In this paper I consider Aristotle’s solutions to two questions about justice and the laws: why think that obeying the law is just? And why think that doing what is just will promote one’s happiness? I analyze Aristotle’s solutions to these two problems in terms of four claims concerning the laws that come from Plato and underwrite Aristotle’s optimism about the potential for politikê epistêmê to issue in laws which are objectively correct.

Ceteris-paribus clauses are nothing to worry about; aceteris-paribus qualifier is not poisonously indeterminate in meaning. Ceteris-paribus laws teach us that a law need not be associated straightforwardly with a regularity in the manner demanded by regularity analyses of law and analyses of laws as relations among universals. This lesson enables us to understand the sense in which the laws of nature would have been no different under various counterfactual suppositions — a feature even of those laws that involve no ceteris-paribus (...) qualification and are actually associated with exceptionless regularities. Ceteris-paribus generalizations of an‘inexact science’ qualify as laws of that science in virtue of their distinctive relation to counterfactuals: they form a set that is stable for the purposes of that field. (Though an accident may possess tremendous resilience under counterfactual suppositions, the laws are sharply distinguished from the accidents in that the laws are collectively as resilient as they could logically possibly be.) The stability of an inexact science's laws may involve their remaining reliable even under certain counterfactual suppositions violating fundamental laws of physics. The ceteris-paribus laws of an inexact science may thus possess a kind of necessity lacking in the fundamental laws of physics. A nomological explanation supplied by an inexact science would then be irreducible to an explanation of the same phenomenon at the level of fundamental physics. Island biogeography is used to illustrate how a special science could be autonomous in this manner. (shrink)

The law-governed world-picture -- A remarkable idea about the way the universe is cosmos and compulsion -- The laws as the cosmic order : the best-system approach -- The three ways : no-laws, non-governing-laws, governing-laws -- Work that laws do in science -- An important difference between the laws of nature and the cosmic order -- The picture in four theses -- The strategy of this book -- The meta-theoretic conception of laws -- The measurability approach to laws -- What (...) comes where -- In defense of some received views -- Some assumptions that will be in play -- The laws are propositions -- The laws are true -- The logically contingent consequences of the laws are laws themselves -- At least some laws are metaphysically contingent -- The meta-theoretic conception of laws -- Laws of nature, laws of science, laws of theories -- The first-order conception versus the meta-theoretic conception -- What is a law of nature? -- Some examples of meta-theoretic accounts -- The virtues of the meta-theoretic conception -- Weighing the virtues and shortcomings of the meta-theoretic conception -- An epistemological argument for the meta-theoretic conception of laws -- The discoverability thesis, the governing thesis, and the first-order conception -- The main argument -- The objection from bad company -- The objection from inference to the best explanation -- The objection from bayesianism -- The objection from contextualist epistemology -- The objection from the threat of inductive skepticism -- Laws, governing, and counterfactuals -- Where we are now -- What would things have to be like in order for the laws of nature to govern the universe? -- Lawhood, inevitability, counterfactuals -- What is it for a proposition to be inevitably true? -- What is it for a whole class of propositions to be inevitably true? -- What is it for lawhood to confer inevitability? -- NP and supporting counterfactuals -- The worry about context-variability -- A solution and a look ahead -- When would the laws have been different? -- Where we are now -- The God cases -- Other counterexamples to NP -- A moral-theoretic counterexample to NP -- Scientific contexts and non-scientific contexts -- Scientific God cases? -- Lewisian non-backtracking counterexamples -- Where things stand now -- How could science show that the laws govern? -- Why the law-governed world-picture must include the science-says-so thesis -- What is extra-scientific? -- How can the science-says-so thesis be true? -- NP as a consequence of the presuppositions in any scientific context -- Np as true in all possible scientific contexts -- But how could it be so? -- Attack of the actual-factualists -- Measurement and counterfactuals -- Where we are now -- Measurements, reliability, counterfactuals -- A general principle that captures the relation between measurement and counterfactuals -- What we can learn about lawhood from what we have learned about the counterfactual commitments of science -- A first-order account of laws or a meta-theoretic account of laws? -- What methods are presupposed to be legitimate measurement procedures? -- Why we must adopt a meta-theoretic account of laws -- What lawhood is -- Where we are now -- The measurability account of laws -- Brief review of the case for the mal -- A note about hedged laws -- How plausible is the mal? -- What if we don't care about the law-governed world-picture? -- Newton's God and Laplace's demon -- Beyond humean and non-humean -- Two views of laws -- Humean supervenience and the meta-theoretic conception -- Alleged counterexamples to humean supervenience -- Governing and non-trivial necessity -- How the mal lets us have it all -- Humeanism? non-humeanism? -- What is the significance of the idea of the law-governed universe? -- Where in the world are the laws of nature? -- Appendix: The mal in action : a few examples -- Of scientific theories and their laws -- Newton's theory as a paradigm example -- Classical special-force laws -- Geometrical optics and one of its laws -- Local deterministic field theories. (shrink)

Ceteris-paribus clauses are nothing to worry about; aceteris-paribus qualifier is not poisonously indeterminate in meaning. Ceteris-paribus laws teach us that a law need not be associated straightforwardly with a regularity in the manner demanded by regularity analyses of law and analyses of laws as relations among universals. This lesson enables us to understand the sense in which the laws of nature would have been no different under various counterfactual suppositions — a feature even of those laws that involve no ceteris-paribus (...) qualification and are actually associated with exceptionless regularities. Ceteris-paribus generalizations of an‘inexact science’ qualify as laws of that science in virtue of their distinctive relation to counterfactuals: they form a set that is stable for the purposes of that field. (Though an accident may possess tremendous resilience under counterfactual suppositions, the laws are sharply distinguished from the accidents in that the laws are collectively as resilient as they could logically possibly be.) The stability of an inexact science's laws may involve their remaining reliable even under certain counterfactual suppositions violating fundamental laws of physics. The ceteris-paribus laws of an inexact science may thus possess a kind of necessity lacking in the fundamental laws of physics. A nomological explanation supplied by an inexact science would then be irreducible to an explanation of the same phenomenon at the level of fundamental physics. Island biogeography is used to illustrate how a special science could be autonomous in this manner. (shrink)

