ArgumentThis article argues that in order to discern the place of science in the epistemology of Chinese common readers, it is critical to look beyond the coastal enclaves where foreign missionaries and experts interacted with Chinese scholars and officials, beyond the translated treatises they produced, and even beyond the various forms of new media that attempted to more widely disseminate the principles of Western science. Instead, it asserts the need to engage a different register of materials that were less directly (...) tied to foreign expertise, more directly in line with pre-existing lineages of printed materials, and at the same time, integral to early-twentieth-century Chinese circuits of information. The article focuses explicitly on one print phenomena that has been completely overlooked in the scholarship to date, the expansion and revitalization of the genre of texts known aswanbao quanshu萬寶全書 (comprehensive compendia of myriad treasures) in the late Qing (1890-1911) and early Republic (1912-1930). (shrink)

On September 18, 1995, the U.S. Court of Appeals for the Seventh Circuit handed down a decision in Blue Cross & Blue Shield United of Wisconsin v. Marshfield Clinic ) that sets two important precedents regarding the status of health maintenance organizations under antitrust law. Chief Judge Posner, writing for the court, concluded that HMOs do not constitute a market separate from the general market for medical services and that agreements, between HMOs in a region, to operate in (...) separate areas constitute a prohibited form of market splitting.This case primarily involves two HMOs in north central Wisconsin: one a subsidiary of Blue Cross, the other a subsidiary of the Marshfield Clinic. The Blue Cross HMO claimed that the Marshfield HMO had an illegal monopoly in the region's HMO market and therefore violated the Sherman Act ). (shrink)

The dominant social scientific approach to studying judicial behavior treats judges as strategic actors pursuing their political preferences under institutional constraint. The intellectual roots of this rational choice approach are in American law’s long but sporadic engagement with pragmatist ideas. This article challenges that approach: a fully pragmatist account of judicial action provides a better description of the intellectual and social work of judging, and better explains how judges reach a decision in difficult cases that most affect the development of (...) law and its relationship to society. The article argues that the foundational intellectual problem for appellate judges is how to define the legal questions presented in a case. Definitions of legal questions arise from the interplay of habitual and creative action in the local social context of an appeals court. Professional and local interpretive habits and legal forms ordinarily do a great deal to define the key questions, which are not strictly determined when a case comes before a court. Unscripted small group interactions at oral arguments also figure in question definition; oral arguments are most important in the rare but legally important cases where habitual practices alone are insufficient to delimit the legal question judges must answer. Supported by extensive interviews with federal appeals judges and clerks, the article illustrates judges’ creative, interactional efforts to define an answerable question in a major asylum case decided in the Seventh Circuit Court of Appeals. Building from this case, the article describes the factors that shape judicial question definition, and describes the conditions when creative judicial action is likely to be most prominent. (shrink)

The United States Court of Appeals for the First Circuit recently upheld a United States District Court for the District of Maine Judge's decision to dismiss a Maine plaintiff's medical malpractice claim against a Massachusetts hospital defendant for want of personal jurisdiction over the hospital. The Court of Appeals found it unreasonable to hale hospitals into an out-of-state court merely because they accept out-of-state patients.Plaintiff Danielle Harlow is a Maine resident who suffered a stroke at the age of (...) six while undergoing a medical procedure at Children's Hospital of Boston, Massachusetts. The stroke, allegedly caused by the Hospital's negligence, led to brain damage resulting in partial paralysis and cognitive and behavioral impairments. The procedure was supposed to treat Harlow's rapid heartbeat, a condition related to her Wolff-Parkinson-White Syndrome. Harlow's pediatrician in Maine recommended that she visit Children's Hospital in Boston to treat her arrhythmia. (shrink)

The United States Court of Appeals for the Second Circuit recently upheld United States District Court for the Eastern District of New York Judge's denial of petitioner's application for a writ of habeas corpus. The Court held that it was not objectively unreasonable for the Appellate Division to conclude, in light of clearly established federal law as expressed by the Supreme Court of the United States, that a New York statute providing for the recommitment of specific defendants who (...) plead not responsible by reason of mental disease or defect under a mere “preponderance of the evidence” standard does not violate either due process or the equal protection clause of the Fourteenth Amendment. (shrink)

The Bazelon Center for Mental Health Law, founded as the Mental Health Law Project by a group of attorneys and mental health professionals, has been a major advocacy force promoting the civil rights of persons with mental disabilities since the 1972 New York Willowbrook litigation.Named for D. C. Circuit Court of Appeals Judge David L. Bazelon, whose opinions first articulated the principles that the mentally disabled have a right to treatment in the least restrictive alternative setting, the Center (...) has actively pursued greater rights for the mentally disabled in housing, education, and federal entitlements such as Medicaid, as well as in treatment-related issues. (shrink)

The legal literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. However, this test is infrequently mentioned by the courts and almost never explains their decisions. Instead, they apply, explicitly or implicitly, various justice-based standards that take into account the rights and relationships among the parties. This is true even for the two judges most closely identified with the aggregate-risk-utility test: Learned Hand and Richard Posner. During the five decades that Hand served (...) as a federal judge, he mentioned the test in only eleven opinions, between 1938 and 1949, and in none of those opinions did he actually apply the test to resolve the negligence issue. In his last reference to the test, in 1949, he essentially abandoned it. None of his fellow circuit judges ever mentioned the test. Posner claims that the Hand formula expresses an economic efficiency interpretation of negligence that has long been implicit in judicial opinions. However, Posner’s arguments are based on speculative and implausible assumptions, overbroad generalizations, selective quotations, and superficial descriptions of cases that misstate or ignore facts, language, rationales, and holdings that are inconsistent with his argument. The same flaws are apparent in Posner’s attempts to apply the Hand formula in his own judicial opinions. Neither he nor his like-minded colleague, Frank Easterbrook, has been able to employ the Hand formula to resolve the negligence issue in any case, and none of their fellow circuit judges has attempted to do so. (shrink)

The doctrine of double effect has a firm, respected position within Roman Catholic medical ethics. Neil M. Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit, believes that this doctrine also enjoys a central place within U.S. law. This essay examines and assesses Gorsuch’s thesis. National Catholic Bioethics Quarterly 11.1 (Spring 2011): 31–40.

