In his newly updated version of The Anatomy of a Constitutional Law Case, Alan F. Westin provides a documentary portrait of historically important constitutional law case, 'Youngstown Sheet & Tube Co. v. Sawyer, ' from its rise in a bargaining dispute in the steel industry during 1952 to the aftermath of its decision by the United States Supreme Court. Westin has added to his classic book additional materials and personal commentaries collected since the work was first published. The new information (...) covers what went on within the Truman administration, what went on within the Supreme Court when analyzing and resolving issues that come before it. Westin includes selections from transcripts, briefs and other official proceedings, adds notes describing each phase of the constitutional process, and a section of commentary and questions relating this case to others. (shrink)

We implemented a user-centered approach to the design of an artificial intelligence (AI) system that provides users with access to information about the workings of the United States federal court system regardless of their technical background. Presently, most of the records associated with the federal judiciary are provided through a federal system that does not support exploration aimed at discovering systematic patterns about court activities. In addition, many users lack the data analytical skills necessary to conduct their own analyses and (...) convert data into information. We conducted interviews, observations, and surveys to uncover the needs of our users and discuss the development of an intuitive platform informed from these needs that makes it possible for legal scholars, lawyers, and journalists to discover answers to more advanced questions about the federal court system. We report on results from usability testing and discuss design implications for AI and law practitioners and researchers. (shrink)

Theorists of public reason such as John Rawls often idealize constitutional courts as exemplars of public reason. This paper raises questions about the seduction and limits of analogies between theorists’ account of public reason and actual constitutional jurisprudence. Examining the work product of the United States Supreme Court, the paper argues that while it does engage in reason-giving to support its decisions—as the public reason strategy suggests— those reasons are (largely) legalistic and specifically juristic reasons—not the theorists’ idealized moral-political (...) reasons on matters of fundamental principle. But if constitutional courts do not engage on matters of fundamental principle, then a public reason strategy for assuaging democratic worries about judicial review would no longer be open: prominent liberal and deliberative democratic theorists could no longer point to the alleged superiority of constitutional courts to speak in the name of, and for, the people’s shared political principles. The paper extends beyond the U.S. case study by pointing to three institutional factors explaining the disanalogy between what some constitutional courts do and what public reason theories require them to do. It concludes with considerations about whether the public reason strategy might be more successfully applied to international courts. (shrink)

This review article argues that John Kieschnick’s Buddhist Historiography in China (2022) constitutes a landmark in the field. The book covers a large swath of original sources, analyzes authorial strategies, and assesses the place of writing about the Buddhist past within the Sinocentric tradition of court-focused historiography. I point up the strengths of the book, identify its most significant chapters, and probe its interpretation of Buddhist historiography. I also suggest that, by including a broader range of genres within the ambit (...) of Buddhist historiography, future scholarship might add perspectives that diverge from those of the centralized state and the Saṃgha. (shrink)

Clinical ethics committees have existed in Norway since 1996. By now all hospital trusts have one. An evaluation of these committees’ work was started in 2004. This paper presents results from an interview study of eight clinicians who evaluated six committees’ deliberations on 10 clinical cases. The study indicates that the clinicians found the clinical ethics consultations useful and worth while doing. However, a systematic approach to case consultations is vital. Procedures and mandate of the committees should be known to (...) clinicians in advance to ensure that they know what to expect. Equally important is bringing all relevant facts, medical as well as psychosocial, into the discussion. A written report from the deliberation is also important for the committees to be taken seriously by the clinicians. This study indicates that the clinicians want to be included in the deliberation, and not only in the preparation or follow-up. Obstacles for referring a case to the committee are the medical culture’s conflict aversion and its anxiety of being judged by outsiders. The committees were described as a court by some of the clinicians. This is a challenge for the committees in their attempt to balance support and critique in their consultation services. (shrink)

This paper describes one way in which a precise reason model of precedent could be developed, based on the general idea that courts are constrained to reach a decision that is consistent with the assessment of the balance of reasons made in relevant earlier decisions. The account provided here has the additional advantage of showing how this reason model can be reconciled with the traditional idea that precedential constraint involves rules, as long as these rules are taken to be (...) defeasible. The account presented is firmly based on a body of work that has emerged in AI and Law. This work is discussed, and there is a particular discussion of approaches based on theory construction, and how that work relates to the model described in this paper. (shrink)

Literary difficulties vary. Certain genres are "easier" than others. And a knowledge of the historical process, involving what is called convention certainly seems to make difficult works easier. Such is the case of courtly lyrics. They are "simple" and essentially conventional; a reader knows what to expect in them. But the problem of literary difficulties remains there too. The essential difficulties of courtly lyrics are under the surface. They become apparent to a more careful, more thoughtful reader. The realization that (...) such difficulties exist is the first step toward studying them, and only through studying them can we appreciate the real aesthetic wealth of courtly poetry and, I believe, of most of the poetry of other ages and other cultures. Peter F. Dembowski is the author of La Chronique de Robert Clari: Etude de la langue et du style and the editor of critical editions of Old French chansons de geste. His recent edition of all known Old and Middle French versions of the Life of Saint Mary of Egypt appears in the series, Publications françaises et romanes. (shrink)

In 1738, Jacques Vaucanson unveiled his masterpiece before the court of Louis XV: a gilded copper duck that ate, drank, quacked, flapped its wings, splashed about, and, most astonishing of all, digested its food and excreted the remains. The imitation of life by technology fascinated Vaucanson's contemporaries. Today our technology is more powerful, but our fascination is tempered with apprehension. Artificial intelligence and genetic engineering, to name just two areas, raise profoundly disturbing ethical issues that undermine our most fundamental beliefs (...) about what it means to be human. In The Vital Machine, David Channell examines the history of our relationship with technology and argues that, while the resolution of these issues may not be imminent, a philosophical framework for dealing with them is already in place. The source of our fears, he suggests, lies in an outmoded distinction between organic life and machines, a distinction rooted in the two world-views that have defined and guided Western civilization: the mechanical and the organic. The mechanical view holds that the universe is basically a machine--we can understand it by breaking it down into its smallest components. Even organisms are machines. The organic view claims that there is something more, some vital, directive force. The whole is more than just the sum of its parts. Even machines are organisms. Channell presents these polar views in a fascinating chronicle of human thought and achievement, ranging over the discoveries of Galileo, Copernicus, Newton, and Einstein, the philosophies of Plato, Descartes, Kant, and Marx, the fields of alchemy, physics, astrology, and biology. We see not only how the two views progressed independently, but also how they influenced each other, not only how they persisted, but also how they changed. Most fascinating of all, we follow the emergence of a third, all-embracing world view as developments in genetics, relativity, quantum mechanics, and computer intelligence force both science and philosophy to come to a more complex understanding of the universe. As a central metaphor for this third view Channell proposes "the vital machine." And in this stimulating work by the same name, he reveals how this new metaphor may provide us with the philosophical understanding we need to address the ethical issues our science has created. (shrink)