International Law in Context is a pedagogy-forward textbook. It reflects the recent paradigm shift in legal education, which focuses more on what students actually learn rather than the material to which they are exposed. The text aims to prepare the next generation of U.S. lawyers to engage with our interconnected world and to critically evaluate the U.S.'s role within the international legal order. The work is divided into three parts that accomplish these goals. Part One lays a foundation. It covers (...) the various actors within the system, the theories that help explain their behavior, and the principles and sources of law they create. Part Two turns to the fora that define and support the international order, the historical and political contexts that impacted their design, and their efficacy. Part Three is a capstone section that asks students to weave together everything they have learned in Parts One and Two. Students will engage in normative development regarding climate change, including the existing international treaty regime and U.S. implementation options, and the law of war in the modern age. The cornerstone of this book is its organization. The text groups material into conceptual frameworks that promote understanding and retention. For example, rather than consider the various dispute resolution fora in isolation, Part Two asks students to consider them in the context of what types of disputes arise and what legal rules can be employed to resolve them in various international and domestic fora. The institutions also are presented in chronology. In this way, students are encouraged to chart the developmental progression and to make connections and comparisons between various institutions. The use of conceptual frameworks continues within each part. For example, Chapter Six covers the sovereign State as a conflict resolution forum. Under this umbrella, the author discusses (a) State Jurisdiction; (b) The Reception of International Law into the Domestic Sphere; (c) The Qualification as a State Forum or State Litigant (i.e., Recognition of States & Governments); and (d) Protections Afforded Within the Forum: Sovereign, Diplomatic, and Consular Immunity. A typical coursebook might locate this material in four different chapters. The conceptual framework approach, however, allows students to see the big picture and the relationship between concepts. In addition to the frameworks, there are several other innovative pedagogical devices that support student learning. There are Foundation Questions that initially direct readers through the material and cumulatively help students confirm whether they have grasped key takeaways from each section. There also are Assessment Sets in each section, which provide students with immediate opportunities to apply material and gauge their understanding, and "Why Is This Important (a/k/a WITI Moment)" prompts designed to delve deeper into the underpinnings and consequences of various rules. Finally, there are directed reading notes before some more complex readings and margin annotations to keep readers oriented. (shrink)

Peer Review and Copyright each have a double role: Formal refereeing protects (R1) the author from publishing and (R2) the reader from reading papers that are not of sufficient quality. Copyright protects the author from (C1) theft of text and (C2) theft of authorship. It has been suggested that in the electronic medium we can dispense with peer review, "publish" everything, and let browsing and commentary do the quality control. It has also been suggested that special safeguards and laws may (...) be needed to enforce copyright on the Net. I will argue, based on 20 years of editing Behavioral and Brain Sciences, a refereed (paper) journal of peer commentary, 8 years of editing Psycoloquy, a refereed electronic journal of peer commentary, and 1 year of implementing CogPrints, an electronic archive of unrefereed preprints and refereed reprints in the cognitive sciences modeled on the Los Alamos Physics Eprint Archive, that (i) peer commentary is a supplement, not a substitute, for peer review, (ii) the authors of refereed papers, who get and seek no royalties from the sale of their texts, only want protection from theft of authorship on the Net, not from theft of text, which is a victimless crime, and hence (iii) the trade model (subscription, site license or pay- per-view) should be replaced by author page-charges to cover the much reduced cost of implementing peer review, editing and archiving on the Net, in exchange for making the learned serial corpus available for free for all forever. (shrink)

States are rapidly modifying law and policy to increase access to the opioid antidote naloxone, and the provision of naloxone rescue kits for use in the event of overdose is becoming increasingly common. As of late 2014 the majority of states had passed laws increasing naloxone access, and nearly as many have modified emergency responder scope of practice protocols to permit Emergency Medical Technicians and law enforcement officers to administer the medication. While the text of these laws is generally similar, (...) their implementation varies among states.This article outlines experiences and lessons learned from two diverse states, Massachusetts and North Carolina. In Massachusetts naloxone access initiatives were well underway before formal legislative action occurred, while in North Carolina the passage of a naloxone access law served as a catalyst for the creation of new programs and facilitated the scale-up of existing ones. In both states legislative action was necessary to permit the prescription and dispensing of naloxone to the friends and family members of people who use opioids, a key legal change. (shrink)

This article describes the development, implementation, and evaluation of a complex methotrexate ethics case used in teaching a Pharmacy Law and Ethics course. Qualitative analysis of student reflective writings provided useful insight into the students’ experience and comfort level with the final ethics case in the course. These data demonstrate a greater student appreciation of different perspectives, the potential for conflict in communicating about such cases, and the importance of patient autonomy. Faculty lessons learned are also described, facilitating adoption (...) of this methotrexate ethics case by other healthcare profession educators. (shrink)

The purpose of this paper is to give a brief survey the implications of the theories of modern physics for the doctrine of determinism. The survey will reveal a curious feature of determinism: in some respects it is fragile, requiring a number of enabling assumptions to give it a fighting chance; but in other respects it is quite robust and very difficult to kill. The survey will also aim to show that, apart from its own intrinsic interest, determinism is an (...) excellent device for probing the foundations of classical, relativistic, and quantum physics. The survey is conducted under three major presuppositions. First, I take a realistic attitude towards scientific theories in that I assume that to give an interpretation of a theory is, at a minimum, to specify what the world would have to be like in order for the theory to be true. But we will see that the demand for a deterministic interpretation of a theory can force us to abandon a naively realistic reading of the theory. Second, I reject the “no laws” view of science and assume that the field equations or laws of motion of the most fundamental theories of current physics represent science’s best guesses as to the form of the basic laws of nature. Third, I take determinism to be an ontological doctrine, a doctrine about the temporal evolution of the world. This ontological doctrine must not be confused with predictability, which is an epistemological doctrine, the failure of which need not entail a failure of determinism. From time to time I will comment on ways in which predictability can fail in a deterministic setting. Finally, my survey will concentrate on the Laplacian variety of determinism according to which the instantaneous state of the world at any time uniquely determines the state at any other time. The plan of the survey is as follows. Section 2 illustrates the fragility of determinism by means of a Zeno type example. Then sections 3 and 4 survey successively the fortunes of determinism in the Newtonian and the special relativistic settings.. (shrink)

This paper reviews the history of AI & Law research from the perspective of argument schemes. It starts with the observation that logic, although very well applicable to legal reasoning when there is uncertainty, vagueness and disagreement, is too abstract to give a fully satisfactory classification of legal argument types. It therefore needs to be supplemented with an argument-scheme approach, which classifies arguments not according to their logical form but according to their content, in particular, according to the roles that (...) the various elements of an argument can play. This approach is then applied to legal reasoning, to identify some of the main legal argument schemes. It is also argued that much AI & Law research in fact employs the argument-scheme approach, although it usually is not presented as such. Finally, it is argued that the argument-scheme approach and the way it has been employed in AI & Law respects some of the main lessons to be learnt from Toulmin’s The Uses of Argument. (shrink)

