in its natural, factual habitat—in his own words, case by case. That's what this book does. In Chapter 1 Sickels distills Stevens's thoughts about law and appellate judging from his early writings and his opinions on (...) the federal appeals court and, from 1975 to the present, on the U.S. Supreme Court. Stevens shows a concern for facts and consequences, for balancing, for deference to other decision makers unless they have been careless, for avoidance of undue complexity in judge-made law, and for drawing the line between clarity and oversimplification in legal rules. The next three chapters describe the application of Stevens's pragmatism to areas of constitutional law to which the Court and he especially have devoted most attention in recent years: First Amendment guarantees of freedom of expression and religion, the procedural guarantees of the Bill of Rights and the Fourteenth Amendment, and the equal protection of the laws. In each area, Stevens's special contributions are described. The concluding chapter places Stevens's judging in the contexts of the ongoing debate about the legitimacy of balancing, the ways of other moderates on the Court, and the voting records of the other members of the Court as a whole. Unique to this work is a meaningful introduction to the term moderate when applied to a Supreme Court justice, a definition based on careful analysis of the interplay of general rules and specific, case-by-case context. As such it is the very essence of Stevens's own way of judging and thus enables analysis of the work of a pragmatist on his own terms rather than through the distortions of a conflicting theory of law. John Paul Stevens is recognized as a jurist of unusual ability and one adheres to no ideological camp. While it is one thing to know he is neither rigid liberal nor a conservative, this book goes beyond the "neither nor" to accomplish the more difficult goal of defining what he is. This study is intended for scholars and students of the Supreme Court, the Constitution, the courts, and the American political process. Lawyers working before the Supreme Court, informed generalists, and courtwatchers generally, whether liberal, conservative, or neutral, will find much of interest here. (shrink)

Efficient thinking is the foundation of efficient operation. The correct definition of concepts, especially the basic ones for a given field, in order to reach the truth, is a condition for the development of science and its social utility. The Petrażycki’s research methodology of law is a thoroughly modern method, as it enables effective examination of the accuracy of contemporary legal theories created after Petrażycki’s input. A model contemporary theory susceptible to an examination through the research methodology of law by (...) Petrażycki is the normative theory of legal rules and non-legal standards by Dworkin. For this purpose some falsifications will be subject, i.e. selected ad hoc among many others, two important theories of normative law theory Dworkin. The first one is the thesis classifying legal norms into two groups of norms, namely legal rules and non-legal standards. The second one is a thesis about the existence of who are capable of discovering and issuing lawful and, at the same time, fair court decisions, which are also the only ones for resolving particular court disputes. Unfortunately, owing to the seemingly cognitive research methodology of Petrażycki, both Dworkin’s deformed division of legal norms as well as Dworkin’s Hercules judges - cannot stand the test of authenticity. Due to the Petrażycki’s methodology, the legal-normative theory of Dworkin does not lose an innovative outlook on the existence of social norms, which are being discovered by judges in the jurisprudence, indifferently to the doubts over their proper classification. Moreover, Dworkin’s theory is placed between naive theories, regardless of whether they are considered realistically naive theories or nihilistically naive theories A few random reflections on the well-known work of Dworkin with the help of Petrażycki’s methodology serve to provide a new perspective on the contemporary legal normativity. (shrink)

The principle of omnia sunt interpretanda refers to the derivational conception and derivational theory of interpretation. The principle appears in disputes concerning the role of a judge in the process of interpretation, and this has produced an effect that Polish theory of law is currently getting closer to the conceptions presented in the American debate on activism and textualism. In the practice of jurisdiction, the principle of omnia sunt interpretanda is mostly invoked outside theoretical context. It becomes a manifestation (...) of a new dimension of judicial independence, namely an independent authority over the meaning of legal text. In the following paper the legal cultures and legal theories involved in the dispute are being disclosed in order to put in question the possibility of achieving a clear result of interpretation against a background of a crisis of the relations between law and law-making state, which manifests itself in the peculiar process of legal institutions becoming autonomous in relation to state institutions. In this context, the aforementioned principle constitutes the manifestation of the way in which courts come up with a new definition of the role of the third (sui generic) power. The certain organizational requirements placed upon the courts (especially the SAC and provincial administrative courts) are being scrutinized in order to find out in which mode it is possible to at least reduce the degree of inconsistency of the results of interpretation. Here, the attempt to organize a community of judges for the activities of legal interpretation undertaken by them plays a crucial role. (shrink)

This paper explores how the widely acknowledged conception of tort law as corrective justice is to be applied to the law of negligence. Corrective justice is an ordering of transactions between two parties which restores them to an antecedent equality. It is thus incompatible with the comprehensive aggregation of utilitarianism, and it stands in easy harmony with Kantian moral notions. This conception of negligence law excludes both maximizing theories, such as Holmes' and Posner's, and Fried's risk pool, which combines Kantianism (...) with distributive rather than corrective justice.Central to the Kantian approach is the impermissibility of self-preference. The two types of self-preference, self-preference in conception and self-preference in action can respectively account for the objective standard and the Learned Hand test, which are the two most characteristic features of negligence and which are generally (and wrongly) considered to be inescapably aggregative. This corrective justice conception of the negligence standard can then be compared to Epstein's corrective justice conception of strict liability, and arguments can be offered in favour of the superiority of the former. (shrink)

The study distinguishes between three normative approaches that view diversity in the judiciary as a desirable ideal, outlines their expected empirical implications for judicial decision-making, and tests the implications against data from the Israeli Supreme Court. The “reflecting” approach suggests that diversifying the courts is important mainly as a means of strengthening the public’s confidence in them and does not impact judicial decisions. The “representing” approach asserts that judges serve as representatives of their social sectors. Thus, they tend (...) to rule in favor of their group’s interest only in cases that are relevant to their in-group. The “social background theory” is based on the premise that people of different backgrounds develop distinct worldviews. Hence, social attributes are expected to influence judicial decisions across a wide range of socio-legal issues. The empirical investigation centers on the role of gender and religiosity in judging on five carefully selected socio-legal issues: petitions against the Great Rabbinical Court’s rulings, constitutional disputes in all legal procedures, social welfare cases, and criminal appeals in sex offenses and in drug offenses. The results lend support to social background theory with regard to gender and are consistent with the representing approach with respect to religiosity. I further discuss the limitations and policy implications of the findings. (shrink)

This article concerns the problem of factual uncertainty in negligence law. We argue that negligence law’s insistence that fair terms of interaction be maintained between individuals—a requirement that typically manifests itself in the need for the plaintiff to prove factual or “but-for” causation—sometimes allows for the imposition of liability in the absence of such proof. In particular, we argue that the but-for requirement can be abandoned in certain situations where multiple defendants have imposed the same unreasonable risk on a plaintiff, (...) where the plaintiff suffers the very sort of harm that rendered the risk unreasonable, and where the plaintiff cannot prove which of the defendants was the but-for cause of her loss. This approach provides one way to understand the Supreme Court of Canada’s recent decision in Resurfice Corp. v. Hanke. We find support for our approach in various concepts that underlie negligence liability quite generally. These underlying concepts are normative in nature, and manifest core notions of justice and fairness. We argue that approaches to the problem of factual uncertainty that appeal to such normative principles to make sense of atypical cases of causation are in no way inconsistent with the nature and structure of negligence law. Rather, the opposite is true: in taking negligence law seriously as law, such approaches are instead reflective and supportive of it. (shrink)

The legal literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. However, this test is infrequently mentioned by the courts and almost never explains their decisions. Instead, they apply, explicitly or implicitly, various justice-based standards that take into account the rights and relationships among the parties. This is true even for the two judges most closely identified with the aggregate-risk-utility test: Learned Hand and Richard Posner. During the five decades that Hand (...) served as a federal judge, he mentioned the test in only eleven opinions, between 1938 and 1949, and in none of those opinions did he actually apply the test to resolve the negligence issue. In his last reference to the test, in 1949, he essentially abandoned it. None of his fellow circuit judges ever mentioned the test. Posner claims that the Hand formula expresses an economic efficiency interpretation of negligence that has long been implicit in judicial opinions. However, Posner’s arguments are based on speculative and implausible assumptions, overbroad generalizations, selective quotations, and superficial descriptions of cases that misstate or ignore facts, language, rationales, and holdings that are inconsistent with his argument. The same flaws are apparent in Posner’s attempts to apply the Hand formula in his own judicial opinions. Neither he nor his like-minded colleague, Frank Easterbrook, has been able to employ the Hand formula to resolve the negligence issue in any case, and none of their fellow circuit judges has attempted to do so. (shrink)

The legal environment -- Regulation of nursing practice -- Nurses in legal actions -- Standards of care -- Defenses to negligence or malpractice -- Prevention of malpractice -- Nurses as witnesses -- Professional liability insurance -- Accepting or refusing an assignment/patient abandonment -- Delegation to unlicensed assistive personnel -- Patients' rights and responsibilities -- Confidential communication -- Competency and guardianship -- Informed consent -- Refusal of treatment -- Pain control -- Patient teaching and health counseling -- Medication administration -- Clients (...) with AIDS and HIV testing -- Abusive situations -- Reproductive services -- Restraints -- Emergency psychiatric admissions -- Organ and tissue donation and transplantation -- Discharge against medical advice -- The medical record and documentation standards -- Electronic health information and communications -- Interdependent nursing functions: verbal orders and telenursing -- Event reporting and compliance -- Quality and safety in nursing practice -- Forensic issues -- Employer and employee rights -- Contracts -- Corporate liability -- Employment contracts and unionization -- Employment status liability -- Staffing issues and floating -- Americans with Disabilities Act -- Employees with AIDS/HIV infection and exposure to bloodborne pathogens -- Impaired nurses -- Sexual harassment in the workplace -- Violence in the workplace -- Intentional torts -- Environmental health and safety -- Ethical decision making -- Professional boundaries and patient relationships -- Moral courage and patient advocacy -- Social media and online professionalism -- Reporting illegal, unethical, or unsafe conduct -- Maternal versus fetal rights -- Futility of care -- Advance directives and end-of-life decisions -- Assisted suicide. (shrink)