In this book, Christopher F. Zurn shows why a normative theory of deliberative democratic constitutionalism yields the best understanding of the legitimacy of constitutional review. He further argues that this function should be institutionalized in a complex, multi-location structure including not only independent constitutional courts but also legislative and executive self-review that would enable interbranch constitutional dialogue and constitutional amendment through deliberative civic constitutional forums. Drawing on sustained critical analyses of diverse pluralist and deliberative democratic arguments concerning the legitimacy (...) of judicial review, Zurn concludes that constitutional review is necessary to ensure the procedural requirements for legitimate democratic self-rule through deliberative cooperation. Claiming that pure normative theory is not sufficient to settle issues of institutional design, Zurn draws on empirical and comparative research to propose reformed institutions of constitutional review that encourage the development of fundamental law as an ongoing project of democratic deliberation and decision. (shrink)

Canada has followed the pattern of Benelux nations by legislating sufferingSuffering as the pivotal eligibilityEligibilitycriterionCriterion for euthanasiaEuthanasia/assisted death without requiring terminal prognosis as is needed in most permissive jurisdictions. This chapter will explore the relationship between sufferingSuffering and Medical Assistance in Dying (MAID) and the ways in which sufferingSuffering is understood in the Supreme Court of Canada, the federal Criminal Code legislation and by health care assessors. Based on this analysis, we will argue that the resulting sufferingSufferingeligibilityEligibilitycriterionCriterion leaves the law (...) open to unintended forms of interpretation, thus instituting perhaps the most unbounded and risk-prone form of assisted death in the world. A review of the literature on sufferingSuffering, the wish to dieWish to die, and reasons for MAIDReasons for MAID requests found sufferingSuffering of severe illness to be frequently associated with unstable mental health, social, and existentialExistential variables that are often amenable to therapy or remediation. While sufferingSuffering remains a powerful motivating force to seek opportunities to relieve distress, its use as an eligibilityEligibilitycriterionCriterion for MAID has significant ambiguity in its’ characterization of ‘enduring’ and ‘irremediable’ and thus fails to protect against abuse for the vulnerable. (shrink)

I shall best approach my subject by explaining how it was that I, a non-professional, began to take an interest in Kafka. The fi rst thing of his which I happened to read was The Trial. It is diffi cult to describe my reaction. Certainly I didn’t understand the book. At fi rst sight it seemed to be a confused mass, a nightmare, something abstruse, incomprehensible to the utmost degree. One fi ne morning Joseph K., the junior manager of a (...) bank, is arrested. No grounds are given. He has, we are assured, done nothing wrong. A charge against him is never specifi ed. Though he is under arrest, he can walk about freely and go to his offi ce. In the course of the story we are led on to catch a glimpse of a very strange ‘Court’, a ridiculous, corrupt, despicable Court that sits in a suburb, in the attics of a building where the povertystricken tenants have fl ung their useless lumber. The Examining Magistrate sits on a kitchen chair, with an old horse-rug doubled under him. The Judges are obsessed with vanity, and run after every woman they see. (shrink)

Nowadays ethics plays a vital role in numerous professions. Due to social requirements and technical advances, changes in the accreditation rules in legal, economic, medical and engineering education have emerged in many countries, often requiring the inclusion of an ethics requirement in such professional programmes. In this work, the authors demonstrate that such changes are absolutely necessary in the legal profession in Lithuania. Specifically, the record low level of prestige of the judiciary and lawyers in the Lithuanian society and the (...) fact that lawyers are often accused of legal nihilism, clannish behaviour, and protectionism, demand that legal ethics assumes a far greater role in Lithuanian legal education. It is necessary to stress that the topic of lawyers’ ethical violations and the consequences of such violations is discussed in the society in only in a fragmentary, and not transparent manner; moreover, the significance of ethics in the education and training of lawyers has not been properly evaluated either. Especially having in mind Lithuania’s Soviet heritage (during most of the Communist era there was almost no education on those issues), it becomes obvious that legal ethics must be continuously stressed in the legal profession’s education and development. The importance and relevance of this topic is primarily determined by the current evaluation of lawyers in Lithuania, which shows that lawyers do not fulfil the expectations of the society. This raises a question whether law graduates indeed acquire this system of ethical values as part of the process of obtaining the knowledge and skills that are necessary for a modern lawyer. While analysing the Lithuanian legal documents governing the requirements for legal studies, it has been noticed that a course in legal ethics or lawyer’s professional responsibility is not compulsory either in the qualification requirements for judges, or in the Ruling of the Constitutional Court of 20 February 2008 on legal education for those who want to assume the position of a judge according to the order of law. In the description of legal study programmes, courses on professional ethics are designated as an optional non-legal subject, which is quite different from the legal education systems of other countries, where this type of course is compulsory for future lawyers. Even if this course is taught at Lithuanian higher education establishments, it is limited to the analysis of cases and legal regulation. Insufficient attention to this issue obviously creates the erroneous impression that it is of secondary importance for a lawyer. It should be noted that legal ethical standards, the development of lawyers’ value systems and other problematic questions related to legal ethics have not attracted attention of the Lithuanian scholars either. Therefore, this is a question of the utmost importance for legal education and requires additional research. In global educational and other academic literature, much is being discussed about the methods of teaching ethics, and the place of ethical subjects in study programmes and assessment. It is well worth supporting the research on the development of lawyers’ value systems, in that the lack of such values may influence the evaluation of the practicing lawyers’ satisfaction with their job, self-confidence and belief in the importance of their profession. Obtaining social-ethical attitudes and perspectives helps future lawyers gain more trust in their professional identity and the correctness of their professional work. The main conclusions drawn from the research are the following: (1) the university can and needs to contribute to the development of students’ value systems and this is one of the most important content requirements within the legal study programmes; (2) while teaching ethics, the primary focus must be not on the legal acts regulating ethics, which are changing over time, but on the aim of helping that students themselves have an increased sense of selfawareness and sensitivity to ethical issues in law practice, recognise and understand ethical dilemmas arising in the law, recognise the dominant attitudes in the society towards the role of a lawyer and motivate them to reconsider and discuss the value bases of such attitudes and their change; (3) a course on legal ethics – no matter how perfect it would be – is not the only way to develop a personal value system. In this context, the importance of liberal arts education should be accentuated. Given the research conducted, there is a clear link between the development of moral awareness and the person’s education in general. (shrink)

