This article offers a justification for the continued use of jury trials. I shall critically examine the ability of juries to render just verdicts, judicial impartiality, and judicial transparency. My contention is that the judicial system that best satisfies these values is most preferable. Of course, these three values are not the only factors relevant for consideration. Empirical evidence demonstrates that juries foster both democratic participation and public legitimation of legal decisions regarding the most serious cases. Nevertheless, juries are (...) costly and, therefore, economically less efficient than competing modes of trial. I do not argue that all human beings possess an inalienable legal right to be tried by a jury. However, it is my hope that this analysis will make clear what we might gain or lose when we propose jury reforms. (shrink)

Accused persons who are subjected to a saturation level of negative media coverage may be denied an impartial hearing, which is perhaps the most important aspect of the right to a fair hearing. Despite this, the courts have generally held that the social imperative of prosecuting accused trumps the interests of the accused. The justification for an impartial hearing stems from the repugnance of convicting the innocent. Viewed dispassionately, this imperative is not absolute, given that every legal system condones (...) procedures which result in the conviction of some innocent people. While the importance of guarding against wrongful convictions has been overstated, the imperative to bring to trial all accused has been even more exaggerated. The legal system has displayed a capacity to deal with cases where the guilty walk free. The institutional integrity of the criminal justice system would be significantly compromised by convictions that are tarnished by pre-judgment. Confidence in the criminal justice system is more important than individual criminal accountability. The inability to receive an impartial hearing should result in a permanent stay. The only exception is where the alleged crime has the capacity to cause widespread fear or social unrest. This only applies in relation to serious acts of terrorism. This article focuses on recent legal fair trial developments in Australia, however, the analysis, reasoning and conclusion applies in relation to all jurisdictions where juries determine guilt and innocence. (shrink)

In this paper, I have analyzed the right to trial by jury in civil cases as reflected in decisions of the Michigan Supreme Court over approximately a 20 year period dealing with three areas affecting the right to trial by jury in civil cases: (1) entitlement to a jury trial; (2) summary disposition; and (3) directed verdicts. The study was constructed to cover cases over a substantial period of time, so that it (...) would be possible to analyze whether the changing composition of the Michigan Supreme Court, beginning in the late 1990's, impacted on the Court's decisions in these three areas.The conclusion that emerges from the is that the Court, as currently constituted, has diminished the right to trial by jury in civil cases in Michigan. The Court is more inclined than it was prior to 1999 to hold in more cases that there is no genuine issue of material fact, justifying summary disposition, and has now heard cases in which it has held that the defendant is entitled to a directed verdict. And the fact that the Court is more inclined to uphold the granting of summary disposition and directed verdicts is likely to have a demonstrable impact on these kinds cases when they are presented to the Court of Appeals and the trial courts. These courts, following the precedents of the Supreme Court and the results of the cases coming before that Court, will be more likely to rule in favor of granting motions for summary disposition and motions for directed verdicts.Given the Court's view of the diminished role of the jury in resolving factual disputes in civil cases, litigating lawyers must make the best of a bad situation and do everything that they can in order to protect the right to trial by jury in civil cases. They must try to ensure in the early stages of the litigation that their cases are strong enough to survive a motion for summary disposition and get to the jury, and at the trial they must make a determined effort to present sufficient evidence to survive a directed verdict. Hopefully the Court's view of the diminished role of the jury will not have dealt a fatal blow to the right to trial by jury in civil cases in Michigan. Time will tell how well the lawyers of Michigan have succeeded in preserving this fundamental constitutional right. (shrink)

In this case study I argue that experts, to gain relevance in a jury trial, need to fit into a manifold division of knowing. They do so by borrowing and sharing diverse knowledges. These exchanges place the modest expert testimony right into an authoritative and powerful decision-making apparatus. This argument derives from an ethnographic study of a ‘‘sleepwalking defense.’’ The division of knowing embraces the certified facts, the instructed case, the competing expertise, and the common sense. As (...) a conclusion, I identify the experts’ twofold relevance. Experts perform the case as undecided and decidable. They provide exclusive knowledge and affirm a set of other knowledges. By ‘‘knowing’’ and ‘‘not knowing,’’ the experts perform individual modesty and systemic immodesty by the same token. (shrink)