In lieu of an abstract, here is a brief excerpt of the content:Refusals of Treatment and Requests for DeathTom L. Beauchamp (bio)It would be hard to overestimate the importance of two decisions on physician-assisted suicide delivered recently by the Ninth and Second Circuit Courts (Compassion in Dying v. State of Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), aff’g 850 F.Supp. 1454 (W.D. Wash. 1994), rev’g 49 F.3d 586 (9th Cir. 1995); Quill v. Vacco, 80 F.3d 716 (2nd (...) Cir. 1996). They are the highest courts yet to render an opinion on this subject, and their decisions have set the stage for the U.S. Supreme Court to take one of two paths: It will either say that (1) all citizens have a liberty interest in physician-assisted suicide, or that (2) each state may set its own policy on such matters. Whichever path is elected, a right to request physician-assisted suicide is a virtual certainty, at least in some states.These opinions are later segments of an evolving legal history in which courts have held that no criminal liability exists for withholding or withdrawing a life-sustaining treatment when physicians are directed to do so by a patient or an authorized surrogate (see Alan Meisel 1992). The decriminalization of suicide and the right to refuse a life-sustaining treatment now appear to be evolving into a rule that a patient has a legal right to control his or her death, or at least to obtain a lethal prescription. We are at a delicate point in this evolving history. Neither in law nor in bioethics is the justification of physician assistance in suicide the received opinion at the present time, but support for physician assistance in dying could soon become the received opinion in both disciplines.The leading edge of the wedge producing these changes has been widespread acceptance of an extensive right to refuse treatment. This right is today axiomatic in even conservative quarters of bioethics, but 20 years ago it was far from axiomatic that all patients have a right to refuse treatment. Few at that time judged that it would be both immoral and illegal for a physician not to forgo treatment in the face of a competent, authoritative refusal of any form of medical service or treatment.The justification for assistance in bringing about death in medicine is an extension of the justification for letting patients die. Letting a patient die by accepting a valid refusal to continue in life is directly analogous to helping a patient die by accepting a valid request for help. The high value we place on [End Page 371] rights of autonomy thereby spills over from the right to refuse to the underexplored right to request active assistance. 1 As the autonomy interest in this choice increases, denial of help to the patient becomes more burdensome.Those who defend the view that euthanasia and physician-assisted suicide are morally prohibited typically assume that assistance involves an act of killing, that acts of killing are impermissible, and that a defensible distinction exists between killing and letting die. However, this distinction has proved difficult to explicate, and the category of killing often seems distant from the problem at hand. For example, it is an eccentric view that a physician who prescribes a lethal medication to a patient thereby kills the patient (or, for that matter, lets the patient die) when the patient voluntarily ingests the medication and dies. So poor are the conceptual understandings of “killing” and “letting die” that conceptual confusion abounds as to which term to use in almost all morally difficult and controversial cases.A common view is that “letting die” is a matter of “ceasing useless treatments” after which patients die (Gaylin, Kass, Pellegrino, and Siegler 1988). This account is attractive, but too narrow. “Letting die” occurs in medicine under at least two circumstances: cessation of treatment because it is useless and cessation of treatment because it has been refused (which can occur even with useful treatments). Neither conceptually nor morally is “ceasing useless treatment” the proper way to state the condition under which many “letting-die” cases occur. It follows that the type of action—killing or letting... (shrink)

The Oxford English Dictionary explains that the word “consent” originally derives from the “Latin consentīre to feel together, agree, accord harmonize”, further broken down into “con- together + sentīre to feel, think, judge, etc.” Thus, consent is originally a matter of mutual activity and receptivity, specifically a co-creating co-creation based on shared, ongoing feeling. What this seems to imply – and this is certainly always been true in my experiences with social Latin dance – is that consent is not (...) a static thing, not an object or product that has been definitively produced and recorded. Instead, consent is an ongoing process, a reciprocating experiencing that is crucially both beyond one individual dancer, and also simultaneously active and receptive. Altogether, then, consent in social Latin dance emerges as a process of doing and undergoing together. Thus, if the connection of dancing consent is broken, for example if one partner shifts from the acting/receiving balance to a state of exclusive acting (with no receiving), then consent is no longer transpiring, which greatly increases the risk of unwanted touch beginning and continuing. Put simply, wanted touch is consensual touch, and consensual touch is touch that is supported by an ongoing activity and receptivity of consent. Wanted touch in dance is thus analogous to a “closed” electrical circuit. (In fact, at the cellular level of a dancer’s body this truth is literal rather than merely analogous, given the neurochemical dimension of the body’s activities). A closed circuit, in this technical sense, refers to a circuit in which there is no break in the path (for example between a device and an outlet), an unbrokenness that sustains a live current in the circuit. By contrast, unwanted touch in social Latin dance is like an open circuit, involving a break in the path between the partners, which entails the absence of the necessary current of consent. (shrink)

Baby Theresa, in her short 9-day life, cast a national spotlight on the question “Should anencephalic infants be used for organ procurement?” In denying her parents′ wishes to donate the baby's healthy organs to other children in need of kidneys, liver, heart, and lungs, Circuit Court Judge Estella Moriarty said, “I cannot authorized someone to take your baby's life, however short, however unsatisfactory, to save another child.”In citing a1988 Florida statute that does not allow a person to be (...) declared dead while any part of the brain is functioning, Judge Moriarty ruled that doctors could only remove organs not vital to Theresa Ann's life. As the baby slowly died, so too did her vital organs. (shrink)

The conflict between courts and medicine is best shown in the mental health cases requiring judgment of whether a person should be confined, and whether they should be medicated or left free to decide for themselves. In such cases, deprivation of liberty for noncriminal offenders is at question, but if they are released, they may be exposed to injury or injure others. “Clear and convincing” evidence is hard to prove in such cases.The TOPOFF 2 terrorism preparedness exercise was two years (...) in planning, but the courts were involved only seven days before the exercise. Judge Murphy was put in charge of the Circuit Court building and was asked to stop all court proceedings to stop people from going into a building that might have been contaminated. (shrink)

An asteroid colliding with the earth could cause the extinction of our species. Is this a risk worth worrying about? More important, is it a risk worth doing something about? Richard A. Posner, a judge on the United States Court of Appeals for the Seventh Circuit, who produces more books in his leisure hours than most authors do working full time, thinks it is.