The latest trend in abortion restrictions in the United States targets a woman's reasons for terminating a pregnancy. Fourteen states have attempted to enact laws prohibiting abortion on the basis of fetal sex, race, and/or genetic anomaly. These laws are different from regulations tied to a government interest in protecting women's health. Laws that restrict reasons implicate a different set of government interests to be weighed against a woman's constitutional right first recognized in Roe v. Wade. These laws also seek (...) to reframe the nature of the right asserted by the woman. To date, the Supreme Court has declined to address the constitutionality of laws that restrict reasons, and the Court's most recent abortion decisions provide little guidance. It is possible that a conservative majority of the Supreme Court would uphold a law that prohibits reasons for having an abortion that appear discriminatory. But such laws would be difficult to enforce and therefore may be relegated to policy statements rejecting discriminatory norms as opposed to being effective means of restricting access to abortion. (shrink)

In the 18th century, Guilielmus Piso arrives in Brazil as the archiater in the court of John Maurice of Nassau. Upon his return to Europe, he takes on the task of writing a descriptive treatise of these Western Indies. For this purpose, he makes use of the mental framework bequeathed by his education, setting up therefore the treatise On Airs, Waters and Places about Brazil. In the same manner and by the same means found in the homonymous treatise of the (...) Corpus Hippocraticum, and fortified by the authority of Latin (and Galenic) tradition, Piso undertakes an analysis of the man from this Land and his customs, taking as the axis of the “anthropological” part of his treatise the relation between a conception of nature that is merely an interpretation of the Hippocratic φύσις and the indolent ἦθος, which, by its turn, gave birth to a long-term imaginary lasting until the 21st century. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:171. JACOBITISM AND DAVID HUME: THE IDEOLOGICAL BACKLASH FOILED It has often been said, and with some truth, that one of the weaknesses of the Jacobite movement was its lack of a systematic ideology or of a truly firstrate mind to expound its doctrines. There are of course those who would claim that in an earlier period Charles Leslie or Francis Atterbury easily fulfilled the necessary conditions as expositors, (...) and that this tradition was continued in the years immediately before the '45 by Carte and Chevalier Ramsay. Yet there were weaknesses in Jacobite doctrine, some of which will be noted below. It is less often realised that, qua logical cogency, the arguments of the Whigs and other opponents of Jacobitism were, to say the least, in no better case. In a word, anti-Jacobite ideology completely failed in the task of devastating the Stuarts and their followers. This failure is apparent when we consider the writings of David Hume, who addressed himself on many occasions, either explicitly or implicitly, to the question of Jacobitism. One of Hume's aims was to give the Revolution settlement and the Hanoverian succession the respectable intellectual basis it did not possess from official Whig ideology. In this aim Hume unquestionably failed, his arguments being either internally inconsistent or lacking in the intellectual rigour necessary to topple his targets. Following the method attributed to Karl Popper by Brian Magee, it will be instructive at this point to consider the anti-Jacobite case, not at its weakest, but at its strongest. In a word, it is proposed to consider in detail the political writings on the issue of Jacobitism of a man widely acknowledged to be the greatest British thinker of the eighteenth century and one of the finest philosophers of the ages. If the 172. most powerful mind in British philosophy was unable to contrive a theory or theories that could unseat Jacobitism as an ideology, this tends to indicate that the intellectual supports of the' doctrine were nothing like so feeble as Whig apologists claimed, and that historians have been rather too quick to claim that eighteenth-century Jacobitism depended on a defunct or discredited belief-system. First, however, two comments are necessary. Neither Jacobitism itself nor Hume's own writings possess the coherence the scholar might ideally wish for. Hume's critique has to be extracted from books and essays written over a thirty-year period, and none of these is a work of political theory per se. Moreover, these works address differing audiences and assume quite different things about the knowledge and philosophical acumen of their readers. This is quite apart from the fact that on some important issues Hume changed his mind over the years. At this level assessing Hume's meaning is often as difficult as the notorious problem of pinning down the 'real' Marx. As for Jacobitism, its ideology is difficult to articulate, since it was composed of many heterogeneous strands. The ideology of English Jacobites was a 'partial' view of the world. It embraced the pre-1688 Tory notions of hereditary and indefeasible right, passive obedience and non-resistance. It took in the 'Country' critique of corruption and its nostalgia for a lost 'golden age'. The ideology of Scottish Jacobitism came nearer to being a Weltanschauung. Apart from its role as an ideology of nationalism, stressing the importance of a unique Scottish culture, it depended on a providential and mystical view of the world. Basically, there were three types of ideological Jacobitism. The first type, whose major 173. tenets had been exhaustively debated during the period 1688-1720, concerned the notions of divine, indefeasible right, passive obedience and nonresistance. This doctrine, particularly associated with pro-Stuart polemicists like Charles Leslie and Francis Atterbury, was still very much alive in Jacobite circles by 1745, though the debate between Whig and Tory on its implications had to some extent given way to the debate between exponents of Court and Country positions. The second type was Jacobitism as an ideology of Scottish nationalism. This was particularly associated with the mystics of NorthEastern Scotland like Chevalier Ramsay, and was a powerful influence in the '45 rebellion. The third type was Jacobitism as... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:171. JACOBITISM AND DAVID HUME: THE IDEOLOGICAL BACKLASH FOILED It has often been said, and with some truth, that one of the weaknesses of the Jacobite movement was its lack of a systematic ideology or of a truly firstrate mind to expound its doctrines. There are of course those who would claim that in an earlier period Charles Leslie or Francis Atterbury easily fulfilled the necessary conditions as expositors, (...) and that this tradition was continued in the years immediately before the '45 by Carte and Chevalier Ramsay. Yet there were weaknesses in Jacobite doctrine, some of which will be noted below. It is less often realised that, qua logical cogency, the arguments of the Whigs and other opponents of Jacobitism were, to say the least, in no better case. In a word, anti-Jacobite ideology completely failed in the task of devastating the Stuarts and their followers. This failure is apparent when we consider the writings of David Hume, who addressed himself on many occasions, either explicitly or implicitly, to the question of Jacobitism. One of Hume's aims was to give the Revolution settlement and the Hanoverian succession the respectable intellectual basis it did not possess from official Whig ideology. In this aim Hume unquestionably failed, his arguments being either internally inconsistent or lacking in the intellectual rigour necessary to topple his targets. Following the method attributed to Karl Popper by Brian Magee, it will be instructive at this point to consider the anti-Jacobite case, not at its weakest, but at its strongest. In a word, it is proposed to consider in detail the political writings on the issue of Jacobitism of a man widely acknowledged to be the greatest British thinker of the eighteenth century and one of the finest philosophers of the ages. If the 172. most powerful mind in British philosophy was unable to contrive a theory or theories that could unseat Jacobitism as an ideology, this tends to indicate that the intellectual supports of the' doctrine were nothing like so feeble as Whig apologists claimed, and that historians have been rather too quick to claim that eighteenth-century Jacobitism depended on a defunct or discredited belief-system. First, however, two comments are necessary. Neither Jacobitism itself nor Hume's own writings possess the coherence the scholar might ideally wish for. Hume's critique has to be extracted from books and essays written over a thirty-year period, and none of these is a work of political theory per se. Moreover, these works address differing audiences and assume quite different things about the knowledge and philosophical acumen of their readers. This is quite apart from the fact that on some important issues Hume changed his mind over the years. At this level assessing Hume's meaning is often as difficult as the notorious problem of pinning down the 'real' Marx. As for Jacobitism, its ideology is difficult to articulate, since it was composed of many heterogeneous strands. The ideology of English Jacobites was a 'partial' view of the world. It embraced the pre-1688 Tory notions of hereditary and indefeasible right, passive obedience and non-resistance. It took in the 'Country' critique of corruption and its nostalgia for a lost 'golden age'. The ideology of Scottish Jacobitism came nearer to being a Weltanschauung. Apart from its role as an ideology of nationalism, stressing the importance of a unique Scottish culture, it depended on a providential and mystical view of the world. Basically, there were three types of ideological Jacobitism. The first type, whose major 173. tenets had been exhaustively debated during the period 1688-1720, concerned the notions of divine, indefeasible right, passive obedience and nonresistance. This doctrine, particularly associated with pro-Stuart polemicists like Charles Leslie and Francis Atterbury, was still very much alive in Jacobite circles by 1745, though the debate between Whig and Tory on its implications had to some extent given way to the debate between exponents of Court and Country positions. The second type was Jacobitism as an ideology of Scottish nationalism. This was particularly associated with the mystics of NorthEastern Scotland like Chevalier Ramsay, and was a powerful influence in the '45 rebellion. The third type was Jacobitism as... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Kennedy Institute of Ethics Journal 11.1 (2001) 113 [Access article in PDF] Letters Rats, Mice, and Birds and the Animal Welfare Act Madam:In the September 2000 issue of the Kennedy Institute of Ethics Journal, I argued for the inclusion of laboratory rats, mice, and birds under provisions of the Animal Welfare Act (AWA). This act sets humane standards for animals used in biomedical experimentation, but these three species are (...) excluded despite the fact that they comprise 90 percent of all animals used. Recent actions have been taken on this issue that temporarily maintain the status quo of exclusion.On 25 September 2000, a legal suit brought by the Alternatives Research Development Fund was settled out of court when the U.S. Department of Agriculture agreed that the AWA enforcement regulations should be extended to rats, mice, and birds. This was a significant victory heralded by the animal protection movement and some sections of the scientific community. Federal Court Judge Ellen S. Huvelle dismissed motions by pro-animal research groups to block this agreement.But the tide soon turned. On 11 October, a last-minute amendment to the USDA appropriations bill submitted by the Senate Appropriations Committee chair Thad Cochran (R-Miss.) precluded the department from spending any funds in the coming fiscal year to effect this change. This amendment had been drafted by the National Association for Biomedical Research and passed to the University of Mississippi to be forwarded to Cochran. This now congressionally approved amendment postponed for a year any action to implement the legal agreement. USDA plans to initiate the formal rule-making process for rats, mice, and birds by 1 October 2001. F. Barbara Orlans Senior Research Fellow Kennedy Institute of Ethics Georgetown University Washington, DC... (shrink)

This chapter first presents two arguments for the permissibility of physician-assisted suicide (PAS) and euthanasia (E) to eliminate physical suffering. I then present a third argument for PAS and E on grounds other than eliminating suffering. The chapter next considers several objections to these arguments that might be raised by Neil Gorsuch, now a US Supreme Court Justice. In the course of this I present a fourth argument for PAS and E. (I assume throughout that a patient’s free and informed (...) consent is required and present.). (shrink)

The little boy who announced to a shocked court that the emperor was dressed in nothing but his birthday suit was no mean philosopher in the Wittgensteinian mode. Immune from bewitchment by language he followed blindly, figuratively speaking, the rule of ‘look and see’; any explanation being superfluous since everything lay exposed to view, he described what he saw in everyday words stripped of metaphysical gloss and used in a language-game they could happily call home. Such impeccable philosophical credentials and (...) his fearless pursuit of the truth encourage me to follow his example, though I feel a certain trepidation at the enormity of what I am about to suggest: To my ingenuous gaze the body corporate of Wittgensteinian scholarship displays some startlingly naughty bits that really ought to be decently covered. (shrink)