While fairness is often mentioned as a determinant of ultimatum bargaining behavior, few data sets are available that can test theories that incorporate fairness considerations. This paper tests the reciprocal kindness theory in Rabin (1993 Incorporating fairness into game theory and economics, The American Economic Review 83: 1281-1302) as an application to the one-period ultimatum bargaining game. We report on data from 100 ultimatum games that vary the financial stakes of the game from 1 to 15. Responder behavior is (...) strongly in support of the kindness theory and proposer behavior weakly in support of it. Offer percentages and past offers influence behavior the most, whereas the size of the pie has a marginally significant effect on offer percentages. The data is more in support of reciprocal kindness than alternative theories of equal-split or learning behavior, although the data also weakly support a minimum percentage threshold hypothesis. As a whole, our results together with existing studies suggest that, for smaller stakes games, fairness considerations dominate monetary considerations. This has implications for more complicated naturally occurring bargaining environments in which the financial stakes can vary widely. (shrink)

Appellate Court Modifications Extraction consists of, given an Appellate Court decision, identifying the proposed modifications by the upper Court of the lower Court judge’s decision. In this work, we propose a system to extract Appellate Court Modifications for Portuguese. Information extraction for legal texts has been previously addressed using different techniques and for several languages. Our proposal differs from previous work in two ways: our corpus is composed of Brazilian Appellate (...) class='Hi'>Court decisions, in which we look for a set of modifications provided by the Court; and to automatically extract the modifications, we use a traditional Machine Learning approach and a Deep Learning approach, both as alternative solutions and as a combined solution. We tackle the Appellate Court Modifications Extraction task, experimenting with a wide variety of methods. In order to train and evaluate the system, we have built the KauaneJunior corpus, using public data disclosed by the Appellate State Court of Rio de Janeiro jurisprudence database. Our best method, which is a Bidirectional Long Short-Term Memory network combined with Conditional Random Fields, obtained an \ score of 94.79%. (shrink)

In spite of these efforts in the 1920s and 1930s to initiate ongoing research on contraception, the subject of birth control remained a problem of concern primarily to the social activist rather than to the research scientist or practicing physician.80 In the 1930s, as has been shown, American scientists turned to the study of other aspects of reproductive physiology, while American physicians, anxious to eliminate the moral and medical dangers of contraception, only reluctantly accepted birth control as falling (...) within their professional domain.As a result, the problem of cheap, effective, and safe contraception was not solved by these earliest attempts. Consideration of the subject was initiated afresh by private philanthropy after World War II, sparked by a new wave of interest in population studies.81 Summarizing such efforts to support research in the reproductive sciences, a recent Ford Foundation study has noted: “To initiate and sustain serious research in the reproductive sciences has required for more than half a century concerted effort by interested individuals and private organizations, mainly from outside the mainstreams of the biomedical research community.”82The early laboratory research on chemical contraception described in this paper was but one important outcome of the concerted effort made by reformers in the 1920s to eliminate a variety of social problems thought to derive from excessive fertility. Scientific arguments and expertise were employed to advocate reform as well as to define the appropriate solution to such social problems. Scientists were recruited as advocates for the movement, but they were also employed as researchers in laboratory investigations sponsored by these same reformers.Sponsors of these early laboratory studies noted the difficulty of obtaining first-class investigators.83 The routine analyses necessary for such research, as well as the traditional scientific aversion to applied problems, provide only a partial explanation for this response. The real difficulty lay in recruiting investigators to a field that had previously been taboo. Once opened up — first as socially relevant, and finally as scientifically sound — there was much interest in this area, and the appeal to researchers of the scientific issues surrounding fertility and reproduction soon surpassed that of the reforming value of birth control.A survey of the kinds of experimental investigations sponsored by birth control advocates indicates the range of physiological problems explored by contraceptive research. The most definitive work was done on the efficacy and safety of spermicides, but the potential of other contraceptive methods was also examined. Investigators attempted to develop spermatoxins that would effectively immunize women against sperm, and they also tried to elucidate the mechanism of hormonal control of reproduction. In fact, speculations about the possible hormonal manipulation of fertility were expressed at the Seventh International Birth Control Conference held in Zurich in 1930.84In the 1920s, clinical studies were undertaken to assess the effectiveness of the various birth control methods. Laboratory investigators complemented this work by screening spermicides for safety and testing for their ability to kill sperm. There were a variety of birth control preparations on the market, but no one really knew whether these were effective or even safe.85 Although the physiology of other major organ systems was well advanced, the scientific study of reproductive physiology and contraceptive technology was clearly in its infancy in this period. Routine analyses simply could not be conducted, because the fundamental research establishing baselines had not yet been done. Scientists used this fact to redirect attention to basic research on reproduction.Laboratory research on contraception indicated important unexplored areas for physiological investigation. Social activists, who had encouraged prominent scientists to become interested in both the social value and the genetic implications of birth control, found these investigators revising the goals of their research. The biologists had formed their own network and had begun to seek out funding, reformulating the justification for sponsorship of further investigations. The eugenic motivations underlying these studies, which had initially made them theoretically attractive to biologists, were gradually eroded. Concern with “human evolution” ceded its place to interest in physiological mechanisms. Crew and others began to note that the use of biological theory to justify essentially political decisions had serious limitations. Biologists had become uncomfortable with those very arguments which had originally captured their interest. Recognition of the potential political abuse wrought by applying scientific principles to society was expressed by Crew just one year after the Zurich meeting. Referring to previous assessments of the role of sex in reproduction, he generalized: “In the past the biologist has justified feudalism, Manchester Liberalism, socialism and every other type of social organization and political programme by reference to selected biological phenomena.”86 By 1932 Crew had also begun to question the biological logic of regulated breeding, and had made it clear to his American sponsor that there was no simple correspondence between the practice of birth control and the genetic improvement of the human race.87Biologists further began to recognize, however, that although the hopeful genetic solution to human problems was probably an illusion, contraception still remained one tangible means to alleviate, human misery. Some laboratory scientists, like Crew, acknowledged the applicability of their own particular skills to this problem. For a few brief years, social needs and scientific goals were mutually supportive and closely intertwined. But as laboratory researchers gained interest in the study of reproduction and established their own priorities in this field, they temporarily withdrew from the arena of debate over birth control as an important mechanism for social reform.With the rise of Hitler, the genetic arguments for birth control rapidly lost their appeal. But by that time the scientific problem of how to achieve effective contraception had entered the professional consciousness. Both physicians and scientists began to be aware of birth control as a subject within their domain of expertise, although outside the principal focus of their research. Scientific discussion of birth control permanently altered from a question of justification to a problem of method: How could one achieve reliable and safe contraception? This had been Sanger's and Dickinson's goal from the beginning. Laboratory scientists had indeed been persuaded to undertake this work; this research had in turn affected biologists' perceptions of the whole field of reproductive physiology, encouraging further study of reproductive mechanisms. The promise of new knowledge provided for continued funding of this research, despite the caution by scientists that the social benefits would not be as immediate or as far-reaching as advocates and they themselves had first argued.The activities of birth control activists and their supporting agencies, and the financial backing of private contributors and foundations, notably the Rockefeller philanthropies, provided an important new stimulus to the development of research on the biology of reproduction in the late 1920s and early 1930s. Biologists were able to claim an enlarged realm of issues for scientific study through their activities as advocates and as investigators for the birth control movement. At the same time, they promised as-yet-undiscovered possibilities for regulating human reproduction once its physiology was understood. The knowledge and control that they promised lay in understanding the whole reproductive cycle — not merely in evaluating the toxic effects of presumptive spermicides.Chemical spermicides never summoned the interest of scientists as the contraceptive pill was to do, yet that research did reinforce the widespread perceptions of scientific research as essential to social reform. Spermicide investigations focused research efforts in reproductive biology by challenging traditional taboos, defining problems for further study, and providing laboratory investigators the opportunity to assert the social and scientific value of their own skills. Crew echoed this attitude as he observed in 1934:Man has turned from the adventurous conquest of his environment to the conquest of himself. To-day is the day of biological invention, eagerly used for the control of the undesirable and the unwanted. Sex and reproduction are no longer hedged around by myth and taboo; they are no longer accepted as mysteries that defy understanding. They are matters inviting examination and explanation; they are regarded as expressions of physico-chemical forces, the nature of which is to be displayed. It is accepted that when knowledge is sufficient, control will be absolute, and, though knowledge is not yet sufficient, readers... must be persuaded to the view that this will not always be so.88The synergism between reproductive biology and social needs has been temporary and sporadic, but recurring, since the 1920s. Scientific research programs have clearly been influenced by issues raised by public debate. Nevertheless, reproductive biologists have continued to assert their own professional goals. For the most part, they have rejected problems without inherent scientific interest and have spurned applied research except as it has had a direct bearing on current research themes. This attitude, apparent among American and British investigators in the 1930s, created the intellectual context for the invention and acceptance of the technically sophisticated oral contraceptive pill. It did not foster the production and improvement of the simple, safe, effective, and cheap vaginal contraceptive desired by early birth control advocates. (shrink)

