In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which (...) originated the common law privacy right asserted that a free white man whose photograph is published without his consent in a city newspaper is like a slave in bondage? I argue that the jurisprudence of Pavesich need not be troubling. Pavesich’s natural law argument was supplemented by several positive law arguments. The positive law arguments were a strong enough basis for finding a right to privacy in the common law, as indeed Samuel Warren and Louis Brandeis had previously argued. The observation that the Pavesich court’s natural law argument ran alongside positivistic arguments suggests that the arresting, high-toned natural law and slavery appeals in Pavesich are inessential rhetorical throwaways. But I maintain that the natural law argument and slavery analogy features of Judge Andrew Jackson Cobb’s opinion extolling the “liberty of privacy” are (1) of critical importance to a full contextual understanding of the decision and (2) illuminate the contemporary case for recognizing invasions of privacy as civil injuries to freedom and self-determination. One can poke holes in the logic of Thomas Aquinas and John Locke as scholars have done for centuries. But one can as easily choose to celebrate the spirit of the natural law tradition. The natural law tradition represents efforts rhetorically, rationally, and intuitively to derive principles of justice and goodness from basic facts about human characteristics, needs, and desires, where otherwise binding sovereign law may fall short. (shrink)

This article offers arefutation of the corrective justiceinterpretation of tort law – the view that itis essentially a system of corrective justice. It introduces a distinction between primary andsecondary tort duties and claims that tort lawis best understood as the union of its primaryand secondary duties. It then advances twoindependent criticisms of the correctivejustice interpretation. The article firstargues that primary tort duties have nothingfundamentally to do with corrective justice andthat, if one understands what is meant by``primary (...) tort duties,'' one is compelledto regard this fact as a decisive objection tothe corrective justice interpretation. Second,it argues that, whatever relation thereis between secondary tort duties and correctivejustice, that relation also holds betweencorrective justice and secondary duties ofother legal branches. In sum, the concept ofcorrective justice is neither capable ofunifying tort law nor of demarcating it fromother legal branches.The article also offers a general alternativeinterpretation of tort law. Rather thanbeing essentially corrective, tort law isessentially protective. Under this picture, iftort law has a most important point, it is theprotection of legal subjects and valuablesocial interests from harm. This is theoverarching ambition that unifies primary andsecondary tort duties. It does not, however,demarcate tort law from other legal branches. (shrink)

From the Supreme Court to the bedroom, privacy is an intensely contested interest in our everyday lives and privacy law. Some people appeal to privacy to protect such critical areas as abortion, sexuality, and personal information. Yet, privacy skeptics argue that there is no such thing as a right to privacy. I argue that we cannot abandon the concept of privacy. If we wish to avoid extending this elusive concept to cover too much of (...) our lives or shrinking it to cover too little, we must come to understand it. After exploring the privacy arguments of philosophers and constitutional and tort privacy law, I argue for a new definition of privacy and an explanation of its value that clarifies and resolves many of our conflicts. Privacy is critical because it allows us to protect a realm in which we can have intimate relations with others. (shrink)

This chapter contains sections titled: Focus: The United States Theorizing about Privacy Meaning and Definition Questions of Value Conclusion References.

This article presents the novel view that ‘inclusion into seclusion’ and ‘public disclosure of embarrassing facts’ (‘misuse of private information’ (“MOPI”) in the UK), which both the academic commentary and US case law treat as two separate legal actions, occupy the same conceptual space. This claim has important practical ramifications. No further development of the law is required to realise an actionable intrusion tort as part of the UK’s MOPI tort. The argument is defended in doctrinal and theoretical (...) terms, and by reference to both UK and US law. It is presented in three forms: first, in negative terms, that the orthodox distinction between the two claims (informational privacy and intrusion) is unsustainable; secondly, in positive terms, that both guard against the same wrong (unwarranted privacy-invasion) and the same harm (mental distress), in a way that is distinctive from other privacy actions and legal claims based upon the autonomy value; finally, in pragmatic terms, that MOPI’s mature jurisprudence is sufficiently flexible and dynamic to recognise intrusion-only claims using its existing legal framework. (shrink)