The aim of this article is to argue that the principle of “publicity” constitutes a fundamental idea in Kant’s political thought. Publicity provides a central insight that binds together various strands of Kant’s political writings (on issues as diverse as the question of Enlightenment, the right of revolution, historical teleology, reflective judgment, cosmopolitan citizenship, democratic peace, and republican government), and moreover, it offers a much-needed cornerstone for a systematic exposition of his nonexistent political philosophy. Apart from some eminent examples, (...) publicity has been a rather neglected topic in the ever-expanding literature on Kant’s political ideas. Revisiting this notion will make us more attentive to his evocation of the “spirit of republicanism” over and above the letter of the law, and might prompt us to reconsider Kant’s reputation as a classical representative of liberal political thought. Indeed, it should inspire us to situate Kant’s appeal for the “public use of reason” in the vicinity of the republican ideal of political liberty. (shrink)

Criminal juries in the United States typically deliver their decisions through a “general verdict,” expressing only their ultimate conclusion of “guilty” or “not guilty,” rather than through a “special verdict” that identifies whether each element of the charged crime has been proven beyond a reasonable doubt. American courts have broadly favored the use of general verdicts in criminal cases due to concerns that the special verdict will curtail the jury’s decision-making autonomy, including its power to nullify the law in (...) favor of the defense, potentially undermining the criminal defendant’s constitutional right to trial by jury. This Article confronts the legal status quo on verdict format and its underlying, untested assumptions. Drawing upon prior psychology findings and legal professionals’ anecdotal observations, it questions whether the general verdict poses its own under-acknowledged threats to the rights of criminal defendants and the decision-making agency of jurors. While the more guided special verdict format is presumed to threaten nullifying acquittals, the unguided general verdict format might be enabling convictions that violate constitutional norms of due process, impartial adjudication, and equal protection. Given the high-stakes values potentially implicated in the choice of verdict format in criminal cases, it is time to put the conventional wisdom in favor of general verdicts to an empirical test. This Article therefore proposes a methodological framework for investigating whether the legal status quo accurately reflects (1) current stakeholders’ preferences and predictions, and (2) experimentally testable legal and cognitive effects of general versus special verdicts in lay determinations of criminal liability. A data-informed understanding is needed to assess whether the general verdict is optimizing the integrity, fairness, and constitutionality of criminal jury decision making. (shrink)

The origins of agriculture lie in the distant past, approximately 12 000 years ago, when hunter-gatherers of the Palaeolithic embraced sedentism at the dawn of the Neolithic. The variety of life history transitions emanating from this unique phenomenon have had an enormous impact on the biodiversity of the planet, while subjecting humanity to a variety of life-changing physical and social challenges right up to the present. The ever-present consequences of the Agricultural Revolution continue to demand our attention, yet frustrate (...) our efforts, on a seemingly perpetual basis, to effectively manage the outcomes. Here we review the origins and lasting after-effects of the Agricultural Revolution and its impact on the human condition, with reference to sedentism, nutrition, health issues, disease, gender discrimination as well as mythmaking and religion. Contribution: Our aim is to engage a wider audience with respect to the causes and consequences of the Agricultural Revolution. We discuss a broad spectrum of relevant phenomena implicated in this epochal event and consequently underline that the Agricultural Revolution precipitated not only major changes to the ecology of the planet, but also and most importantly to the social and cultural well-being of humanity. (shrink)

In both Great Britain and the United States there has been a growing debate about the modern acceptability of jury nullification. Properly understood, juries do not have any constitutional right to ignore the law, but they do have the power to do so nevertheless. Juries that nullify may be motivated by a variety of concerns: too harsh sentences, improper government action, racism, etc. In this article, I shall attempt to defend jury nullification on a number of grounds. (...) First, I discuss the use of general verdicts and reject their replacement in criminal trials by special verdicts. Second, I examine verdicts based upon mistakes and racial prejudice, turning my attention to perverse verdicts and the question of whether or not juries are guilty of legislating when nullifying the law. Finally, I look at the problem of the awarding of excessive damages by juries. My goal will be to provide a sound theoretical defence of the practice of jury nullification. (shrink)