Introduction: Interdisciplinary, transdisciplinary and action research of a city in lockdown. As we write this chapter, most cities across the world are subject to a similar set of measures due to the spread of COVID-19 coronavirus, which is now a global pandemic. Independent of city size, location, or history, an observer would note that almost all cities have now ground to a halt, with their citizens being confined to their private dwellings, social and public gatherings being almost entirely forbidden, and (...) commercial areas being nearly devoid of visitors. Striking as these apparent similarities are, closer scrutiny would reveal important differences between cities and within cities – differences that can be highly relevant to consider when scholars are assessing the responses of cities to this pandemic or trying to predict the consequences of those responses. For example, the public health systems in some cities are better prepared than in others for coping with the increasing number of patients in life threatening conditions. Multigenerational households, which are associated with a greater risk for elderly members, are not equally common in all cities. Tourist destinations have taken a more severe economic hit from the lockdown than those cities which are economically less dependent upon this particular source of income. Communal celebrations in one city will result in a higher number of contagions and perhaps even deaths in this situation, whereas that same social fabric generally does contribute to a population’s health. The pandemic has also had unprecedented effects on differences and inequalities within cities. In cities in the United States, neighborhoods primarily inhabited by African Americans have been disproportionately affected by COVID-19 due to living and health conditions, yet also due to the fact they disproportionately perform vital jobs. Parks and green spaces are crowded, while city centers like Amsterdam’s Red Light District have suddenly lost the bustle of tourism, providing opportunities for citizens to reoccupy scarce public spaces and reclaim ownership. Clearly, such differences between cities are in many cases only discernible to the eye of an expert, possessing the necessary background knowledge to interpret the perceptible local changes caused by the global pandemic. Typically, drawing upon his or her disciplinary training, the expert also knows how to further probe the impact of the pandemic in an appropriate way. However, compared to the usual application of expertise, this crisis situation might, in an unusual way, test even experts. For the pandemic has created a unique situation, imposing unfamiliar constraints on the health, economic, social, and other conditions of cities, constraints that interact in sometimes unexpected ways with each other. Such interactions in turn force experts to collaborate across the boundaries commonly associated with disciplines, their concepts, theories, methods, and assumptions (Klein, 1996). These brief observations of how a virus pandemic can have differential impacts upon various cities, and what this exceptional situation might mean for the application of city methods, allow us to draw a few consequences for the current context of this chapter on interdisciplinary and transdisciplinary research. First, whenever we are investigating a complex and dynamic phenomenon it is by no means easy to determine which disciplinary perspectives are required to do justice to it. Indeed, the choice of useful disciplines can only be made after an initial overview of the situation and a preliminary selection of what appear to be the most important features of the situation. Relevance is key in guiding this selection process and scholars must remain open to the possibility that they may need to revise their earlier assessments of what is relevant and what is not. Second, if scholars from different disciplines were to study different features of a city in isolation, their ‘multidisciplinary’ account would miss important dynamic and complex interactions, such as those between a city’s demographics and geographical situation, its governance and economy. In other words, it is the integration of the perspectives of different disciplines that is crucial, as only then are such interactions taken into account. Indeed, this integration between disciplinary perspectives is what distinguishes an interdisciplinary from a multidisciplinary account. Thirdly, in addition to checking the relevance of disciplines and aiming for their integration, the outcome of interdisciplinary and transdisciplinary research has typically limited generalizability. Since a city is sensitive to a multitude of internal and external dynamical factors, in ways that partly rest upon its socio-cultural history, its investigation will often have the nature of a case study rather than be capable of leading to law-like insights (Krohn, 2010; Menken & Keestra, 2016). As can be seen from these three characteristics of ascertaining the relevance of different disciplinary contributions, the challenge of their integration, and the limited generalizability of their results owing to the specificity of interdisciplinary (ID) and transdisciplinary (TD) research, such research into ‘real world problems’ is clearly distinct from most monodisciplinary research. A consequence of this distinction is the absence of a general ID/TD methodology that can guide specific case studies. By contrast, the collaboration implied in such research requires researchers – and stakeholders, if they are involved – to reflect upon their potential contribution and the implicit assumptions associated with that. We will elaborate on this in the next section. Next, we offer several typologies of integration that urban scholars could employ for their research projects, after which we will offer a few brief analyses of initial collaborations of urban research. Finally, we discuss in more detail the process of the interdisciplinary research project. This will include a brief reflection upon the decision-making process that is implied in such projects. In sum, we aim to provide some guidance in conducting an ID/TD project, albeit not in the form of a definite methodology. (shrink)

I have argued for a picture of decision theory centred on the principle of Rationally Negligible Probabilities. Isaacs argues against this picture on the grounds that it has an untenable implication. I first examine whether my view really has this implication; this involves a discussion of the legitimacy or otherwise of infinite decisions. I then examine whether the implication is really undesirable and conclude that it is not.

This guide accompanies the following article(s): ‘Full Disclosure of the “Raw Data” of Research on Humans: Citizens’ Rights, Product Manufacturer’s Obligations and the Quality of the Scientific Database.’Philosophy Compass 6/2 (2011): 90–99. doi: 10.1111/j.1747‐9991.2010.00376.x Author’s Introduction Securing consent (and informed consent) from patients and research study participants is a key concern in patient care and research on humans. Yet, the legal doctrines of consent and informed consent differ in their applications. In patient care, the judicial doctrines of consent and informed (...) consent are disclosure doctrines based on the obligation of physicians to inform their patients of the following types of information: the nature of the procedure the physician is recommending in the patent’s care (P), the alternatives to the physician‐recommendation (A), and the risks of procedure and its alternatives (R). In addition, the physician must provide truthful answers to the patient’s questions (Q) to the best of the physician’s abilities. In research on humans, the onus of disclosure by study sponsors and principal investigators is much greater than in patient care precisely because the purpose of research is not patient care. The purpose of research is the identification and development of new generalizable knowledge. Thus, participation in a research study or trial may not benefit the study volunteer at all. In addition, the participant may carry a heavy risk burden in relationship to any testing of a newly designed drug or device as part of their experiences in the research study. Presently, despite the risks borne by the research study participant, the raw data collected from volunteers in research trials are treated by courts as if they were the private property of the study sponsor rather than generally owed to the public as would be expected by an effort like research participation aimed at contributing to the development of generalizable knowledge. This paper reviews the obligations that study sponsors owe to their study participants based on the very definition of research as a systematic activity whose purpose is to develop generalizable knowledge to help all humans. Author Recommends Court cases Canterbury v. Spence, United States Court of Appeals, District of Columbia Circuit 464 F.2d 772 (1972). (Federal appellate decision heard in the District of Columbia, USA) Reibl v. Hughes, 2 S.C.R. 880 (1980). (Supreme Court of Canada) Rogers v. Whitaker, 175 C.L. R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Canterbury v. Spence is the landmark Federal informed consent case in the United States heard in the District of Columbia. In this case, Judge Spottswood Robinson articulated the reasonable person standard of informed consent. This standard was subsequently adopted by the Supreme Court of Canada (Reibl v. Hughes, 2 S.C.R. 880 (1980)) and the High Court of Australia (Rogers v. Whitaker, 175 C.L. R. 479 (1992)). The House of Lords rejected the reasonable person standard in England in Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985). Book Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. This book is a detailed guide for the review of scientific and ethical aspects of research on humans contained in the research study protocols and research informed consent forms which need to be submitted by study sponsors and principal investigators to institutional review boards (IRBs) for IRB review before a research study can receive approval to be conducted within a human study population in those institutions over which the IRB has authority. It also presents basic definitions in the area of research on humans and basic approaches to help conduct a deep review of the underlying scientific and ethical issues that are present within a research study protocol and its accompanying research informed consent form. Report National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). This U.S. National Commission in the Belmont Report argued for the necessity of a reasonable volunteer standard in research on humans in the United States. Arguing that the professional standard and the reasonable person standard of consent and informed consent were insufficient to base a disclosure standard in research on humans, this National Commission developed the reasonable volunteer standard where a study participant is to be approached in research informed consent with that information that a reasonable volunteer would want to know. Online Materials Belmont Report: Syllabus Topics for Lecture and Discussion Week I: Introduction and Overview Readings: Rogers v. Whitaker, 175 C.L.R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week II: The Different Standards of Consent and Informed Consent Readings: Canterbury v. Spence, 464 F.2d 772 (1972). (Federal appellate opinion heard in the District of Columbia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week III: Definition of Research Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 2 and 3) Week IV: How to Review a Research Study Protocol and Research Informed Consent Form Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 4–6, 10, and 12–14) Week V: Obligations in Research of Humans Versus Patient Care Reading: National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). Focus Questions • How do the judicial doctrines of consent in England and Australia compare to the judicial doctrines of informed consent in the United States and Canada? • How does a professional standard of disclosure differ from a reasonable person standard of disclosure? • What is the definition of research? • How is a research study (study proposal and research informed consent form) reviewed from scientific and ethical bases for considerations of approval by an IRB? • How do the obligations of a study sponsor, a principal investigator, and a research team conducting a research trial on human study participants differ from the obligations of a physician caring for a patient? • Should all raw data of research derived from humans be made available to the public for use in developing generalizable knowledge to help others, or should raw data be considered the private property of the study sponsors (for example, prescription drug manufacturers), who fund the research trials? Seminar/project Idea Draw a timeline of the development of the basic concepts of consent and informed consent in patient care and in patient research. On this timeline, first place the dates of the key court cases in England, the United States, Canada, and Australia on consent and informed consent. Then place the date of the development of the Belmont Report. Why do differences exist between these four countries in terms of the legal requirements of informedness of a patient (in medical care) and a study participant (in medical research)? What roles if any do the concepts of self‐determination and self‐decision have in consent and informed consent in patient care and in informed consent in research on humans among the four countries of interest? What are the realities of research on human participants that require a new standard of informed consent, the reasonable volunteer standard, to be developed beyond the two standards in patient care, the professional standard, and the reasonable person standard? Counterpoint Arguments The following are counterpoint arguments that need to be appreciated to more fully understand the concepts that impact the thesis that ‘raw data’ should be open to the public to allow the opportunity of checking of the results of its associated scientific paper and for further analysis. De‐Identified (Anonymized) Raw Data A current approach to identifying (anonymizinig) raw data is based on the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L.104‐191). HIPAA was enacted by the U.S. Congress in 1996 to keep a person’s medical information private. In a research study, a person’s private medical information can become research data. HIPAA’s Privacy Rule allows a covered entity to de‐identify data by removing all 18 elements that could be used to identify the individual or the individual’s relatives, employers, or household members; these elements are enumerated in the Privacy Rule. The covered entity must also have no actual knowledge that the remaining information could be used alone or in combination with other information to identify the individual who is the subject of the information. Under this method, the identifiers that must be removed are the following: 1 Names. 2 All geographic subdivisions smaller than a state, including street address, city, county, precinct, ZIP Code, and their equivalent geographical codes, except for the initial three digits of a ZIP Code if, according to the current publicly available data from the Bureau of the Census: 2a. The geographic unit formed by combining all ZIP Codes with the same three initial digits contains more than 20,000 people. 2b. The initial three digits of a ZIP Code for all such geographic units containing 20,000 or fewer people are changed to 000. 3 All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, and date of death, and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older. 4 Telephone numbers. 5 Facsimile numbers. 6 Electronic mail addresses. 7 Social security numbers. 8 Medical record numbers. 9 Health plan beneficiary numbers. 10 Account numbers. 11 Certificate/license numbers. 12 Vehicle identifiers and serial numbers, including license plate numbers. 13 Device identifiers and serial numbers. 14 Web universal resource locators (URLs). 15 Internet protocol (IP) address numbers. 16 Biometric identifiers, including fingerprints and voiceprints. 17 Full‐face photographic images and any comparable images. 18 Any other unique identifying number, characteristic, or code, unless otherwise permitted by the Privacy Rule for re‐identification. Even though ‘raw data’ can be de‐identified (anonymized) so that there is no way to trace back the data to the study participant from which it was drawn, there are still questions whether the ‘de‐identified raw data’ can be given to other researchers or made public without the original study participant’s approval. It may be the case that this approval could be done at the start of any research study where the individual considering study participation would be counseled on what the process of de‐identification consists of and would be asked whether the participant would allow use of the data by other researchers or made available to the public in a de‐identified state. However, there may be questions of the study participants as to whether the data are truly de‐identified and untraceable back to the study participant since the participant would not be able to see the process actually being carried out in detail in all relevant circumstances. Using Raw Data in Context Simply being in possession of raw data is never enough to build on that data from a research perspective. Researchers need to understand the context of the scientific research study in which the data were collected. This research context includes (but is not limited to): (i) the scientific hypothesis of the research study, (ii) the inclusion and exclusion criteria selected by the research designers of the study to determine which study participants were included and which were excluded from the study, (iii) the methods used to collect the data and possibilities of errors in the data collection processes, and (iv) answers to questions regarding whether any data were excluded from the study data and why these data were excluded. Ownership Rights Over Data There are ownership rights over data. Ownership rights include court decision making related to the question which parties are to be considered as the owners of the data. Possible owners here include (but are not limited to) (i) the study sponsor whose only role was to fund that study, (ii) the principal investigator(s) who developed the scientific hypothesis, and (iii) individual study participants through special contracts made by individual participants who negotiate such contracts with study sponsors and principal investigators to share in the ownership of data. Examples of such data are participant sources of unique gene lines or unique cell lines to be used in future research. Objections to Data Sharing Finally, individual researchers may simply object to sharing data. A researcher’s arguments here may be simply stating that he or she has a right to fully analyze the data since the collection of the data was the researchers’ idea in the first place. These researchers may argue that they have the right to mine the data as fully as they can before deciding to make the data open to the public for others to analyze. Works Cited 1 Kaiser, J. ‘Making Clinical Data Widely Available.’Science 322.5899 (10 Oct. 2008): 217–8. 2 de Lusignan, S., J.F. Metsemakers, P. Houwink, V. Gunnarsdottir, and J. van der Lei. ‘Routinely Collected General Practice Data: Goldmines for Research? A Report of the European Federation for Medical Informatics Primary Care Informatics Working Group (EFMI PCIWG) from MIE2006, Maastricht, The Netherlands.’Informatics in Primary Care 14.3 (2006): 203–9. 3 Sim, I. ‘Human Studies Database Project’, CTSA Data Repositories Symposium (17 Oct. 2008). 23 Nov. 2010. 4 Sim, I., C.G. Chute, H. Lehmann, R. Nagarajan, M. Nahm, and R.H. Scheuermann. ‘Keeping Raw Data in Context.’Science 323.5915 (6 Feb. 2009): 713. 5 U.S. Department of Health and Human Services, National Institutes of Health, HIPAA Privacy Rule, Information for Researchers. 13 Nov. 2010. 6 Wilczynski, N.L., R.B. Haynes, and Hedges Team. ‘EMBASE Search Strategies for Identifying Methodologically Sound Diagnostic Studies for Use by Clinicians and Researchers.’BMC Medicine 29.3 (March 2005): 7. (shrink)