Human adaptive behavior in sensorimotor control is aimed to increase the confidence in feedforward mechanisms when sensory afferents are uncertain. It is thought that these feedforward mechanisms rely on predictions from internal models. We investigate whether the brain uses an internal model of physical laws to help estimate body equilibrium when tactile inputs from the foot sole are depressed by carrying extra weight. As direct experimental evidence for such a model is limited, we used Judoka athletes thought to have built (...) up internal models of external loads as compared with Non-Athlete participants and Dancers. Using electroencephalography, we first tested the hypothesis that the influence of tactile inputs was amplified by descending cortical efferent signals. We compared the amplitude of P1N1 somatosensory cortical potential evoked by electrical stimulation of the foot sole in participants standing still with their eyes closed. We showed smaller P1N1 amplitudes in the Load compared to No Load conditions in both Non-Athletes and Dancers. This decrease neural response to tactile stimulation was associated with greater postural oscillations. By contrast in the Judoka’s group, the neural early response to tactile stimulation was unregulated in the Load condition. This suggests that the brain can selectively increase the functional gain of sensory inputs, during challenging equilibrium tasks when tactile inputs were mechanically depressed by wearing a weighted vest. In Judokas, the activation of regions such as the right posterior inferior parietal cortex as early as the P1N1 is likely the source of the neural responses being maintained similar in both Load and No Load conditions. An overweight internal model stored in the right PPC known to be involved in maintaining a coherent representation of one’s body in space can optimize predictive mechanisms in situations with high balance constraints. This hypothesis has been confirmed by showing that postural reaction evoked by a translation of the support surface on which participants were standing wearing extra-weight was improved in Judokas. (shrink)

Legal inference is fundamental for building and verifying hypotheses in police investigations. In this study, we build a Natural Language Inference dataset in Korean for the legal domain, focusing on criminal court verdicts. We developed an adversarial hypothesis collection tool that can challenge the annotators and give us a deep understanding of the data, and a hypothesis network construction tool with visualized graphs to show a use case scenario of the developed model. The data is augmented using a combination of (...) Easy Data Augmentation approaches and round-trip translation, as crowd-sourcing might not be an option for datasets with sensible data. We extensively discuss challenges we have encountered, such as the annotator’s limited domain knowledge, issues in the data augmentation process, problems with handling long contexts and suggest possible solutions to the issues. Our work shows that creating legal inference datasets with limited resources is feasible and proposes further research in this area. (shrink)

Berkeley “argues with the learned and speaks with the vulgar.” I use his double maxim to interpret his ethics. My approach is new. The Sermons and Guardian Essays mainly speak to the vulgar and Passive Obedience and Alciphron reason with the learned. The reward of ethics is eternal bliss in a future state: religion and ethics are connected. I study a set of problems: resurrection, eternal life, happiness, benevolence, the goodness of God, and self-love. Divine bliss is unlike (...) any earthly happiness. The idea of law does not support benevolence, even if it is a Christian duty and virtue. God is good, but how to prove it? The learned must study the complex theodicy problem; the vulgar need assurance based on their sensuous experience and fervent hope of eternal bliss. Self-love may be a vital issue to the learned, although the vulgar may not realize their need to overcome it. The main questions concern Berkeley’s two approaches to ethical problems: first, how do their topics differ, and second, are they mutually consistent? (shrink)

The problem of knowledge has been centred around the study of the content of our consciousness, seeing the world through internal representation, without any satisfactory account of the operations of nature that would be a pre-condition for our own performances in terms of concept efficiency in organizing action externally. If we want to better understand where and how meaning fits in nature, we have to find the proper way to decipher its organization, and account for the fact that we have (...) found codes and replicators operating at a deep levels of analysis. Informational analysis deals with units of organizational stability but it takes them for granted and leaves open the question of their origin. Patterns are used when we recognize the same configurations at different places and try to explain through their recurrence, yet to make sense of the presence of signals and counter-balancing mechanisms disseminated in nature, a hypothesis is offered to the effect that feedback signals would have a role to play in the coming about of a world that is open to new configurations and submitted to a form of stability that is more attuned to system laws than overarching unrevisable ones. (shrink)

This collection of original essays brings together leading legal historians and theorists to explore the oft-neglected but important relationship between these two disciplines. Legal historians have often been sceptical of theory. The methodology which informs their own work is often said to be an empirical one, of gathering information from the archives and presenting it in a narrative form. The narrative produced by history is often said to be provisional, insofar as further research in the archives might falsify present understandings (...) and demand revisions. On the other side, legal theorists are often dismissive of historical works. History itself seems to many theorists not to offer any jurisprudential insights of use for their projects: at best, history is a repository of data and examples, which may be drawn on by the theorist for her own purposes. The aim of this collection is to invite participants from both sides to ask what lessons legal history can bring to legal theory, and what legal theory can bring to history. What is the theorist to do with the empirical data generated by archival research? What theories should drive the historical enterprise, and what wider lessons can be learned from it? This collection brings together a number of major theorists and legal historians to debate these ideas. (shrink)

