Much legal research focuses on understanding how judicial decision-makers exercise their discretion. In this paper we examine the notion of legal or judicial discretion, and weaker and stronger forms of discretion. At all times our goal is to build cognitive models of the exercise of discretion, with a view to building computer software to model and primarily support decision-making. We observe that discretionary decision-making can best be modeled using three independent axes: bounded and unbounded, (...) defined and undefined, and binary and continuous. Examples of legal tasks are given from each of the eight ensuing octants and we conclude by saying what this model shows about current legal trends. We should stress that our taxonomy has been based on our observations of how discretionary legal decisions are made. No claim is made that our model is either complete (providing advice in every domain) or exact, but it does help knowledge engineers construct legal decision support systems in discretionary domains. (shrink)

In this article, I defend the justifiability of both concealed uses of executive prerogative as consistent with the end of self-preservation for which government is constituted by the people and its disobedient disclosure as consistent with the rational interest of the citizens of the constitutional state in non-subordination. Indeed, I argue both prerogative and disclosure are justifiable, despite the latter clearly operating at cross-purposes with the former. I also contend that disobedient disclosure aligns more closely with the justificatory conditions of (...) executive prerogative than more traditions forms of civil disobedience. My discussion is limited to the question of justification, highlighting the normative stakes of delegitimizing either mode of extra-legal discretionary judgment by executive or disclosers respectively. (shrink)

Automated legal reasoning and its application in smart contracts and automated decisions are increasingly attracting interest. In this context, ethical and legal concerns make it necessary for automated reasoners to justify in human-understandable terms the advice given. Logic Programming, specially Answer Set Programming, has a rich semantics and has been used to very concisely express complex knowledge. However, modelling discretionality to act and other vague concepts such as ambiguity cannot be expressed in top-down execution models based on Prolog, (...) and in bottom-up execution models based on ASP the justifications are incomplete and/or not scalable. We propose to use s(CASP), a top-down execution model for predicate ASP, to model vague concepts following a set of patterns. We have implemented a framework, called s(LAW), to model, reason, and justify the applicable legislation and validate it by translating (and benchmarking) a representative use case, the criteria for the admission of students in the “Comunidad de Madrid”. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis of (...) the record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this case. (shrink)

Recent disputes over whether older people should pay more for health insurance, or receive lower priority for transplantable organs, highlight broader disagreements regarding the legality of using age-based criteria in health care. These debates will likely intensify given the changing age structure of the American population and the turmoil surrounding the financing of American health care. This Article provides a comprehensive examination of the legality and normative desirability of age-based criteria. I defend a distributive justice approach to age-based criteria and (...) contrast it with two prevailing theoretical approaches to age-based criteria, nondiscrimination and discretion. I propose a detailed normative framework for the use of age-based criteria in health care, the lifetime justice approach, that considers the future life patients can gain from treatment and the past years of life they already have experienced. -/- This paper is available by open access from the Boston College Law School Digital Commons. (shrink)

Hobbes treats individual property as regulated by stable law, yet dependent on the arbitrary will of the sovereign. In this paper I catalogue the different definitions of property present in his main political and legal works – The Elements of Law, De Cive, Leviathan and A Dialogue between a philosopher and a student – with the aim of showing how he attempted to square those commitments. I record how the definitions of property affect his views about how sovereigns hold (...) property, the nature of the liability of subjects to having their property confiscated by the sovereign, and the legal conflicts that may arise between subjects and their rulers regarding such confiscations. (shrink)

Automated decision-making takes up an increasingly significant place in the administrative state. This article presents a conception of discretion that is helpful for evaluating the proper place of algorithms in public decision-making. I argue that the algorithm itself is not a site of discretion. The threat is that automated decision-making alters the relationships between traditional actors in a way that can cut down discretion and human commitment. Algorithmic decision-makers can serve to fetter the discretion that the (...) legislature and the populace expect to be exercised. We must strive to maintain discretion, moral agency, deliberative ideals, and human commitment through the system that surrounds the use of an algorithm and to develop a new expertise that can retain and exercise the expected discretion. Backing this argument are traditional legal constraints, public expectations, and administrative law principles, tied together through the organizing principle of discretion. (shrink)