This article argues that, given the current pervasive uncertainty about the reliability of jury deliberation, we ought to treat it with epistemic humility. I further argue that epistemic humility should be expressed and enforced by turning jury deliberation from a mandatory rule of the jury trial to a waivable right of the defendant. I consider two main objections to my argument: the first one concerns the putative self-defeatingness of humility attitudes; the second objection points to (...) the burdensomeness of granting an unconditional jury deliberation waiver to the defendant. (shrink)

The future of trial lies in customization. Throughout the Anglo-American world, the public model of criminal and civil procedure is gradually giving way to a private contractual paradigm, one which allows the litigating parties to tailor the evidentiary and procedural landscape of trial to fit their specific needs and preferences. Procedural and evidence rules are shifting from mandatory safeguards of public values to default rules and bargaining chips within the hands of the litigating parties. There is growing recognition (...) in the ability of litigating parties in civil trials and of defendants in criminal trials to waive evidentiary and procedural rights, such as the right of cross-examination, the right to trial by jury, or the right to appeal. Courts are exhibiting a willingness to enforce choice of procedure and choice of evidence agreements, such as agreements to restrict the presentation of otherwise admissible evidence or to allow for presentation of otherwise inadmissible evidence. (shrink)

Preclinical xenotransplantation research using genetically engineered pigs has begun to show some promising results and could one day offer a scalable means of addressing organ shortage. While it is a fundamental tenet of ethical human subject research that participants have a right to withdraw from research once enrolled, several scholars have argued that the right to withdraw from xenotransplant research should be suspended because of the public health risks posed by xenozoonotic transmission. Here, we present a comprehensive critical (...) evaluation of the claim that xenotransplant recipients should be required to waive their right to withdraw from lifelong biosurveillance. We conclude that if xenotransplantation requires participants to waive their right to withdraw, then clinical trials may not be justifiable, given the ethical and legal obstacles involved with doing so. Consequently, if clinical trials are permitted with a right to withdraw, then they may pose a significant public health risk. (shrink)

The purpose of this study is to examine the importance that real patients attach to their right to withdraw from an on-going feasibility randomised trial (RCT) evaluating types and timings of breast reconstruction (two parallel trials) following mastectomy for breast cancer. Our results show that, while some respondents appreciated that exercising the right to withdraw would defeat the scientific objective of the trial, some patients with a surgical preference consented only given the knowledge they could withdraw (...) if they were not allocated to their preferred treatment. (shrink)

In his Rights Forfeiture and Punishment, Christopher Heath Wellman argues that his preferred ‘strong’ version of rights forfeiture theory makes the moral rights of due process and a fair trial null and void for guilty offenders. They may still possess legal rights to due process, but these are not strong pre-institutional moral rights. I explain here why I disagree with Wellman. I also suggest that he is not entitled, by his own lights, to affirm strong forfeiture theory, at least (...) in our social world. (shrink)

How, if at all, should race figure in criminal trials with a jury? How far should attorneys be allowed or encouraged to probe the racial sensitivities of jurors and what does this mean for the appropriate way to present cases which involve racial profiling and, therefore, are likely to pit the words and actions of a white policeman against those of a young black man?

