This essay challenges Dworkin's account of the virtues and consistency of applying the right answer as given by a certain interpretive theory of local law (hereafter, the D-theory) with democratic theory. D-theory adjudication does not have all the virtues Dworkin claims for it. It may involve judicial law-creation as well, rather than being confined to the discovery of preexisting legal rights. It may also involve any of the morally objectionable features of judicial law-creation, including unfairness. It is not immune (...) to the objection based on democratic theory that Dworkin considers. Moreover, discretionary judicial law-creation is free of some of the vices that concern Dworkin. For these reasons, neither Dworkin's view of D-theory adjudication nor his denial that judges commonly have legislative discretion seems to be especially significant for the justification of appellate adjudication. (shrink)

The legal consensus that has evolved through adjudication and legislation since the Karen Quinlan case in 1976 is founded on the premise that there is a bright line between passive euthanasia and active euthanasia. Indeed, the term passive euthanasia is often eschewed in favor of less emotionally-laden terminology such as "forgoing life-sustaining treatment" or "terminating life support" so as to further sever any possible connection with active euthanasia. Legal approval has been bestowed upon passive euthanasia under certain circumstances while (...) active euthanasia is routinely condemned. This consensus was put to a test in 1990 when the United States Supreme Court ruled on the Cruzan case. However, the Court's narrow decision did not upset the consensus, and in the most significant appellate decisions handed down by state courts since Cruzan, there has been a reaffirmation-and possibly even an extension-of the consensus. Two other threats to the legal consensus about forgoing life-sustaining treatment have begun to manifest themselves: the increasing pressure for mercy killing and "futility" cases. Both of these challenge the fundamental premises on which the consensus is grounded. (shrink)

SummaryThis essay explores analogies between classical notions of pyrrhonist skepticism and reflexive phenomena of twentieth‐century metamathematics. In a theoretical framework T, for example, one may interpret1T's appearances () as its axioms;2evident and inevident assertions () in the language L of T as sentences 0 which are decidable and undecidable in T; and3skeptical self ‐doubt about T in L as T's Godel‐sentence γ .These analogies complement another one, between pyrrhonist ‘modes’() of indefinite semantic regress (), and recurrent appeals to ‘new’ metatheories (...) T', T., to consider ‘new’, identify alternate interpretations, and adjudicate claims of consistency.These analogies are also reflexive in a wider sense. ‐ are stated for theories T, T', T., in some unspecified metatheory t̄–to which they also apply. This wider reflexivity suggests that ‘problems' of skeptical self‐doubt are not vicious or otiose, but significant aspects of the phenomena of indefinite semantic regress.RésuméCet essai explore quelques analogies entre les notions classiques du scepticisme pyrrhonien et les phénomenes réflexifs de la métamathématique du vingtième siècle. Dans un cadre théorique T du premier ordre, par exemple, on peut interpréter les apparences de T (), comme des axiomes; les assertions évidentes et non évidentes (), dans la langue L de T, comme les énoncés ø decidables et indecidables dans L; et le doute sceptique de ‘soi au sujet de T dans L, come ľénoncé ‐γ de Gödel de T .Ces analogies en complèment une autre, entre les ‘modes' pyrrhoniens() dela régression sémantique indéfinie(), et les appels récurrents à de ‘nouvelles' métathéories T', T., pour considérer de ‘nou‐veaux’, identifier des interpretations alternatives et juger des questions de consistance.Ces analogies sont aussi réflexives dans un sense plus large. ‐ se constatent pour les théories T, T T., dans une métathéorie indéterminée T –aG laquelle ilss'appliquent à nouveau. Cette réflexivité plus étendue suggère que les problèmes de doute sceptique de soi‘ ne sont pas vicieux ou vides, mais représentent au contraire des aspects signifiants des phénomènes de régression sémantique indéfinie.ZusammenfassungIn der vorliegenden Arbeit werden einige Analogien zwischen klassischen Begriffen des pyrrhonischen Skeptizismus und reflexiven Phänomenen der Metamathematik des zwanzigsten Jahrhunderts untersucht. In einem theoretischen Rahmenwerk T kann man die folgenden Interpretationen geben:1die Erscheinungen () von T als dessen Axiome;2evidente und nicht‐evidente Aussagen () in der Sprache L von T als Sätze ø, die entscheidbar, bzw. unentscheidbar sind; und3den skeptischen Selbst zweifel über T in L als den Güdel‐Satz γ für T .Diese Analogien sind complementär zu einer anderen, nämlich derjenigen zwischen den Pyrrhonischen Modi () des semantischen regresssus in indefinitum (), und dem wiederholten Rekurs auf ‘neue’ Metatheorien T', T, …, in denen man ‘neue’ berücksichtigt, alternative Deutungen erwägt und Fragen der Widerspruchsfreiheit beurteilt.Diese Analogien sind auch reflexiv in einem weiteren Sinne. ‐ werden für T, T, T, …, in einer Metatheorie T – bestimmt, für die sie auch gelten. Diese weitere Reflexivität legt nahe, dass ‘Probleme’ des skeptischen ‘Selbsf zweifels weder zu circuit vitiosi führen noch Scheinprobleme sind, sondern beachtenswerte Aspekte der Phänomene des indefiniten semantischen Regresses darstellen. (shrink)