Elected prosecutors have pledged not to enforce abortion laws, in response to state-level abortion bans. For their pledges to be meaningful, prosecutors must exercise their discretion in cases of individuals who face legal risk, including people who help others self-manage their abortions. With a harm-reduction approach to improving abortion access, prosecutors should aim to reduce abortion helpers’ involvement with the criminal justice system.

This chapter contains sections titled: Jurisprudence: Method and Subject Matter Legality and Authority Positivism: Austin vs. Hart The Authority of Law Judicial Discretion Incorporationism and Legality Raz' s Theory of Authority Incorporationism and Authority Conclusion Postscript References.

Discretion is a pervasive phenomenon in legal systems. It is of concern to lawyers because it can be a force for justice or injustice: at once a means of advancing the broad purposes of law and of subventing them. For social scientists the discretion exercised by legal actors is an important form of decision-making behaviour, in which legal rules are merely one force in a field of pressures and constraints that push towards certain courses of (...) action or inaction. This book presents a variety of analyses of legal discretion by lawyers and social scientists, who have made discretion and its uses a central part of their scholarly concerns. (shrink)

Prosecutors in the US legal system have great power to interfere at their discretion in the lives of citizens, and face relatively few checks on the exercise of this discretion. The vast scope of the criminal law provides a pretext for prosecuting nearly anyone. Meanwhile, other features of the legal system, such as the way plea bargains are structured and the doctrine of prosecutorial immunity, further increase prosecutorial power. And existing institutional restraints on prosecutorial abuses, such (...) as democratic accountability, the grand jury system, and the possibility of a selective prosecution defense, are mostly ineffectual. I draw on republican political theory, including insights from Philip Pettit and Elizabeth Anderson, to argue that this state of affairs gives prosecutors dominating, and therefore unjust, power over vast swathes of the public. I then survey some potential institutional changes which might help ameliorate the problem. (shrink)

There have been few studies of the Law Lords, and no study of them by a political scientist for more than ten years. This book concentrates on the arguments the Law Lords use in justifying their decisions, and is concerned as much with the legal methodology as with the substance of their decisions. Very close attention is paid to the different approaches and styles of judicial argument, but the book is not restricted to this traditional analytic approach. One chapter (...) applies the statistical techniques Americans call 'jurimetrics' and have successfully used on the US Supreme Court. The main theme is that the Law Lords enjoy and fully utilise far more discretion in their judgements than is normally admitted, and that much depends on exactly which judges happen to hear a case. the second part of the book shows the impact this extreme discretion has had in shaping both public law and areas of civil law. (shrink)

In this field questions arise which are certainly difficult; but as I listened last time to members of the group, I felt that the main difficulty perhaps lay in determining precisely what questions we are trying to answer. I have the conviction that if we could only say clearly what the questions are, the answers to them might not appear so elusive. So I have begun with a simple list of questions about discretion which in one form or another (...) were, as it seemed to me, expressed by the group last time. I may indeed have omitted something and inserted something useless: if so, no doubt I shall be informed of this later. The central questions then seem to me to be the following: 1. What is discretion, or what is the exercise of discretion? 2. Under what conditions and why do we in fact accept or tolerate discretion in a legal system? 3. Must we accept discretion or tolerate discretion, and if so, why? 4. What values does the use of discretion menace, and what values does it maintain or promote? 5. What can be done to maximize the beneficial operation of the use of discretion and to minimize any harm that it does? (shrink)