Background Euthanasia is a controversial practice in many countries. Since Spain’s Euthanasia Law came into effect on March 24, 2021, healthcare providers have faced a new challenge since they must inform patients, provide care, accompany them, and implement the law. It also represents a new stumbling block at universities, which must adapt to regulatory changes and educate future professionals accordingly. Little is known about the attitude of nursing students in Spain toward euthanasia since this law was implemented. Objective This study (...) aims to answer the following research questions: What is the attitude of nursing students toward euthanasia? What factors influence this attitude? Research design A cross-sectional study was conducted using an online questionnaire. Participants and research context The study population comprised all nursing students at a public university in Barcelona ( n = 444), Spain, during the 2022–2023 academic year. The validated Spanish version of the Euthanasia Attitude Scale was employed. A bivariate analysis was performed. Ethical considerations The university Ethics Committee (CEEAH 6247) approved this study. All participating students signed an informed consent form. Participation was voluntary, and data anonymity and confidentiality were guaranteed. Results Two hundred and forty-four nursing students responded to the questionnaire. The mean total score was 79.64. Participants with religious beliefs presented lower scores, indicating a more negative attitude toward euthanasia. Participants in their second, third, or fourth year of the nursing degree scored higher, demonstrating a more positive attitude. Conclusions The attitude of nursing students toward euthanasia was remarkably positive. Working on ethical content during the degree course and clinical practice are factors that help to develop a more positive attitude. In addition, nursing education should encourage professional aspects to prevail over religious beliefs in euthanasia situations. (shrink)

Privacy involves a zone of inaccessibility in a particular context. In social discourse it pertains to activities that are not public, the latter being by definition knowable by outsiders. The public domain so called is the opposite of secrecy and somewhat less so of confidentiality. The private sphere is respected in law and morality, now in terms of a right to privacy. In law some violations of privacy are torts. Philosophers tend to associate privacy with personhood. (...) Professional relationships are prima facie private but may be investigated for cause. Privacy may entail both intimacy and caring but neither necessarily so. Finally, various technology-based means of intrusion are rendering privacy ever more difficult to sustain. (shrink)

This paper examines whether American parents legally violate their children’s privacy rights when they share embarrassing images of their children on social media without their children’s consent. My inquiry is motivated by recent reports that French authorities have warned French parents that they could face fines and imprisonment for such conduct, if their children sue them once their children turn 18. Where French privacy law is grounded in respect for dignity, thereby explaining the French concerns for parental “over-sharing,” (...) I show that there are three major legal roadblocks for such a case to succeed in US law. First, US privacy tort law largely only protects a person’s image where the person has a commercial interest in his or her image. Secondly, privacy tort laws are subject to constitutional constraints respecting the freedom of speech and press. Third, American courts are reluctant to erode parental authority, except in cases where extraordinary threats to children’s welfare exist. I argue that while existing privacy law in the US is inadequate to offer children legal remedy if their parents share their embarrassing images of them without their consent, the dignity-based concerns of the French should not be neglected. I consider a recent proposal to protect children’s privacy by extending to them the “right to be forgotten” online, but I identify problems in this proposal, and argue it is not a panacea to the over-sharing problem. I conclude by emphasizing our shared social responsibilities to protect children by teaching them about the importance of respecting one another’s privacy and dignity in the online context, and by setting examples as responsible users of internet technologies. (shrink)

An exploration of the risks and benefits of AI, particular regarding privacy.

This Note will address the salience of a simple analogy: will privacy law be for the information age what consumer protection law was for the industrial age? At the height of industrialization, the United States market for consumer products faced instability caused by a lack of consumer competence, lack of disclosure about product defects, and advancements in technology that exacerbated the market's flaws. As this Note will show, these same causes of market failure are stirring in today's economy as (...) well. The modern economy is not one of goods but of information, and although consumers have long been aware that their personal information may have marketing value, the Internet has fundamentally changed the scope and depth of information collection, exposing more consumers than ever to injuries requiring not just a comprehensive remedy but a wholesale change in the level of care of the information industry. Just as the mass-production economy precipitated a wave of reforms in consumer protection (in part thanks to a kick-start by author Upton Sinclair), so too must the mass-information economy adapt. After demonstrating the parallels between the problems of today with those of yesterday, this Note will propose parallel solutions, particularly a consolidation of regulatory power and a new tort for breach of information privacy, which draws its inspiration from general products liability. These proposals show that rather than reinvent the wheel, modern lawmakers can (and should) answer today's problems with lessons from the last century. (shrink)