This guide accompanies the following article(s): ‘Full Disclosure of the “Raw Data” of Research on Humans: Citizens’ Rights, Product Manufacturer’s Obligations and the Quality of the Scientific Database.’Philosophy Compass 6/2 (2011): 90–99. doi: 10.1111/j.1747‐9991.2010.00376.x Author’s Introduction Securing consent (and informed consent) from patients and research study participants is a key concern in patient care and research on humans. Yet, the legal doctrines of consent and informed consent differ in their applications. In patient care, the judicial doctrines of consent and informed (...) consent are disclosure doctrines based on the obligation of physicians to inform their patients of the following types of information: the nature of the procedure the physician is recommending in the patent’s care (P), the alternatives to the physician‐recommendation (A), and the risks of procedure and its alternatives (R). In addition, the physician must provide truthful answers to the patient’s questions (Q) to the best of the physician’s abilities. In research on humans, the onus of disclosure by study sponsors and principal investigators is much greater than in patient care precisely because the purpose of research is not patient care. The purpose of research is the identification and development of new generalizable knowledge. Thus, participation in a research study or trial may not benefit the study volunteer at all. In addition, the participant may carry a heavy risk burden in relationship to any testing of a newly designed drug or device as part of their experiences in the research study. Presently, despite the risks borne by the research study participant, the raw data collected from volunteers in research trials are treated by courts as if they were the private property of the study sponsor rather than generally owed to the public as would be expected by an effort like research participation aimed at contributing to the development of generalizable knowledge. This paper reviews the obligations that study sponsors owe to their study participants based on the very definition of research as a systematic activity whose purpose is to develop generalizable knowledge to help all humans. Author Recommends Court cases Canterbury v. Spence, United States Court of Appeals, District of Columbia Circuit 464 F.2d 772 (1972). (Federal appellate decision heard in the District of Columbia, USA) Reibl v. Hughes, 2 S.C.R. 880 (1980). (Supreme Court of Canada) Rogers v. Whitaker, 175 C.L. R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Canterbury v. Spence is the landmark Federal informed consent case in the United States heard in the District of Columbia. In this case, Judge Spottswood Robinson articulated the reasonable person standard of informed consent. This standard was subsequently adopted by the Supreme Court of Canada (Reibl v. Hughes, 2 S.C.R. 880 (1980)) and the High Court of Australia (Rogers v. Whitaker, 175 C.L. R. 479 (1992)). The House of Lords rejected the reasonable person standard in England in Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985). Book Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. This book is a detailed guide for the review of scientific and ethical aspects of research on humans contained in the research study protocols and research informed consent forms which need to be submitted by study sponsors and principal investigators to institutional review boards (IRBs) for IRB review before a research study can receive approval to be conducted within a human study population in those institutions over which the IRB has authority. It also presents basic definitions in the area of research on humans and basic approaches to help conduct a deep review of the underlying scientific and ethical issues that are present within a research study protocol and its accompanying research informed consent form. Report National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). This U.S. National Commission in the Belmont Report argued for the necessity of a reasonable volunteer standard in research on humans in the United States. Arguing that the professional standard and the reasonable person standard of consent and informed consent were insufficient to base a disclosure standard in research on humans, this National Commission developed the reasonable volunteer standard where a study participant is to be approached in research informed consent with that information that a reasonable volunteer would want to know. Online Materials Belmont Report: Syllabus Topics for Lecture and Discussion Week I: Introduction and Overview Readings: Rogers v. Whitaker, 175 C.L.R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week II: The Different Standards of Consent and Informed Consent Readings: Canterbury v. Spence, 464 F.2d 772 (1972). (Federal appellate opinion heard in the District of Columbia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week III: Definition of Research Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 2 and 3) Week IV: How to Review a Research Study Protocol and Research Informed Consent Form Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 4–6, 10, and 12–14) Week V: Obligations in Research of Humans Versus Patient Care Reading: National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). Focus Questions • How do the judicial doctrines of consent in England and Australia compare to the judicial doctrines of informed consent in the United States and Canada? • How does a professional standard of disclosure differ from a reasonable person standard of disclosure? • What is the definition of research? • How is a research study (study proposal and research informed consent form) reviewed from scientific and ethical bases for considerations of approval by an IRB? • How do the obligations of a study sponsor, a principal investigator, and a research team conducting a research trial on human study participants differ from the obligations of a physician caring for a patient? • Should all raw data of research derived from humans be made available to the public for use in developing generalizable knowledge to help others, or should raw data be considered the private property of the study sponsors (for example, prescription drug manufacturers), who fund the research trials? Seminar/project Idea Draw a timeline of the development of the basic concepts of consent and informed consent in patient care and in patient research. On this timeline, first place the dates of the key court cases in England, the United States, Canada, and Australia on consent and informed consent. Then place the date of the development of the Belmont Report. Why do differences exist between these four countries in terms of the legal requirements of informedness of a patient (in medical care) and a study participant (in medical research)? What roles if any do the concepts of self‐determination and self‐decision have in consent and informed consent in patient care and in informed consent in research on humans among the four countries of interest? What are the realities of research on human participants that require a new standard of informed consent, the reasonable volunteer standard, to be developed beyond the two standards in patient care, the professional standard, and the reasonable person standard? Counterpoint Arguments The following are counterpoint arguments that need to be appreciated to more fully understand the concepts that impact the thesis that ‘raw data’ should be open to the public to allow the opportunity of checking of the results of its associated scientific paper and for further analysis. De‐Identified (Anonymized) Raw Data A current approach to identifying (anonymizinig) raw data is based on the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L.104‐191). HIPAA was enacted by the U.S. Congress in 1996 to keep a person’s medical information private. In a research study, a person’s private medical information can become research data. HIPAA’s Privacy Rule allows a covered entity to de‐identify data by removing all 18 elements that could be used to identify the individual or the individual’s relatives, employers, or household members; these elements are enumerated in the Privacy Rule. The covered entity must also have no actual knowledge that the remaining information could be used alone or in combination with other information to identify the individual who is the subject of the information. Under this method, the identifiers that must be removed are the following: 1 Names. 2 All geographic subdivisions smaller than a state, including street address, city, county, precinct, ZIP Code, and their equivalent geographical codes, except for the initial three digits of a ZIP Code if, according to the current publicly available data from the Bureau of the Census: 2a. The geographic unit formed by combining all ZIP Codes with the same three initial digits contains more than 20,000 people. 2b. The initial three digits of a ZIP Code for all such geographic units containing 20,000 or fewer people are changed to 000. 3 All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, and date of death, and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older. 4 Telephone numbers. 5 Facsimile numbers. 6 Electronic mail addresses. 7 Social security numbers. 8 Medical record numbers. 9 Health plan beneficiary numbers. 10 Account numbers. 11 Certificate/license numbers. 12 Vehicle identifiers and serial numbers, including license plate numbers. 13 Device identifiers and serial numbers. 14 Web universal resource locators (URLs). 15 Internet protocol (IP) address numbers. 16 Biometric identifiers, including fingerprints and voiceprints. 17 Full‐face photographic images and any comparable images. 18 Any other unique identifying number, characteristic, or code, unless otherwise permitted by the Privacy Rule for re‐identification. Even though ‘raw data’ can be de‐identified (anonymized) so that there is no way to trace back the data to the study participant from which it was drawn, there are still questions whether the ‘de‐identified raw data’ can be given to other researchers or made public without the original study participant’s approval. It may be the case that this approval could be done at the start of any research study where the individual considering study participation would be counseled on what the process of de‐identification consists of and would be asked whether the participant would allow use of the data by other researchers or made available to the public in a de‐identified state. However, there may be questions of the study participants as to whether the data are truly de‐identified and untraceable back to the study participant since the participant would not be able to see the process actually being carried out in detail in all relevant circumstances. Using Raw Data in Context Simply being in possession of raw data is never enough to build on that data from a research perspective. Researchers need to understand the context of the scientific research study in which the data were collected. This research context includes (but is not limited to): (i) the scientific hypothesis of the research study, (ii) the inclusion and exclusion criteria selected by the research designers of the study to determine which study participants were included and which were excluded from the study, (iii) the methods used to collect the data and possibilities of errors in the data collection processes, and (iv) answers to questions regarding whether any data were excluded from the study data and why these data were excluded. Ownership Rights Over Data There are ownership rights over data. Ownership rights include court decision making related to the question which parties are to be considered as the owners of the data. Possible owners here include (but are not limited to) (i) the study sponsor whose only role was to fund that study, (ii) the principal investigator(s) who developed the scientific hypothesis, and (iii) individual study participants through special contracts made by individual participants who negotiate such contracts with study sponsors and principal investigators to share in the ownership of data. Examples of such data are participant sources of unique gene lines or unique cell lines to be used in future research. Objections to Data Sharing Finally, individual researchers may simply object to sharing data. A researcher’s arguments here may be simply stating that he or she has a right to fully analyze the data since the collection of the data was the researchers’ idea in the first place. These researchers may argue that they have the right to mine the data as fully as they can before deciding to make the data open to the public for others to analyze. Works Cited 1 Kaiser, J. ‘Making Clinical Data Widely Available.’Science 322.5899 (10 Oct. 2008): 217–8. 2 de Lusignan, S., J.F. Metsemakers, P. Houwink, V. Gunnarsdottir, and J. van der Lei. ‘Routinely Collected General Practice Data: Goldmines for Research? A Report of the European Federation for Medical Informatics Primary Care Informatics Working Group (EFMI PCIWG) from MIE2006, Maastricht, The Netherlands.’Informatics in Primary Care 14.3 (2006): 203–9. 3 Sim, I. ‘Human Studies Database Project’, CTSA Data Repositories Symposium (17 Oct. 2008). 23 Nov. 2010. 4 Sim, I., C.G. Chute, H. Lehmann, R. Nagarajan, M. Nahm, and R.H. Scheuermann. ‘Keeping Raw Data in Context.’Science 323.5915 (6 Feb. 2009): 713. 5 U.S. Department of Health and Human Services, National Institutes of Health, HIPAA Privacy Rule, Information for Researchers. 13 Nov. 2010. 6 Wilczynski, N.L., R.B. Haynes, and Hedges Team. ‘EMBASE Search Strategies for Identifying Methodologically Sound Diagnostic Studies for Use by Clinicians and Researchers.’BMC Medicine 29.3 (March 2005): 7. (shrink)