H.L.A. Hart’s lost and found essay ‘Discretion’ has provided new insight into the issue of how legal systems can cope with indeterminacy in the law. The so-called ‘open texture’ of law calls for the exercise of judicial discretion, which, I argue, renders judges susceptible to the problem of dirty hands. To show this, I frame the problem as being open to an array of appropriate emotional responses, namely, various senses of guilt. With these responses in mind, I (...) revise an example from Michael Walzer’s original analysis in a way that highlights purely personal sacrifices in solutions to dirty hands situations. I then turn to an account of moral emotions in legal decision-making and show how judges—in failing to advance all interests—might be left with a unique sense of guilt. With an application of this account to Hart’s legal positivism, it can be seen that a judge’s hands are often dirtied in resolving borderline cases. If discretion leaves judges in situations where they must do wrong in order to do right, Hart’s endorsement of a closure view of wrongdoing will lead to difficulties in how he can explain the presence of moral remainders in jurisprudence. (shrink)

H. L. A. Hart’s The Concept of Law (Hart 1994) contains many passages that have become iconic for legal theory. This essay focuses on Chapter 7, sections 1 and 2, and Hart’s comments about judicial discretion in the context of Ronald Dworkin’s well-known attack on the idea of judicial discretion in his essay “The Model of Rules”. Specifically, the paper undertakes three projects. The first project is to defend the importance of the fundamental picture that Hart presents (...) in Concept, Chapter 7 of Common-Law judicial rule-making. Hart represents such rule-making as a balance of certainty and flexibility, and he is correct to do that. The second project is to argue that Dworkin’s attack on the positivist model of common-law judicial rule-making as an exercise of “strong discretion” fails. The idea, central to the meaning of “strong discretion” that courts are not “not bound by standards set by the authority in question” cannot be established. The third is to argue that Hart is his own worst enemy. The language, metaphors and images he uses to present his account of common-law judicial rule-making open the way to Dworkin’s critique. They also reveal Hart, if the language, metaphors and images are taken seriously, to be precisely the kind of formalist or deductivist about adjudication that he is ostensibly in Concept Chapter 7 criticising.Resumen:El concepto de derecho (1994) de H. L. A. Hart, contiene muchos pasajes que se han convertido en íconos de la teoría jurídica. Este artículo se concentra en el capítulo 7, sección 1 y 2, y en los comentarios que realizara Hart sobre la discreción judicial en el contexto de la bien conocida crítica de Dworkin a esta misma idea en su ensayo “El modelo de las normas”. Específicamente, el artículo emprende tres proyectos. El primero de ellos consiste en defender la importancia del esquema fundamental que ofrece Hart en el capítulo 7 de su obra, esto es, la creación judicial de normas en el Common Law. Hart representa tal creación de normas como un balance de certeza y flexibilidad; y él está en lo correcto al presentarlo de tal modo. El segundo proyecto consiste en argumentar que la crítica de Dworkin al modelo positivista de la creación judicial de normas en el Common Law, como un ejercicio de “discreción fuerte”, no está sustentada. La idea —central para el significado de “discreción fuerte”— de que los tribunales no están “sujetos a criterios establecidos por la autoridad en cuestión” no puede ser establecida. El tercer proyecto consiste en argumentar que Hart es su peor enemigo. El lenguaje, las metáforas e imágenes que emplea para exponer su teoría de la creación judicial de normas en el Common Law abre la puerta a la crítica dworkiniana. Si tomamos en serio el lenguaje, las metáforas y las imágenes, encontraremos a un Hart del tipo formalista o deductivista sobre la adjudicación, justo como el que él mismo está abiertamente cuestionando en el capítulo 7 de El concepto. (shrink)