This article is part of a Symposium that examines the legal and policy issues raised by the Schwarzenegger bobblehead doll litigation, in which a Hollywood star-turned-governor sued under California's right of publicity laws and under federal copyright law to stop a small Ohio company from selling a bobblehead doll depicting Schwarzenegger in a business suit, with a bandolier of bullets, and brandishing an assault rifle. The article contends that defendants' unauthorized use of the Schwarzenegger image on dolls and their accompanying (...) packaging was permissible as First Amendment-protected free speech under California's right of publicity laws and also constituted fair use under federal copyright law. The article rejects the argument that a First Amendment defense to plaintiff's right of publicity claims was unavailable because a bobblehead doll is not a "traditional" medium of expression for ideas. The article recognizes that overly expansive assertions of rights of publicity and other intellectual property rights threaten to stifle creative expression and diminish the cultural commons. The article also calls for clearer and more consistent recognition of defenses to right of publicity claims, particularly for cases where a defendant's unauthorized appropriation of another's image or likeness is for purposes of caricature, parody, or satire¿especially where the image is that of a politician. It concludes that the settlement of the Schwarzenegger bobblehead doll case illustrates how "strategic" assertions of even objectively non-meritorious rights of publicity can allow powerful plaintiffs to censor unflattering depictions of them and to unduly expand intellectual property rights without full adjudication on the merits of such claims.This insight is critical, because while other scholars have suggested that the "over-protection" of intellectual property rights (including rights of publicity) has a deleterious effect on freedom of expression and the public domain, these criticisms focus almost exclusively on published appellate cases. Yet, as this article reminds us, most cases settle and never become litigated cases, much less published appellate decisions. And most disputes - including intellectual property disputes - never result in formal litigation in the first instance. As with most other areas of the civil disputing process, intellectual property disputes are processed in the "shadow of the law", where repeat players have strategic advantages to shape the outcomes of disputes in their favor. Thus, if we want to know whether intellectual property rights are over-protected, we need to know what happens (and why) in the shadow of intellectual property law. This insight is the basis for the author's empirical research-in-progress focusing on "strategic intellectual property enforcement" by owners of trademarks, copyrights, and patents, including enforcement that never results in litigation and is thus under the radar of what most legal scholars in this area of law examine. (shrink)