In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller state that by arguing “that autonomy matters centrally to contract,” Contract as Promise makes an “enduring contribution... but [its] specific arguments faltered because [they] missed the role of diverse contract types and because [it] grounded contractual freedom in a flawed rights-based view.... We can now say all rights-based arguments for contractual autonomy have failed.” The authors conclude that their proposed choice theory “approach returns analysis to the mainstream of twentieth-century (...) liberalism – a tradition concerned with enhancing self-determination that is mostly absent in contract theory today.” Perhaps the signal flaw in Contract as Promise they sought to address was the homogenization of all contract types under a single paradigm. In this Article, I defend the promise principle as the appropriate paradigm for the regime of contract law. Along the way I defend the Kantian account of this subject, while acknowledging that state enforcement necessarily introduces elements — both normative and institutional — for which that paradigm fails adequately to account. Of particular interest and validity is Dagan and Heller’s discussion of contract types, to which the law has always and inevitably recurred. They show how this apparent constraint on contractual freedom actually enhances freedom to contract. I discuss what I have learned from their discussion: that choice like languages, is “lumpy,” so that realistically choices must be made between and framed within available types, off the rack, as it were, and not bespoke on each occasion. I do ask as well how these types come into being mutate, and can be deliberately adapted to changing circumstances. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Law’s Virtue: Fostering Autonomy and Solidarity in American Society by Cathleen KavenyEric E. SchnitgerLaw’s Virtue: Fostering Autonomy and Solidarity in American Society By Cathleen Kaveny WASHINGTON, DC: GEORGETOWN UNIVERSITY PRESS, 2012. 304 PP. $29.95In Law’s Virtue, Cathleen Kaveny calls those in Western liberal countries to rethink their fundamental framework of ethics and law through the guiding principles of autonomy and solidarity, understood through the Catholic context of Thomistic (...) virtue. The law operates not as the fence of individual isolation as it does in Enlightenment rights theory, whereby liberty is preserved through negative restraint, but as the teacher of a limited form of the virtues of prudence and justice (52). The law teaches this thin form of prudence through autonomy, which Kaveny takes from Joseph Raz as “the capacity to be the ‘part-author’ of one’s own life” (53). Solidarity, pulling from Pope John Paul II, correlates to a learned justice, in that it “attend[s] to the unseen members” of the community (54). It recognizes that the good of the community and the good of individual members are inexorably intertwined.The opening epigram of the preface, which sets the tone for the whole work, is a quotation from Isidore of Seville found in Aquinas: “Law shall be virtuous, just, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful; clearly expressed, lest by its obscurity it lead to misunderstanding; framed for no private benefit, but for the common good” (xi). Kaveny argues that the phrases “possible to nature” and “custom of the country” need more attention in pluralist, democratic societies, because law is morally formed by its constituent community and there are deep disagreements within those communities. This gives a direction for how Catholics, and all citizens, should attempt to influence laws in these democracies. Because the law is a form of consensus over time, it should use severe sanctions such as criminal law only to reinforce the consensus that it represents. Tort and tax law are less severe tools that can encourage the moral direction of society, which, when used well, maintain the consensus of the law but still allow it to be a moral teacher.Kaveny’s practical thinking in this text does have some seeds of radical change. When she moves to the practicalities of life issues in the law—such as abortion, euthanasia, and genetics—she argues that the “entire fabric of the Anglo-American legal system” needs to add the concept of the “vulnerable” person to the “reasonable person” (79). In addition, her reframing of life issues contends that the Catholic view of issues like abortion is too different from [End Page 212] the “custom of the country” to make a change to the virtues and practices of other citizens. Instead, attention to the support necessary for families and social difficulties of economic poverty represents a way of using the law as a moral teacher while recognizing its limits (89, 156, 209). The book concludes with an incisive look at voting, in which Kaveny argues that the idea of issues-based voting is wrongheaded; instead, she urges voters to consider that they are voting for an individual who will take a broad moral stance and make a broad set of decisions (197 ff.).The quality of Kaveny’s clear thinking and moral consistency makes this book a pleasure to read—even for those who may disagree about the nature of the law or the virtues that Christians should bring to political, legislative, and judicial systems. This text, from its depth of legal and theological commitments, sets a high bar for further dialogue.Eric E. SchnitgerFuller Theological SeminaryCopyright © 2015 Society of Christian Ethics... (shrink)

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any (...) relevant facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)

Autonomy is a vital principle in medical law and ethics. It occupies a prominent place in all medico-legal and ethical debate. But there is a dangerous presumption that it should have the only vote, or at least the casting vote. This book is an assault on that presumption, and an audit of autonomy's extraordinary status. This book surveys the main issues in medical law, noting in relation to each issue the power wielded by autonomy, asking whether that power can be (...) justified, and suggesting how other principles can and should contribute to the law. It concludes that autonomy's status cannot be intellectually or ethically justified, and that positive discrimination in favour of the other balancing principles is urgently needed in order to avoid some sinister results. 'This book is a sustained attack on the hegemony of the idea of autonomy in medical ethics and law. Charles Foster is no respecter of authority, whether of university professors or of law Lords. He grabs his readers by their lapels and shakes sense into them through a combination of no-nonsense rhetoric and subtle argument that is difficult to resist.' Tony Hope, Professor of Medical Ethics, Oxford University 'This book is unlikely to be in pristine state by the time you have finished reading it. Whether that is because you have thrown it in the air in celebration or thrown it across the room in frustration will depend on your perspective. But this book cannot leave you cold. It is a powerful polemic on the dominance of autonomy in medical law, which demands a reaction. Charles Foster sets out a powerful case that academic medical lawyers have elevated autonomy to a status it does not deserve in either ethical or legal terms. In a highly engaging, accessible account, he challenges many of the views which have become orthodox within the academic community. This will be a book which demands and will attract considerable debate.' Jonathan Herring, Exeter College, Oxford University 'This is a learned, lively and thought-provoking discussion of problems central to the courts' approach to ethical issues in medical law. What principles are involved? More significantly, which really underlie and inform the process of seeking justice in difficult cases? Charles Foster persuasively argues, and demonstrates, that respect for autonomy is but one of a number of ethical principles which interact and may conflict. He also addresses the sensitive issue of the extent to which thoughts and factors which go to influence legal decisions may not appear in the judgments.' Adrian Whitfield QC. 'Introducing the Jake La Motta of medical ethics. Foster is an academic street-fighter who has bloodied his hands in the court room. He provides a stinging, relentless, ground attack on the Goliath of medical ethics: the central place of autonomy in liberal medical ethics. This is now the first port of call for those who feel that medical ethics has become autonomized.' Julian Savulescu, Uehiro Chair in Practical Ethics, University of Oxford. "This important book offers a robust challenge to anyone, whether lawyer or 'ethicist', who sees respect for autonomy as the only game in town. It argues eloquently and effectively that, on the one hand, despite the reverence paid to it by judges, in practice the law, even in the context of consent, weaves together a number of moral threads of which autonomy is merely one, in the pursuit of a good decision. It argues on the other hand, that were the day-to-day practice of law to be guided primarily by respect for autonomy, this would be wrong. Foster concludes that whilst, 'any society that does not have laws robustly protecting autonomy is an unsafe and unhappy one', so too would be a society in which too much emphasis was placed on respect for autonomy at the expense of other important moral principles. This is essential reading for anyone interested in the role of autonomy and indeed of medical ethics, in the law." Michael Parker, Professor of Bioethics, University of Oxford. (shrink)

The real issues in the debate over whether historical explanations conform to the covering-law model concern not only history but human nature, human action, and human freedom. Modifications of the coveringlaw model are possible which may remove some of the objections to it. Human behavior is rule-governed. Rules are made by human agents and learned by human actors. Cultural rules alone do not explain behavior and cannot be used as "covering" generalizations. But when they are combined with appropriate deviance (...) data to yield conformity statements, these statements can be used as explanatory generalizations - with a certain amount of leeway and the understanding that such rules can be changed or eliminated. These generalizations, such as those found in anthropology, perform the function of general laws in history. (shrink)

