Ethical analysis may result in recommendations for legal reform. This article discusses the problem of how academic researchers can go from ethical normative judgments to recommendations for law reform. It develops a methodological framework for what may be called ‘ethical transplants’: transplanting ethical normative judgments into legislation. It is an inventory of the issues that need to be addressed, but not a substantive normative theory. It may be especially helpful for Ph.D. students and beginning researchers working in (...) interdisciplinary projects combining ethical and legal analysis.I distinguish three stages in the process from ethics to law: translation, transformation, and incorporation. The latter stage can be divided into three clusters of issues, these being legal, empirical, and normative ones. Most of the philosophical literature on the legal enforcement of morals focuses on the normative issues. My aim is to broaden the perspective in two ways. First, I show that this is only one relevant issue and that we should address legal and empirical issues and the processes of translation and transformation as well. Second, I argue that we should pay more attention to pluralism and variation. (shrink)

Background In August 2017, Chile lifted its complete ban on abortion by permitting abortion in three limited circumstances: 1) to save a woman’s life, 2) lethal fetal anomaly, and 3) rape. The new law allows regulated use of conscientious objection in abortion care, including allowing institutions to register as objectors. This study assesses medical and midwifery students’ support for CO, following legal reform. Methods From October 2017 to May 2018, we surveyed medical and midwifery students from seven universities (...) located in Santiago, Chile. Universities included 4 secular and 3 private religiously-affiliated universities; all offering medical degrees with a specialization in obstetrics and gynecology and five offering midwifery degrees. We used generalized estimating equations to identify characteristics associated with student support for CO, intentions to use CO to refuse to care for someone seeking abortion, and support for CO at the institutional level. Results 333 of the 413 eligible students who opened the survey, completed the questions on conscientious objection; 26% were seeking medical degrees with an ob-gyn specialty, 25% were seeking midwifery degrees, and 49% were seeking medical degrees and had not yet decided their specialty. While nearly all endorse requirements for conscientious objecting clinicians to inform and refer abortion-seeking patients, a minority would personally use conscientious objection to avoid caring for a patient seeking abortion. About half of religious-university students and one-fifth of secular-university students support objections at the institutional level. Conclusions Most students support the regulated use of CO which preserves patients’ access to abortion care. Religious-university student views on the use of conscientious objection in abortion care are discordant with those of their institutions which currently support institutional-level objections. (shrink)

This paper explores some of the important parallels between recent reforms to legal rules for the admissibility of scientific and expert evidence, exemplified by the US Supreme Court's decision in Daubert v Merrell Dow Pharmaceuticals, Inc. in 1993, and similar calls for reforms to medical practice, that emerged around the same time as part of the Evidence-Based Medicine (EBM) movement. Similarities between the “movements” can be observed in that both emerged from a historical context where the quality of medicine (...) and legal approaches to science were being subjected to growing criticism, and in the ways that proponents of both movements have used appeals to “folk epistemologies” of science to help legitimate their reform aspirations. The term folk epistemology is used to describe the weaving together of formal and informal images of scientific method with normative and pragmatic concerns such as eradicating “junk science”, and promoting medical best practice. Perhaps unsurprisingly, given the unfocused breadth of these aspirations the implications of these “reforms” for medical and legal practice have not been straightforward, although they do represent an important new set of rhetorical resources to critique and or legitimate expertise in medical and legal domains. Discussion closes, by noting the growth of calls for these movements to reciprocate in areas where law and medicine intersect, such as medical negligence litigation. (shrink)

COVID-19 exposed flaws in the law regulating the sharing of data and human biological material. This poses obstacles to the epidemic response, which needs accelerated public health research and, in turn, efficient and legitimate HBM and data sharing. Legal reform and development are needed to ensure that HBM and data are shared efficiently and lawfully. Academics have suggested important legal reforms. The first is the clarification of the susceptibility of HBM and HBM derivatives to ownership, including, inter (...) alia, the promulgation of a revised version of the South African Material Transfer Agreement by the Minister of Health. This would remove uncertainty regarding the current SA MTA’s perpetual donor ownership clause. The second is the development of data trusts, the adoption of open access to research data, and the creation of an African ‘data corridor’. This would ensure that data are protected while allowing for the efficient transfer of data between researchers for the collective good and in the interest of the public. The third is the amendment of the Space Affairs Act to extend the powers of the Council of Space Affairs to include the management of data collected through the utilisation of Earth observation and geographical information systems. This would ensure the protection of outer space data, legislating its use and sharing once it lands on Earth. The implementation of these legal reforms and developments will better prepare SA to face future epidemics from a health research perspective. (shrink)