Suppose we agree to reject the view that privacy has narrow scope and consequently is irrelevant to the constitutional privacy cases. We then have (at least) these two options: (1) We might further emphasize and draw out similarities between tort and constitutional privacy claims in order to develop a notion of privacy fundamental to informational and Fourth Amendment privacy concerns as well as the constitutional cases. We can cite examples indicating this is a promising (...) position. Consider consenting homosexuality conducted in one's home, for instance. We view it as a private matter, whether the state is seeking to regulate the behavior, or if others are attempting to gain or exploit information about it. I believe basic conceptual similarities between tort and constitutional interests can be identified by showing that there is a range of similar reasons for protecting both tort and constitutional privacy concerns. We might worry, however, that a comprehensive concept of privacy may be too general to be very useful, given that privacy violations can be so diverse, and can arise, for example, from misuse of confidential information, from conduct that is intrusive even if no information is gained or disclosed, from disturbance of an intimate relationship, or from disruption of various other important aspects of one's life.(2) We could concede that whatever “privacy” means in the tort and Fourth Amendment cases, it means something different in the constitutional cases. Nevertheless, we might take that “something else” seriously as a distinct but legitimate use of the term which is not “spurious” but is reflected in our ordinary language. This appears to me to be a fruitful alternative. After all, contrary to Henkin's view that tort privacy is “what most people mean by privacy,” the term is often used in contexts beyond informational privacy and clearly related to the interests at stake in the constitutional cases. Thus, for example, in a pamphlet explaining how to protect children by teaching them how to say “No!” to strangers without making them paranoid or antisocial, parents and teachers are told, Children have a right to privacy. Teach it. Reinforce it. One of the ways to help children prevent sexual assault is to encourage them to develop a sense of physical integrity. A sense that they have a right to their own body space and privacy. Just as we allow them to close the door when they use the bathroom, we must allow them to say no to any unwanted physical affection and touch. Flora Calao and Tamar Hosansky, “The Key to Having Fun is Being Safe: Teaching Personal Safety to Children,” The Safety and Fitness Exchange, 1123 Broadway, N.Y., N.Y. 10010. Unfortunately, the most obvious starting point for identifying the sense of private relevant to the constitutional cases is extremely worrisome. The Court itself has said ... only personal rights that can be deemed “fundamental”...are included in this guarantee of personal privacy...the right has some extension to activities relating to marriage...procreation...contraception...family relationships... and child rearing and education.Roe v. Wade, 410 U.S. 113 (1973).The difficulty, of course, is that little more is offered by way of explanation of which rights are “personal” or “fundamental” or both. Focusing on marriage makes Roe v. Wade difficult to understand given that Ms. Roe was unmarried, and attending only to family issues does not help us make sense of the Stanley case protecting one's right to view pornography in one's home. It is perhaps more problematic that decisions such as what color shoes to wear are reasonably viewed as personal, yet are far from fundamental enough to warrant protection. And regulations governing the draft and employment, for example, are not viewed as privacy invasions although they might be said to interfere with matters of one's life that are both fundamental and personal in the vague sense described.Before we give up in frustration, however, I would urge that we recall that even in tort law the notion of privacy has been evolving through a constellation of judgments. Although there is no fixed way of using the term which we then proceed to analyze, the concept of privacy has not in those cases been taken to be meaningless or empty. Similarly, there is reason to believe that the scope of a “personal and fundamental” notion of privacy relevant to the constitutional cases can be further delineated through a consideration of cases, especially since it seems to me that in many cases application of the term is clear and unproblematic. A decision to have a vasectomy, for example, can uncontroversially be said to be a personal and fundamental one, and it is in that sense private. We fail to acknowledge the personal significance in an individual's life of forcing or refusing him the operation if we deny that this important sense of privacy is relevant to such a decision merely because an interest in determining for oneself what one ought to do is also at risk.Of course, once it is settled that something is a private matter, it is a separate issue to decide whether or not, in some social context, an invasion of it can be justified. Thus, I would claim, a mandatory sterilization program for male recidivists or for those in a country suffering grave poverty and overpopulation does invade privacy, and the social or legal question is whether or not the invasion can, in the particular circumstances, be justified. Although all will agree that both individual and social interests must be balanced by moral philosophers as well as the courts, in conflicts we will not always agree on the weight to be accorded individual claims.I have not provided a constitutional defense for citing privacy as one right at stake in the constitutional privacy cases. Nor have I attempted to enter the debate about how strictly to interpret the Constitution. But if I am correct, then we can agree there is an important interest in privacy at issue in those cases without merely conflating privacy and autonomy or liberty, and can continue the process of marking out its boundaries. If we reach such agreement, we will have made considerable progress. Moreover, the implications of this view are significant. Current constitutional standards, controversial though they may be, require “strict scrutiny” for cases concerning “fundamental values,” and privacy has been judged to be one such value. Thus these privacy claims have a greater chance of being protected when they conflict with other rights or general interests than they would have if only liberty, or freedom from governmental interference, were involved. (shrink)