The problem of the relationship between “reason” and “law” has two different meanings depending on whether the first or the second of the two terms is considered to be the most important one. These two different meanings are revealed in the expressions “law of reason” and “legal reason,” respectively. In the first expression, “reason” is meant in its strong sense, that is, the faculty of grasping the essence of things, while in the second, “reason” is meant in a weak sense, (...) the ability to reason (calculate, infer, discuss). “Law of reason” and “legal reason” correspond to two different moments of the legal universe, the creation and, respectively, the application of law. Strong reason is that which discovers the rules to be obeyed, while weak reason is that which applies rules to an actual case. The first is legislating reason, while the second is judging reason. The main topic of the debate from the Greeks to Kant was that of legislating reason. Nowadays, instead, scholars in the field are interested in judging reason. Historicism and positivism mark the end of faith in the existence of rules which are objectively just, and which may be recognized by human reason. By now we have learned to do without the eternal truths in the knowledge of the world. However painful it may be, we are forced to resign ourselves to do without evident truths in ethics, as well. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Aquinas and Black Natural LawThomas S. HibbsIn 1857, after the United States Supreme Court ruling in Dred Scott, Frederick Douglass chastised the court for arrogating to itself the role of God, that of being absolute judge. While the Supreme Court has its own authority, he argued, "the Supreme Court of the Almighty is greater. Taney can do many things but he cannot change the essential nature of things—making evil (...) good and good, evil."1 The passage is one of many in Vincent Lloyd's Black Natural Law that underscore the appeals of African American leaders, as part of their critique of slavery and segregation, to a higher or more fundamental law than that of human law. Lloyd describes the function of natural law reasoning, which he traces through the writings of Douglass, Anna Julia Cooper, W. E. B. Du Bois, and Martin Luther King Jr., in this way: From the careful examination of a "particular view of human nature" and its implications, they "apply those implications to the specifics of an ethical or political debate."2 That sounds similar to the way some contemporary Catholic proponents of natural law depict their own deployment of it. Early in the book, Lloyd suggests that "European and Catholic natural law traditions can learn much from the black natural tradition."3Concerning what might be learned, he focuses on an expansive conception of reason in the African American tradition, a conception of reason that is integrated with the role of emotion or passion and that is not [End Page 943] individualistic, but communal. He also underscores the epistemic privilege of the oppressed, the way suffering injustice attunes us to justice. Beyond the themes mentioned explicitly by Lloyd, I would add the paradoxical claim that natural law teaching is not just about the accessibility of fundamental precepts of justice, but also about the human capacity for moral blindness and the way in which the violation of the natural law is in important ways its own punishment. Because of the regularity of such blindness, attention to the obstacles to the perception of the natural law must become "part of the very activity of natural law." The ways in which these matters are articulated by African American authors can be, as Lloyd suggests, highly instructive. I would add that Lloyd's treatment of natural law in the African American tradition can also be fruitful for recovering neglected features of Aquinas's account. In what follows, I want to take up each of these themes and set them in conversation with the texts of Aquinas. As Alasdair MacIntyre, among others, has urged, seeing one's own tradition from the perspective of another, can, at a minimum, help us see it more clearly.4 As MacIntyre also notes, any such attempt faces the difficulties of translating from one tradition or community of inquiry to another. I must, accordingly, stress the limitations to the current essay, which can be nothing more than a preliminary investigation. I will largely be taking Lloyd's interpretation of the authors he studies as my assumed starting point, although in some cases I will offer my own reading of texts and authors he considers.5 What I will provide will be no more than an initial conversation, a first reading of Lloyd's theses in relation to germane themes and arguments in Aquinas. A much longer exchange, based on an immersive study of selected African American texts and the chief commentaries on them would be needed to advance the [End Page 944] conversation further. Before doing so, however, I want to provide a further reason that Catholic natural law thinkers should be eager to engage the Black natural law tradition, a reason derived from Joseph Ratzinger's reflection on the strange situation of natural law in the modern world.Ratzinger on the Vanishing Evidence for Natural Law and the Engagement of Wisdom TraditionsAs the contemporary Catholic natural law theorist Russell Hittinger has shown,6 Ratzinger, as a ressourcement theologian, is a critic of "rationalism," with "little confidence" in the older, "moral-juridical manualist and casuistical approach to natural law, which was prominent in casuistical approaches."7 In fact, he thinks that... (shrink)

Two decades of research on euthanasia in the Netherlands have resulted into clear insights in the frequency and characteristics of euthanasia and other medical end-of-life decisions in the Netherlands. These empirical studies have contributed to the quality of the public debate, and to the regulating and public control of euthanasia and physician-assisted suicide. No slippery slope seems to have occurred. Physicians seem to adhere to the criteria for due care in the large majority of cases. Further, it has been shown (...) that the majority of physicians think that the euthanasia Act has improved their legal certainty and contributes to the carefulness of life-terminating acts. In 2005, eighty percent of the euthanasia cases were reported to the review committees. Thus, the transparency envisaged by the Act still does not extend to all cases. Unreported cases almost all involve the use of opioids, and are not considered to be euthanasia by physicians. More education and debate is needed to disentangle in these situations which acts should be regarded as euthanasia and which should not. Medical end-of-life decision-making is a crucial part of end-of-life care. It should therefore be given continuous attention in health care policy and medical training. Systematic periodic research is crucial for enhancing our understanding of end-of-life care in modern medicine, in which the pursuit of a good quality of dying is nowadays widely recognized as an important goal, in addition to the traditional goals such as curing diseases and prolonging life. (shrink)

Two decades of research on euthanasia in the Netherlands have resulted into clear insights in the frequency and characteristics of euthanasia and other medical end-of-life decisions in the Netherlands. These empirical studies have contributed to the quality of the public debate, and to the regulating and public control of euthanasia and physician-assisted suicide. No slippery slope seems to have occurred. Physicians seem to adhere to the criteria for due care in the large majority of cases. Further, it has been shown (...) that the majority of physicians think that the euthanasia Act has improved their legal certainty and contributes to the carefulness of life-terminating acts. In 2005, eighty percent of the euthanasia cases were reported to the review committees. Thus, the transparency envisaged by the Act still does not extend to all cases. Unreported cases almost all involve the use of opioids, and are not considered to be euthanasia by physicians. More education and debate is needed to disentangle in these situations which acts should be regarded as euthanasia and which should not. Medical end-of-life decision-making is a crucial part of end-of-life care. It should therefore be given continuous attention in health care policy and medical training. Systematic periodic research is crucial for enhancing our understanding of end-of-life care in modern medicine, in which the pursuit of a good quality of dying is nowadays widely recognized as an important goal, in addition to the traditional goals such as curing diseases and prolonging life. (shrink)

The NIH-Moderna mRNA COVID-19 vaccine’s steep price increase raises concerns that this will be the new anchor for continued price hikes and underscores the need for upstream government intervention to enable greater accountability and stewardship of public biomedical research investment.