In many forms of severe acute brain injury there is an early phase when prognosis is uncertain, followed later by physiological recovery and the possibility of more certain predictions of future impairment. There may be a window of opportunity for withdrawal of life support early, but if decisions are delayed there is the risk that the patient will survive with severe impairment. In this paper I focus on the example of neonatal encephalopathy and the question of the timing of (...) prognostic tests and decisions to continue or to withdraw life-sustaining treatment. Should testing be performed early or later; and how should parents decide what to do given the conflicting values at stake? I apply decision theory to the problem, using sensitivity analysis to assess how different features of the tests or different values would affect a decision to perform early or late prognostic testing. I draw some general conclusions from this model for decisions about the timing of testing in neonatal encephalopathy. Finally I consider possible solutions to the problem posed by the window of opportunity. Decision theory highlights the costs of uncertainty. This may prompt further research into improving prognostic tests. But it may also prompt us to reconsider our current attitudes towards the palliative care of newborn infants predicted to be severely impaired. (shrink)

This paper presents the leading idea of my doctoral dissertation and thus has been shaped by the reactions of all the members of my thesis committee: Charles Chastain, Walter Edelberg, W. Kent Wilson, Dorothy Grover, and Charles Marks. I am especially grateful for the help of Professors Chastain, Edelberg, and Wilson; each worked closely with me at one stage or another in the development of the ideas contained in the present work. Shorter versions of this paper were presented at the (...) 47th Annual Northwest Conference on Philosophy (1995), the 1996 Mid-South Philosophy Conference, the 1997 meeting of the Central Division of the American Philosophical Association, and at the University of Washington, Seattle; thanks to all audiences for their insightful comments and questions and also to my conference commentators, Eric Gampel, Jonathan Cohen, and Bruce Glymour, respectively, each of whom offered a thoughtful critique. Lastly, I extend my gratitude to anonymous referees, including two from Mind and Language, whose remarks led to significant improvements in the paper. Address for correspondence: 13416, 4th Ave. S., Seattle, WA 98168, USA E-mail: [email protected].. (shrink)

In recent years, the Supreme Court appears to have taken a greater interest in "business" issues. Does this reflect a change in the Court's orientation, or is it the natural outcome of the appellate process? Is the Court "pro-business"? If so, in what ways do the Court's decisions support business interests and what does that mean for the law and the American public? Business and the Roberts Court provides the first critical analysis (...) of the Court's business-related jurisprudence. In this volume, prominent academics examine the Roberts Court's handling of business-related cases, through a series of empirical and doctrinal analyses. Issues covered include securities law, antitrust, labor law, preemption, and environmental law, among others. Business law and regulatory cases touch on many important legal doctrines and can have far-reaching effects. Understanding the bases upon which the Supreme Court decides business-related cases is of tremendous importance to practitioners and academics. It can also further greater understanding of one of the nation's most important government institutions. These issues are of interest to academics, but also of practical importance to Supreme Court and business practitioners. (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)

Online product recommendation systems have gained prominence in the context of e-commerce over the past years. Despite the increased research on OPR use, less attention has been paid to examining how decision and affective assessment of the OPR are contingent upon the product type. This study proposes and examines a recommendation-product congruity proposition based on cognitive fit and schema congruity theories. The proposition states that when the content of the OPR [either system-generated recommendation or a consumer-generated recommendation ] matches the (...) brain-stored schema initiated by a particular product, then a consumer would use a schema-based information assessment strategy and experience favorable decision and affective assessment of the OPR. This then affects consumers’ intentions to purchase and reuse OPR. The proposition is tested via a 2 × 2 between-respondents factorial design of a cross-sectional survey with 482 Amazon customers. The results support the following two matching conditions of the proposition: SGR describing a search product and CGR explaining an experienced product, which might lead customers to perceive lower decision effort, greater decision quality, and higher enjoyment with the OPR that subsequently have a significant impact on their intentions to purchase and reuse OPR. This study expands our understanding of how recommendation-product congruence influences the consumer’s decision and affective assessment behavior and provides practical implications for the identification and presentation of the recommendation type and product type for a better customer decision. (shrink)

This essay examines the use of fictions in the reasoning of the House of Lords and United Kingdom Supreme Court in the context of two recent lines of authority on English tort law. First, the essay explores the relevance of counter-factual scenarios to liability in the tort of false imprisonment, in the light of the Supreme Court decisions in Lumba and Kambadzi. The second series of decisions is on causation in negligence claims arising from asbestos exposure. (...) These cases have revealed fundamental, ongoing judicial disagreement about the nature and extent of the exceptions made to general principles. The cases are also shown to lend force to Del Mar’s argument about the diachronicity of legal fictions. Overall, it is argued that such fictions play an important role in common law reasoning. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:For the Sake of Argument: Practical Reasoning, Character, and the Ethics of BeliefRobert MetcalfFor the Sake of Argument: Practical Reasoning, Character, and the Ethics of Belief. Eugene Garver. Chicago: University of Chicago Press, 2004. pp. 264. $55.00, hardcover; $22.50, paperback.Professor Garver's book, For the Sake of Argument: Practical Reasoning, Character, and the Ethics of Belief, is a provocative and illuminating study of practical reasoning, and one that develops (...) many of the ideas found in his magisterial study, Aristotle's Rhetoric: An Art of Character (Chicago: University of Chicago Press, 1994). The previous book concluded by arguing that Aristotle's Rhetoric is philosophically more interesting today than it was in Aristotle's time, in part because for us there is no polis to which the argumentative facility of rhetoric would be subordinate (1994, 233ff.). This idea is echoed in the present book when Garver writes: "The more we take disagreement to be a permanent part of the situation of practical reasoning, and not something soon to be overcome by appropriate theory or universal enlightenment, the more rhetorical facility becomes a central part [End Page 95] of practical reason" (2004, 175). It is, indeed, a fascinating feature of For the Sake of Argument that it defends the autonomy and integrity of practical reason through Aristotle's insights on the various connections between argument, persuasion, and ethos (153), and illustrates these through examples such as the South African Truth and Reconciliation Commission, the landmark Brown v. Board of Education, and subsequent Supreme Court decisions.The book is divided into eight chapters, and, as Garver explains, these represent four pairs of essays in which a more concrete or "applied" chapter is followed by a chapter that draws generalizations from the examples of the prior chapter. Among the themes most prominent in the book are the connection between reason and character, on which Garver writes, "Practical reason has its own integrity when who we are and how we think are intimately connected" (2); the compatibility, within practical reason, of truth and one's own interest; the "ampliative" nature of practical reason, such that the implications of one's beliefs can lead to discoveries unanticipated at the beginning; the connection between the ethos of a leader and the ethos of a community; and the underappreciated power of epideictic rhetoric "to affirm values and articulate new vocabularies" (178). In addressing such broad themes, Garver's attention to concrete examples, like Brown v. Board of Education, is thoroughly instructive. The Brown decision, he argues, is "an epideictic declaration that equality and antidiscrimination are fundamental American Constitutional values" (73). Brown clearly demonstrates the ampliative nature of practical reason in that the conclusion it reaches is stronger than the premises from which it begins (i.e., the Fourteenth Amendment); moreover, it generates what Garver calls an "ethical surplus" that allows for unanticipated implications that are stronger still, such as the later Court decision striking down antimiscegenation laws (71–73). This "increase" in strength in proceeding from premises to conclusion is "impossible under a purely deductive conception of rationality," Garver writes (73), yet it is well explained by his Aristotle-inspired account of practical reasoning.Surely some readers will recoil from Garver's more provocative claims, such as that "we decide... to be convinced and choose to find a line of reasoning compelling" (119), offered within a discussion of the responsibility we bear in ethical argumentation. However, the issue that is more problematic, to my mind, concerns Garver's treatment of Plato. This may seem odd, given that Plato only appears as a foil in the book—but the problem is that it is merely a caricature of Plato that Garver allows to act as [End Page 96] a foil. Garver argues against "the Platonic program which will save reason by removing it from human contamination" (3) and "the Platonic hope of replacing ethical reasoning by the certainties of science" (5). He sides with Aristotle's idea that we can aim at effectiveness and at rightness together (48, 200) over against the allegedly Platonic idea that we must choose between truth and our own interest, reason and emotion, and so forth, or else... (shrink)