BackgroundThe COVID-19 pandemic has presented extraordinary challenges to worldwide healthcare systems, however, prevalence remains low in some countries. While the challenges of conducting research in high-prevalence countries are well published, there is a paucity from low COVID-19 countries.MethodsA PRISMA guided systematic review was conducted using the databases Ovid-Medline, Embase, Scopus and Web of Science to identify relevant articles discussing ethical issues relating to research in low prevalence COVID-19 countries.ResultsThe search yielded 133 original articles of which only 2 fit the inclusion (...) criteria and aim, with neither specific to low prevalence. Most of the available literature focused on clinical management and resource allocation related to high prevalence countries. These results will be discussed under the ethical dimensions of equity, individual liberty, privacy and confidentiality, proportionality, public protection, provision of care, reciprocity, stewardship and trust..ConclusionsA systematic review failed to identify articles relating to COVID-19 research ethics, specific to low prevalence countries. It shows that there is a significant gap in the literature that warrants further investigation. Common ethical principles were used to present a distinct set of challenges experienced by a country with a low prevalence of COVID-19. This unique perspective of some of the common ethical problems surrounding research, may help guide further discussion and guide research in similar countries. (shrink)

My thesis is simple. The right of informational privacy, the great modern achievement often attributed to the classic Samuel Warren and Louis Brandeis article, “The Right to Privacy” , asserts an individual's right not to have private personal information circulated. Warren and Brandeis claimed that individual dignity in a modern society requires that people be able to keep their private lives to themselves and proposed that the common law should be understood to protect this dignity by making dissemination (...) of private information a tort. As broadly stated, this right not to have private information distributed directly conflicts with a broadly conceived freedom of speech and of the press. My claim is that, in cases of conflict, the law should reject the Warren and Brandeis innovation. Speech and press freedom should prevail; the privacy tort should be ignored. This conclusion requires a normative argument concerning the appropriate basis and status of speech freedom that this essay will not really provide but for which I have argued elsewhere. Here, instead, I will describe that theory of speech freedom, explore its implications for informational privacy, and finally suggest some reasons to think that rejection of the privacy tort should not be so troubling and is, in fact, pragmatically desirable. (shrink)

These essays by leading scholars illustrate the complexity and range of philosophical issues raised by consideration of law and social justice. The contributors to Law and Social Justice examine such broad foundational issues as instrumentalist versus Kantian conceptions of rights as well as such specific problems as the admissibility or inadmissibility of evidence of causation in toxic tort cases. They consider a variety of subjects, including the implications of deliberative democracy for privacy rights, equality as a principle of (...) distributive justice, the paradox of "moral luck," the treatment of intellectual property in China and its roots in Chinese tradition, and the extent to which initial acquisition of goods yields full property rights. Two special sections at the end of the volume discuss the treatment of law and social justice issues in the work of two philosophers: "Wittgenstein and Legal Theory," on the influence of Wittgenstein's thought on legal philosophy, and a discussion of Jules L. Coleman's The Practice of Principle, which concludes with a contribution, "Facts, Fictions, and the Grounds of Law," by Coleman himself. (shrink)

Fools rush in. ALEXANDER POPE, AN ESSAY ON CRITICISM (London, 1711). The full quotation is, “For Fools rush in where Angels fear to tread.” Id. at 66. She who hesitates is lost. Adaptation of the line, “The woman that deliberates is lost.” JOSEPH ADDISON, CATO: A TRAGEDY, AND SELECTED ESSAYS 30 (2004). See also OLIVER WENDALL HOLMES, SR., THE AUTOCRAT AT THE BREAKFAST TABLE 29 (1858) (“The woman who ‘calculates’ is lost.”). American legal realism numbers among the most important theoretical (...) contributions of legal academia to date. Given the movement’s influence, as well as the common centrality of certain key figures, it is surprising that privacy scholarship in the United States has paid next to no attention to the movement. This inattention is unfortunate for several reasons, including that privacy law furnishes rich examples of the indeterminacy thesis — a key concept of American legal realism — and because the interdisciplinary efforts of privacy scholars to explore extra-legal influences on privacy law arguably further the plot of legal realism itself. (shrink)