The United States Supreme Court's decision in Bell Atlantic Corp. v. Twombly is creating quite a stir. Suddenly gone is the famous loosey-goosey rule of Conley v. Gibson that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.Now a complaint must provide enough facts to state a claim to relief that is plausible (...) on its face. Only decided last May, Bell Atlantic has been cited in over 3,700 cases. Already being described as a landmark decision, Bell Atlantic nonetheless has lawyers and judges scratching their heads over the precise pleading standard to apply in its wake. As the Second Circuit (mildly) put it, Considerable uncertainty concerning the standard for assessing the adequacy of pleadings has recently been created by the Supreme Court's decision in Bell Atlantic Corp. v. Twombly. Just what is a plausible showing that the pleader is entitled to relief under Rule 8(a)(2)?I believe an answer lies in the 26-year-old decision of the Former Fifth Circuit in In re Plywood Antitrust Litigation. Plywood Antitrust requires, at a minimum, that a complaint . . . contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. Already used in more than half the circuits, this standard paraphrases advice found in the venerable WRIGHT & MILLER for nearly 40 years.Properly applied, this all . . . material elements standard satisfies Bell Atlantic's plausibility requirement in all respects. The Plywood Antitrust pleading standard works well after Bell Atlantic, first, because the Supreme Court referred to the standard, albeit parenthetically, with approval in Bell Atlantic. Second, it does much to harmonize the Federal Rules' goal of dispensing with pleading technicalities while still requiring enough general factual information about a pleader's claim to make the notice in notice pleading meaningful. Finally, and perhaps most importantly, it gives lawyers, litigants, and courts a standard they can actually use when drafting, or assessing the sufficiency of, pleadings. (shrink)

Are federal prosecutions of non-federal officials for corruption likely to improve non-federal government? This essay suggests that such prosecutions can undermine the distinctive style of democracy at the state and local level, an effect that can be harmful to democracy in America overall. This conclusion rests on a larger argument about the different nature of federal and non-federal democracy in the United States. To insure that each official maintains impartial loyalty to values defined by a single, popularly accountable policymaker, the (...) federal system of bureaucratic populism strictly separates the officials’ public and private interests, through various devices such as civil service protection for executive officials, Article III life tenure, and fixed salary for federal judges, specialized training for federal officers, and conflict-of-interest rules that bar federal officers from acting when their judgment could be compromised by private interests. By contrast, participatory populism rejects this separation of the public and private spheres, instead mixing professional and lay decision-making by using thousands of part-time, under-paid executive and legislative officers who are expected to have substantial private interests in the communities that they represent. The essay argues that each style of democracy has mutually exclusive advantages and disadvantages. However, enforcement of federal anticorruption law against non-federal democracies can undermine their system of mingled private and public interests, reducing the degree to which such governments can provide laypersons with opportunities for political activity. As an illustration of the overextension of federal criminal law, I examine the First Circuit’s interpretation of 18 U.S.C. §§ 1341 and 1346, the federal mail fraud statute in United States v. Sawyer. Sawyer comes dangerously close to declaring that any undisclosed state or local officer’s conflict of interest constitutes a violation of § 1346 when it involves the U.S. mails. I argue that this view of § 1346 is an error. Participatory populism requires that private and public tasks be closely mingled in ways that bureaucratic populism forbids. Undoubtedly, this mixture of public and private creates a risk that public office will be used for private gain. However, it also avoids some of the bureaucratic sclerosis and lack of lay participation that can be endemic to the more centralized federal tradition. In conclusion, I suggest that federal prosecutors ought to content themselves with using § 1346 to enforce already-existing state criminal conflict-of-interest rules, for the sake of preserving a place in our federal regime for participatory populism. (shrink)