The rule against bias is a central tenet of English law and it also impacts on collegiate courts which typically exercise appellate/review jurisdictions over their professional or student members. This is true of the Bar Standards Board which has established the adjudicatory bodies to enforce its regulatory framework and has vested the procedure of fair trials upon the Council of the Inns of Court which is responsible for appointing the Disciplinary Tribunal panels that conduct hearings for professional misconduct. The (...) COIC has been exposed for ‘irregularities’ in the findings of guilt against barristers who have been adjudged by non-qualified judges. In R v Visitors to the Inns of Court and Ors [2014] EWCA Civ 1630, the Court of Appeal ruled that a disciplinary tribunal or a panel of visitors appointed from barristers or lay representatives outside its pool of enrolled judges would still ensure independence and guarantee freedom from outside pressure. The impugned tribunal members who were not entitled to sit nevertheless had authority to act as de facto judges. This part of the ruling reinforces the regulatory bodies inherent power to appoint its own tribunal to adjudicate and it needs a more rigorous application of natural justice principle on the part of the BSB. (shrink)

The art, craft, and science of policing -- Crime and criminals -- Criminal process and prosecution -- The crime-preventive impact of penal sanctions -- Contracts and corporations -- Financial markets -- Consumer protection -- Bankruptcy and insolvency -- Regulating the professions -- Personal injury litigation -- Claiming behavior as legal mobilization -- Families -- Labor and employment laws -- Housing and property -- Human rights instruments -- Constitutions -- Social security and social welfare -- Occupational safety and health -- Environmental (...) regulation -- Administrative justice -- Access to civil justice -- Judicial recruitment, training, and careers -- Trial courts and adjudication -- Appellate courts -- Dispute resolution -- Lay decision-makers in the legal process -- Evidence law -- Civil procedure and courts -- Collective actions -- Law and courts on development and democratization -- How does international law work? -- Lawyers and other legal service providers -- Legal pluralism -- Public images and understandings of courts -- Legal education and the legal academy -- The (nearly) forgotten early empirical legal research -- Quantitative approaches to empirical legal research -- Qualitative approaches to empirical legal research -- The need for multi-method approaches in empirical legal research -- Legal theory and empirical research -- Empirical legal research and policy-making -- The place of empirical legal research in the law school curriculum -- Empirical legal training in the US academy. (shrink)

Neurocognitive enhancement, or cosmetic neurology, offers the prospect of improving the learning, memory and attention skills of healthy individuals well beyond the normal human range. Much has been written about the ethics of such enhancement, but policy-makers in the USA, the UK and Europe have been reluctant to legislate in this rapidly developing field. However, the possibility of discrimination by employers and insurers against individuals who choose not to engage in such enhancement is a serious threat worthy of legislative intervention. (...) While lawmakers should not prevent individuals from freely pursuing neurocognitive enhancement, they should act to ensure that such enhancement is not coerced. This paper offers one model for such legislation, based upon a proposed US law, the Genetic Information Nondiscrimination Act of 2008, to address precisely this particular pitfall of the impending neuroscience revolution. (shrink)

Apolitical, amoral, an aesthete whose writings point toward some form of liberation: this is the figure who emerges from most recent scholarship on Friedrich ...

Between inventing the concept of a universal computer in 1936 and breaking the German Enigma code during World War II, Alan Turing, the British founder of computer science and artificial intelligence, came to Princeton University to study mathematical logic. Some of the greatest logicians in the world--including Alonzo Church, Kurt Gödel, John von Neumann, and Stephen Kleene--were at Princeton in the 1930s, and they were working on ideas that would lay the groundwork for what would become known as computer science. (...) Though less well known than his other work, Turing's 1938 Princeton PhD thesis, "Systems of Logic Based on Ordinals," which includes his notion of an oracle machine, has had a lasting influence on computer science and mathematics. This book presents a facsimile of the original typescript of the thesis along with essays by Andrew Appel and Solomon Feferman that explain its still-unfolding significance. A work of philosophy as well as mathematics, Turing's thesis envisions a practical goal--a logical system to formalize mathematical proofs so they can be checked mechanically. If every step of a theorem could be verified mechanically, the burden on intuition would be limited to the axioms. Turing's point, as Appel writes, is that "mathematical reasoning can be done, and should be done, in mechanizable formal logic." Turing's vision of "constructive systems of logic for practical use" has become reality: in the twenty-first century, automated "formal methods" are now routine. Presented here in its original form, this fascinating thesis is one of the key documents in the history of mathematics and computer science. (shrink)