Arguments about constitutional and personal rights often invoke the concept of privacy. In the United States it has been said that the constitution "embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government". A number of formulae has been invoked in an attempt to define the sphere of constitutional privacy. They include: Fundamental rights of interests; personal decisions and issues; important questions intimately affecting private lives; and decisions affecting (...) education, child-rearing, marriage and contraception.Canadian and Europian courts have resorted to balancing formulae and to proportionality to set the limits to liberty guarantees. All of them need, however, an implied general theory of liberty such as that propounded by Mill , since privacy is a special sub-category of liberty.Privacy claims are made not only against the State, but in tort law relations between individuals, or between individuals and organisations such as the Press. Proposals for legislation to protect personal privacy encompass two different types of claim. One relates to physical intrusion: the other to proprietary rights over information of certain kinds. It is questionable whether general legislation to establish a statutory tort of breach of privacy is defensible. It may even be dangerous and be exploitable to protect government information. A public interest defence is essential. That throws the balancing role back on the courts, but they cannot rely on any obvious social consensus in weighing the interests at issue. In der Auseinandersetzung über subjektive Rechte, die von einer Verfassung garantiert sind oder deren Verletzung privatrechtliche Ansprüche auslöst, berufen sich viele Stimmen auf das Konzept der Privatsphäre. Nach einer in den Vereinigten Staaten vertretenen These liegt der amerikanischen Verfassung "das Versprechen zugrunde, daß die Privatsphäre, d.i. eine bestimmte Sphäre individueller Freiheit, im großen und ganzen außerhalb des Zugriffs des Staates liegt". Wie läßt sich rechtlich präzisieren, was diese verfassungsrechtlich garantierte Privatsphäre eigentlich einschließt? Eine Reihe von Antworten, die auf diese Frage gegeben werden, bezeichnen als vom Begriff der Privatsphäre erfaßt a) fundamentale Rechte oder Interessen, b) persönliche Probleme oder Entscheidungen, c) wesentliche Fragen, die das Privatleben ganz existenziell berühren, d) Entscheidungen, die die Erziehung und Ausbildung von Kindern, Empfängnisverhütung und Eheschließung betreffen. Einige dieser Formeln enthalten Elemente eines logischen Zirkels, da sie bei dem Versuch, die Privatsphäre näher zu umschreiben, ihrerseits selbst den Ausdruck "privat" benutzen. Andere sind entweder offensichtlich zu weit oder zu eng oder sonst schlechterdings ungenügend. Darüber hinaus ist es nicht klar, wann bei den subjektiven Rechten, die als fundamental bezeichnet werden, Ausnahmen gemacht werden. Ein Beispiel liefert die US-amerikanische Entscheidung Bowers v. Hardwick. (shrink)

The adversary system and the practice of law -- The rule of law -- The moral force of law -- Statutes -- Precedents -- Constitutional interpretation -- Natural law and legal positivism: classical perspectives -- Formalism and legal realism -- Morality and the law -- International law -- Law and economics -- The justification of punishment -- The rights of defendants -- Sentencing -- Criminal responsibility -- Compensating for private harms: the law of torts -- Private ownership: the law of (...) property -- Private agreements: the law of contract -- Church and state -- Personal liberty and privacy -- Freedom of speech -- Equality. (shrink)

The relationship between science, law and justice has become a pressing issue with US Supreme Court decisions beginning with Daubert v. Merrell-Dow Pharmaceutical. How courts review scientific testimony and its foundation before trial can substantially affect the possibility of justice for persons wrongfully injured by exposure to toxic substances. If courts do not review scientific testimony, they will deny one of the parties the possibility of justice. Even if courts review evidence well, the fact and perception of greater judicial scrutiny (...) increases litigation costs and attorney screening of clients. Mistaken review of scientific evidence can decrease citizen access to the law, increase unfortunate incentives for firms not to test their products, lower deterrence for wrongful conduct and harmful products, and decrease the possibility of justice for citizens injured by toxic substances. This book introduces these issues, reveals the relationships that pose problems, and shows how justice can be denied. (shrink)