The paper begins with an example of the accounting treatment afforded an Indefeasible Rights Use (IRU) Swap by Global Crossing. The case presents a typical example of ways in which accounting firms contributed to the ethical scandals of the early 21st century. While the behavior of Arthur Andersen, the accounting company in the case, might have met the letter of the law, we argue that it violated the spirit of the law, which can be discovered by looking at (1) the (...) legitimate goals of a company which give it its ethical direction and (2) the responsibilities of the accounting professionals who serve the company and the general public. Those professional responsibilities are determined by looking at the legitimate function those professionals fulfill in the economy. A further claim is that Andersen and other accounting firms are motivated to abandon the responsibilities derived from pursuing their proper goals by falling into the trap of accumulating wealth for its own sake. We argue that the ultimate responsibility of internal auditors is to develop statements that give as reasonably true and fair a picture of the financial situation to any user having a claim to that knowledge. Further we argue that the major responsibilities of the external auditor are: first, to be responsible to the using public for evaluating financial statements and declaring that they represent a fair picture of the financial situation of a company, and second, to be a watchdog of financial markets and call into question irregular practices that would distort those pictures. Such due professional care requires the auditor to exercise professional skepticism: an attitude that includes a questioning mind and a critical assessment of audit evidence. The paper concludes by giving particular examples of how Arthur Andersen LLP failed to meet those responsibilities. (shrink)

The recent high-profile financial difficulties of Harvard Pilgrim Health Care, the largest HMO in Massachusetts and consistently rated as one of the top ten HMOs in the nation, shed light on many problems common to health insurers throughout the country. This article explores those difficulties in the context of the short but complicated history of Harvard Pilgrim, and its regulatory and competitive environments. The state legislation which made a receivership proceeding possible for Harvard Pilgrim offered some protection for subscribers, but (...) failed to provide the means for achieving a long term solution. The statute merely presented a method for staving off immediate collapse by temporarily protecting the plan from dissolution, and forcing the plan's contracting providers to continue delivering care even if owed money by the plan. The article concludes by drawing lessons for understanding and ideally avoiding similar managed care nearfatalities in the future. (shrink)

The recent high-profile financial difficulties of Harvard Pilgrim Health Care, the largest HMO in Massachusetts and consistently rated as one of the top ten HMOs in the nation, shed light on many problems common to health insurers throughout the country. This article explores those difficulties in the context of the short but complicated history of Harvard Pilgrim, and its regulatory and competitive environments. The state legislation which made a receivership proceeding possible for Harvard Pilgrim offered some protection for subscribers, but (...) failed to provide the means for achieving a long term solution. The statute merely presented a method for staving off immediate collapse by temporarily protecting the plan from dissolution, and forcing the plan's contracting providers to continue delivering care even if owed money by the plan. The article concludes by drawing lessons for understanding and ideally avoiding similar managed care nearfatalities in the future. (shrink)

In The Foundations of Private Law James Gordley argues that the modern private law in common and civil law jurisdictions is best explained on the basis of a neo-Aristotelian theory first developed by a group of 16th century Spanish thinkers known as the ‘late scholastics’. The concepts of distributive and commutative justice that, according to Gordley, lay at core of the scholastics’ theory and that explain, respectively, modern property law and the law of obligations , though ignored and disparaged for (...) much of the 19th and 20th centuries, are today familiar to most private law scholars . Yet Gordley’s understanding of these concepts and, in particular, of their relationship both to one another and to the apex idea of ‘living a distinctively human life’ is unique, setting his account apart not just from utilitarian and other ‘modern’ accounts of private law, but also from other neo-Aristotelian theories . In Gordley’s presentation, commutative justice is derived from distributive justice and distributive justice is derived from the idea of the distinctively human life. Confidently traversing a wide range of historical, comparative and theoretical materials, the book’s argument is at once ambitious, learned, and elegantly presented. But as a theoretical account of the foundations of the modern private law it is unpersuasive. The book’s own account of property law suggests that in practice the idea of distributive justice does little, if any, work in explaining the rules we actually have. Nor is it clear how, if at all, distributive justice flows from the allegedly foundational idea of the ‘distinctively human life’. As for commutative justice, it is not clear why, if is derived from distributive justice in the way Gordley believes, the courts should care about it. Finally, but perhaps most significantly, Gordley’s conception of commutative justice is unable to account for central features of the law of obligations. (shrink)

This essay describes an interdisciplinary educational experiment in health law. The experiment was funded by the National Science Foundation, received Institutional Review Board approvals, incorporated inter-disciplinary faculty and graduate students from several universities in Atlanta, and employed problem-based learning. After discussing my motivation to undertake this experimental approach to teaching health law, I explain how the course was developed and structured and how we are assessing its results. I also offer some reflections on why other health law teachers might be (...) motivated to incorporate some features of our experimental approach into their own classes, and some thoughts on how they might do so based on lessons learned.I undertook this experiment to test in an educational setting an approach to problem solving that I have developed for addressing certain kinds of seemingly intractable policy problems. I call this a “navigational approach” to “fractious problems.”. (shrink)

This essay describes an interdisciplinary educational experiment in health law. The experiment was funded by the National Science Foundation, received Institutional Review Board approvals, incorporated inter-disciplinary faculty and graduate students from several universities in Atlanta, and employed problem-based learning. After discussing my motivation to undertake this experimental approach to teaching health law, I explain how the course was developed and structured and how we are assessing its results. I also offer some reflections on why other health law teachers might be (...) motivated to incorporate some features of our experimental approach into their own classes, and some thoughts on how they might do so based on lessons learned.I undertook this experiment to test in an educational setting an approach to problem solving that I have developed for addressing certain kinds of seemingly intractable policy problems. I call this a “navigational approach” to “fractious problems.”. (shrink)