Carol Pateman has said that the public/private distinction is what feminism is all about. I tend to be sceptical about categorical pronouncements of this sort, but this book is a work of feminist political philosophy and the public/private distinction is what it is all about. It is motivated by the belief that we lack a philosophical conception of privacy suitable for a democracy; that feminism has exposed this lack; and that by combining feminist analysis with recent developments in political philosophy, (...) we can meet the philosophical and political need for a distinctively democratic conception of privacy. This book then, is an effort to sketch and defend such a conception of privacy. It aims to show that while some conceptions of privacy are inconsistent with democracy, others are not. Indeed, the book asserts, the belief that privacy can be valuable and that it can justify basic legal rights, is implicit in a democratic conception of persons as free and equal beings, and a democratic conception of politics as the self-governing, or regulating, activity of such individuals. Just as we can and should reject undemocratic conceptions of the suffrage in favour of democratic ones, so the book maintains, we can and must reject undemocratic conceptions of privacy in favour of ones that reflect the moral equality of men and women, and a commitment to democratic forms of government. Democracy is often described as government by and for the people. On such a view, democracy is a political regime which can be contrasted with monarchies or aristocracies on the one hand, or with theocracies and despotisms on the other. By contrast with the former, it is a form of government that views individuals as citizens and as equal members of the agency which authorizes the use of political power. By contrast with the latter, it is a form of government whose purposes and aims are established by the common interests of individuals, conceived as free and equal citizens. It is my contention that there is a plausible and attractive conception of privacy implicit in this view of democracy. Hence, I show that individuals have fundamental interests in privacy because privacy enables them to participate in politics freely and as the equal of others and, beyond that, to lead lives that they can each affirm to be reasonable, valuable and right. As I think that the ideal of democratic government is properly associated with this latter and broader goal, as well as with the former one, I call my account of privacy a democratic conception of privacy to signal its connection to a particular ideal of politics, and to the conception of persons that makes this ideal a convincing and inspiring one. As this is a work of political philosophy, however, no effort is made to address the legal merits of competing accounts of the right to privacy, or to resolve legal dispute about the content and justification of particular constitutional rights in the United States. Thus, while I use Supreme Court decisions and works of legal theory to illustrate and support my arguments, my use of these materials is governed by philosophical concerns and my conclusions, therefore, are strictly of a philosophical, not a legal, nature. The book is divided into four chapters, moving from feminist criticisms of privacy to an engagement with the philosophical literature on privacy and an account of the right to privacy in a democratic society. It proceeds as follows. In Chapter 1, I examine feminist concerns about privacy, through a close reading of the work of Catherine MacKinnon. I argue that MacKinnon persuasively shows that protection for privacy has frequently licensed the coercion and subjection of women, and that her arguments are supported both by feminist scholarship, key Supreme Court decisions, and by familiar conceptions of privacy and equality. However, I argue, these criticisms do not imply that privacy, like slavery, can never be democratic, because wholly inconsistent with the equality of individuals. Rather, feminist criticisms of privacy suggest that privacy, like the suffrage, can be necessary to the equality of women and can have a legitimate and important place in a democratic society. In Chapter 2, I examine the philosophical literature on privacy in light of the need to distinguish democratic from undemocratic accounts of its nature and value. This literature, I show, can help us to provide an account of privacy that is sensitive both to its inegalitarian aspects and to its importance for a democratic commitment to the freedom and equality of women. However, I argue, we cannot embrace current philosophical accounts of privacy uncritically, because to a striking extent they are, themselves, indifferent to the ways that privacy has licensed sexual inequality. Thus, in Chapter 2, I set about interpreting privacy as a moral and political value, in light of the strengths and weaknesses of the philosophical literature on privacy. Their strength is that they show that there are many reasons for caring about privacy, or many ways in which we might define it as a democratic value. Their weakness is that they tend to assume that we must choose amongst these different conceptions of privacy, in order to provide a philosophically cogent account of privacy. This, I show, is a mistake and one that can be remedied by remembering that a commitment to the equality of individuals requires us to acknowledge the reasonable differences in value and interest that may characterize their relations in a democracy. When we do so, I show, it is possible to define privacy in terms of its protection for self-definition, intimacy and confidentiality, without having to choose between the three of them. For individuals may legitimately disagree about the differences between privacy and other values, even while holding that privacy is a distinctive and important democratic good; and they may also disagree about the importance of privacy compared to other goods, such as equality, without denying that self-definition, intimacy and confidentiality can be morally and politically desirable in a democracy. In Chapter 2, therefore, I show that we can provide a philosophically adequate account of what privacy is and why it is valuable without supposing that privacy is always sexually egalitarian, or denying that it has a distinctive place in a democratic conception of value. Chapter 3 then extends this account of privacy, by considering the justification for a legal right to privacy. Just as we cannot provide a democratic conception of privacy without attending to the different, though equally valid, concerns that individuals may have so, I show, we cannot provide a democratic account of privacy rights if we forget that individuals can, quite reasonably, differ in the importance that they attach to privacy. The result, I argue, is that we can distinguish two main reasons for protecting privacy by right in a democracy, the one personal and the other political. Whereas the former emphasizes the importance of self-definition, intimacy and confidentiality to the personal freedom and equality of individuals, the latter emphasizes their importance to their prospects for voluntary and equal participation in the processes of collective choice and deliberation that define a democratic government. These two justifications of privacy rights reflect the fact that in a democracy the personal can be political, as feminists have insisted, but need not be in order to merit protection by right. Indeed, I argue, we can distinguish democratic from undemocratic accounts of the right to privacy in this way: for whilst the former acknowledge the variety of individuals’ interests in personal and collective choice, the latter either collapse the political into the personal, or assume that the legitimate claims of individuals are merely a function of collective needs, interests and values. Neither of these is consistent with familiar assumptions about the nature and justification of democratic institutions and rights, nor can they be reconciled with a commitment to sexual equality. Thus, I conclude, though the fact that there are different justifications for privacy rights in a democracy means that individuals may legitimately disagree over the content and justification of basic rights, it is wrong to confuse democratic debate with moral or conceptual confusion and so, arbitrarily, to truncate our accounts of privacy, equality and democracy. Finally, in Chapter 4, I test and develop these claims by examining the justification for abortion rights in a democracy. I argue that women have legitimate interests in abortion, as well as in bearing children, because they have fundamental, and legitimate, interests in privacy and equality. Although safe and legal abortion is necessary to sexual equality, as feminists claim, I show that we can provide a convincing and democratic account of women’s claims to abortion only if we recognize women’s interests in self-definition, intimacy and confidentiality. This is because women have both personal and political interests in abortion and we will be unable adequately to identify these if we overlook their interests in privacy. Indeed, I show, the difference between democratic and undemocratic solutions to conflict over abortion lies precisely in this: that whereas the former acknowledge the importance of privacy to the personal and political equality of women, the latter overlook or deny this. As a result, the latter license both mandated abortions, although women have legitimate interests in bearing and raising children, and prohibitions on abortion that cannot be reconciled with the freedom and equality of women. That is not to say that abortion is not a politically significant matter, or that we can resolve moral conflict over abortion simply by giving women a legal right to abortion. Neither is the case. However, the chapter shows, in a democracy individuals are entitled to make morally and politically controversial decisions for themselves not simply because this is expedient or useful, but because this is right. To overlook this feature of democracy, I argue, is to make moral and political conflict utterly intractable by democratic means. Thus, while controversy over abortion has been held to show that privacy is an incoherent and undemocratic right, this chapter argues that it shows the reverse: for controversy over abortion makes clear that privacy is essential to democracy, and why this should be so. This overview of the book, I hope, makes clear that its concerns are methodological as well as substantive, and moral as well as political. Thus, its central methodological claim is that we cannot reconcile privacy with the equality of individuals unless we make a deliberate effort to do so. Its central moral and political claims are that privacy is compatible with the equality of individuals, and sufficiently important to the latter that, in a democracy, the privacy of individuals merits legal protection by right. However, this summary of the book also exposes its limitations. Chief amongst these, I fear, is that it provides no sustained discussion of the place of property on a democratic conception of privacy, and that the latter, itself, is rather a broad preliminary sketch than a polished and detailed portrait. I regard these limits on the scope and arguments of the book as limitations, albeit ones that I hope to be able to remedy before too long.However, limited though the book clearly is, I believe that it lays out the essential components of a democratic conception of privacy and that, by analysing and synthesizing several diverse bodies of literature, it may help those who are interested in the relations between privacy, equality and democracy. (shrink)