In 1233 a certain R. Joseph bar Moses of Würzburg commissioned an illuminated copy of Rashi's Bible commentary, now in Munich. After the text was finished, the task of illuminating was put into the hands of a Christian painter, apparently a man named Heinrich, who kept a lay workshop in Würzburg . Three years later a giant Bible, now in Milan, was commissioned perhaps by the same patron, but not necessarily in the same city . It, too, was illuminated; this (...) time, however, it cannot be excluded that the paintings were made by Jewish artists. Both manuscripts are richly decorated with narrative scenes involving human figures. In the following decades it became more and more customary for wealthy Jews of Germany and northern France to have their Bibles, prayer books, and other texts adorned with figural miniatures. Yet there is no evidence that during the Middle Ages human figures were painted in any form in a Jewish context before the 1230s. A few textual references from the twelfth century indicate wall paintings and stained-glass windows in synagogues with images of animals and dragons, but none have survived. Some decades after the first illuminated books made their appearance, the most outstanding authority on religious law of his time, R. Meir ben Barukh of Rothenburg , was asked his opinion of this phenomenon. R. Meir was worried, as his reply shows, but not for reasons of religious law; his concern was that images in painted books would distract believers from their pious concentration during prayer. (shrink)

As a result of workplace clean air regulations and strict guidelines imposed by the Joint Commission on Accreditation of Healthcare Organizations in 1993, most hospitals in the United States are now virtually smoke free. Although evidence suggests that these restrictions both cause smoking employees to consume fewer cigarettes per day and induce some employees to quit smoking entirely, the policies have also driven many healthcare providers—including physicians—onto the public sidewalks for their cigarette breaks. Patients entering many hospitals pass white-coated medical (...) students and residents puffing away at the curbside. (shrink)

Whether the law should permit individuals to opt out of accepted death standards is a question that must be faced and clarifiedWhile media coverage of the Terri Schiavo case in Florida has recently refocused public attention on end of life decision making, another end of life tragedy in Utah has raised equally challenging—and possibly more fundamental—questions about the roles of physicians and families in matters of death. The patient at the centre of this case was Jesse Koochin, a six year (...) old boy suffering from “inoperable and incurable” brain cancer. He had been undergoing care at Primary Children’s Medical Center in Salt Lake City since September 15, 2004 when “his tumor pushed his brain stem down through the skull”.1 Subsequently, two physicians independently determined that the child was “brain dead” and informed his parents that they would order life support removed within twenty four hours. Steve and Gayle Koochin overtly rejected the hospital’s definition of death. The couple, relying on traditional notions of cardiopulmonary death, obtained a restraining order to keep Jesse on a ventilator and ultimately removed the brain dead child from the hospital. The ongoing case raises the complex question of whether patients’ families should be permitted to opt out of widely accepted definitions of death in favour of their own standards.The definition of death has evolved rapidly in the United States over the past thirty five years. Until the middle of the twentieth century, the medical community, the legal system, and an overwhelming majority of the public understood death to …. (shrink)

The public discourse surrounding sex and severe disability over the past 40 years has largely focused on protecting vulnerable populations from abuse. However, health professionals and activists are increasingly recognising the inherent sexuality of disabled persons and attempting to find ways to accommodate their intimacy needs. This essay explores several ethical issues arising from such efforts.

Substituted judgment has increasingly become the accepted standard for rendering decisions for incapacitated adults in the USA. A broad exception exists with regard to patients with diminished capacity secondary to depressive disorders, as such patients’ previous wishes are generally not honoured when seeking to turn down life-preserving care or pursue aid-in-dying. The result is that physicians often force involuntary treatment on patients with poor medical prognoses and/or low quality of life as a result of their depressive symptoms when similarly situated (...) incapacitated patients without such depressive symptoms would have their previous wishes honoured via substituted judgment. This commentary argues for reconsidering this approach and for using a substituted judgment standard for a subset of EMP/LQL patients seeking death. (shrink)

This paper describes the author’s experience of infusing an introductory database course with privacy content, and the on-going project entitled Integrating Ethics Into the Database Curriculum, that evolved from that experience. The project, which has received funding from the National Science Foundation, involves the creation of a set of privacy modules that can be implemented systematically by database educators throughout the database design thread of an undergraduate course.