This essay describes an interdisciplinary educational experiment in health law. The experiment was funded by the National Science Foundation, received Institutional Review Board approvals, incorporated inter-disciplinary faculty and graduate students from several universities in Atlanta, and employed problem-based learning. After discussing my motivation to undertake this experimental approach to teaching health law, I explain how the course was developed and structured and how we are assessing its results. I also offer some reflections on why other health law teachers might be (...) motivated to incorporate some features of our experimental approach into their own classes, and some thoughts on how they might do so based on lessons learned.I undertook this experiment to test in an educational setting an approach to problem solving that I have developed for addressing certain kinds of seemingly intractable policy problems. I call this a “navigational approach” to “fractious problems.”. (shrink)

This book reveals and discusses the foundations of law and justice. Fifteen leading lawyers and philosophers of law, representing thirteen nations and fifteen different philosophical schools examine the value and purpose of law, and the nature and requirements of law and justice. Some of the world's most learned and provocative legal scholars address the ultimate questions of legal and social philosophy from all angles and the broadest possible perspective, with special reference to the work of Mortimer Newlin Stead Sellers, (...) and the republican, liberal, and analytical schools of legal thought. The conclusions reached here are not fully unanimous, congruent or conclusive, but they represent the pinnacle of legal scholarship as it exists today and furnish the necessary basis for any future study of law, justice, or the ultimate requirements of just, effective and legitimate law and society. (shrink)

This paper addresses the claim that the social orders of Western civilization operate on the basis of the law’s presumed sovereignty over life. I demonstrate how the respective works of Italian philosopher Giorgio Agamben and French phenomenologist Michel Henry are joined in their concern over this issue, and in their shared belief that life can be made sovereign over the law through a communal life based upon habit. At the same time, I argue that their respective conceptions of this communal (...) life are flawed, and that they would benefit from being brought into a productive dialogue with one another. More specifically, I show that Henry’s account of a Christian communal life based upon the habitual practice of love moves at least some way toward addressing Agamben’s account of a coming community that is decidedly abstract and lacking in a substantial ethic. However, I maintain that Henry’s own account of this community is founded upon a problematic conception of potentiality that would benefit from Agamben’s study of the matter. By bringing these two figures together and drawing out the lessons that can be learnt from each of them, this work provides a more concrete and substantial account of how a coming Christian community can play a role in making life sovereign over the force of the law. (shrink)

In May 2021, the UK National Health Service (NHS) proposed a scheme—called General Practice Data for Planning Research (GPDPR)—for sharing patients’ data. Under that system, a patient who does not wish to participate must actively opt out of their data being shared with third parties for research and other purposes. In this paper, we analyse the lessons that can be learned for the responsible and ethical governance of health data from the NHS’ new scheme. More specifically, we explore the (...) extent to which the opt-out within the planned scheme complies with the requirements stemming from the General Data Protection Regulation (GDPR), particularly in relation to the principles of lawfulness and transparency. We then evaluate, from an ethical perspective, this opt-out ‘nudge’ and whether it is sufficiently resistible, reversible, and has appropriate goals. In light of the above, we then propose improvements for the scheme’s legal and ethical acceptability. (shrink)

The paper begins with an example of the accounting treatment afforded an Indefeasible Rights Use Swap by Global Crossing. The case presents a typical example of ways in which accounting firms contributed to the ethical scandals of the early 21st century. While the behavior of Arthur Andersen, the accounting company in the case, might have met the letter of the law, we argue that it violated "the spirit of the law," which can be discovered by looking at the legitimate goals (...) of a company which give it its ethical direction and the responsibilities of the accounting professionals who serve the company and the general public. Those professional responsibilities are determined by looking at the legitimate function those professionals fulfill in the economy. A further claim is that Andersen and other accounting firms are motivated to abandon the responsibilities derived from pursuing their proper goals by falling into the trap of accumulating wealth for its own sake. We argue that the ultimate responsibility of internal auditors is to develop statements that give as reasonably true and fair a picture of the financial situation to any user having a claim to that knowledge. Further we argue that the major responsibilities of the external auditor are: first, to be responsible to the using public for evaluating financial statements and declaring that they represent a fair picture of the financial situation of a company, and second, to be a watchdog of financial markets and call into question irregular practices that would distort those pictures. Such due professional care requires the auditor to exercise "professional skepticism": an attitude that includes a questioning mind and a critical assessment of audit evidence. The paper concludes by giving particular examples of how Arthur Andersen LLP failed to meet those responsibilities. (shrink)

The question 'Why should I obey the law?' introduces a contemporary puzzle that is as old as philosophy itself. The puzzle is especially troublesome if we think of cases in which breaking the law is not otherwise wrongful, and in which the chances of getting caught are negligible. Philosophers from Socrates to H.L.A. Hart have struggled to give reasoned support to the idea that we do have a general moral duty to obey the law but, more recently, the greater number (...) of learned voices has expressed doubt that there is any such duty, at least as traditionally conceived. (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)

This paper seeks to rehabilitate the trade theory of Augustin Cournot. In contrast to the widespread awareness among neoclassical economists of Cournot's contribution to microeconomics, there is general ignorance of his trade theory, which an earlier generation of neoclassical theorists attributed to its erroneous conclusions. I dispute this view and attempt to show the internal consistency of Cournot's trade analysis. While the assumptions underpinning his trade theory could be considered extreme, they need to be understood in the light of his (...) methodological commitments, which included a rejection of utility in the theory of wealth, and a dismissal of Say's law regarding general employment. Furthermore, I argue that the assumptions underpinning neoclassical trade theory are no less extreme, even as their theoretical conclusions are (similarly) logically consistent. All of this serves to highlight the insufficiency of theoretical rigour in establishing the relevance of a theory; the importance of history of thought in reminding us that more than one theoretical perspective exists; and, of course, the indispensability of empirical engagement in trying to arbitrate between contrasting theoretical positions. (shrink)

This concluding essay offers reflections on core components of the faculty fellowship program, its outcomes and results, and program design and administration. Amid the current calls for reform in legal and other professional education, the lessons we learned and perspectives we gained during this fellowship program may be relevant to any faculty members and university administrations that are seeking to create more effective and engaged professional and graduate school programs, whatever may be their subject-matter discipline.