This book is about the use of legal scholarship by judges. It discusses the possibility that legal scholarship may function as a genuine source of law in modern municipal legal systems. The book advances a number of claims, some conceptual, some empirical, some normative. The major conceptual claims are found in Chapters 2 and 3, where a general account of the notion of a source of law is provided. Roughly, sources of law are documents or practices (e.g. (...) statutes, judicial decisions, official customs) from which norms can be derived that function as sources of content-independent reasons for judges to decide legal cases one way or another. The relevant notion of content-independence is derived (with qualifications) from H.L.A. Hart's jurisprudence. Indeed, the book's analysis of the concept of a source of law relies at various points on Hartian insights about law and legal reasoning. Chapter 4 argues that legal scholarship - or, more precisely, a particular type of legal scholarship that might be described as standard or doctrinal - can be, and indeed is, used as a source of law in modern legal systems. The conclusion that legal scholarship is used as a source of law (and thus as a source of content-independent reasons for action) may come as a surprise to those who associate judicial recourse to legal scholarship with judicial activism. This association is discussed and criticized in Chapters 5 and 6. It is argued that, in spite of a relatively common opinion to the contrary, legal scholarship can be used to mitigate discretion. In fact, it is precisely because it can be used in this way that judges sometimes refer to scholarship deceptively and suggest that it limits discretion in situations in which it really does not. The concluding chapter addresses potential objections not explicitly discussed in earlier chapters.. (shrink)

The theoretical core of positivism is thought to consist of three theses about the nature of law. The separability thesis denies the existence of necessary moral constraints on the content of law. The pedigree thesis articulates necessary and sufficient conditions for legal validity having to do with how or by whom law is promulgated. The discretion thesis asserts that judges decide hard cases by making new law. While it is often assumed that these theses form a coherent theoretical (...) whole, such an assumption is false. Construed as a claim about all possible legal systems, the discretion thesis is inconsistent with the pedigree thesis. Construed as a claim that is true in some, but not all, possible legal systems, the discretion thesis makes a fundamentally different kind of claim than those made by the pedigree and separability theses and hence should not be thought of as part of positivism's theory of law. (shrink)

This article claims that legal time has excluded and submerged an important sense of time inside structured time. Structured time has two forms. Each form of structured time identifies a beginning to a legal order (droit, Recht) as a whole. The one form has focussed upon a critical date. The critical date is exemplified by a basic text, such as the Constitution, or the judicially identified date of settlement, sovereignty or territorial control of a territory by the state. (...) The second form of structured time has begun with the judicial recognition of a value such as the rule of law, the protection of minorities, equal treatment, or due process of law. With the two forms of structured time, jurists have proceeded to identify a binding law. Such a law has been considered a rule, principle, doctrine or other intelligible standard. Once structured legal time has thus begun, events of legal relevance have been represented by jurists in a distinct phase or period of time. Each such a distinct period is parsed through reference to its named, or labelled, starting point and the latter, in turn and ultimately, with reference to the beginning of the very constitutional order as a whole. Legal justification and the conceptual structures of justification are presumed to follow suit. The article argues, however, that another sense of time, excluded and submerged inside structured time, is experienced. An experienced event, manifested as a discrete incident in experiential time, opens to a condition of the possibility of the existence of law. (shrink)

This essay challenges Dworkin's account of the virtues and consistency of applying the right answer as given by a certain interpretive theory of local law (hereafter, the D-theory) with democratic theory. D-theory adjudication does not have all the virtues Dworkin claims for it. It may involve judicial law-creation as well, rather than being confined to the discovery of preexisting legal rights. It may also involve any of the morally objectionable features of judicial law-creation, including unfairness. It is not immune (...) to the objection based on democratic theory that Dworkin considers. Moreover, discretionary judicial law-creation is free of some of the vices that concern Dworkin. For these reasons, neither Dworkin's view of D-theory adjudication nor his denial that judges commonly have legislative discretion seems to be especially significant for the justification of appellate adjudication. (shrink)