This article examines how international institutions serve to diffuse human rights norms and create judicial capacity building in post-conflict societies. Specifically, we examine how the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Office of the High Representative have influenced the reform of domestic courts in Bosnia and Herzegovina (BiH). We place these reforms within the broader debate over restructuring the complex system of government in BiH. Since 2005, domestic courts in BiH have had jurisdiction over the (...) following: (1) Cases which were initially under the jurisdiction of the domestic courts but remanded to the ICTY and recently returned to BiH. (2) Cases which originated at the ICTY and have been transferred to the State Court, and (3) new cases which originated and remained in the domestic court system. We find that while human rights norms have been incorporated into the new legal code, the diffusion of these human rights norms has been inadequate because of the lack of judicial capacity building. While some courts in the capital enjoy significant resources, the vast majority of cases will be tried at provincial courts which are under-funded and unable to prosecute the significant number of cases. Moreover, the government structure of BiH has had a decidedly negative impact on the prosecution of these cases. Ultimately, the rule of law requires consistency of approach and funding to protect human rights throughout the state. (shrink)

Medical technology, specialization, and the corporatization of health delivery systems in the late twentieth century have all helped give birth to an unwelcome but unavoidable responsibility for individuals with family or friends—serving as a health care proxy. The responsibility comes without monetary compensation, is often involuntary, and lacks any real guidelines beyond the duty to make life-and-death decisions in circumstances over which the proxy has little control.The parameters of the proxy's job have evolved somewhat awkwardly in statutes and case law, (...) as lawmakers and judges have tried to apply conventional concepts to novel circumstances. This article examines the legal and functional status of the proxy, as well as the strengths and weaknesses of current public policy as reflected by state advance directive and surrogate decision-making laws. The first section of the article provides a historical perspective of our current notions of agency law as relevant to health care proxies. (shrink)

Medical technology, specialization, and the corporatization of health delivery systems in the late twentieth century have all helped give birth to an unwelcome but unavoidable responsibility for individuals with family or friends—serving as a health care proxy. The responsibility comes without monetary compensation, is often involuntary, and lacks any real guidelines beyond the duty to make life-and-death decisions in circumstances over which the proxy has little control.The parameters of the proxy's job have evolved somewhat awkwardly in statutes and case law, (...) as lawmakers and judges have tried to apply conventional concepts to novel circumstances. This article examines the legal and functional status of the proxy, as well as the strengths and weaknesses of current public policy as reflected by state advance directive and surrogate decision-making laws. The first section of the article provides a historical perspective of our current notions of agency law as relevant to health care proxies. (shrink)

She concentrates on responses to the 'crisis' that currently confronts the American legal profession and legal education—including the increasing cost of legal services, the threat to lawyer income and the oversupply of law graduates. Rhode regards the response by the American Bar Association (ABA) through its Ethics 20/20 Commission as lacking innovation and achieving only modest reform. Surveying other countries' efforts at opening the provision of some traditional legal services to non-lawyers and outside investment in (...) law practices, she argues that the US 'is likely to lag behind other nations in its capacity to provide cost effective legal services'. She also proposes greater diversity in the options available for legal education. (shrink)

The Spanish future subjunctive demonstrates how linguistics can inform modern language policy. The FS is described as an archaism to be eliminated from contemporary legal texts. We analyze a corpus of over 3000 tokens of the FS in Spanish legal texts dated between the 13th and 16th century. The FS has two functions in legal discourse. The casuistic function allows for indicating paradigmatic subordination; the forwarding function introduces new information. Our quantitative results suggest an increase in the (...) usage frequency of the FS in legal discourse, where an inverse trend appears in other genres. As shown by a linear regression analysis, the FS started appearing significantly closer to the beginning of the law article, indicating an increase in the forwarding function in time. In view of our results, reformers of legal Spanish should consider the functions of the FS in legal discourse when advising its suppression. (shrink)

Justice system reform is being implemented in Japan. The number of attorneys ( bengoshi ) has substantially increased and concerns have been raised about the impact on the profession's quality and ethics. The profession has called for a slowdown in the increase. Does the increase really adversely affect legal ethics in Japan? Should the pace of the reform be slowed down, from the perspective of maintaining legal ethics? This paper begins to answer these questions through empirical (...) analysis of (1) whether there is an increase in cases of ethical concerns; and (2) whether such an increase (if any) is caused by the increase in bengoshi . The paper then investigates whether there is an over-supply of bengoshi . It concludes with a discussion of the negative impact that a slowdown of the increase may have on access to justice and the bengoshi profession's (ethical) responsibilities. (shrink)