This guide accompanies the following article(s): ‘Full Disclosure of the “Raw Data” of Research on Humans: Citizens’ Rights, Product Manufacturer’s Obligations and the Quality of the Scientific Database.’Philosophy Compass 6/2 (2011): 90–99. doi: 10.1111/j.1747‐9991.2010.00376.x Author’s Introduction Securing consent (and informed consent) from patients and research study participants is a key concern in patient care and research on humans. Yet, the legal doctrines of consent and informed consent differ in their applications. In patient care, the judicial doctrines of consent and informed (...) consent are disclosure doctrines based on the obligation of physicians to inform their patients of the following types of information: the nature of the procedure the physician is recommending in the patent’s care (P), the alternatives to the physician‐recommendation (A), and the risks of procedure and its alternatives (R). In addition, the physician must provide truthful answers to the patient’s questions (Q) to the best of the physician’s abilities. In research on humans, the onus of disclosure by study sponsors and principal investigators is much greater than in patient care precisely because the purpose of research is not patient care. The purpose of research is the identification and development of new generalizable knowledge. Thus, participation in a research study or trial may not benefit the study volunteer at all. In addition, the participant may carry a heavy risk burden in relationship to any testing of a newly designed drug or device as part of their experiences in the research study. Presently, despite the risks borne by the research study participant, the raw data collected from volunteers in research trials are treated by courts as if they were the private property of the study sponsor rather than generally owed to the public as would be expected by an effort like research participation aimed at contributing to the development of generalizable knowledge. This paper reviews the obligations that study sponsors owe to their study participants based on the very definition of research as a systematic activity whose purpose is to develop generalizable knowledge to help all humans. Author Recommends Court cases Canterbury v. Spence, United States Court of Appeals, District of Columbia Circuit 464 F.2d 772 (1972). (Federal appellate decision heard in the District of Columbia, USA) Reibl v. Hughes, 2 S.C.R. 880 (1980). (Supreme Court of Canada) Rogers v. Whitaker, 175 C.L. R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Canterbury v. Spence is the landmark Federal informed consent case in the United States heard in the District of Columbia. In this case, Judge Spottswood Robinson articulated the reasonable person standard of informed consent. This standard was subsequently adopted by the Supreme Court of Canada (Reibl v. Hughes, 2 S.C.R. 880 (1980)) and the High Court of Australia (Rogers v. Whitaker, 175 C.L. R. 479 (1992)). The House of Lords rejected the reasonable person standard in England in Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985). Book Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. This book is a detailed guide for the review of scientific and ethical aspects of research on humans contained in the research study protocols and research informed consent forms which need to be submitted by study sponsors and principal investigators to institutional review boards (IRBs) for IRB review before a research study can receive approval to be conducted within a human study population in those institutions over which the IRB has authority. It also presents basic definitions in the area of research on humans and basic approaches to help conduct a deep review of the underlying scientific and ethical issues that are present within a research study protocol and its accompanying research informed consent form. Report National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). This U.S. National Commission in the Belmont Report argued for the necessity of a reasonable volunteer standard in research on humans in the United States. Arguing that the professional standard and the reasonable person standard of consent and informed consent were insufficient to base a disclosure standard in research on humans, this National Commission developed the reasonable volunteer standard where a study participant is to be approached in research informed consent with that information that a reasonable volunteer would want to know. Online Materials Belmont Report: Syllabus Topics for Lecture and Discussion Week I: Introduction and Overview Readings: Rogers v. Whitaker, 175 C.L.R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week II: The Different Standards of Consent and Informed Consent Readings: Canterbury v. Spence, 464 F.2d 772 (1972). (Federal appellate opinion heard in the District of Columbia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week III: Definition of Research Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 2 and 3) Week IV: How to Review a Research Study Protocol and Research Informed Consent Form Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 4–6, 10, and 12–14) Week V: Obligations in Research of Humans Versus Patient Care Reading: National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). Focus Questions • How do the judicial doctrines of consent in England and Australia compare to the judicial doctrines of informed consent in the United States and Canada? • How does a professional standard of disclosure differ from a reasonable person standard of disclosure? • What is the definition of research? • How is a research study (study proposal and research informed consent form) reviewed from scientific and ethical bases for considerations of approval by an IRB? • How do the obligations of a study sponsor, a principal investigator, and a research team conducting a research trial on human study participants differ from the obligations of a physician caring for a patient? • Should all raw data of research derived from humans be made available to the public for use in developing generalizable knowledge to help others, or should raw data be considered the private property of the study sponsors (for example, prescription drug manufacturers), who fund the research trials? Seminar/project Idea Draw a timeline of the development of the basic concepts of consent and informed consent in patient care and in patient research. On this timeline, first place the dates of the key court cases in England, the United States, Canada, and Australia on consent and informed consent. Then place the date of the development of the Belmont Report. Why do differences exist between these four countries in terms of the legal requirements of informedness of a patient (in medical care) and a study participant (in medical research)? What roles if any do the concepts of self‐determination and self‐decision have in consent and informed consent in patient care and in informed consent in research on humans among the four countries of interest? What are the realities of research on human participants that require a new standard of informed consent, the reasonable volunteer standard, to be developed beyond the two standards in patient care, the professional standard, and the reasonable person standard? Counterpoint Arguments The following are counterpoint arguments that need to be appreciated to more fully understand the concepts that impact the thesis that ‘raw data’ should be open to the public to allow the opportunity of checking of the results of its associated scientific paper and for further analysis. De‐Identified (Anonymized) Raw Data A current approach to identifying (anonymizinig) raw data is based on the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L.104‐191). HIPAA was enacted by the U.S. Congress in 1996 to keep a person’s medical information private. In a research study, a person’s private medical information can become research data. HIPAA’s Privacy Rule allows a covered entity to de‐identify data by removing all 18 elements that could be used to identify the individual or the individual’s relatives, employers, or household members; these elements are enumerated in the Privacy Rule. The covered entity must also have no actual knowledge that the remaining information could be used alone or in combination with other information to identify the individual who is the subject of the information. Under this method, the identifiers that must be removed are the following: 1 Names. 2 All geographic subdivisions smaller than a state, including street address, city, county, precinct, ZIP Code, and their equivalent geographical codes, except for the initial three digits of a ZIP Code if, according to the current publicly available data from the Bureau of the Census: 2a. The geographic unit formed by combining all ZIP Codes with the same three initial digits contains more than 20,000 people. 2b. The initial three digits of a ZIP Code for all such geographic units containing 20,000 or fewer people are changed to 000. 3 All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, and date of death, and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older. 4 Telephone numbers. 5 Facsimile numbers. 6 Electronic mail addresses. 7 Social security numbers. 8 Medical record numbers. 9 Health plan beneficiary numbers. 10 Account numbers. 11 Certificate/license numbers. 12 Vehicle identifiers and serial numbers, including license plate numbers. 13 Device identifiers and serial numbers. 14 Web universal resource locators (URLs). 15 Internet protocol (IP) address numbers. 16 Biometric identifiers, including fingerprints and voiceprints. 17 Full‐face photographic images and any comparable images. 18 Any other unique identifying number, characteristic, or code, unless otherwise permitted by the Privacy Rule for re‐identification. Even though ‘raw data’ can be de‐identified (anonymized) so that there is no way to trace back the data to the study participant from which it was drawn, there are still questions whether the ‘de‐identified raw data’ can be given to other researchers or made public without the original study participant’s approval. It may be the case that this approval could be done at the start of any research study where the individual considering study participation would be counseled on what the process of de‐identification consists of and would be asked whether the participant would allow use of the data by other researchers or made available to the public in a de‐identified state. However, there may be questions of the study participants as to whether the data are truly de‐identified and untraceable back to the study participant since the participant would not be able to see the process actually being carried out in detail in all relevant circumstances. Using Raw Data in Context Simply being in possession of raw data is never enough to build on that data from a research perspective. Researchers need to understand the context of the scientific research study in which the data were collected. This research context includes (but is not limited to): (i) the scientific hypothesis of the research study, (ii) the inclusion and exclusion criteria selected by the research designers of the study to determine which study participants were included and which were excluded from the study, (iii) the methods used to collect the data and possibilities of errors in the data collection processes, and (iv) answers to questions regarding whether any data were excluded from the study data and why these data were excluded. Ownership Rights Over Data There are ownership rights over data. Ownership rights include court decision making related to the question which parties are to be considered as the owners of the data. Possible owners here include (but are not limited to) (i) the study sponsor whose only role was to fund that study, (ii) the principal investigator(s) who developed the scientific hypothesis, and (iii) individual study participants through special contracts made by individual participants who negotiate such contracts with study sponsors and principal investigators to share in the ownership of data. Examples of such data are participant sources of unique gene lines or unique cell lines to be used in future research. Objections to Data Sharing Finally, individual researchers may simply object to sharing data. A researcher’s arguments here may be simply stating that he or she has a right to fully analyze the data since the collection of the data was the researchers’ idea in the first place. These researchers may argue that they have the right to mine the data as fully as they can before deciding to make the data open to the public for others to analyze. Works Cited 1 Kaiser, J. ‘Making Clinical Data Widely Available.’Science 322.5899 (10 Oct. 2008): 217–8. 2 de Lusignan, S., J.F. Metsemakers, P. Houwink, V. Gunnarsdottir, and J. van der Lei. ‘Routinely Collected General Practice Data: Goldmines for Research? A Report of the European Federation for Medical Informatics Primary Care Informatics Working Group (EFMI PCIWG) from MIE2006, Maastricht, The Netherlands.’Informatics in Primary Care 14.3 (2006): 203–9. 3 Sim, I. ‘Human Studies Database Project’, CTSA Data Repositories Symposium (17 Oct. 2008). 23 Nov. 2010. 4 Sim, I., C.G. Chute, H. Lehmann, R. Nagarajan, M. Nahm, and R.H. Scheuermann. ‘Keeping Raw Data in Context.’Science 323.5915 (6 Feb. 2009): 713. 5 U.S. Department of Health and Human Services, National Institutes of Health, HIPAA Privacy Rule, Information for Researchers. 13 Nov. 2010. 6 Wilczynski, N.L., R.B. Haynes, and Hedges Team. ‘EMBASE Search Strategies for Identifying Methodologically Sound Diagnostic Studies for Use by Clinicians and Researchers.’BMC Medicine 29.3 (March 2005): 7. (shrink)