While the possibility of enacting a sui generis Biobank Act has been debated in Germany at great length, as of yet the country has not implemented any biobankspecific legislation. Instead, oversight is available via a network of research and privacy laws, including those of the European Union. The Nationale Kohorte, Germany's large-scale, population-based epidemiological research biobank, is funded by the Federal Ministry of Education and Research, and there are currently 108 registered bio-banks throughout Germany. The current system, including the (...) structure and study design of the Nationale Kohorte, privileges the protection of personal information even at the cost of socially desirable research; it remains to be seen if forthcoming legislation will shift this balance. (shrink)

Since 1991, over half the states have enacted laws that restrict or prohibit insurers’ use of genetic information in pricing, issuing, or structuring health insurance. Wisconsin was the first state to do so, in 1991, followed by Ohio in 1993, California and Colorado in 1994, and then several more states a year in each of the next five years. Similar legislation has been pending in Congress for several years. Also, a 1996 federal law known as the Health Insurance Portability and (...) Accountability Act prohibits group health insurers from applying “preexisting condition” exclusions to genetic conditions that are indicated solely by genetic tests and not by any actual symptoms. (shrink)

Since 1991, over half the states have enacted laws that restrict or prohibit insurers’ use of genetic information in pricing, issuing, or structuring health insurance. Wisconsin was the first state to do so, in 1991, followed by Ohio in 1993, California and Colorado in 1994, and then several more states a year in each of the next five years. Similar legislation has been pending in Congress for several years. Also, a 1996 federal law known as the Health Insurance Portability and (...) Accountability Act prohibits group health insurers from applying “preexisting condition” exclusions to genetic conditions that are indicated solely by genetic tests and not by any actual symptoms. (shrink)

Privacy is protected in biobank-based research in the US primarily by the Health Insurance Portability and Accountability Act Privacy Rule and the Federal Policy for Protection of Human Subjects. Neither rule, however, was created to function in the unique context of biobank research, and therefore neither applies to all biobank-based research. Not only is it challenging to determine when the HIPAA Privacy Rule or the Common Rule apply, but these laws apply different standards to protect privacy. (...) In addition, many other federal and state laws may be applicable to a particular biobank, researcher, or project. US law also does not directly address international sharing of data or specimens outside of the EU–US Safe Harbor Agreement, which only applies to receipt of data by certain US entities from EU countries, and is in the process of revision. Although new rules would help clarify privacy protections in biobanking, any implemented changes should be studied to determine the sufficiency of the protections as well as its ability to facilitate or hinder international collaborations. (shrink)

Recent scientific and technological developments have promoted the emergence of biobanks on a population scale. Although the storage of human biological material has taken place for a long time, it is only recently that biobanks have acquired a broader scientific significance, especially for genomic research. The increase in biobanks creates many ethical dilemmas, such as the protection of privacy, and creates the need for a new regulatory framework, which must enable the sustainable development of biobanks while also protecting the (...) rights of research subjects and biobank participants. (shrink)

Social order is regulated from above by the law but its foundation is built on norms and customs, informal social practices that enable people to make meaningful and productive uses of their time and resources. Despite the importance of these practices in keeping the social fabric together, very little of the jurisprudential literature has focused on a discussion of these norms and customs. In Social Norms in a Wired World Steven Hetcher argues that the traditional conception of norms as rule-like (...) linguistic entities is erroneous. Instead, norms must be understood as patterns of rationally governed behaviour maintained in groups by acts of conformity. Using informal game theory in the analysis of norms and customs, Hetcher applies his theory of norms to tort law and Internet privacy laws. This book will appeal to students and professionals in law, philosophy, and political and social theory. (shrink)

McCoy et al. introduces the novel Ethical Data Practices Framework and its six core principles to serve as a useful tool to inform both industry and lawmakers of key ethical principles for prospect...

The Journal of Law, Medicine &Ethics, Volume 43, Issue 4, Page 673-674, Winter 2015.

Australia is a multi-cultural society with a population of nearly 24 million. The Aboriginal heritage traces back some 40,000 years and continues to influence Australian culture as a whole. A large proportion of Australian citizens were of British descent or birth at the outset of the last century, but post-World War II there was significant immigration from other European nations, particularly from Greece and Italy. In the last decades, there has been a significant intake of migrants from Asia.