The teaching of critical race, feminist, and queer theory generally, and of LGBT rights specifically, has developed into a discrete, contested, and politicised area of teaching in English law schools and beyond. While there is some academic discussion on the personal and political significance of ‘promoting LGBT rights’ within law schools, less considered is how ‘LGBT rights’ are shaped by the emotions of legal academics and how these emotions circumscribe what we imagine LGBT rights can and/or should mean in (...) law and critical legal study. To illustrate this dynamic, this paper uses critical race, feminist, and queer scholarship alongside work in the emerging field of Law and Emotion to articulate the ‘emotional grammar’ of teaching a Gender, Sexuality and Law unit at an English law school. Turning to autoethnography, I use my emotional experiences as a methodological tool to explore how emotions co-constitute the pedagogical, political, scholarly, and personal registers of LGBT rights as a descriptive, critical, and normative pursuit. In doing so, I use ‘emotional grammar’ as a novel way to map how emotions structure legal pedagogies invested in pursuing LGBT rights. Emotional grammar illustrates how emotions structure: (1) the articulation of LGBT rights as an object of study in law; (2) the pursuit of law to secure the rights of LGBT people; and (3) the shape of legal critique relating to LGBT rights. (shrink)

Current legal theory is concerned with the presence of principles in law partly because they are at the core of Dworkin's criticisms of Hart's rule of recognition. Hart's theory is threatened by the possibility that the identification of some principles follows an extremely relaxed rule of recognition, or even no rule at all. Unfortunately, there is no conclusive test to ascertain what is the case in actual practice. On the other hand, the evaluative arguments which support Dworkin's proposal of (...) principled adjudication are forceful but not conclusive. Moreover, since ultimate controversy over values is plausible, judicial discretion may sometimes be inevitable. (shrink)

Negative externalities pervade immigration law. For example, immigration rules can cause negative economic externalities by barring foreign nationals whose participation would make labor markets more efficient. On the other hand, sweeping executive-branch measures to assist immigrants may unduly expand executive power and yield adverse effects on governance. This essay divides immigration's negative externalities into three categories: economic, relational, and rhetorical. It then argues for specific legal and policy measures, including tailored executive discretion over deportation; more robust court review (...) of immigration restrictions that affect foreign nationals outside the United States; and classifying deportation of lawful permanent residents of the United States as punishment requiring advance notice that specific acts can prompt removal, like the notice the Constitution's Ex Post Facto Clause requires for criminal laws. (shrink)

This project explores the "contradiction" that critics contend lies at the heart of the Supreme Court's capital sentencing jurisprudence. The doctrine of "guided discretion," represents the Court's attempt to achieve both consistency and individuation in capital sentencing. Guided discretion rejects the unbridled sentencing discretion of an earlier era that resulted in sentencing decisions that were "arbitrary and capricious." At the same time, guided discretion requires juries to give individualized consideration to the facts and circumstances of individual (...) defendants. Critics contend that consistency and individuation are mutually exclusive, and that "guided discretion" is a contradiction in terms. ;The analysis first attempts to isolate the moral dimension of the capital punishment debate, arguing that such analytical clarity is essential to any defensible view of capital punishment. Second, it sets forth and defends the coherence approach to moral and legal justification, according to which the specific moral and legal principles relevant to capital sentencing are evaluated for their compatibility with the principles of the legal system more generally. Third, the analysis canvasses the traditional justifications for punishment, as well as the development of the Court's capital sentencing jurisprudence, and identifies retribution and deterrence as the most promising rationales for the death penalty. Fourth, the claim of contradiction is considered in the context of legal liberalism, which, contrary to critics, has ample resources to accommodate the doctrinal balancing act that guided discretion entails. Moreover, examination of a typical capital sentencing statute establishes that the doctrine of guided discretion is compatible with at least some forms of retributivism and with traditional principles of deterrence. Finally, the analysis recognizes the limits of philosophical consistency. The capital sentencing process presents daunting practical challenges that a theoretical defense of guided discretion cannot fully address. Substantial reforms are needed before the theoretical coherence of guided discretion can be translated into a constitutionally defensible capital sentencing process. (shrink)