In lieu of an abstract, here is a brief excerpt of the content:Socrates' Trial and Conviction of the Jurors in Plato's ApologyDougal BlythI am going to argue in this paper that, in the three speeches constituting his Apology of Socrates, Plato presents the judicial proceedings that led to Socrates' execution as having precisely the opposite significance to their superficial legal meaning. This re-evaluation will lead to some reflections on the politics of Socrates' defence, and, similarly, on Plato's own aims (...) in writing the Apology. I want to show not only that the trial as portrayed demonstrates an inevitable dereliction of duty by the democratic jury, but also, more interestingly, that throughout the proceedings Socrates understands the meaning of the trial precisely in terms of his anticipation of the jurors' judicial incapacity.In the prooimion to his defence speech, Socrates requests that the jurors ignore his manner of speaking and concentrate on whether his case is just, "since this is a judge's virtue (), while that of a rhêtôr is to speak the truth" (18a5-6, cf. 35c2-5). We can gloss the expression "a judge's aretê" in this context as his function, or responsibility.1 Socrates claims that he, himself, fulfills his own responsibility as a defendant to tell the truth (17b4-c4, 33c1-2, cf. 34b5, 35b9-c2) in a speech that asserts his exemplary piety in Apollo's service and his beneficial influence on the Athenian youth. But if, in claiming that he is innocent of the charge, Socrates does tell the truth, then those jurors who thereupon convict him of impiety and corruption, and subsequently sentence him to death, have failed in their duty to judge rightly.My claim is that Socrates sees the trial as a test of the jurors' abilities. It is characteristic of Socrates to test people regarding their concern for virtue and justice, a habit to which he devotes extended discussion during his defence, even dramatising it provocatively in a central passage (29d7-e5) that I aim shortly to analyse in detail. Moreover, Socrates specifically withholds from the jury the title of dikastai or judges; he does finally award the title in his address following the sentence, but only to those who have voted [End Page 1] to acquit him (40a2-3).2 The possibility thus emerges that Socrates has treated the legal proceedings all along as a moral (and intellectual) test, or trial, of the empanelled jurors themselves, to see whether they are capable of the legal function to which they have been allotted. In that case, Socrates is putting on trial, not just those individual citizens, but the very legal system of democratic Athens.Socratic irony and truthfulnessBefore considering Socrates' own explicit judgement during those final remarks on the jurors' moral offence and punishment, I should first address briefly the issue of Socrates' irony. In the past, some writers have asserted that this irony involves him in not telling the truth about himself during his defence, in which case the jury might well have been justified in convicting him. Actually, there does seem to be a consensus among the more extended treatments of the Apology that have emerged during the last decade, at least on the point that Plato presents Socrates as committed to making as sincere an attempt at a defence of his case as is consistent with his philosophical commitment to virtue, and so to telling the truth.3I shall not re-argue this point in detail, but shall take it to be secured by two basic considerations: consistency with the Crito would require Socrates to recognise a legal obligation to make a sincere attempt at defence while his obligation to Apollo to continue his mission in Athens if possible would motivate that attempt with the goal of acquittal.4 Instead, I want to show what role irony does have in Socrates' defence, given that his principled law-abidingness requires him to attempt to persuade the jury, in accordance with truth and justice, that he is innocent (cf. 19a6-7, 18a7-b1, 18e5).Where Socrates acknowledges the obligation to defend himself, he remarks on the difficulty he faces, a difficulty that has resulted from the slander to which he has long... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Socrates' Trial and Conviction of the Jurors in Plato's ApologyDougal BlythI am going to argue in this paper that, in the three speeches constituting his Apology of Socrates, Plato presents the judicial proceedings that led to Socrates' execution as having precisely the opposite significance to their superficial legal meaning. This re-evaluation will lead to some reflections on the politics of Socrates' defence, and, similarly, on Plato's own aims (...) in writing the Apology. I want to show not only that the trial as portrayed demonstrates an inevitable dereliction of duty by the democratic jury, but also, more interestingly, that throughout the proceedings Socrates understands the meaning of the trial precisely in terms of his anticipation of the jurors' judicial incapacity.In the prooimion to his defence speech, Socrates requests that the jurors ignore his manner of speaking and concentrate on whether his case is just, "since this is a judge's virtue (), while that of a rhêtôr is to speak the truth" (18a5-6, cf. 35c2-5). We can gloss the expression "a judge's aretê" in this context as his function, or responsibility.1 Socrates claims that he, himself, fulfills his own responsibility as a defendant to tell the truth (17b4-c4, 33c1-2, cf. 34b5, 35b9-c2) in a speech that asserts his exemplary piety in Apollo's service and his beneficial influence on the Athenian youth. But if, in claiming that he is innocent of the charge, Socrates does tell the truth, then those jurors who thereupon convict him of impiety and corruption, and subsequently sentence him to death, have failed in their duty to judge rightly.My claim is that Socrates sees the trial as a test of the jurors' abilities. It is characteristic of Socrates to test people regarding their concern for virtue and justice, a habit to which he devotes extended discussion during his defence, even dramatising it provocatively in a central passage (29d7-e5) that I aim shortly to analyse in detail. Moreover, Socrates specifically withholds from the jury the title of dikastai or judges; he does finally award the title in his address following the sentence, but only to those who have voted [End Page 1] to acquit him (40a2-3).2 The possibility thus emerges that Socrates has treated the legal proceedings all along as a moral (and intellectual) test, or trial, of the empanelled jurors themselves, to see whether they are capable of the legal function to which they have been allotted. In that case, Socrates is putting on trial, not just those individual citizens, but the very legal system of democratic Athens.Socratic irony and truthfulnessBefore considering Socrates' own explicit judgement during those final remarks on the jurors' moral offence and punishment, I should first address briefly the issue of Socrates' irony. In the past, some writers have asserted that this irony involves him in not telling the truth about himself during his defence, in which case the jury might well have been justified in convicting him. Actually, there does seem to be a consensus among the more extended treatments of the Apology that have emerged during the last decade, at least on the point that Plato presents Socrates as committed to making as sincere an attempt at a defence of his case as is consistent with his philosophical commitment to virtue, and so to telling the truth.3I shall not re-argue this point in detail, but shall take it to be secured by two basic considerations: consistency with the Crito would require Socrates to recognise a legal obligation to make a sincere attempt at defence while his obligation to Apollo to continue his mission in Athens if possible would motivate that attempt with the goal of acquittal.4 Instead, I want to show what role irony does have in Socrates' defence, given that his principled law-abidingness requires him to attempt to persuade the jury, in accordance with truth and justice, that he is innocent (cf. 19a6-7, 18a7-b1, 18e5).Where Socrates acknowledges the obligation to defend himself, he remarks on the difficulty he faces, a difficulty that has resulted from the slander to which he has long... (shrink)