Upon Brexit, the United Kingdom chose to follow the path of EU data protection and remain tied to the requirements of the General Data Protection Regulation (GDPR). It even enacted the GDPR into its domestic law. This Article evaluates five models relating to preference change, demonstrating how they identify different dimensions of Brexit while providing a rich explanation of why a legal system may or may not reject an established transnational legal order. While market forces and a “Brussels Effect” played (...) the most significant role in the decision of the UK government to accept the GDPR, important nonmarket factors were also present in this choice. This Article’s models of preference change are also useful in thinking about the likely extent of the UK’s future divergence from EU data protection. (shrink)

In the early 1970s, Congress considered enacting comprehensive privacy legislation, but it was unable to do so. In 1974, it passed the Privacy Act, applicable only to information in the possession of the federal government. In the intervening years, other information privacy laws enacted by Congress, such as the Health Insurance Portability and Accountability Act, have been weak and sector specific. With the explosion of information technology and the growing concerns about an absence of effective federal (...) class='Hi'>privacy laws, the legal focus has shifted to the states. Signaling a new direction in state data privacy and consumer protection law, the California Consumer Privacy Act establishes important rights and protections for California residents with regard to the collection, use, disclosure, and sale of their personal information. The CCPA is certain to spur similar legislation and to affect national and international businesses that collect data from California's residents. Understanding the new law is important for all data‐driven industries, including health care. (shrink)

Along with many jurisdictions, Australia is struggling with the unique issues raised by genetic information in the context of privacy laws and medical ethics. Although the consequences of disclosure of most private information are generally confined to individuals, disclosure of genetic information has far-reaching consequences, with a credible argument that genetic relatives have a right to know about potential medical conditions. In 2006, the Privacy Act was amended to permit disclosure of an individual's genetic information, without their consent, (...) to genetic relatives, if it was to avoid or mitigate serious illness. Unfortunately, additional amendments required for operation of the disclosure amendment were overlooked. Public Interest Determinations —delegated legislation issued by the privacy commissioner—have, instead, been used to exempt healthcare providers from provisions which would otherwise make disclosure unlawful. This paper critiques the PIDs using documents obtained under the Freedom of Information Act—specifically the impact of both the PIDs and the disclosure amendment on patients and relatives—and confidentiality and the procedural validity of subordinate laws regulating medical privacy. (shrink)

Background: When a genetic mutation is identified in a family member, internationally, it is usually the proband’s or another responsible family member’s role to disclose the information to at-risk relatives. However, both active and passive non-disclosure in families occurs: choosing not to communicate the information or failing to communicate the information despite intention to do so, respectively. The ethical obligations to prevent harm to at-risk relatives and promote the duty of care by genetic health professionals is in conflict with (...) class='Hi'>Privacy laws and professional regulations that prohibits disclosure of information to a third party without the consent of the proband. In New South Wales, Australia, amendments to Privacy legislation permits such disclosure to living genetic relatives with the process defined under guidelines although there is no legal duty to warn. This study assessed NSW GHP’s awareness and experience of the legislation and guidelines. Methods: An online survey collected demographics; theoretical knowledge; clinical scenarios to assess application knowledge; attitudes; confidence; experience with active non-disclosure. A link to correct answers was provided after completion. Knowledge scores above the median for non-parametric data or above the mean for parametric data were classified as ‘good’ or ‘poor’. Chi square tests assessed associations between confidence and knowledge scores. Results: While many of the 37 participants reported reading the guidelines, there was limited awareness of their scope and clinical application; that there is no legal duty to warn; and that the threat does not need to be imminent to warrant disclosure. No association between confidence and ‘good’ theoretical or applied clinical knowledge was identified. Uncertainty of their professional responsibility was identified and in the several case examples of active non-disclosure that were reported this uncertainty reflected the need for further understanding of the guidelines in regard to the processes required before disclosure was initiated. Conclusions: There is a need for further education and training about the guidelines associated with the legislation that would be relevant to support disclosure. The findings may inform future strategies to support introduction of policy changes in other jurisdictions where similar regulatory regimes are introduced. (shrink)

This book explores how the design, construction, and use of robotics technology may affect today's legal systems and, more particularly, matters of responsibility and agency in criminal law, contractual obligations, and torts. By distinguishing between the behaviour of robots as tools of human interaction, and robots as proper agents in the legal arena, jurists will have to address a new generation of "hard cases." General disagreement may concern immunity in criminal law (e.g., the employment of robot soldiers in battle), personal (...) accountability for certain robots in contracts (e.g., robo-traders), much as clauses of strict liability and negligence-based responsibility in extra-contractual obligations (e.g., service robots in tort law). Since robots are here to stay, the aim of the law should be to wisely govern our mutual relationships. (shrink)