Wrongful life claims have always been controversial. Courts in England,1 the USA,2 and Australia3 have generally refused to accept them. However, are wrongful life claims becoming more commonly accepted in continental Europe? After the widely discussed Perruche case in France ,4 and a judgment of a Brussels tribunal in July 2002 that has passed almost unnoticed, the Court of Appeal of The Hague, the Netherlands, in a lengthy and motivated judgment of 26 March 2003, awarded moral damages to a (...) child born with a severe chromosomal disease.5 This judgment differs from the Perruche and Brussels judgments in that both of the latter failed to show to what extent the negligence towards the mother can at the same time be a negligence towards the unborn child. The Court of Appeal of The Hague did at least attempt to explain this.According to the Court of Appeal the midwife looking after the mother had a legal obligation not only towards the pregnant woman but also towards her fetus. This obligation can be derived from the medical treatment contract concluded between, on one hand, the employer of the midwife, the Leiden University Medical Centre, and on the other hand, the parents of the child. The Court held that the unborn child could legally be considered as a party to this contract. But even when one does not accept the existence of a contract between the …. (shrink)

In Jurismania, Paul Campos asserts that our legal system is beginning to exhibit symptoms of serious mental illness. Trials and appeals that stretch out for years and cost millions, 100 page appellate court opinions, 1,000 page statutes before which even lawyers tremble with fear, and a public that grows more litigious every day all testify to a judicial overkill that borders on obsessive-compulsive disorder. Campos locates the source of such madness, paradoxically, in our worship of reason and the resulting belief (...) that all problems are amenable to legal solutions. In insightful discussions of a wide range of cases, from NCAA regulations of student-athletes to the Simpson trial, from our most intractable social disputes over abortion and physician-assisted suicide to the war on drugs and the increasingly fastidious attempts to regulate behavior in public spaces, Campos shows that the mania for more law exacerbates the very problems it seeks to remedy. In his final chapter, the author calls instead for a humbling recognition of the limits of reason and a much more modest role for our legal system. Clearly written and laced with a delicious wit, Jurismania gives us a CAT-scan of the American legal mind at work. It reveals not only that the patient is even worse off than we imagined, but also clarifies the many reasons why. (shrink)

In recent years, courts have increasingly found them-selves arbiters of disputes in the emotionally charged area of assisted reproductive technologies. Legal disputes are hardly surprising in the world of infertility medicine, where millions of patients spend billions of dollars in efforts to have a child. Increasingly, these efforts produce embryos that are frozen for later use, at once maximizing a couple's chances for success and minimizing the medical intrusiveness that necessarily accompanies most forms of assisted reproductive technologies. But with (...) over 100,000 embryos in frozen storage in the United States and a divorce rate of 40 to 50 percent, it is not surprising that disputes over the disposition of these embryos are arising, causing the legal landscape surrounding these technologies to continue to expand. (shrink)

Introduction -- Part I: Religion under secular statecraft -- Rationalist restrictions on public discourse -- Reasonable limits on religious freedom -- The hidden dangers of civil religion -- Part II: State/religion border control -- Religion-state relations in U.S. courts -- Rulings concerning religion-state relations -- Rulings on religion-state relations in education -- Alternative schooling in America -- Part III: Religious groups and the public sphere -- The political importance of interest groups -- The moral need for groups in a (...) modern democracy -- Religious groups in the political process. (shrink)

The South China Sea territorial dispute has been a contentious issue in the international community. In the course of 3 years, China and the Philippines had undergone arbitral proceedings over the maritime rights and entitlements in the South China Sea. As the Permanent Court of Arbitration reached its decision, this paper aims to examine the interpretation process of the Arbitral Tribunal in the judgment of the South China Sea conflict between China and the Philippines. The primary objective of the study (...) is to reconstruct or explain how the Tribunal came up with its interpretation of the written arguments presented by the parties involved and to distinguish whether such reconstruction the Tribunal has successfully interpreted or made sense of the said arguments and submissions. Doing so would necessitate a pragmatic analysis– the relevance-theoretic account of human communication and cognition. Data analyzed include written submissions and arguments as well as the legal documents used during the arbitral process. Using content analysis, the data were evaluated through applying the tool of interpretation based on the criteria set by the three conditions of the relevance theory: logical condition, pragmatic condition, and condition of optimal relevance. This paper argues that in order for the addressee of an utterance, in this case the Arbitral Tribunal, to attain a successful interpretation, it should meet these three conditions. This study found that the reconstruction of the interpretation based on the three conditions showed that the Tribunal had attained a valid and correct interpretation of the Philippines’ and China’s arguments. Furthermore, the paper asserts that implied conclusion and the contextual assumptions can be a guiding principle for the cognitive comprehension or interpretation of legal texts. (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)

The doctrine of precedent, as it has evolved within the common law, has at its heart a form of reasoning—broadly speaking, alogic—according to which the decisions of earlier courts in particular cases somehow generalize to constrain the decisions of later courts facing different cases, while still allowing these later courts a degree of freedom in responding to fresh circumstances. Although the techniques for arguing on the basis of precedent are taught early on in law schools, mastered with (...) relative ease, and applied on a daily basis by legal practitioners, it has proved to be considerably more difficult to arrive at a theoretical understanding of the doctrine itself—a clear articulation of the underlying logic. (shrink)

Developing and applying a framework for understanding the complexities of economic and legal considerations in two recent Supreme Court rulings was the focus of this research. Of especial concern was the protection of intellectual property in the pharmaceutical industry. Two cases from 2013 were selected: FTC v. Activis and Association for Molecular Pathology v. Myriad Genetics, Inc.. Part of the rationale for the selection was the importance of the Supreme Court rulings and the importance of the pharmaceutical sector. A qualitative (...) content analysis of the Court’s reported decision in each case was analyzed. Since ethical considerations may or may not be consistent with efficiency considerations of plaintiffs, defendants, or the courts, both efficiency and ethical arguments were included. Equally important to the understanding of the economic and ethical issues in the two above- mentioned cases was the development of a rationale for including and excluding a variety of ethical theories, ultimately influenced by Markkula Center For Applied Ethics Of Santa Clara University and Schumann :93–111, 2001). The refinement and use of a levels analysis approach portrays societal, organizational, and individual impacts, and allows for deeper understanding of litigated cases, irrespective of the country in which the litigation takes place :385–393, 2004; Foss et al., J Manag Stud 47:455–482, 2010). A rationale for this framework is the societal and organizational impacts on the myriad of stakeholders in the pharmaceutical sector. We suggest that this framework can be applied to other industries and other complex conflicts among stakeholders as well. (shrink)