Xenotransplantation pits clinical research ethics against public health needs because recipients must undergo long-term, perhaps life-long, surveillance for infectious diseases. This surveillance requirement is effectively an abrogation of the right to withdraw from a clinical trial. Ulysses contracts, which are advance directives for future care, may be an ethical mechanism by which to balance public health needs against limitation of individual rights.

Xenotransplantation is defined as “any procedure that involves the transplantation, implantation, or infusion into a human recipient of either live cells, tissues, or organs from a nonhuman animal source, or human body fluids, cells, tissues or organs that have had ex vivo contact with live nonhuman animal cells, tissues, or organs.” Xenotransplantation has been viewed by desperate patients and their surgeons as a solution to the problem of the paucity of human organs available for transplantation. Foes of xenotransplantation argue that (...) the use of animal organs degrades the human race and should be avoided.In this paper, we briefly review the cultural context of xenotransplantation and explore the infectious disease risk of xenotransplantation. The United States Code of Federal Regulations requires life-long surveillance of a xenotransplantation recipient due to the largely unknown risk of novel infectious disease transmitted across species, known as xenogeneic infectious disease. We argue that despite being in the interest of protecting the public health, the imposition of lifelong surveillance requirements on xenotransplant recipients effectively abrogates the right to withdraw from a clinical trial after the transplantation has taken place. Moreover, we argue that a waiver of the right to withdraw should be made explicit in the interest of full disclosure, out of respect for the research subject’s right of self-determination. (shrink)

Clinical trials of xenotransplantation may begin early in the next decade, with kidneys from genetically modified pigs transplanted into adult humans. If successful, transplanting pig hearts into children with advanced heart failure may be the next step. Typically, clinical trials have a specified end date, and participants are aware of the amount of time they will be in the study. This is not so with XTx. The current ethical consensus is that XTx recipients must consent to lifelong monitoring. While this (...) presents challenges to the right to withdraw in the adult population, additional and unanswered questions also linger in the paediatric population. In paediatric XTx, parents or guardians consent not only to the initial treatment of the child but also to lifelong monitoring, thus making a decision whose consequences will remain present as the child develops the capacity for assent, and finally the capacity for informed consent or refusal. This article presents and evaluates unanswered paediatric ethical questions in regard to the right to withdraw from XTx follow-up in the paediatric population. (shrink)

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 is the first book to examine individual rights from an economic perspective, collecting together leading articles in this emerging area of interest and showing the vibrant and expanding scholarship that relates them. Areas covered include The implications of constitutional protections of individual rights and freedoms, including freedom of speech and of the press, The right to bear arms, The right against unreasonable searches, The right against self-incrimination, The right to trial by jury, The (...) right against cruel and unusual punishment, including capital punishment. The focus of these papers is both theoretical and empirical, examining how economics can illuminate the entire sequence of crime and punishment, from the decision to commit a crime, to police methods for apprehending and arresting criminals, to the rules used in trials to the scope of punishment for the convicted. (shrink)