Not since the civil rights era has enacted national legislation been fought so fiercely as the Patient Protection and Affordable Care Act. Political, ideological, and social forces have mobilized to undermine the ACA at numerous fronts, including the Supreme Court, Congress, state governments, and the court of public opinion. The ACA has survived a constitutional challenge, a presidential re‐election, numerous repeal votes in the House, and avowedly obstreperous state regulators. But it has not yet run the full gauntlet of lethal (...) strategies. The latest line of attack is a collection of orchestrated lawsuits seeking to keep the federal exchange from paying any premium tax subsidies.What if the challengers eventually prevail? What would happen then? (shrink)

This article considers what the implications of decertification would be for single-sex services such as domestic and sexual violence support. Some reform options attached to decertification could (re)allocate authority away from the state to organisations or individuals to determine gender criteria. What would the consequences of such re-allocation be in determining eligibility to receive or access services or excluding people on the basis of a characteristic protected under equality law? Engaging with this in the context of domestic and sexual (...) violence support service provision raises a number of questions. Firstly, does the existence of gender-based violence and/or of the effects it produces require a stable category in order to address them? What benefits may emerge from providing single-sex spaces that could not be replicated in other settings? And finally, what criteria of exclusion and inclusion are currently used to determine access to spaces beyond legal gender status? (shrink)

Research is crucial to advancing knowledge about dementia, yet the burden of the disease currently outpaces research activity. Research often excludes people with dementia and other cognitive impairments because researchers and ethics committees are concerned about issues related to capacity, consent, and substitute decision-making. In Australia, participation in research by people with cognitive impairment is governed by a national ethics statement and a patchwork of state and territorial laws that have widely varying rules. We contend that this legislative variation precludes (...) a consistent approach to research governance and participation and hinders research that seeks to include people with impaired capacity. In this paper, we present key ethical principles, provide a comprehensive review of applicable legal rules in Australian states and territories, and highlight significant differences and ambiguities. Our analysis includes recommendations for reform to improve clarity and consistency in the law and reduce barriers that may exclude persons with dementia from participating in ethically approved research. Our recommendations seek to advance the national decision-making principles recommended by the Australian Law Reform Commission, which emphasize the rights of all adults to make their own decisions and for those with impaired capacity to have access to appropriate supports to help them make decisions that affect their lives. (shrink)

Research is crucial to advancing knowledge about dementia, yet the burden of the disease currently outpaces research activity. Research often excludes people with dementia and other cognitive impairments because researchers and ethics committees are concerned about issues related to capacity, consent, and substitute decision-making. In Australia, participation in research by people with cognitive impairment is governed by a national ethics statement and a patchwork of state and territorial laws that have widely varying rules. We contend that this legislative variation precludes (...) a consistent approach to research governance and participation and hinders research that seeks to include people with impaired capacity. In this paper, we present key ethical principles, provide a comprehensive review of applicable legal rules in Australian states and territories, and highlight significant differences and ambiguities. Our analysis includes recommendations for reform to improve clarity and consistency in the law and reduce barriers that may exclude persons with dementia from participating in ethically approved research. Our recommendations seek to advance the national decision-making principles recommended by the Australian Law Reform Commission, which emphasize the rights of all adults to make their own decisions and for those with impaired capacity to have access to appropriate supports to help them make decisions that affect their lives. (shrink)

The article explores the problems of the legal status of the regulatory authorities in the energy sector of Ukraine in the context of the administrative reform currently taking place in the Ukraine and the fulfillment of the EU requirements in this sphere. Based on the analysis of the EU legislation, in particular Directive 2009/72/EC of the European Parliament and the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC and (...) Directive 2009/73/EC of the European Parliament and the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, and the experience of Ukraine in the field of energy regulation, the author of this article supports granting the special legal status to the national regulatory authorities in the energy sector of Ukraine and their separation from the system of state executive bodies, however, recommends to stipulate in the Constitution of Ukraine the provisions, regarding the organizational legal form and the establishment procedure of such bodies, the appointment and dismissal procedure for their management and members, the peculiarities of the relations of these bodies with the President of Ukraine, the Parliament of Ukraine and the Government of Ukraine. (shrink)