Christopher F. Zurn - Perspectives on Habermas - Journal of the History of Philosophy 40:2 Journal of the History of Philosophy 40.2 274-275 Book Review Perspectives on Habermas Lewis Edwin Hahn, editor. Perspectives on Habermas. New York: Open Court, 2000. Pp. xiv + 586. Paper, $29.95. This collection of essays on the wide-ranging body of thought produced by Jürgen Habermas over the course of close to fifty years represents a significant lost opportunity. Although originally planned as a volume in the (...) Library of Living Philosophers series, in 1999 Habermas pulled out of the project because, as Hahn tells us, "of other events in his life" . Volumes in this series have typically provided unique and valuable resources: not only quality secondary essays by leading contemporary philosophers, but essay-by-essay responses by the featured philosopher, as well.. (shrink)

In many ways, we live in propitious times for gay and lesbian people. In 1996, the Supreme Court struck down Colorado law prohibiting any kind of protected status based on sexual orientation. In 2003, the Supreme Court held that states may not criminalize sexual conduct between consenting adults of the same sex in private, so long as no money changes hands. In 2010, the Congress repealed the “Don't Ask, Don't Tell” policy that excluded openly gay men and lesbians from military (...) service. In 2013, the Supreme Court struck down key elements of the Defense of Marriage Act that prohibited any federal recognition of same‐sex marriage. Most states do not allow same‐sex marriage, but more and more states are joining the fold. Likewise, most U.S. states do not forbid discrimination based on sexual orientation, but the number that does is increasing. Arguably, no other social minority has made as much legal progress in so short a time. Despite these advances, the story of gay and lesbian people and the law is not yet finished, and the meaning of homosexuality for bioethics is still being written too. Concerns about gay and lesbian people remain important to bioethics in key domains, especially in seeing to the conferral of optimal health care benefits and in sorting through the priorities and social effects of research. Progress in these domains still involves lifting certain burdens of medical and social misjudgments about same‐sex attraction. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Catholic Postliberalism in the Ruins of "the Catholic Moment"James F. KeatingA historically conversant reader interested in the current state of discourse regarding Catholicism and American politics will find a good amount of familiar discord. He will discover, for example, that the life issues continue to bedevil. Can a Catholic vote in good conscience for an abortion-rights candidate over a pro-life competitor if that candidate is more supportive of other (...) policies in line with Catholic Social Teaching? This issue has, of course, been with the American Church for some time now, even if it has taken on renewed urgency given the coincidence of the overturning of Roe v. Wade with the presidency of Joseph Biden, the second Roman Catholic to hold that office and a recent convert to pro-choice stridency. The action of the Supreme Court and the battles within the various states will ensure that abortion remains at the political heart of American Catholicism for years to come. One can say something similar about other issues, such as immigration, gun control, and economic justice. None of this will be found to be particularly surprising. The same cannot be said, however, of the return of a more fundamental question, one thought to have been settled since the mid-1960s. That question is whether Roman Catholicism and American liberal democracy are incompatible to the extent that Catholics ought to seek, if possible, another constitutional arrangement, one more friendly to the Catholic cause.Our reader would be familiar with the standard narrative that, while the existence of a medieval Church in a modern polity that upholds religious freedom had been a matter of concern since the dawn of the Republic, it [End Page 991] became serious only in the first half of the twentieth century as the number of Catholics and their influence grew. Until that time, American bishops, such as Archbishop John Ireland (1815–1918), made a special point of speaking publicly on the benefits of American freedom for the Church, just as they made clear that Catholics could be as patriotic as any other citizen. If there were tensions, they came primarily from anti-Catholic bigotry and governmental overreach. Things changed, however, when the point at issue was no longer primarily a religious one of Catholic believers infecting their Protestant neighbors with erroneous doctrine, but rather the threat so many Catholics posed to the fate of American freedom itself. In a postwar America concerned with the spread of Soviet communism, Paul Blanshard found a ready audience for his scholarly anti-Catholic diatribes, American Freedom and Catholic Power (1949) and Communism, Democracy, and Catholic Power (1951).1 Without much difficultly, he pointed to various statements of Gregory XVI and Pius IX condemning the separation of Church and state, the freedom of religious conscience, and democracy as the best governmental form. To top things off, he had Leo XIII's Testem Benevolentiae, an 1899 letter to the Cardinal Archbishop James Gibbons of Baltimore, warning him and his fellow bishops not to speak of the constitutional arrangement of the United States as a political ideal. While Leo had positive things to say about the American system, his admonition followed the traditional line: while constitutional protections of religious freedom are necessary when Catholics are in the minority, the ideal situation is a state that officially confesses and supports the Catholic religion. Of more recent vintage, Blanshard could quote the response of America's best-known Catholic theologian, Monsignor John A. Ryan, to the question of whether non-Catholics would be permitted to practice their religion in this ideal state:If these are carried on within the family, or in such inconspicuous manner as to be an occasion neither of scandal nor of perversion to the faithful, they may be properly tolerated by the State,... Quite distinct from the performance of false religious worship and preaching to the members of the erring sects, is the propagation of the false doctrine among Catholics. This could become a source of injury, a positive menace, to the religious welfare of true believers. Against such an evil they have a right of protection by the Catholic State... If there is only one true religion, and... (shrink)