Time-limited trials of intensive care have arisen in response to the increasing demand for intensive care treatment for patients with a low chance of surviving their critical illness, and the clinical uncertainty inherent in intensive care decision-making. Intensive care treatment is reported by most patients to be a significantly unpleasant experience. Therefore, patients who do not survive intensive care treatment are exposed to a negative dying experience. Time-limited trials of intensive care treatment in patients with a low chance of surviving (...) have both a small chance of benefiting this patient group and a high chance of harming them by depriving them of a good death. A ‘rule of rescue’ for the critically unwell does not justify time-limiting a trial of intensive care treatment and overlooks the experiential costs that intensive care patients face. Offering time-limited trials of intensive care to all patients, regardless of their chance of survival, overlooks the responsibility of resource-limited intensive care clinicians for suffering caused by their actions. A patient-specific risk–benefit analysis is vital when deciding whether to offer intensive care treatment, to ensure that time-limited trials of intensive care are not undertaken for patients who have a much higher chance of being harmed, rather than benefited by the treatment. The virtue ethics concept of human flourishing has the potential to offer additional ethical guidance to resource-limited clinicians facing these complex decisions, involving the balancing of a quantifiable survival benefit against the qualitative suffering that intensive care treatment may cause. (shrink)

Sometimes doing what’s right depends on anticipating how people will react when you do the right thing. Consider two aspects of challenge trial payments discussed by Lynch and colleagues. Th...

The right to withdraw from research without penalty is well established around the world. However, it has been challenged in some corners of bioethics based on concerns about various harms—to participants, to scientific integrity, and to research bystanders—that may stem from withdrawal. These concerns have become particularly salient in emerging debates about the ethics of controlled human infection (CHI) studies in which participants are intentionally infected with pathogens, often in inpatient settings with extensive follow‐up. In this article, I provide (...) support for preserving the right to withdraw from research without penalty and demonstrate that it is also typically justified in the specific context of CHI studies. The right is well aligned with individual freedoms outside the research setting, where autonomous individuals are permitted to engage in behaviors that will foreseeably cause them harm; where they cannot be compelled to satisfy contracts for their services, nor penalized for failure to do so; and where their behavior is not constrained by public health authorities except in extreme circumstances. These freedoms are supported by U.S. law, as well as by ethical analysis that is more globally relevant. The problems associated with the right to withdraw, however, remain. The best approach to addressing them is not to restrict the right but rather to avoid initiating research when withdrawal would be especially problematic. If research proceeds, steps can still be taken to minimize participant withdrawal without infringing the right. Investigators can avoid participant surprise through informed consent focused on a study’s most burdensome aspects and promote study completion through financial incentives. Should participants nonetheless seek to withdraw, investigators may attempt to persuade them not to do so by encouraging consideration of the range of potential harms that may result. Researchers conducting CHI studies and other research from which withdrawal might be especially problematic should prepare for the possibility of participant withdrawal, respect participant requests to withdraw without penalty, and incorporate various measures to avoid such requests. (shrink)

ObjectivesTo determine to which degree industry partners in randomised clinical trials own the data and can constrain publication rights of academic investigators.MethodsCohort study of trial protocols, publication agreements and other documents obtained through Freedom of Information requests, for a sample of 42 trials with industry involvement approved by ethics committees in Denmark. The main outcome measures used were: proportion of trials where data was owned by the industry partner, where the investigators right to publish were constrained and if (...) this was mentioned in informed consent documents, and where the industry partner could review data while the trial was ongoing and stop the trial early.ResultsThe industry partner owned all data in 20 trials (48%) and in 16 trials (38%) it was unclear. Publication constraints were described for 30 trials (71%) and this was not communicated to trial participants in informed consent documents in any of the trials. In eight trials (19%) the industry partner could review data during the trial, for 20 trials (48%) it was unclear. The industry partner could stop the trial early without any specific reason in 23 trials (55%).ConclusionsPublication constraints are common, and data is often owned by industry partners. This is rarely communicated to trial participants. Such constraints might contribute to problems with selective outcome reporting. Patients should be fully informed about these aspects of trial conduct. (shrink)