In this brief introduction, I shall rather reflect, from a biographer’s viewpoint, on the significance of Discretion for our understanding of the trajectory of Hart’s ideas and on the significance of his year at Harvard. I shall then move on to consider the intriguing question of why Hart did not subsequently publish or build on some of the key insights in the paper itself. Here I highlight the fact that, almost uniquely in Hart’s work, Discretion features a notable (...) emphasis on the significance of institutional factors in our understanding of the nature of legal decisionmaking; and I argue that Hart’s failure fully to develop this insight in the essay, or to build on it in his subsequent work, derives from the fact that such a development would have necessitated a diversion from the philosophical issues that were his core intellectual concern, and moreover would have presented certain dangers to his conception of legal positivism. I shall conclude by considering what contribution the essay makes to our overall interpretation and evaluation of Hart’s legal philosophy. (shrink)

"This collection is the first book-length examination of the various epistemological issues underlying legal trials. Trials are, among other things, centrally concerned with determining truth: whether a criminal defendant has in fact culpably committed the act of which they are accused, or whether a civil defendant is in fact responsible for the damages alleged by the plaintiff. But are trials truth-conducive? Assessing the value of trials as truth-seeking endeavors requires that we consider a host of underlying social epistemological questions. (...) The contributors to this volume address a number of these pressing questions, including but not limited to the following: How much credence should they give to eyewitness testimony? How should we balance the relative epistemic value of testimony offered by defense witnesses and prosecution witnesses? Are juries an effective means of arriving at justified beliefs about a defendant's guilt or innocence? When, if ever, is statistical information about a defendant's character relevant? What degree of certainty should we require to support a verdict of 'guilty'? How should standards of proof be interpreted for allegations that contain numerous discrete components? The Social Epistemology of Legal Trials will be of interest to scholars and upper-level students working on issues at the intersection of epistemology and philosophy of law"--. (shrink)

Anglo-American general jurisprudence remains preoccupied with the relationship of legality to morality. This has especially been so in the re-reading of Lon Fuller’s theory of an implied morality in any law. More often than not, Fuller has been said to distinguish between the identity of a discrete rule and something called ‘morality’. In this reading of Fuller, however, insufficient attention to what is signified by ‘morality’. Such an implied morality has been understood in terms of deontological duties, the Good life, (...) naturalism, and subjectively posited values. Each of these interpretations has a shared common denominator: namely, the distinction between ‘is’ and ‘ought’, ‘facts’ and ‘values’. Legality is said to be nested in an ‘is’ world. An ‘is’ cannot be derived from an ‘ought’. This essay aims to press this distinction further. Fuller, I intend to argue, does indeed accept the is/ought distinction as have his commentators. The associations of the ‘oughts’ with deontological duties, the Good life, naturalism and subjective values, however, have been misdirected. This has been so because Fuller presupposed that legality was a matter of a spatial structure. Non-law was situated outside the structure. If a legislator or judge considered matters outside the structure as if they were binding upon jurists and, for that matter, upon members of the legal structure, the law was not binding. The crucial incident of the structure was the boundary of the structure. Fuller’s structuralist theory of law offers the opportunity to better understand what he signified by ‘the internal morality of law’. I shall privilege several elements of his theory: the relation of legal units to a structure, the nature of a structure, the constituents of a structure (territorial space, its pillars and its matter); the forms of the legal structure; the centrifugal and centripetal structures, the structure and traditional theories of morality, the role of the legal official in a structure, and why the internal knowledge in the structure is binding. Fuller especially privileged two features of a legal structure. The one was the boundary of the structure. The second concerned the exteriority of the boundary. Both features presupposed a territorial sense view of legal knowledge. The legal mind analysed any social problem through the map of such a sense of legal space. By concentrating upon the discrete rule in isolation of the implied structural boundary to which the rule referred, commentators have attributed been misdirected in their analyses of Fuller’s theory of law and morality. My argument in this respect will proceed as follows. In order to clarify Fuller’s senses of the morality of law, I shall first outline what he means by a ‘structure’. Second, how is the structure related to legal knowledge? Third, what are the various forms of the structure? Fourth, is the structure centrifugal or centripetal? And finally, why is the structure binding? (shrink)