How can tort law be justified? There are well-known difficulties with the three traditional theories of tort law dominating the literature (namely, economic theory, corrective justice theory, and civil recourse theory). Recently, some have turned to moral contractualism in search of tort law’s foundation. One of the most prominent attempts was made by Gregory Keating. Keating’s account, however, has been subjected to powerful objections. In a recent paper, John Oberdiek, through a sympathetic critique of Keating’s account, develops (...) a new version of contractualist tort theory that is alleged to be at once superior to the three traditional theories of tort law and immune to the objections to Keating’s account. The aim of my paper is to critically assess Oberdiek’s account; I will argue that, while Oberdiek’s account does improve upon Keating’s in some important respects, it is ultimately unsatisfactory. (shrink)

Tort law and liability insurance have a complex interaction in which each shapes the evolution and effects of the other. This interaction and its many forms and facets in different international contexts must be comprehended to understand fully the ethical responsibilities of liability insurers. This essay builds on previous scholarship on the tort law–liability insurance interaction through a series of observations from the perspective of a global reinsurer. It seeks in part to extend previous analyses of this interaction (...) by also considering issues in the developing world. It seeks to make some normative questions and stances explicit concerning this interaction, as well as to identify some empirical questions that still need to be answered. The responsibility of liability insurers includes ethically shaping the responsibility of others in interaction with tort law in countless diverse situations. (shrink)

This article offers arefutation of the corrective justiceinterpretation of tort law – the view that itis essentially a system of corrective justice. It introduces a distinction between primary andsecondary tort duties and claims that tort lawis best understood as the union of its primaryand secondary duties. It then advances twoindependent criticisms of the correctivejustice interpretation. The article firstargues that primary tort duties have nothingfundamentally to do with corrective justice andthat, if one understands what is meant by``primary (...) tort duties,'' one is compelledto regard this fact as a decisive objection tothe corrective justice interpretation. Second,it argues that, whatever relation thereis between secondary tort duties and correctivejustice, that relation also holds betweencorrective justice and secondary duties ofother legal branches. In sum, the concept ofcorrective justice is neither capable ofunifying tort law nor of demarcating it fromother legal branches.The article also offers a general alternativeinterpretation of tort law. Rather thanbeing essentially corrective, tort law isessentially protective. Under this picture, iftort law has a most important point, it is theprotection of legal subjects and valuablesocial interests from harm. This is theoverarching ambition that unifies primary andsecondary tort duties. It does not, however,demarcate tort law from other legal branches. (shrink)

In this paper, I discuss Goldberg and Zipursky’s Recognizing Wrongs and argue that there is a tension between their philosophy of action as applied to the law of negligence and the idea that the directive-based relationality thesis is central and, therefore, the action and conduct of the defendant should not be part of the core explanation of the tort of negligence.

According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of (...) liability under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the a-moral (and, with regard to some interpretations, anti-moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles. (shrink)

This article offers a refutation of the corrective justice interpretation of tort law – the view that it is essentially a system of corrective justice. It introduces a distinction between primary and secondary tort duties and claims that tort law is best understood as the union of its primary and secondary duties. It then advances two independent criticisms of the corrective justice interpretation. The article first argues that primary tort duties have nothing fundamentally to do with (...) corrective justice and that, if one understands what is meant by ``primary tort duties,'' one is compelled to regard this fact as a decisive objection to the corrective justice interpretation. Second, it argues that, whatever relation there is between secondary tort duties and corrective justice, that relation also holds between corrective justice and secondary duties of other legal branches. In sum, the concept of corrective justice is neither capable of unifying tort law nor of demarcating it from other legal branches.The article also offers a general alternative interpretation of tort law. Rather than being essentially corrective, tort law is essentially protective. Under this picture, if tort law has a most important point, it is the protection of legal subjects and valuable social interests from harm. This is the overarching ambition that unifies primary and secondary tort duties. It does not, however, demarcate tort law from other legal branches. (shrink)

This chapter contains sections titled: Economic Theories: Internalization Economic Theories: Deterrence Economic Theories: Loss Spreading Rights‐Based Theories and Distributive Justice Rights‐Based Theories and Corrective Justice References.