In his treatise Han Fei Zi, the Chinese ancient thinker Han Fei proposes a governance structure that emphasizes the institutionalization of legal norms, judicious sovereign intervention, and ministerial obligations. These three core concepts of Han’s legal thinking are informed by both the Taoist law of Nature and the Confucian philosophy as is expounded by Xun Zi. Recognition of the Taoist and Confucian influences brings to light the ethical and normative dimensions of Han’s legal thought, dimensions that, I (...) propose, provide new insights into China’s legal and institutional reforms today. (shrink)

ZusammenfassungDer „Entwurf eines Gesetzes zur strukturellen Weiterentwicklung der Pflegeversicherung“ vom 17. 10. 2007 sieht Regelungen zur Einbeziehung von stationären Pflegeeinrichtungen in die ambulante ärztliche GKV-Versorgung vor. Der vorliegende Beitrag analysiert und bewertet den Ansatz zur „heimärztlichen Versorgung“ unter rechtlichen Aspekten vor dem Hintergrund der Problematik der Psychopharmakaversorgung von Heimbewohnern und schon bestehender Möglichkeiten der Verzahnung der ambulanten ärztlichen und der stationären pflegerischen Versorgung. Das geplante Modell verfolgt das begrüßenswerte Ziel, die gelegentlich als unzureichend beschriebene ambulante ärztliche Betreuung von Pflegebedürftigen in (...) Pflegeheimen zu verbessern, Schnittstellenprobleme abzubauen und gleichzeitig der gesetzlichen Krankenversicherung unnötige Transport- und Krankenhauskosten zu ersparen. Es ist jedoch nur ein rudimentäres Heimarztmodell, da es gerade keine flächendeckende Versorgung der Heimbewohner mit Heimärzten erreichen will. Auch fehlen Anreize für eine Optimierung der ärztlichen und der pflegerischen Zusammenarbeit. Insofern können die Probleme, die sich im Rahmen der Psychopharmakaversorgung von stationär zu pflegenden Heimbewohnern abzeichnen, nur punktuell durch diese Reform verbessert werden. (shrink)

Researchers face perennial difficulties in studying live jury deliberation. As a result, the academic community struggles to reach a consensus on key matters of legal reform concerning jury trials. The hurdles faced by empirical jury researchers are often legal or institutional. This note argues that the legal and institutional barriers preventing live deliberation research should be removed and discusses two forms that live deliberation research could take.

In der Öffentlichkeit häufig als Auswanderungsland wahrgenommen, unternahm China in den letzten Jahren verstärkt Bemühungen, qualifizierte Fachkräfte aus dem Ausland für den chinesischen Arbeitsmarkt zu gewinnen. Die Einführung eines Fachkräfteeinwanderungssystem mit abgestuften Rechten für Arbeitsmigrant:innen sollte diese Entwicklung fördern. Die vorliegende Analyse zeigt, dass diese Reform des Einwanderungssystems die Gerichtspraxis nicht verändert hat. Abseits der politischen Diskurse um die Anwerbung von internationalen Talenten und der Propagierung Chinas als Wissenssupermacht, bleibt China aufgrund der existierenden Probleme im bestehenden Rechtssystems für Arbeitsmigrant:innen (...) unattraktiv. (shrink)

Derk Pereboom and Gregg Caruso argue that humans are never morally responsible for their actions and take that thesis as a starting point for a project whose ultimate goal is the reform of responsibility practices, which include expressions of praise, blame, and the institution of legal punishment. This paper shares the skeptical concern that current responsibility practices can be suboptimal and in need of change, but argues that a non-skeptical pursuit of those changes is viable and more promising. (...) The main lines of the argument are developed by assessing the prospects of implementing one of the changes favored within the skeptical project (namely, the reduction of punishment severity) in light of how human moral psychology works. An original vignette experiment (N = 180; participants from Facebook groups related to Brazilian universities) asked participants to recommend sentences for a fictitious criminal after considering alternatives to regular punishment that varied in their effectiveness to prevent reoffending. The results suggest that people can become less punitive even if they continue to believe in moral responsibility and free will. The paper further argues that reforming responsibility practices is more likely to occur without the endorsement of skepticism. (shrink)

Derk Pereboom and Gregg Caruso argue that humans are never morally responsible for their actions and take that thesis as a starting point for a project whose ultimate goal is the reform of responsibility practices, which include expressions of praise, blame, and the institution of legal punishment. This paper shares the skeptical concern that current responsibility practices can be suboptimal and in need of change, but argues that a non-skeptical pursuit of those changes is viable and more promising. (...) The main lines of the argument are developed by assessing the prospects of implementing one of the changes favored within the skeptical project (namely, the reduction of punishment severity) in light of how human moral psychology works. An original vignette experiment (N = 180; participants from Facebook groups related to Brazilian universities) asked participants to recommend sentences for a fictitious criminal after considering alternatives to regular punishment that varied in their effectiveness to prevent reoffending. The results suggest that people can become less punitive even if they continue to believe in moral responsibility and free will. The paper further argues that reforming responsibility practices is more likely to occur without the endorsement of skepticism. (shrink)