In the United States, the steady yellow light means that a driver should either speed up or slow down. State laws written about a driver’s behavior at these yellow lights are vague and indeterminate and result in what is referred to as the dilemma zone (Hurwitz et al. in Transp Res Part F Traffic Psychol Behav 15(2): 132–143, 2012). This paper will reconsider law’s vagueness as intentional rather than problematic, insofar as cultural understandings of the yellow light lead to a (...) framework of visual jurisprudence in which drivers interact with law through legal discretion and common sense confronting a yellow light. Through a jurisprudential juxtaposition between the yellow light and red light cameras used to enforce yellow lights, the semiotics of automaticity compete with the semiotics of context-bound decision-making. (shrink)

This commentary proceeds as follows. First, it is argued from both ethical and legal perspectives through an analysis of Court precedents that Etzioni’s has improperly developed a too narrow First Amendment interpretation and conclusion that Apple should comply with the FBI’s demand to provide the FBI with a key to open iPhones. That is, broad First Amendment considerations and not solely narrow First Amendment “compelled speech” or only Fourth Amendment privacy issues are offered and analyzed from both ethical and (...) legal perspectives. A key point here is that broad First Amendment considerations protect, with exceptions, political and ethical discretion space for “Press” organizations to exercise, or not, ethical responsibilities, including rights to publish or not publish information and opinions, rather than compliance with government orders to publish or not publish. Further, Court cases are discussed from both legal and ethical perspectives where the Courts have established that social media organizations such as Facebook and Twitter do and should have broad First Amendment protection of free expression and peaceful assembly as traditional media such as newspapers have. It is suggested that Apple can and should be considered a social media organization. In addition, special First Amendment protection and limitations concerning national security are analyzed. Second, it is suggested that Etzioni’s point that Apple protected its clients soley for “business profitability” reasons is also a too narrow interpretation since there are more complex, mixed, and combined ethical and political-economic reasons for protecting clients and First Amendment protections. Third, the philosopher Paul Ricoeur’s ethics process responsibility framework concerning relationships between ethics and law and the need for an ethics responsibility rather than a compliance approach, which is similar to Brandeis’ legal ethics approach, is compared with and offered as an alternative to Etzioni’s compliance based “Liberal communitarian” approach. It is suggested that the difference between the Rocoeur and Etzioni approaches is similar to the difference between compliance and ethics responsibility process programs in organizations. (shrink)

Is the nature of law to be formal procedure or to embody substantive value? This work deals with the traditional conflict in legal philosophy between positivistic and anti-positivistic theories of law. It examines the conflict with respect to seven central issues in legal philosophy--law as a reason for action, law and authority, the internal point of view to law, the acceptance of law, discretion and principle, interpretation and semantics, and law and the common good. This work argues (...) that although this conflict cannot be resolved, the true nature of law is revealed--not obscured--by this perennial situation. (shrink)

Action-based legal theory is a discrete branch of praxeology and the basis of an emerging school of jurisprudence related to, but distinct from, natural law. Legal theory and economic theory share content that is part of praxeology itself: the action axiom, the a priori of argumentation, universalizable property theory, and counterfactual-deductive methodology. Praxeological property-norm justification is separate from the strictly ethical “ought” question of selecting ends in an action context. Examples of action-based jurisprudence are found in existing “Austro-libertarian” (...) literature. Legal theory and legal practice must remain distinct and work closely together if justice is to be found in real cases. Legal theorizing was shaped in religious ethical contexts, which contributed to confused field boundaries between law and ethics. The carrot and stick influence of rulers on theorists has distorted conventional economics and jurisprudence in particular directions over the course of centuries. An action-based approach is relatively immune to such sources of distortion in its methods and conclusions, but has tended historically to be marginalized from conventional institutions for this same reason. (shrink)