The proliferation of electronic databases has given rise to many practices and occurrences that pose serious threats to personal privacy. This paper argues that attention to privacy should be an integral part of the database design process, and that database designers are uniquely positioned to ensure that this happens. To motivate students to become privacy‐conscious database design professionals, computer science programs must meet the challenges of implementing an “ethics across the curriculum” methodology to integrate privacy content throughout the design thread (...) of the introductory database course. (shrink)

Physicians expressing opinions on medical matters that run contrary to the consensus of experts pose a challenge to licensing bodies and regulatory authorities. While the right to express contrarian views feeds a robust marketplace of ideas that is essential for scientific progress, physicians advocating ineffective or dangerous cures, or actively opposing public health measures, pose a grave threat to societal welfare. Increasingly, a distinction has been made between professional speech that occurs during the physician-patient encounter and public speech that transpires (...) beyond the clinical setting, with physicians being afforded wide latitude to voice empirically false claims outside the context of patient care. This paper argues that such a bifurcated model does not sufficiently address the challenges of an age when mass communications and social media allow dissenting physicians to offer misleading medical advice to the general public on a mass scale. Instead, a three-tiered model that distinguishes between citizen speech, physician speech and clinical speech would best serve authorities when regulating physician expression. (shrink)

The integrity of the patient–physician relationship depends on maintaining professional boundaries. While ethicists and professional organisations have devoted significant consideration to the subject of sexual boundary transgressions, the subject of non-sexual boundaries, especially outside the mental health setting, has been largely neglected. While professional organisations may offer guidance on specific subjects, such as accepting gifts or treating relatives, as well as general guidance on transparency and conflict of interest, what is missing is a principle-based method that providers can use to (...) assess non-sexual interactions with patients that transcend norms of practice. This paper attempts to offer an operational model for such assessment that considers not only the traditional emphasis on beneficence, but also incorporates concerns over entanglement and concordance. (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)

The “Goldwater rule,” a policy adopted by the American Psychiatry Association in 1973, prohibits organization members from diagnosing or offering professional opinions regarding the mental health of public figures without both first-hand evaluation and authorization. Initially developed in response to a controversial survey of APA members during the 1964 Presidential election campaign, the ethics rule faced few large scale challenges until the election of Donald Trump in 2016. Since that time, a significant number of psychiatrists have either violated or criticized (...) the rule openly. This paper argues that whatever the initial merits of the rule, the prohibition has since been rendered obsolete by the combined lack of professional consensus supporting the policy, absence of a meaningful enforcement mechanism, and the credible statements of non-APA members in the mental health professions regarding public figures. (shrink)

Since several landmark legal decisions in the 1970s and 1980s, substituted judgment has become widely accepted as an approach to decision‐making for incapacitated patients that incorporates their autonomy and interests. Two notable exceptions have been cases involving minors and those involving cognitively or psychiatrically impaired individuals who never previously possessed the ability to contemplate the medical decisions involved in their care. While a best interest standard may have universal merit in pediatric cases, this paper argues that substituted judgement has been (...) rejected too broadly for “never‐capacitated” patients. It then lays out a three‐condition test for using substituted judgment in these cases. For a subset of “never‐capacitated” patients who belong to distinctive religious or cultural communities with clear medical values and have an appropriate surrogate, these values may prove helpful in vindicating the interests of the never‐capacitated and should not be blanketly dismissed. (shrink)

Artificial intelligence (AI) holds considerable promise for transforming clinical diagnostics. While much has been written both about public attitudes toward the use of AI tools in medicine and about uncertainty regarding legal liability that may be delaying its adoption, the interface of these two issues has so far drawn less attention. However, understanding this interface is essential to determining how jury behaviour is likely to influence adoption of AI by physicians. One distinctive concern identified in this paper is a ‘negative (...) outcome penalty paradox’ (NOPP) in which physicians risk being penalised by juries in cases with negative outcomes, whether they overrule AI determinations or accept them. The paper notes three reasons why AI in medicine is uniquely susceptible to the NOPP and urges serious further consideration of this complex dilemma. (shrink)

The American Journal of Bioethics, Volume 12, Issue 9, Page 9-11, September 2012.