This guide accompanies the following article(s): ‘Full Disclosure of the “Raw Data” of Research on Humans: Citizens’ Rights, Product Manufacturer’s Obligations and the Quality of the Scientific Database.’Philosophy Compass 6/2 (2011): 90–99. doi: 10.1111/j.1747‐9991.2010.00376.x Author’s Introduction Securing consent (and informed consent) from patients and research study participants is a key concern in patient care and research on humans. Yet, the legal doctrines of consent and informed consent differ in their applications. In patient care, the judicial doctrines of consent and informed (...) consent are disclosure doctrines based on the obligation of physicians to inform their patients of the following types of information: the nature of the procedure the physician is recommending in the patent’s care (P), the alternatives to the physician‐recommendation (A), and the risks of procedure and its alternatives (R). In addition, the physician must provide truthful answers to the patient’s questions (Q) to the best of the physician’s abilities. In research on humans, the onus of disclosure by study sponsors and principal investigators is much greater than in patient care precisely because the purpose of research is not patient care. The purpose of research is the identification and development of new generalizable knowledge. Thus, participation in a research study or trial may not benefit the study volunteer at all. In addition, the participant may carry a heavy risk burden in relationship to any testing of a newly designed drug or device as part of their experiences in the research study. Presently, despite the risks borne by the research study participant, the raw data collected from volunteers in research trials are treated by courts as if they were the private property of the study sponsor rather than generally owed to the public as would be expected by an effort like research participation aimed at contributing to the development of generalizable knowledge. This paper reviews the obligations that study sponsors owe to their study participants based on the very definition of research as a systematic activity whose purpose is to develop generalizable knowledge to help all humans. Author Recommends Court cases Canterbury v. Spence, United States Court of Appeals, District of Columbia Circuit 464 F.2d 772 (1972). (Federal appellate decision heard in the District of Columbia, USA) Reibl v. Hughes, 2 S.C.R. 880 (1980). (Supreme Court of Canada) Rogers v. Whitaker, 175 C.L. R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Canterbury v. Spence is the landmark Federal informed consent case in the United States heard in the District of Columbia. In this case, Judge Spottswood Robinson articulated the reasonable person standard of informed consent. This standard was subsequently adopted by the Supreme Court of Canada (Reibl v. Hughes, 2 S.C.R. 880 (1980)) and the High Court of Australia (Rogers v. Whitaker, 175 C.L. R. 479 (1992)). The House of Lords rejected the reasonable person standard in England in Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985). Book Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. This book is a detailed guide for the review of scientific and ethical aspects of research on humans contained in the research study protocols and research informed consent forms which need to be submitted by study sponsors and principal investigators to institutional review boards (IRBs) for IRB review before a research study can receive approval to be conducted within a human study population in those institutions over which the IRB has authority. It also presents basic definitions in the area of research on humans and basic approaches to help conduct a deep review of the underlying scientific and ethical issues that are present within a research study protocol and its accompanying research informed consent form. Report National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). This U.S. National Commission in the Belmont Report argued for the necessity of a reasonable volunteer standard in research on humans in the United States. Arguing that the professional standard and the reasonable person standard of consent and informed consent were insufficient to base a disclosure standard in research on humans, this National Commission developed the reasonable volunteer standard where a study participant is to be approached in research informed consent with that information that a reasonable volunteer would want to know. Online Materials Belmont Report: Syllabus Topics for Lecture and Discussion Week I: Introduction and Overview Readings: Rogers v. Whitaker, 175 C.L.R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week II: The Different Standards of Consent and Informed Consent Readings: Canterbury v. Spence, 464 F.2d 772 (1972). (Federal appellate opinion heard in the District of Columbia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week III: Definition of Research Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 2 and 3) Week IV: How to Review a Research Study Protocol and Research Informed Consent Form Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 4–6, 10, and 12–14) Week V: Obligations in Research of Humans Versus Patient Care Reading: National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). Focus Questions • How do the judicial doctrines of consent in England and Australia compare to the judicial doctrines of informed consent in the United States and Canada? • How does a professional standard of disclosure differ from a reasonable person standard of disclosure? • What is the definition of research? • How is a research study (study proposal and research informed consent form) reviewed from scientific and ethical bases for considerations of approval by an IRB? • How do the obligations of a study sponsor, a principal investigator, and a research team conducting a research trial on human study participants differ from the obligations of a physician caring for a patient? • Should all raw data of research derived from humans be made available to the public for use in developing generalizable knowledge to help others, or should raw data be considered the private property of the study sponsors (for example, prescription drug manufacturers), who fund the research trials? Seminar/project Idea Draw a timeline of the development of the basic concepts of consent and informed consent in patient care and in patient research. On this timeline, first place the dates of the key court cases in England, the United States, Canada, and Australia on consent and informed consent. Then place the date of the development of the Belmont Report. Why do differences exist between these four countries in terms of the legal requirements of informedness of a patient (in medical care) and a study participant (in medical research)? What roles if any do the concepts of self‐determination and self‐decision have in consent and informed consent in patient care and in informed consent in research on humans among the four countries of interest? What are the realities of research on human participants that require a new standard of informed consent, the reasonable volunteer standard, to be developed beyond the two standards in patient care, the professional standard, and the reasonable person standard? Counterpoint Arguments The following are counterpoint arguments that need to be appreciated to more fully understand the concepts that impact the thesis that ‘raw data’ should be open to the public to allow the opportunity of checking of the results of its associated scientific paper and for further analysis. De‐Identified (Anonymized) Raw Data A current approach to identifying (anonymizinig) raw data is based on the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L.104‐191). HIPAA was enacted by the U.S. Congress in 1996 to keep a person’s medical information private. In a research study, a person’s private medical information can become research data. HIPAA’s Privacy Rule allows a covered entity to de‐identify data by removing all 18 elements that could be used to identify the individual or the individual’s relatives, employers, or household members; these elements are enumerated in the Privacy Rule. The covered entity must also have no actual knowledge that the remaining information could be used alone or in combination with other information to identify the individual who is the subject of the information. Under this method, the identifiers that must be removed are the following: 1 Names. 2 All geographic subdivisions smaller than a state, including street address, city, county, precinct, ZIP Code, and their equivalent geographical codes, except for the initial three digits of a ZIP Code if, according to the current publicly available data from the Bureau of the Census: 2a. The geographic unit formed by combining all ZIP Codes with the same three initial digits contains more than 20,000 people. 2b. The initial three digits of a ZIP Code for all such geographic units containing 20,000 or fewer people are changed to 000. 