This book on privacy and data protection offers readers conceptual analysis as well as thoughtful discussion of issues, practices, and solutions. It features results of the seventh annual International Conference on Computers, Privacy, and Data Protection, CPDP 2014, held in Brussels January 2014. The book first examines profiling, a persistent core issue of data protection and privacy. It covers the emergence of profiling technologies, on-line behavioral tracking, and the impact of profiling on fundamental rights and values. Next, the book looks (...) at preventing privacy risks and harms through impact assessments. It contains discussions on the tools and methodologies for impact assessments as well as case studies. The book then goes on to cover the purported trade-off between privacy and security, ways to support privacy and data protection, and the controversial right to be forgotten, which offers individuals a means to oppose the often persistent digital memory of the web. Written during the process of the fundamental revision of the current EU data protection law by the Data Protection Package proposed by the European Commission, this interdisciplinary book presents both daring and prospective approaches. It will serve as an insightful resource for readers with an interest in privacy and data protection. (shrink)

Professional Legal Ethics: Critical Interrogations provides the first in-depth analysis and sustained critique of the ethics of English and Welsh lawyers. Drawing on a wide variety of disciplines, it argues that professional legal ethics has failed to deliver an approach which requires lawyers actively to engage with the ethical issues raised by legal practice. Through an analysis of the context of legal practice and the core ethical issues facing lawyers, the authors locate this failure in the (...) influence of liberalism and formalism, which leads lawyers to undermine the very values of human dignity and autonomy which they are meant to serve and to overlook the impact their actions might have on third parties, the wider community and the environment By contrast, the authors propose a contextual approach to individual ethical decision-making and outline a range of practical reforms aimed at encouraging a more ethical legal profession. (shrink)

This article compares the means that the United States, France, and Japan use to oversee pharmaceutical industry-physician financial relationships. These countries rely on professional and/or industry ethical codes, anti-kickback laws, and fair trade practice laws. They restrict kickbacks the most strictly, allow wide latitude on gifts, and generally permit drug firms to fund professional activities and associations. Consequently, to avoid legal liability, drug firms often replace kickbacks with gifts and grants. The paper concludes by proposing reforms that address problems (...) that persist when firms replace kickbacks with gifts and grants based on the experience of the three countries. (shrink)

Legal structures may form barriers to, or enablers of, adoption of precision agriculture management with small autonomous agricultural robots. This article develops a conceptual regulatory framework for small autonomous agricultural robots, from a practical, self-contained engineering guide perspective, sufficient to get working research and commercial agricultural roboticists quickly and easily up and running within the law. The article examines the liability framework, or rather lack of it, for agricultural robotics in EU, and their transpositions to UK law, as a (...) case study illustrating general international legal concepts and issues. It examines how the law may provide mitigating effects on the liability regime, and how contracts can be developed between agents within it to enable smooth operation. It covers other legal aspects of operation such as the use of shared communications resources and privacy in the reuse of robot-collected data. Where there are some grey areas in current law, it argues that new proposals could be developed to reform these to promote further innovation and investment in agricultural robots. (shrink)

The aim of the article is to discuss the legal language transformations from a diachronic perspective taking into account the following factors: (i) spatial and temporal, (ii) linguistic norm changes, (iii) political, (iv) social (customs), and (v) globalization as well as (vi) EU-induced. Spatial and temporal factors include legal relations influenced by climate and the cycles of nature. Linguistic factors include spelling reforms and grammatical changes each language undergoes, for example, as a result of usage. As far as (...) the law is concerned, normative changes can be observed when laws are amended. Other factors such as customs, usage, etc. cannot be neglected when discussing the language of the law. Analogously political correctness and usage can be observed in gender sensitive language and the introduction of such terms as chairperson instead of chairman. Social factors should not be overlooked. As a result of social changes, numerous terms have been introduced to legal lexicons in many countries starting with same-sex unions or same-sex-marriages. The so-called political correctness enforces some language changes and leads to the introduction of new terms and at the same time the abandonment of others. Consequently, some terms cease to be used and consequently become archaic. The aim of the article is to focus on diachronic changes in legal languages and present the communication problems resulting from them from intra- and inter-lingual perspectives. (shrink)