As Professor Dov Fox points out in his essay, reference to “potential life” in American abortion jurisprudence is both indeterminate and underspecified. This commentary highlights that use of the phrase “potential life” by courts also obscures the fact that a position has been taken that biological life is not the equivalent of legal personhood. Worse, the position has been imposed on those who do not share it without offering reasons to justify its imposition in terms that those who oppose (...) it can reasonably be expected to endorse. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Philosophy 40.2 (2002) 274-275 [Access article in PDF] Book Review Perspectives on Habermas Lewis Edwin Hahn, editor. Perspectives on Habermas. New York: Open Court, 2000. Pp. xiv + 586. Paper, $29.95. This collection of essays on the wide-ranging body of thought produced by Jürgen Habermas over the course of close to fifty years represents a significant lost opportunity. Although originally planned as a volume (...) in the Library of Living Philosophers series, in 1999 Habermas pulled out of the project because, as Hahn tells us, "of other events in his life" (ix). Volumes in this series have typically provided unique and valuable resources: not only quality secondary essays by leading contemporary philosophers, but essay-by-essay responses by the featured philosopher, as well as an intellectual autobiography, and a useful bibliography. Unfortunately, the present volume not only lacks Habermas's responses to the contributors, an intellectual autobiography, and a bibliography of his works, but is also comprised of essays whose collective quality can only be considered notably erose, containing essays of both significant and questionable value.First the bad news. Of the twenty-nine essays just over half are not worth reading for those either new to, or long familiar with, Habermas. The great majority of these present significantly distorted or confused accounts of different aspects of his work, often apparently based on little or no familiarity with the primary source material, and close to none with the significant body of secondary literature. Some authors seem not to have read anything published in English translation by Habermas past 1973 or so, even though his two most significant works--The Theory of Communicative Action (1984 and 1987) and Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996)--appeared later. Ignorance of the second of these is especially pronounced throughout and regrettable since many patently false claims about Habermas's positions on issues in political philosophy, legal theory, and social theory could have been avoided by consulting Between Facts and Norms, rather than deriving "Habermas's position" aprioristically from what one thinks he might say. Other essays present particularly nasty and personalized invective in the place of argument: one author for example, calls Habermas's political opinions "pathological," "inhumane," "exhibiting a seriously flawed sensitivity," and so "beastly" as to raise "profound questions about the writer's claims to superior rationality."The good news is that close to half of the volume contains important and stimulating work. Some of the best of this performs the crucial tasks of sensitively explicating Habermas's ideas, carefully critiquing them where needed, and finally extending the reformed ideas to new domains, new problems, and new issues. Exemplary in this way is James Bohman's [End Page 274] piece on reviving the project of ideology critique by using Robert Brandom's pragmatic inferentialism to cash out Habermas's notion of systematically distorted communication. Other useful articles on broadly epistemic themes include those by David Detmer, Richard Palmer, Carlos Pereda, and Beth Singer.Two essays--by Enrique Dussel and James Marsh--represent broad and incisive, yet sympathetic, critiques of Habermas for not sufficiently carrying through on the emancipatory promise of critical theory. Both point to a certain preoccupation in Habermas's work in moral and political theory with issues of rationality, proceduralism, and ideal justification that seems to have crowded out a practical focus on issues of poverty, inequality, and exploitation, especially as these are articulated through the emerging structures of global capitalism and along the fault lines separating West and East, North and South. Concurring in political upshot, but drawing on Habermas's new form of social contractarian argument, David Ingram argues provocatively that Habermas's ideals of social equality require much more radical forms of "market socialism" and direct democratic self-organization than Habermas himself is willing to endorse. Douglas Kellner's outstanding article gives a clear overview of Habermas's changing conception of the public sphere and its role in democracy, presents various criticisms of that, and argues for an account conceptually and evaluatively adequate to the emergence... (shrink)

The present study, “Learning to Cope With Ambiguity: Reflections on the Terri Schiavo Case” looks at the many complexities of dealing with Persistent Vegetative State (PVS). By its very nature PVS is ambiguous. It is difficult to diagnose and, even when the diagnosis appears to be certain, there is a multiplicity of ethical issues and treatment options to consider. There are four high profile PVS court cases that can help us understand the Schiavo situation. They are Karen Ann Quinlan, Nancy (...) Kruzan, Helga Wanglie, and Daniel Fiori. These cases share many common features with each other and with Schiavo. In the final analysis, the judicial decisions inevitably point us to the ongoing need to live and cope with ambiguity. (shrink)

In a recent article, Thomas Nagel argues against the court’s decision to strike down the Dover school district’s requirement that biology teachers in Dover public schools inform their students about Intelligent Design. Nagel contends that this ruling relies on questionable demarcation between science and nonscience and consequently misapplies the Establishment Clause of the constitution. Instead, he argues in favor of making room for an open discussion of these issues rather than an outright prohibition against Intelligent Design. We contend that Nagel’s (...) arguments do not succeed. First, we argue that Nagel’s case trades on an ambiguity regarding the content of non-theological views and fails to engage adequately some of the problems of ID. Then we raise concerns about Nagel’s conclusion; specifically, we will point to three incongruities between Nagel’s argument and his conclusion, and then we will raise a more general worry about the likely impact of Nagel’s view. (shrink)

In a recent article, Thomas Nagel argues against the court’s decision to strike down the Dover school district’s requirement that biology teachers in Dover public schools inform their students about Intelligent Design. Nagel contends that this ruling relies on questionable demarcation between science and nonscience and consequently misapplies the Establishment Clause of the constitution. Instead, he argues in favor of making room for an open discussion of these issues rather than an outright prohibition against Intelligent Design. We contend that Nagel’s (...) arguments do not succeed. First, we argue that Nagel’s case trades on an ambiguity regarding the content of non-theological views and fails to engage adequately some of the problems of ID. Then we raise concerns about Nagel’s conclusion; specifically, we will point to three incongruities between Nagel’s argument and his conclusion, and then we will raise a more general worry about the likely impact of Nagel’s view. (shrink)

The clash between religious freedom and equality for lesbians and gay men has become a controversial legal issue in the United Kingdom. Increasingly, claims are made that compliance with anti-discrimination norms impacts upon conscientious, faith-based objectors to same-sex sexual acts. This article explores this issue and draws insights from North American case law, where this question has been considered in the context of competing constitutional rights. It raises far-reaching issues concerning the distinction between belief and practice, as well as the (...) role of identity in the public sphere. The author advocates that courts and tribunals should adopt a fact-specific approach which is sensitive to the rights in a particular context, and which focuses upon the values of accommodation, tolerance and mutual respect. (shrink)