3 All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, and date of death, and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older. 4 Telephone numbers. 5 Facsimile numbers. 6 Electronic mail addresses. 7 Social security numbers. 8 Medical record numbers. 9 Health plan beneficiary numbers. 10 Account numbers. 11 Certificate/license numbers. 12 Vehicle identifiers and serial numbers, including license plate numbers. 13 Device identifiers and serial numbers. 14 Web universal resource locators (URLs). 15 Internet protocol (IP) address numbers. 16 Biometric identifiers, including fingerprints and voiceprints. 17 Full‐face photographic images and any comparable images. 18 Any other unique identifying number, characteristic, or code, unless otherwise permitted by the Privacy Rule for re‐identification. Even though ‘raw data’ can be de‐identified (anonymized) so that there is no way to trace back the data to the study participant from which it was drawn, there are still questions whether the ‘de‐identified raw data’ can be given to other researchers or made public without the original study participant’s approval. It may be the case that this approval could be done at the start of any research study where the individual considering study participation would be counseled on what the process of de‐identification consists of and would be asked whether the participant would allow use of the data by other researchers or made available to the public in a de‐identified state. However, there may be questions of the study participants as to whether the data are truly de‐identified and untraceable back to the study participant since the participant would not be able to see the process actually being carried out in detail in all relevant circumstances. Using Raw Data in Context Simply being in possession of raw data is never enough to build on that data from a research perspective. Researchers need to understand the context of the scientific research study in which the data were collected. This research context includes (but is not limited to): (i) the scientific hypothesis of the research study, (ii) the inclusion and exclusion criteria selected by the research designers of the study to determine which study participants were included and which were excluded from the study, (iii) the methods used to collect the data and possibilities of errors in the data collection processes, and (iv) answers to questions regarding whether any data were excluded from the study data and why these data were excluded. Ownership Rights Over Data There are ownership rights over data. Ownership rights include court decision making related to the question which parties are to be considered as the owners of the data. Possible owners here include (but are not limited to) (i) the study sponsor whose only role was to fund that study, (ii) the principal investigator(s) who developed the scientific hypothesis, and (iii) individual study participants through special contracts made by individual participants who negotiate such contracts with study sponsors and principal investigators to share in the ownership of data. Examples of such data are participant sources of unique gene lines or unique cell lines to be used in future research. Objections to Data Sharing Finally, individual researchers may simply object to sharing data. A researcher’s arguments here may be simply stating that he or she has a right to fully analyze the data since the collection of the data was the researchers’ idea in the first place. These researchers may argue that they have the right to mine the data as fully as they can before deciding to make the data open to the public for others to analyze. Works Cited 1 Kaiser, J. ‘Making Clinical Data Widely Available.’Science 322.5899 (10 Oct. 2008): 217–8. 2 de Lusignan, S., J.F. Metsemakers, P. Houwink, V. Gunnarsdottir, and J. van der Lei. ‘Routinely Collected General Practice Data: Goldmines for Research? A Report of the European Federation for Medical Informatics Primary Care Informatics Working Group (EFMI PCIWG) from MIE2006, Maastricht, The Netherlands.’Informatics in Primary Care 14.3 (2006): 203–9. 3 Sim, I. ‘Human Studies Database Project’, CTSA Data Repositories Symposium (17 Oct. 2008). 23 Nov. 2010. 4 Sim, I., C.G. Chute, H. Lehmann, R. Nagarajan, M. Nahm, and R.H. Scheuermann. ‘Keeping Raw Data in Context.’Science 323.5915 (6 Feb. 2009): 713. 5 U.S. Department of Health and Human Services, National Institutes of Health, HIPAA Privacy Rule, Information for Researchers. 13 Nov. 2010. 6 Wilczynski, N.L., R.B. Haynes, and Hedges Team. ‘EMBASE Search Strategies for Identifying Methodologically Sound Diagnostic Studies for Use by Clinicians and Researchers.’BMC Medicine 29.3 (March 2005): 7. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Neo-Baroque Aesthetics and Contemporary EntertainmentTheodore GracykNeo-Baroque Aesthetics and Contemporary Entertainment, by Angela Ndalianis. Cambridge, MA, and London: MIT Press, 2004, 323 pp., $34.95 cloth.Like the cliché about not judging a book by its cover, the prominence of the term "aesthetics" in a book's title is no indication of what one will find inside. Has the term become so elastic that it will now cover everything cultural? Or is (...) it the case, as in Angela Ndalianis's discussions of theme park rides and computer games, that the term applies to anything that has a parallel in earlier practices covered by this rubric? Ndalianis may be stretching it too far, for the book in question emphasizes parallels with baroque practices that predate Alexander Baumgarten's 1735 proposal to use "aesthetics" as the name of an emerging discipline concerned [End Page 115] with perception. We are alternately informed that the book explores the poetics, semiotics, and the "logic of contemporary media." But because Ndalianis holds that recent visual media involve a "specific system of perception" that arises from a "radical cultural transformation" (22-23), the term "aesthetics" may be as good as any other in conveying her purposes. For she is not concerned with artistic style—presumably the province of art historians. She is theorizing broadly about visual media by examining an assortment of media strategies found in the two eras and aims to identify their common "morphology" (19). Her sources are Fredric Jameson, Walter Benjamin, and Gilles Deleuze rather than, say, Kendall Walton, Noël Carroll, or Gregory Currie.Ndalianis's main idea is that there is a strong but not exact parallel between our own times and the visual forms favored in the seventeenth century. (For Ndalianis, the baroque period stretches from 1492 to the 1680s.) The two epochs involve similar cultural sensibilities and artistic practices, so if we understand baroque art and visual media, we will better understand what is going on in contemporary media. In short, the framing assumption is Shelley's dictum that art is the expression of the spirit of its time. More specifically, the design of modern entertainment media is argued to be very similar to a wide range of baroque entertainment and representational practice. But the similarity is not due to either awareness or imitation of baroque style. Each "logically emerged as a result of systemic and cultural transformations" peculiar to its own time (17). The similar "logic" of each period is thus seen as evidence that there are parallels in the "general tendencies" and consequent "dominant cultural sensibilities" of the two periods (17-21). Because hindsight is more reliable than precognition, a backward glance at the baroque may help us to better grasp our own historical and cultural context.Having outlined these proposals in a lengthy introduction, Ndalianis offers five chapters, each devoted to a specific parallel. All five chapters share a similar strategy. A different aspect of neo-baroque communication is highlighted, and one type of baroque art or entertainment is compared and contrasted with its neo-baroque counterpart, with at least one neo-baroque example explored in considerable detail.The introduction focuses on Jurassic Park (both the film and the theme park ride). Chapter 1 focuses on neo-baroque "narrative strategies," as first Don Quixote and its sequel and then the palace at Versailles are compared to the various Alien films and comic books. The main focus is "serial" art as an outgrowth of capitalism, generating "an aesthetics of repetition" enriched by its "rampant self-reflexivity" (69). Chapter 2 shifts to the baroque love of labyrinthine structure, with its "enforced circuitousness, planned chaos, choice among paths, intricacy, complexity, and an invitation to the audience to engage reflexively" in exploring the labyrinth (84). Ndalianis's baroque case is Pietro de Cortona's elaborate painted ceiling for the Palazzo Barberini in Rome. The neo-baroque counterpart is the Doom video game and its sequel, Doom II. Inexplicably, for a book with numerous illustrations, there are no visuals to display Doom for those unfamiliar with such games. Chapter 3 examines baroque cartography as a background for discussing geographic discovery and colonization, leading to the neo-baroque... (shrink)