The presumption of innocence has often been understood as a doctrine that can be explained primarily by instrumental concerns relating to accurate fact-finding in the criminal trial and that has few if any implications outside the trial itself. In this paper, I argue, in contrast, that in a liberal legal order everyone has a right to be presumed innocent simply in virtue of being a person. Every person has a right not to be subjected to criminal (...) punishment unless and until he or she has done something that is criminally wrong. Since disagreements about allegations of criminal wrongdoing are inevitable, the liberal legal order requires a process for determining whether wrongdoing has occurred. In order to preserve the right not to be punished without wrongdoing, the accused person must be presumed innocent throughout this process. The presumption of innocence is therefore as much a basic human right as, for example, the right to bodily integrity or the right to freedom of expression. Specifications of and limitations on the right should therefore be justified not primarily in terms of their instrumental effectiveness in fact-finding or crime control but in terms of the role of the criminal process in a liberal legal order. I consider some implications of this view of the presumption of innocence for the pre-trial process and for substantive criminal law. I argue that the presumption of innocence, understood as a basic human right, should condition the entire pre-trial process; it has, however, minimal implications for the definition of offences. (shrink)

Criminal defendants in many countries are faced with a dilemma: If they waive their right to trial and plead guilty, they typically receive charge or sentence reductions in exchange for having done so. If they exercise their right to trial and are found guilty, they often receive stiffer sanctions than if they had pled guilty. I characterize the former as ‘waiver rewards’ and the latter as ‘non-waiver penalties.’ After clarifying the two and considering the relation between (...) them, I briefly explicate the grounds for a moral right to trial. I then assess the defensibility of such rewards and penalties. In addition to considering whether waiver rewards and non-waiver penalties serve the aims of legal punishment, I address the three main arguments for permitting them. The first suggests that defendants willing to plead display more remorse for their crimes and thus are deserving of lighter sentences. The second defends waiver rewards and non-waiver penalties in cases where prosecutors are alleged to know that defendants are guilty but face problems establishing their guilt at trial. The third holds that guilty defendants who are willing to plead conserve scarce state resources and should be rewarded for it, whereas those unwilling to plead squander such resources and should be penalized accordingly. I contend that none of these arguments provides persuasive grounds for waiver rewards or non-waiver penalties, even on the assumption that we can distinguish those defendants who should waive their right to trial from those who should not. This conclusion presents a fundamental challenge to contemporary plea bargaining practices. (shrink)

Jury science is fraught with difficulty. Since legal and institutional hurdles render it all but impossible to study live criminal jury deliberation, researchers make use of various indirect methods to evaluate jury performance. But each of these methods are open to methodological criticism and, strikingly, some of the highest-profile jury research programmes in recent years have reached opposing conclusions. Uncertainty about jury performance is an obstacle for legal reform—ongoing debates about the ‘justice gap’ for complainants (...) of sexual offences has rendered these problems stark. This paper proposes a way to advance the debate. (shrink)

Do terminally ill patients who have exhausted all other available, government-approved treatment options have a constitutional right to experimental treatment that may prolong their lives? On May 2, 2006, a divided panel of the U.S. Court of Appeals for the District of Columbia, in a startling opinion, Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, held “Yes.” The plaintiffs, Abigail Alliance for Better Access to Developmental Drugs and Washington Legal Foundation, sought to enjoin the Food and (...) Drug Administration from refusing to allow the sale of investigational new drugs that had not yet received FDA approval. The terminally ill plaintiffs contended that they quite literally could not wait that long for the drugs. With no other treatment options available, the plaintiffs urged the court to recognize a fundamental, constitutional right to take potentially life-saving or life-prolonging drugs, even though the treatment had not been fully tested through human trials for safety and effectiveness and could not be legally marketed to the public. (shrink)