According to history texts, philosophers searched for a unifying natural law whereby natural phenomena and numbers are related. More than 2300 years ago, Aristotle postulated that nature requires minimum energy. More than 220 years ago, Euler applied the minimum energy postulate. More than 200 years ago, Lagrange provided a mathematical “proof” of the postulate for conservative systems. The resulting Principle of Least Action served only to derive the differential equations of motion of a conservative system. Then, 170 years ago, Hamilton (...) presented what he claimed to be a “general method in dynamics.” Hamilton's resulting “Law of Varying Action” was supposed to apply to both conservative and non-conservative systems and was supposed to yield either the differential equations of motion or the integrals of those differential equations. However, no direct evaluation of the integrals of motion ever resulted from Hamilton's law of varying action. In 1975, a scant 29 years ago, following five years of controversy with engineer mechanicians, Dr. Wolfgang Yourgrau, Editor, Foundations of Physics, published my first paper based on Aristotle's postulate, without mathematical proof. That and subsequent papers present, through applications, a true “general method in dynamics.” In this essay, I present the mathematical proof that is missing from my 1975 and subsequent papers. Six fundamental integrals of analytical mechanics are derived from Aristotle's postulate. First, however, Hamilton must be revisited to show why his H function and his “force function” prevents the law of varying action from being the general method in dynamics that he claimed it to be. I have found that Hamilton’s Law of Varying Action (HLVA), as Hamilton presented it, cannot be applied to systems for which the force function is non-integrable. In 1972, Dr. B.E. Gatewood and Dr. D.P. Beres (then a graduate student) discovered that the end-point term associated with the principle of least action does not vanish. I named the new equation, “the general energy equation.” In 1973, because I was doing with it what Hamilton claimed could be done with HLVA, I simply assumed that this new equation was HLVA. I gave the new equation the misnomer HLVA. In 2001, I learned that I had made a grave mistake. I found that HLVA is at most a special case of the general energy equation. My interpretation of Aristotle's postulate permits one to by-pass the differential equations of motion completely for both conservative and non-conservative systems (no calculus of variations). (shrink)

I was seven or eight years old. In Hebrew school we had just learned the Aleph-Bet and were, haltingly, beginning to sound out words. As we spoke the ancient text, our teacher translated: "... And God said: 'Let there be light.' And there was light. ..."[note 2] Here was magic; here was the supernatural; here was the creation of the universe. I resonated to the story. I was filled with wonder, far more than had ever been elicited by any (...) fairy tale my parents had read to me. I pictured in my imagination the majesty of it: God speaks and Nature obeys. (shrink)

In recent decades governments around the world have been increasingly concerned about terrorism and have introduced new laws and policies in an attempt to combat it. I examine here the weakest link in chains of security management: what I call the realm of “the informal,” where neither law nor formal policy is at work, but where stereotypes, traditional sayings and jokes, social ideals often promoted by mass media, etiquette requirements certainly are. This realm is so dangerous precisely because of its (...) deceptively innocuous appearance. First, I explain the kinds of things that function in the informal realm, revealing that it is more extensive than might first appear. Secondly, I describe three real-life examples where some informal factor plays a vital role in a catastrophic outcome, to show that such seemingly trivial matters can acquire tremendous practical significance in critical situations. My focus is on the influence of some informal factor on individuals who are in no way trying to threaten security, but rather intend to maintain or enhance it. Their roles call for that commitment. Finally I consider one of the three examples more carefully and illustratively, to demonstrate some of the key points raised. Currently, thinking about the dangers informal factors pose is routinely reactive (rather than proactive), often prompted by a catastrophe that has already occurred, but this means we miss some of what could be learned from the catastrophe. We need a far more proactive approach to those factors in the informal sphere and we need a much stronger focus on individuals who are responsible for and committed to maintaining security. Otherwise threats to security will remain are more serious than is typically acknowledged. (shrink)

This article describes implementation of a longitudinal curriculum in public health law, building on doctrinal coursework with skills-based coursework and opportunities for interdisciplinary, community-based engagement and service learning. It specifically describes development of a Policy Practicum, giving an example of how law students can learn policy skills and skills of effective community coalition work through a healthy homes partnership, highlighting areas where the curriculum can incorporate interdisciplinary education. It offers lessons learned during the curriculum-building process, and concludes with a (...) more intensive service-learning strategy through the development of a Policy Lab. (shrink)

Two major regulatory changes are affecting the provision of undergraduate legal education in England and Wales. On the one hand, the Qualifying Law Degree is being deregulated, meaning law schools are free to make significant changes to how and what they teach. On the other hand, higher education in England has seen a significant overhaul through the creation of the Office for Students, which treats students as consumers. Now more than ever, law schools need to ask themselves existential questions which (...) will not only test their continued relevance or indeed viability within the ‘market’ for higher education, but also the status of the discipline of law as a whole. The regulatory landscape may indeed present a significant threat, but it is also an opportunity to reflect on what law schools are for, and consequently what changes could result from the academic freedom that comes with deregulation. Whilst different law schools will interpret their mission differently, they should caution against either generalised inertia or succumbing to an outcomes-oriented provision that simply prepares students for the new Solicitors Qualifying Examination. Instead, law schools will find their proper purpose in critical reflection and academic self-grounding, providing undergraduate students with a ‘question everything’ mentality, and showing them that law is something to be experienced and not merely learnt. (shrink)

In our article, we share the lessons we have learned after creating and running a successful legal laboratory over the past seven years at Yale Law School. Our legal laboratory, which focuses on the intersection of law and severe brain injury, represents a unique pedagogical model for legal academia, and is closely influenced by the biomedical laboratory.

The legal requirements and justifications for collecting patient-identifiable data without patient consent were examined. The impetus for this arose from legal and ethical issues raised during the development of a population-based disease register. Numerous commentaries and case studies have been discussing the impact of the Data Protection Act 1998 and Caldicott principles of good practice on the uses of personal data. But uncertainty still remains about the legal requirements for processing patient-identifiable data without patient consent for research purposes. This is (...) largely owing to ignorance, or misunderstandings of the implications of the common law duty of confidentiality and section 60 of the Health and Social Care Act 2001. The common law duty of confidentiality states that patient-identifiable data should not be provided to third parties, regardless of compliance with the DPA1998. It is an obligation derived from case law, and is open to interpretation. Compliance with section 60 ensures that collection of patient-identifiable data without patient consent is lawful despite the duty of confidentiality. Fears regarding the duty of confidentiality have resulted in a common misconception that section 60 must be complied with. Although this is not the case, section 60 support does provide the most secure basis in law for collecting such data. Using our own experience in developing a disease register as a backdrop, this article will clarify the procedures, risks and potential costs of applying for section 60 support. (shrink)

I Should have known better than to revive Carcopino's heresy on the Lex Bembina Repetundarum. My attempt to rob C. Gracchus of this important measure and restore it to Glaucia met with universal disbelief. Soon a powerful counter-attack followed in learned publications. There may seem little left to say. Certainly it would be pointless to go over the old arguments yet again. My only excuse for perseverance is that I have new material. For my readers' convenience I group it (...) under five main heads. (shrink)