The conflict between courts and medicine is best shown in the mental health cases requiring judgment of whether a person should be confined, and whether they should be medicated or left free to decide for themselves. In such cases, deprivation of liberty for noncriminal offenders is at question, but if they are released, they may be exposed to injury or injure others. “Clear and convincing” evidence is hard to prove in such cases.The TOPOFF 2 terrorism preparedness exercise was two years (...) in planning, but the courts were involved only seven days before the exercise. Judge Murphy was put in charge of the Circuit Court building and was asked to stop all court proceedings to stop people from going into a building that might have been contaminated. (shrink)

In 2018, Attorney General Jeff Sessions, in Matter of A-B-, attempted to bar victims of non-state actors—such as intimate partners and local gangs—from obtaining asylum in the United States. This article focuses on domestic violence-based asylum claims that made it to the US Circuit Court of Appeals during the Trump administration and the first five months of the Biden administration. My interdisciplinary approach goes beyond analysing the effect that Matter of A-B- has had on the outcomes of cases and (...) asks how judges evaluate the credibility of petitioners, determine whether domestic violence can rise to the level of persecution, and decide whether a government was unwilling or unable to protect the victim. A systematic analysis of 83 appellate level verdicts shows that asylum decisions are fraught with inconsistencies and that many judges lack a sophisticated understanding of domestic violence, credibility, and trauma. (shrink)

Suppose that a school restricts student expression critical of homosexual conduct yet allows or actively supports student expression that promotes acceptance and tolerance of gays and lesbians. Can such a policy be justified if the anti-gay speech disrupts the educational environment of the school while the pro-gay speech does not? Or does the differential treatment of anti-gay and pro-gay speech constitute unconstitutional viewpoint discrimination because it distorts the marketplace of ideas within the school? Can viewpoint discrimination ever be justified on (...) the ground that anti-gay speech invades the rights of others under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)? These were among the questions debated by Judges Reinhardt and Kozinski in the Ninth Circuit's now-vacated panel opinion in Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006), but their significance to the law of student speech is quite general. Courts are increasingly becoming concerned with the question of whether Tinker allows viewpoint-based restrictions of student speech, but so far jurists have not reached agreement on this question or even on the simpler question of what counts as viewpoint discrimination. This article attempts to clarify the emerging debate about the permissibility of viewpoint discrimination under Tinker and proposes modifications to the Tinker framework that would enable courts to deal more fruitfully with charges that school officials have imposed viewpoint-based restrictions on student speech. I argue that we should think of viewpoint discrimination as purposeful restriction of expression on the basis of governmental disagreement with the message. Tinker must be understood to bar purposeful viewpoint discrimination, but the conclusion that a school speech restriction constitutes purposeful viewpoint discrimination will come at the end rather than at the beginning of constitutional analysis. A school will never announce that it has restricted student speech on the basis of disagreement with the message; instead, it will claim that it has regulated speech to prevent harm. And this is something that schools (and the state more generally) may sometimes do - at least with sufficient justification. Tinker obviously contemplates the regulation of speech where necessary to prevent two specific sorts of harms - disruption to the school's mission and violations of the rights of other students - and so must require courts to distinguish between school speech restrictions based on impermissible ideological purposes and those based on the permissible purposes of preventing disruptions or violations of student rights. Tinker's substantial disruption test, I contend, should primarily be understood as a mechanism for helping courts to smoke out these impermissible purposes. (shrink)

The protection of cultural relics has always been an important issue in the field of museums and archaeology. With the development of Internet of Things technology, the security system of the museum is more intelligent and integrated. In order for the museum display system to keep up with the intelligent age, this article mainly studies the research and realization of the museum showcase system based on the Internet of Things technology in a smart environment. Before the start of the experiment, (...) we developed the overall design of the system, including three functional modules: temperature module, illumination module, and monitoring module. The experiment is done mainly for system testing. The performance test of the sensor module needs to sample the temperature and humidity sensor to verify the accuracy of the temperature and humidity signal collected in the instrument circuit. The light information collection test uses the ADC sampling inside the CC2530 to obtain the required data and judges whether these temperature, humidity, and light intensity values exceed the preset values. The serial port needs to be initialized to carry out data communication and transmission normally. After the receiving end finishes receiving, the sending end will clear the data buffer to prepare for the next data transmission. The experimental data show that the error between the predicted value and measured value of the temperature system is about 3°C, which is within the allowable error range of the experiment. The results show that the system has perfect functions, is safe and reliable, meets the expected requirements, and has good practicability. (shrink)