Various special investigative methods are more often applied nowadays; their use is unavoidably induced by today’s reality in combating organised crime in the spheres such as corruption, prostitution, drug trafficking, trafficking in persons, money counterfeit and etc. Therefore, special secret investigative methods are more often used and they are very effective in gathering evidence for the purpose of detecting and investigating very well-organised or latent crimes. Both the Convention on the Protection on Human Rights and Fundamental Freedoms itself, i.e. its (...) Article 6, and other international instruments, such as the Council of Europe’s Criminal Law Convention, the Council of Europe’s Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and others, do not prohibit the use of special investigative methods, provided that their use does not violate human rights. The use of special investigative methods, such as undercover agents or other undercover investigative methods, cannot in itself infringe human rights and the right to a fair trial; however, its use must have clear limits and safeguards. The recent judgements of the European Court of Human Rights regarding the use of undercover agents confirm that the use of undercover agents in certain types of cases is often unavoidable and also very problematic, because the Court imposes on the member states of the Convention increasingly wider obligations. Partly this is determined by the fact that the current jurisprudence of the Court is still in the state of formation, therefore many questions are left unanswered. (shrink)

On May 2, 2006, a divided panel of the U.S. Court of Appeals for the District of Columbia, in a startling opinion, Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, held that terminally ill patients who have exhausted all other available options have a constitutional right to experimental treatment that FDA has not yet approved. Although ultimately overturned by the full court, Abigail Alliance generated considerable interest from various constituencies. Meanwhile, FDA proposed similar regulatory amendments, as have (...) lawmakers on both sides of the aisle in Congress. But proponents of expanded access fail to consider public health and consumer safety concerns. In particular, allowing patients to try unproven treatments, outside of controlled clinical trials risks both the study's outcome and the health of patients who might benefit from the deliberate, careful process of new drug approval as it currently operates under FDA's auspices. (shrink)

Ravelingien et al1 argue that, given the restrictions that must be imposed on recipients of xenotransplanted organs, we should conduct clinical trials of xenotransplantation only on patients in a persistent vegetative state. I argue that there is no ethical barrier to using terminally ill patients instead. Such patients can choose to waive their rights to the liberties that xenotransplantation would probably restrict; it is surely rational to prefer to waive your rights rather than to die, and permissible to allow patients (...) to make this choice.Perhaps the single most important advance in the history of moral thought occurred when it came to be generally recognised that all people are protected by rights that are inviolable, at least without their consent. The precise nature and content of these rights is controversial, but there is a consensus among reasonable people over their core. We all have a right to life, to liberty, to security of person and to equality before the law. Other rights—so-called positive rights, such as the right to economic security, or cultural rights, for instance—may be controversial, but we all agree at least on these.Ravelingien et al1 therefore seem to be on solid ground when they conclude that it would not be permissible to use living persons as subjects in clinical trials of xenotransplantation, as such trials, potentially or actually, result in the violation of the core human rights of the subjects. Their argument is as follows:" Xenotransplantation carries with it a currently unquantifiable risk of the transmission of viruses, from the animal that is the source of the organ transplanted, to the human recipient. Such viruses could have potentially catastrophic consequences, up to and including triggering a global and devastating pandemic. Therefore, it would be necessary to monitor the health status of recipients of … ". (shrink)

This article explores the “fair trial” as a good practice for the construction of public proof. If proof signifies closure on matter at hand, and publicness is taken to signify both “access to” and “participation in” the construction of proof by the publics concerned, the authors contend that the “fair trial” is a good example of building public proof and that its backbone constraints can be of great interest to the defenders and advocates of participative Technology Assessment, especially (...) citizens' juries. (shrink)

This paper defends a right to the justification of contract, with reciprocal and general reasons, and explores its main implications for the law of contract and its theory. It argues that the leading essentialist and other monist contract theories, offering blueprints for an ideal contract law based on the alleged ultimate value or essential characteristic of contract law, cannot justify the basic structure of contract law. Instead, it argues, a critical discourse theory of contract can contribute to the realisation (...) of the right to justification of contract by exposing patterns of contractual injustice, in particular exploitation and domination by contract, that contract law can and should prevent. (shrink)

Given the crucial role unauthorized disclosures can play in uncovering grave government wrongdoing, it makes sense to search for a defense of justified cases of what I call “classified public whistleblowing.” The question that concerns me is what form such a defense should take. The main claim will be a negative one, namely, that a defense of whistleblowing cannot be based on individual rights, be they legal or moral, though this is indeed the most commonly proposed defense. In closing, I (...) will outline a more appealing alternative, namely, a justification defense. (shrink)