Although considerable attention has been devoted to the concepts of “visible” and “invisible” victims in general medical practice, especially in relation to resource allocation, far less consideration has been devoted to these concepts in behavioral health. Distinctive features of mental health care in the United States help explain this gap. This essay explores three specific ways in which the American mental health care system protects potentially “visible” individuals at the expense of “invisible victims” and otherwise fails to meet the needs (...) of great numbers of people with serious psychiatric conditions: prioritization of the wrong patients, incentivization of excessive caution among providers, and a narrow definition of psychiatry's purview. While each of these practices has been discussed elsewhere in the literature, they are rarely considered as part of an interrelated and systemic problem. Reconceptualizing these three issues as aspects of the larger conflict between the interests of “visible” and “invisible” victims may prove a path toward reform. (shrink)

A Philosophy of Mitzvot by Rabbi Dr. Gersion Appel sets forth the Hinnukh's objectives and his approach to revealing the religious and ethical meaning of the mitzvot. In his wide-ranging study, the author presents a comprehensive view of Jewish philosophy as developed by the Hinnukh and the classical Jewish philosophers. The Hinnukh emerges in this study as a great educator and moral and religious guide, and his classic work as a treasure-trove of Jewish knowledge, religious inspiration, and brilliant insight in (...) the molding of human character. (shrink)

“An original, compelling, and provocative exploration of ethical issues in our society, with thoughtful and balanced commentary. I have not seen anything like it.” —Alan Lightman, author of Einstein’s Dreams Drawing upon the author’s two decades teaching medical ethics, as well as his work as a practicing psychiatrist, this profound and addictive little book offers up challenging ethical dilemmas and asks readers, What would you do? A daughter gets tested to see if she’s a match to donate a kidney to (...) her father. The test reveals that she is not the man’s biological daughter. Should the doctor tell the father? Or the daughter? A deaf couple prefers a deaf baby. Should they be allowed to use medical technology to ensure they have a child who can’t hear? Who should get custody of an embryo created through IVF when a couple divorces? Or, when you or a loved one is on life support, Who says you’re dead? In short, engaging scenarios, Dr. Appel takes on hot-button issues that many of us will confront: genetic screening, sexuality, privacy, doctor-patient confidentiality. He unpacks each hypothetical with a brief reflection drawing from science, philosophy, and history, explaining how others have approached these controversies in real-world cases. Who Says You’re Dead? is designed to defy easy answers and to stimulate thought and even debate among professionals and armchair ethicists alike. (shrink)

The Dutch rules governing neonatal euthanasia, known as the Groningen Protocol, require parental consent for severely disabled infants with poor prognoses to have their lives terminated. This paper questions whether parental consent should be dispositive in such cases, and argues that the potential suffering of the neonate or pediatric patient should be the decisive factor under such unfortunate circumstances.

The model for capacity assessment in the United States and much of the Western world relies upon the demonstration of four skills including the ability to communicate a clear, consistent choice. Yet such assessments often occur at only one moment in time, which may result in the patient expressing a choice to the evaluator that is highly inconsistent with the patient’s underlying values and goals, especially if a short-term factor (such as frustration with the hospital staff) distorts the patient’s preferences (...) momentarily. These challenges are particularly concerning in cases, which arise frequently in hospital settings, in which patients demand immediate self-discharge, often during off-hours, while faced with life-threatening risks. This paper examines the distinctive elements that shape such cases and explores their ethical implications, ultimately offering a model for such situations that can be operationalized. (shrink)