This article discusses academic work in relation to appellate courts. It concentrates on characterizing and explaining judicial decision-making and winning on an appeal. Furthermore, it raises questions about the nature and coverage of empirical legal research on appellate courts, and discusses general methodological questions. It also looks at rival approaches to describing what judges do in making decisions, and what motivational assumptions are most commonly made and finally indicates the broad outlines of how the field should develop (...) methodologically in the future. Empirical legal research suffers from the main weakness of the entire body of empirical research applied to appellate courts. This article concludes by mentioning that a shift of focus is needed to other aspects of law. To be forced into a choice, a judge must feel that what he regards as morally correct would be inconsistent with existing law. (shrink)

The paper discusses the Anglo-American philosophy of law of the 20th century, more specifically the philosophy of law of Ronald Myles Dworkin and his criticism of the legal positivism of Herbert Lionel Adolphus Hart. The author presents the history of the criticism of legal positivism in Ronald Dworkin’s philosophy of law and distinguishes historical stages. The subject of the study is the critique of legal positivism but not the Hart-Dworkin debate itself, well known in Western philosophy of law. The (...) reason is that the discussion was conducted between Dworkin and Hart’s supporters but not between Dworkin and Hart by himself. The latter responded to the criticism only after twenty seven years. The article explains why Dworkin chose for his criticism Herbert Hart’s version of legal positivism. This is due to the fact that Dworkin highly appreciated Hart’s positivist theory of law and characterized it as the “most clear.” The article presents the methodological foundations of criticism of Hart’s legal positivism in Dworkin’s philosophy of law. It reveals a methodological divergence between the two legal theories, which directly affects the understanding of the concept of law and its content. Therefore, we can assume that the legal theories of Hart and Dworkin are two competing models of law: Dworkin’s model considers law as a set of rules and principles and Hart’s model acknowledges only rules and court decisions as a source of law. The article also presents the key principles of positivism criticized by Dworkin. These principles, firstly, interpret law as a set of legal rules determined through a special legal criterion, secondly, provide the judge with an opportunity to make a decision “at his own discretion” in a situation not regulated by law, and, thirdly, recognize only legal rights and obligations enshrined in legal regulations. It is important to note that in this article the author describes criticism as an independent phenomenon of legal philosophy with a particular focus on the history and foundations of this phenomenon. (shrink)

A major appellate court decision from the United States seriously questions the legal sufficiency of prevailing medical criteria for the determination of death by neurological criteria. There may be a mismatch between legal and medical standards for brain death, requiring the amendment of either or both. In South Australia, a Bill seeks to establish a legal right for a defined category of persons suffering unbearably to request voluntary euthanasia. However, an essential criterion of a voluntary decision is that (...) it is not tainted by undue influence, and this Bill falls short of providing adequate guidance to assess for undue influence. (shrink)

This article seeks to interpret the striking divergence between the two judgments passed by the European Court of Human Rights in the Lautsi v Italy case in terms of value pluralism. The latter is a hotly debated position in ethics, brought to life in the second half of the twentieth century by Isaiah Berlin. Pluralism elucidates these in interesting ways. First, value pluralism sheds light on three major aspects of the trial before the European Court of Human Rights: (...) the nature of the collision of values, the discrepancy between the two decisions, and the rationale of the final judgment. Secondly, this is my thesis that while the first judgment fits ethical monism, which underlies Dworkin’s ‘one right answer’ theory, the second ruling chimes with pluralism. The pluralist spirit of the Grand Chamber’s final decision turned Europe away from the path of Americanization. (shrink)

Historically, the standard of care in medical negligence provided considerable scope for external evaluation of clinical judgment. Under the Bolam test, however, determining the standard was seen by the courts as essentially a matter for the medical profession, to be resolved by expert testimony with minimal court scrutiny. In recent years, courts have become more willing to probe such testimony and challenge the credibility of medical experts, although they would very rarely override clinical judgment. The House of Lords' decision (...) in Bolitho may be construed as inviting courts to reach their own conclusions on the reasonableness of clinical conduct, along standard risk–benefit lines, after having made their own assessment of the expert opinion. Closer scrutiny of such opinion is the more welcome in the light of current concerns about partisanship in expert testimony. (shrink)

Scientific ideas neither arise nor develop in a vacuum. They are always nutured against a background of prior, partially conflicting ideas. Systemic hypothesistesting is the problem of testing scientific hypotheses relative to various systems of background knowledge. This paper shows how the problem of systemic hypothesis-testing (Sys HT) can be systematically expressed as a constrained maximimization problem. It is also shown how the error of the third kind (E III) is fundamental to the theory of Sys HT.The error (...) of the third kind is defined as the probability of having solved the ‘wrong’ problem when one should have solved the ‘right’ problem. This paper shows howE III can be given both a systematic as well as a systemic treatment. Sys HT gives rise to a whole host of new decision problems, puzzles, and paradoxes. (shrink)

Toulmin, Hull, Campbell, and Popper have defended an "Evolutionary-Analogy" view of scientific evaluative practice. In this view, competing concepts, theories and methods of inquiry engage in a competitive struggle from which the "best adapted" emerge victorious. Whether applications of this analogy contribute to our understanding of science depends on the importance accorded the disanalogies between natural selection theory and scientific inquiry. Michael Ruse has suggested instead an "Evolutionary-Origins" view of scientific evaluative practices in which scientific inquiry is directed by application (...) of epigenetic rules that have become encoded in homo sapiens in the course of evolutionary adaptation. Among these rules are "formulative theories that are internally consistent," "seek severe tests of theories," and "achieve a consilience of inductions". As a descriptive theory of science, the "Evolutionary-Origins" view is prima facie inconsistent with evidence that human beings often make decisions that violate the "genetically-hard-wired rules." As a normative-prescriptive philosophy of science, the "Evolutionary-Origins" view is limited by the fact that in biological evolution, adaptation to present pressures may be achieved at the expense of a loss of adaptability. (shrink)

Discussion of the ethics of forgoing medically provided nutrition and hydration tends to focus on adults rather than infants and children. Many appellate court decisions address the legal propriety of forgoing medically provided nutritional support of adults, but only a few have ruled on pediatric cases that pose the same issue.The cessation of nutritional support is implemented most commonly for patients in apermanent vegetative state(often referred to aspersistent vegetative state(hereinafter “PVS”)). An estimated 4,000 to 10,000 American (...) children are in the permanent vegetative state, compared to 10,000 to 25,000 adults. Yet the dearth of literature, case reports, and court decisions suggests that physicians and families of pediatric patients stop medically provided nutrition or seek court orders much less frequently. (shrink)

Discussion of the ethics of forgoing medically provided nutrition and hydration tends to focus on adults rather than infants and children. Many appellate court decisions address the legal propriety of forgoing medically provided nutritional support of adults, but only a few have ruled on pediatric cases that pose the same issue.The cessation of nutritional support is implemented most commonly for patients in a permanent vegetative state ). An estimated 4,000 to 10,000 American children are in the (...) permanent vegetative state, compared to 10,000 to 25,000 adults. Yet the dearth of literature, case reports, and court decisions suggests that physicians and families of pediatric patients stop medically provided nutrition or seek court orders much less frequently. (shrink)

The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial (...) decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from theprima facieinterpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies. (shrink)

In this article, responding to assertions that the principle of double effect has no place in legal analysis, I explore the overlap between double effect and negligence analysis. In both, questions of culpability arise in situations where a person acts with no intent to cause harm but where reasonable foreseeability of unintended harm exists. Under both analyses, the determination of whether such conduct is permissible involves a reasonability test that balances that foreseeable harm against the good intended by the actor's (...) conduct. In both, absent a finding that the foreseeable harm is unreasonable in light of that intended good, no liability will be imposed upon the actor. Even conceding, however, such general similarity between double effect and negligence analysis - disagreement over the proper interpretation of the reasonability criterion at play in negligence poses an additional challenge for the attempt to correlate negligence with double effect. Economic efficiency interpretations of negligence, for example, purportedly based on the Learned Hand Formula and the RESTATEMENT (SECOND) OF THE LAW OF TORTS, propose that culpability depends upon a utilitarian balancing of good effects of conduct (utility) versus its harmful foreseeable consequences (magnitude of risk of injury). Based on such an interpretation of negligence, however, contrasts between actors' states of mind, and normative differences between kinds of goods and harms, ultimately fade into the background and become irrelevant as essential conditions for properly assessing liability. This article elaborates and defends the view that double effect analysis lies at the heart of negligence theory. Part I elucidates in more detail the principle of double effect and describes its prima facie operation in negligence analysis. Part II considers and rejects the economic efficiency interpretation that has been offered as a theory of negligence, overcoming the challenge that such an interpretation presents for the effort to locate double effect analysis in the law. Part III illustrates and confirms the overlap between double effect and negligence by consideration of a series of case applications. The Article proposes that the weighing of conflicting values in double effect analysis and negligence is not achieved - as proposed by law and economics theory with respect to negligence - by imposing a consequentialist-utilitarian reduction of all value to a single concept of good and eliminating the relevance of traditional state of mind distinctions between intention and foreseeability. Instead, each mode of analysis recognizes that distinct culpability determinations flow naturally and plausibly from an appreciation of the traditional legal distinctions made between various types of goods and harms, and upon whether such goods and harms come about as result of an actor's intention or mere foreseeability. Keywords: Double effect, negligence, intention, foreseeability, choice, law and economics, utilitarianism, consequentialism, weighing of values. (shrink)

A major challenge for research in artificial intelligence is to develop systems that can infer the goals, beliefs, and intentions of others (i.e., systems that have theory of mind, ToM). In this research, we propose a cognitive ToM framework that uses a well-known theory of decisions from experience to construct a computational representation of ToM. Instance-based learning theory (IBLT) is used to construct a cognitive model that generates ToM from the observation of other agents' behavior. The IBL model of (...) the observer distinguishes itself from previous models of ToM that make unreasonable assumptions about human cognition, are hand-crafted for particular settings, complex, or unable to explain a cognitive development of ToM compared to human's ToM. The IBL model learns from the observation of goal-directed agents' behavior in a gridworld navigation task, and it infers and predicts the behaviors of the agents in new gridworlds across different degrees of decision complexity in similar ways to the way human observers do. We provide evidence for the alignment of the IBL observer's predictions under various levels of decision complexity. We also advance the demonstration of the IBL predictions using a classic test of false beliefs (the Sally–Anne test), which is commonly used to test ToM in humans. We discuss our results and the potential of the IBL observer model to improve human–machine interactions. (shrink)