With Spanish the third most widely spoken language in the world, one would expect more Spanish translations of important texts in American philosophy. Given the recent publication of a Spanish translation of The Public and Its Problems (1927), more people have access to John Dewey’s ideas about democracy than ever before. A broader readership might bring greater inclusivity to the existing debate over the significance of Dewey’s legacy for democratic theory. For the past few years, this debate has raged almost (...) exclusively between English-speaking scholars. Many have responded to the arguments of Richard Posner, the law professor and Circuit Court judge who delivered a scathing critique of Dewey’s legacy in his book Law, Pragmatism and Democracy (2003). Even if new readers of The Public and Its Problems fail to join the debate, they will at least be better equipped to evaluate Posner’s arguments with some appreciation for the object of his criticism. Hopefully they will come to acknowledge Dewey’s contribution as a vital thread in the tapestry of thought making up contemporary currents in democratic theory—currents that University of Toronto professor Frank Cunningham collectively labels “democratic pragmatism.” See his Theories of Democracy (Routledge, 2002). Ramon Del Castillo’s introduction to the translation captures the rich context of Dewey’s work on democratic theory. It places the book in the proper historical milieu, 1920s America at the time of the height and decline of American Progressivism. It also juxtaposes The Public and Its Problems against Lippmann’s two earlier works, Public Opinion (1922) and The Phantom Public (1925). (shrink)

In his professional life, Richard Posner is addressed as “Your Honor,” inasmuch as he is Chief Judge of the U.S. Court of Appeals for the Seventh Circuit. He is also a senior lecturer at the University of Chicago Law School. Finally, he is a prolific author of books and articles in scholarly journals in which he expounds at length and with copious footnotes his particular views of jurisprudence and public policy. One of his frequent intellectual adversaries, legal philosopher (...) Ronald Dworkin, wryly described Judge Posner as “the lazy judge who writes a book before breakfast, decides several cases before noon, teaches all afternoon at the Chicago Law School, and performs brain surgery after dinner.”. (shrink)

In his professional life, Richard Posner is addressed as inasmuch as he is Chief Judge of the U.S. Court of Appeals for the Seventh Circuit. He is also a senior lecturer at the University of Chicago Law School. Finally, he is a prolific author of books and articles in scholarly journals in which he expounds at length and with copious footnotes his particular views of jurisprudence and public policy. One of his frequent intellectual adversaries, legal philosopher Ronald Dworkin, (...) wryly described Judge Posner as. (shrink)

The experience of musical surprise is explained by psychologists in terms of the thwarting of prior musical expectations. The assumption that surprise is always caused by expectations is widespread not just in psychology at large, but also in philosophy. I argue here that this assumption is ill-founded. Many musical surprises, as well as many non-musical instances of perceptual surprise, can be explained by the falsification of assessments of the present, rendering the appeal to expectations unnecessary. I elaborate the positive view (...) before considering objections, and offering replies. (shrink)

Sex differences in behavior are most interesting when they are the result of inherent differences in the operational rules motivating behavior and not merely a reflection of differing life history experiences. American men and women exhibit a few differences in testamentary patterns of property allocation that appear to be due to inherently different rules of allocation. Even when analyses control for resources and surviving kin configurations, women distribute their property among a greater number of individual beneficiaries than do men. The (...) most striking differences in property allocation between men and women occur within the nuclear family and reflect differences in reproductive life span and the resulting reproductive conflicts between spouses that can endure beyond death. (shrink)

Reflection in medical education is becoming more widespread. Drawing on our Jesuit Catholic heritage, the Loyola University Chicago Stritch School of Medicine incorporates reflection in its formal curriculum and co–curricular programs. The aim of this type of reflection is to help students in their formation as they learn to step back and analyze their experiences in medical education and their impact on the student. Although reflection is incorporated through all four years of our undergraduate medical curriculum, this essay will focus (...) on three areas where bioethics faculty and medical educators have purposefully integrated reflection in the medical school, specifically within our bioethics education and professional development efforts: 1) in our three–year longitudinal clinical skills course Patient Centered Medicine (PCM), 2) in our co–curricular Bioethics and Professionalism Honors Program, and 3) in our newly created Physician’s Vocation Program (PVP). (shrink)

Almost every facet of the experience of musical listening—from pitch, to rhythm, to the experience of emotion—is thought to be shaped by the meeting and thwarting of expectations. But it is unclear what kind of mental states these expectations are, what their format is, and whether they are conscious or unconscious. Here, we distinguish between different modes of musical listening, arguing that expectations play different roles in each, and we point to the need for increased collaboration between music psychologists and (...) philosophers in order to arrive at a more detailed characterisation of conscious musical experience and the role of expectations therein. (shrink)

In arbitrating between representational and relational theories of perception, perceptual illusions—cases in which a subject’s perceptual experience diverges from the way the world really is—constitute an important battleground. The debate has, however, been dominated by discussions of visual perception. In attempting to extend the debate to audition, it is appropriate to start by considering what is thought to be a key case of auditory illusion. I consider the phenomenon of the ‘missing fundamental’, as well as examining a notion that is (...) often deployed by representationalists to explain it—namely, perceptual inference. Though it is frequently deployed as an explanatory concept by inferentialists, the notion of perceptual inference is somewhat opaque. Here, I formulate a ‘job description’ for perceptual inference, involving rule-following. I then identify two sets of cases that commonly prompt the invocation of perceptual inference: namely, cases of perceptual illusion, and cases of veridical perception where the perceptual content outstrips the information present in the stimulus. I then argue that an appeal to perceptual inference is unnecessary, in the case of the missing fundamental, for two reasons. Firstly, the missing fundamental is not, after all, a clear candidate for the ascription of inferential capacity to the auditory system: it is neither an illusion, nor is it the case that the stimulus is crucially impoverished. That is, it submits to a ‘direct’ explanation. Secondly, given the adequacy of a simpler explanation, and the difficulty between distinguishing between real rule-following and the mere appearance of it, I argue that we should avoid ascribing inferential capacity to the auditory system. I close by considering objections, and offering replies. (shrink)