Although the prison was originally conceived for the noble purpose of rehabilitating criminal offenders, critics from its very inception worried that the prison was an inherently criminogenic institution, reinforcing the criminal behaviors of its occupants. In this article I focus on an indirect mechanism, elaborating and empirically testing the impact of a prison record/experience on ex-inmates' labor market outcomes, by which ex-inmates will face significantly higher risks of recidivism and hence future prison spells, especially when they are released into weaker (...) labor markets. Specifically, I specify and test a version of the "secondary labor market hypothesis." Because most ex-inmates were mired in secondary jobs prior to their incarceration, I consider the impact of a prison record/experience on their chances of "moving up" to good jobs with higher pay, steadier hours, and greater mobility. In the conclusion I draw out the somber implications of my labor market analyses by examining trends in recidivism rates and their social costs. The evidence suggests that the War on Drugs policies have trapped an increasing number of more marginal drug offenders in the revolving door of recidivism, conventionally defined. It also highlights a new and quantitatively important recidivism risk for released prisoners, the revocation of parole on technical violations. To break out of this vicious cycle, my analysis shows, would demand vast direct government interventions in the labor market. As a more modest first step, I consider policy innovations like drug courts that place marginal drug offenders in treatment programs rather than prison. In illustrating and elaborating my arguments, I focus on the War on Drug policies and on marginal drug offenders. My reasons are several. First, the War on Drugs constituted a true social experiment, an exogenous shift in criminal justice policy that is best understood as a "moral" panic, precipitated in part by the tragic but transitory episode of lethal gun violence in the social regulation of the crack trade. Second, the War on Drugs policies were quantitatively important in instituting the regime of mass incarceration. And finally, these policies indiscriminately incarcerated marginal, not just more serious, offenders. (shrink)

The several articles in this special issue on organ donation after circulatory determination of death or, as it is often put, donation after cardiac death, draw lessons from different kinds of experience in order to guide efforts in the U.S. to develop or refine policies for DCD. One lesson comes from a major and, by many measures, successful experimental DCD program in Washington, D.C. in the 1990s. Another lesson comes from European countries that have adopted presumed-consent legislation, a form of (...) “opt out” that facilitates DCD as well as donation after neurological determination of death. Another lesson, from the perspective of critical care medicine in Canada, attends to the implications of viewing a dying patient, undergoing resuscitative procedures, as a potential organ donor. A final lesson sketches implications of legislation and court cases in the U.S., often involving DND, for initiating temporary organ preservation in DCD programs before consent has been obtained for organ donation. Some of these lessons are optimistic about the prospects for DCD, especially if certain steps are taken, while others are more cautious, particularly because of the costs and risks involved in DCD. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Guibert of Tournai's Letter to Lady Isabelle:An Introduction and English TranslationLarry F. Field, Jacques Dalarun, Sean L. Field, and Guibert of TournaiIntroductionGuibert, from the noble family of As-Piès, was born near Tournai around 1200. From his hometown he traveled to Paris for his art degree, and completed the curriculum in theology there before entering the Franciscan Order around 1240. He may have participated in Louis IX's crusade of 1248, (...) but, if so, was surely back in Paris by 1254 at the latest, since he preached a cycle of sermons de dominicis et de sanctis to the university community before summer 1255.1 His regency as Franciscan master of theology at Paris was probably around 1259–1261,2 about the time he [End Page 31] completed his Eruditio regum et principum for Louis IX,3 and began his most substantial work, the Erudimentum doctrinae.4 Other significant treatises include his De pace et animi tranquillitate (ca. 1275)5 written for Marie de Dampierre, and the Collectio de scandalis ecclesiae, prepared for the Second Council of Lyon.6 Guibert died in Tournai on 7 October 1284.7Sometime around 1254, Guibert wrote a long letter of spiritual advice to Isabelle (1225–70), the sister of King Louis IX.8 Isabelle was herself a remarkable figure. She had rejected several proposals of marriage, including that with Conrad, the heir to Emperor Frederick II, in 1243, in spite of pressure from her family and Pope Innocent IV. But following a bout of serious illness at about that time,9 her family accepted her [End Page 32] decision to remain unwed. There is no evidence, however, that Isabelle ever pronounced a formal vow of virginity. Through the 1250s she simply remained at the Capetian court as a virgin princess with an increasing reputation for piety and indeed holiness, praised in lavish terms by Innocent IV in 1253 and Alexander IV in 1256.10 This piety took a distinctly Franciscan turn by 1254, when Pope Innocent IV granted her request for Franciscan confessors,11 which would ultimately result in her foundation of Longchamp, a house of Sorores minores just west of Paris, by 1260.12 Guibert's letter shows no awareness of such a project, indicating that it must have been written before spring 1255, by which time the land for Longchamp was being purchased on Isabelle's behalf.13 Guibert thus wrote at the moment when Isabelle was forming her first ties to the Franciscans, but well before her move to Longchamp, where she lived out the 1260s as resident lay patron (but never a nun).Guibert's Letter is really a short treatise of spiritual and moral advice, tailored to a celibate princess. It is organized around Psalm 44:14–15, All the glory of the king's daughter is within in golden fringes, clothed around with varieties. In a five-part structure, the king's daughter stands for a heavenly inheritance; glory within represents internal purity; gold indicates virginity; the fringes are a sign of humility; and clothed around with varieties points to honest comportment. The resulting "royal garment," however, is rather unequally woven together, with section one on the "heavenly inheritance" and the intertwined sections three and four on virginity and humility receiving by far the most space. In fact, section one forms a sort of treatise-within-a-treatise, organized as a ten-step ascent to the heavenly inheritance awaiting the daughter of the king. [End Page 33]The Letter to Lady Isabelle was first edited by Alphonse de Poorter in 1931, from a manuscript which contained only part of the text.14 The full text was brought into print by Sean Field in 2003,15 and translated into French by Jacques Dalarun in 2014.16 Yet in spite of these advances, the Letter has remained little noticed by scholars. Anne-Hélène Allirot offered several perceptive pages in 2010, stressing the way Guibert's treatment of hereditas implies that female members of the royal family might be particularly able to embody Capetian claims to holiness.17 That same year, in the only recent article dedicated specifically to this Letter, Rina Lahav... (shrink)