In past years, the traditional Bayesian theory of rational decision making, based on subjective calculations of expected utility, has faced powerful attack from philosophers such as David Lewis and Brian Skyrms, who advance an alternative causal decision theory. The test they present for the Bayesian is exemplified in the decision problem known as 'Newcomb's paradox' and in related decision problems and is held to support the prescriptions of the causal theory. As well as his conclusions, the concepts and methods of (...) Professor Eells introduces in the course of his analyses have extensive implications, not solely for probability theorists narrowly conceived, but for economists, statisticians and psychologists concerned with decision making and the employment of Bayesian principles. They and their students will, in addition, find the early chapters of great use as a background and introduction to the subject as a whole. (shrink)

Priority for solid organ transplant generally does not consider the underlying cause of the need for transplantation. This paper argues that a distinctive set of factors justify assigning lower priority to willfully unvaccinated individuals who require transplant as a result of suffering from COVID‐19. These factors include the personal responsibility of the patients for their own condition and the public outrage likely to ensue if willfully unvaccinated patients receive organs at the expense of vaccinated ones. The paper then proposes a (...) three‐prong test for similar deviations from the current allocation standard that incorporates patient responsibility, foreseeability and avoidability, and the frequency of the occurrence. (shrink)

Part I Philosophic Traditions Introduction to Part I 3 1 Philosophy and the Afro-American Experience 7 CORNEL WEST 2 African-American Existential Philosophy 33 LEWIS R. GORDON 3 African-American Philosophy: A Caribbean Perspective 48 PAGET HENRY 4 Modernisms in Black 67 FRANK M. KIRKLAND 5 The Crisis of the Black Intellectual 87 HORTENSE J. SPILLERS Part II The Moral and Political Legacy of Slavery Introduction to Part II 107 6 Kant and Knowledge of Disappearing Expression 110 RONALD A. (...) T. JUDY 7 Social Contract Theory, Slavery, and the Antebellum Courts 125 ANITA L. ALLEN AND THADDEUS POPE 8 The Morality of Reparations II 134 BERNARD R. BOXILL Part III Africa and Diaspora Thought Introduction to Part III 151 9 “Afrocentricity‘: Critical Considerations 155 LUCIUS T. OUTLAW, JR. 10 African Retentions 168 TOMMY L. LOTT 11 African Philosophy at the Turn of the Century 190 ALBERT G. MOSLEY Part IV Gender, Race, and Racism Introduction to Part IV 199 12 Some Group Matters: Intersectionality, Situated Standpoints, and Black Feminist Thought 205 PATRICIA HILL COLLINS 13 Radicalizing Feminisms from “The Movement Era‘ 230 JOY A. JAMES 14 Philosophy and Racial Paradigms 239 NAOMI ZACK 15 Racial Classification and Public Policy 255 DAVID THEO GOLDBERG 16 White Supremacy 269 CHARLES W. MILLS Part V Legal and Social Philosophy Introduction to Part V 285 17 Self-Respect, Fairness, and Living Morally 293 LAURENCE M. THOMAS 18 The Legacy of Plessy v. Ferguson 306 MICHELE MOODY-ADAMS 19 Some Reflections on the Brown Decision and Its Aftermath 313 HOWARD McGARY 20 Contesting the Ambivalence and Hostility to Affirmative Action within the Black Community 324 LUKE C. HARRIS 21 Subsistence Welfare Benefits as Property Interests: Legal Theories and Moral Considerations 333 RUDOLPH V. VANTERPOOL 22 Racism and Health Care: A Medical Ethics Issue 349 ANNETTE DULA 23 Racialized Punishment and Prison Abolition 360 ANGELA Y. DAVIS Part VI Aesthetic and Cultural Values Introduction to Part VI 373 24 The Harlem Renaissance and Philosophy 381 LEONARD HARRIS 25 Critical Theory, Aesthetics, and Black Modernity 386 LORENZO C. SIMPSON 26 Black Cinema and Aesthetics 399 CLYDE R. TAYLOR 27 Thanatic Pornography, Interracial Rape, and the Ku Klux Klan 407 T. DENEAN SHARPLEY-WHITING 28 Lynching and Burning Rituals in African-American Literature 413 TRUDIER HARRIS-LOPEZ 29 Rap as Art and Philosophy 419 RICHARD SHUSTERMAN 30 Microphone Commandos: Rap Music and Political Ideology 429 BILL E. LAWSON 31 Sports, Political Philosophy, and the African American 436 GERALD EARLY. (shrink)

Identifying, classifying, and analyzing arguments in legal discourse has been a prominent area of research since the inception of the argument mining field. However, there has been a major discrepancy between the way natural language processing (NLP) researchers model and annotate arguments in court decisions and the way legal experts understand and analyze legal argumentation. While computational approaches typically simplify arguments into generic premises and claims, arguments in legal research usually exhibit a rich typology that is important for (...) gaining insights into the particular case and applications of law in general. We address this problem and make several substantial contributions to move the field forward. First, we design a new annotation scheme for legal arguments in proceedings of the European Court of Human Rights (ECHR) that is deeply rooted in the theory and practice of legal argumentation research. Second, we compile and annotate a large corpus of 373 court decisions (2.3M tokens and 15k annotated argument spans). Finally, we train an argument mining model that outperforms state-of-the-art models in the legal NLP domain and provide a thorough expert-based evaluation. All datasets and source codes are available under open lincenses at https://github.com/trusthlt/mining-legal-arguments. (shrink)

This paper investigates the responses of GPT-4, a state-of-the-art AI language model, to ten prominent philosophical paradoxes, and evaluates its capacity to reason and make decisions in complex and uncertain situations. In addition to analyzing GPT-4's solutions to the paradoxes, this paper assesses the model's Theory of Mind (ToM) capabilities by testing its understanding of mental states, intentions, and beliefs in scenarios ranging from classic ToM tests to complex, real-world simulations. Through these tests, we gain insight into AI's (...) potential for social reasoning and its capacity for more sophisticated forms of human-AI interaction. The paper also explores the limitations and biases of AI-generated reasoning and its implications for our comprehension of complex philosophical problems. (shrink)

Some decisions result in cognitive consequences such as information gained and information lost. The focus of this study, however, is decisions with consequences that are partly or completely noncognitive. These decisions are typically referred to as ‘real-life decisions’. According to a common complaint, the challenges of real-life decision making cannot be met by decision theory. This complaint has at least two principal motives. One is the maximizing objection that to require agents to determine the optimal act (...) under real-world constraints is unrealistic. The other is the precision objection that the numeric requirements for applying decision theory are overly demanding for real-life decisions. Responses to both objections are aired in the History section of this chapter. The maximizing objection is addressed with reference to work by Weirich and Pollock, while the precision objection is countered via a proposal by Kyburg and another by Gärdenfors and Sahlin. However, the Current Research section urges a different response to the precision objection by introducing a comparative version of decision theory. Drawing on Chu and Halpern’s notion of generalized expected utility, this version of decision theory permits many choices to be based on merely comparative plausibilities and utilities. Finally, the Further Research section undertakes an open-ended exploration of three of the assumptions upon which this form of decision theory (and many others) is based: transitivity, independence, and plausibilistic decision rules. (shrink)

Due Process is one of the most interesting and conceptually challenging areas of the common law, and in recent years there has been a major revival of interest in the sheer range and applicability of the term. In this major new book, the author of the widely admired Discretionary Powers offers a study of the underlying principles of due process and fair procedures, and sets the discussion within a broad comparative and theoretical framework. In landmark decisions such as Ridge (...) v. Baldwin the courts in Britain and other parts of the Commonwealth have begun to recognize the importance of procedural fairness across a broad spectrum of official powers and decisions. Principles have begun to emerge, and yet the courts have not yet developed an approach which is entirely adequate to the task. In this timely book, the author traces the development of these principles within a framework which includes analysis and critique of legal developments in the major common law jurisdictions, and which relates these developments to similar ideas under both the European Convention on Human Rights and the American Constitution. Original, scholarly and thought-provoking, this major new study will be required reading for lawyers with interests in public law, civil and criminal procedure, civil liberties, legal theory and comparative law. (shrink)

Recently, there has been a resurgence of interest in general, comprehensive models of human cognition. Such models aim to explain higher-order cognitive faculties, such as deliberation and planning. Given a computational representation, the validity of these models can be tested in computer simulations such as software agents or embodied robots. The push to implement computational models of this kind has created the field of artificial general intelligence (AGI). Moral decision making is arguably one of the most challenging tasks for computational (...) approaches to higher-order cognition. The need for increasingly autonomous artificial agents to factor moral considerations into their choices and actions has given rise to another new field of inquiry variously known as Machine Morality, Machine Ethics, Roboethics, or Friendly AI. In this study, we discuss how LIDA, an AGI model of human cognition, can be adapted to model both affective and rational features of moral decision making. Using the LIDA model, we will demonstrate how moral decisions can be made in many domains using the same mechanisms that enable general decision making. Comprehensive models of human cognition typically aim for compatibility with recent research in the cognitive and neural sciences. Global workspace theory, proposed by the neuropsychologist Bernard Baars (1988), is a highly regarded model of human cognition that is currently being computationally instantiated in several software implementations. LIDA (Franklin, Baars, Ramamurthy, & Ventura, 2005) is one such computational implementation. LIDA is both a set of computational tools and an underlying model of human cognition, which provides mechanisms that are capable of explaining how an agent’s selection of its next action arises from bottom-up collection of sensory data and top-down processes for making sense of its current situation. We will describe how the LIDA model helps integrate emotions into the human decision-making process, and we will elucidate a process whereby an agent can work through an ethical problem to reach a solution that takes account of ethically relevant factors. (shrink)