Fifty years of effort in artificial intelligence (AI) and the formalization of legal reasoning have produced both successes and failures. Considerable success in organizing and displaying evidence and its interrelationships has been accompanied by failure to achieve the original ambition of AI as applied to law: fully automated legal decision-making. The obstacles to formalizing legal reasoning have proved to be the same ones that make the formalization of commonsense reasoning so difficult, and are most evident where (...) class='Hi'>legal reasoning has to meld with the vast web of ordinary human knowledge of the world. Underlying many of the problems is the mismatch between the discreteness of symbol manipulation and the continuous nature of imprecise natural language, of degrees of similarity and analogy, and of probabilities. (shrink)

In The Concept of Law, H. L. A. Hart propounds three central theses about the nature of law: a standard of behavior is a law in a society S if and only if that standard has been promulgated in accordance with the procedures specified in S's rule of recognition ; there are no necessary substantive moral constraints on the content of law ; and judges have discretion in hard cases to base their decisions on extralegal standards; thus, judges decide (...) hard cases by creating new law and not by applying existing law . ;Despite the apparent simplicity of Hart's positivism, it has been the subject of fierce controversy. In "The Model of Rules I," Ronald Dworkin argues that judges are bound in hard cases to consider legal principles that derive their authority from, as Dworkin puts it, "a sense of appropriateness developed in the profession and the public over time." Thus, he concludes that two of Hart's theses are false. First, since the authority of such principles does not depend on their having been promulgated in accordance with the requirements of the rule of recognition, Hart's Pedigree Thesis is false. Second, since judges are always bound by these principles in hard cases, Hart's Discretion Thesis is false. ;In my dissertation, I consider a number of attempts to defend Hart's positivism from Dworkin's criticisms. I show that Hart would reject each of these attempts as involving an unacceptable modification of his version of the Pedigree Thesis. Additionally, I argue that, contra Dworkin, the authority of legal principles derives from their having been declared by judges in the course of deciding hard cases. Accordingly, I conclude that the validity of legal principles is consistent with Hart's version of the Pedigree and Discretion Theses. (shrink)

Decisions to provide life-sustaining medical care for marginally viable newborns present a unique set of morally complex challenges for providers and parents in the United States. This article examines recent legal trends that restrict discretionary decision-making, and critiques commonly employed ethical justifications offered to support permitting such discretion.

The focus of this monograph lies in the construction of a theory of legal obligation, understanding it as a discrete notion with its own defining traits. In this work, Bertea specifically addresses the question: how should legal obligation be distinctively conceptualized? The conceptualization of legal obligation he defends in this work gradually emerges from a critical assessment of the theories of legal obligation that have been most influential in the contemporary legal-theoretical debate. Building on such (...) critical analysis, Bertea's study purports to offer a novel and unconventional conceptualization of legal obligation, which is characterized as a law-engendered intersubjective reason for carrying out certain courses of conduct. (shrink)

This article investigates the concept and the construction of judicial discretion. The strengths and weaknesses of both Dworkin and Hart are analysed, and in view of these, it is argued that a full picture of judicial discretion is between the two extremes. Thus, a moderate theory of judicial discretion is maintained which is based on achievements by Robert Alexy (2002b). The article develops a balancing model of discretion and relates it to the theory of legal (...) argumentation. The limits of discretion and the relation between structural (strong) and epistemic (weak) discretion are addressed in detail, both with illustrations from the jurisdiction of the German Federal Constitutional Court. (shrink)

This paper argues that juridification has become the enemy of legality. By 'juridification' is meant the proliferation of legal norms and legally recognized norms. By legality is meant conformity with the ideal of the rule of law. The paper begins with the most obvious ways in which juridification threatens legality. Too much law makes the law on any subject hard to discover, hard to remember, and hard to follow. It also makes us too dependent on the discretion of (...) petty officials, who are therefore not sufficiently constrained by law. But the paper looks beyond the discretion of petty officials and argues that, in a way, the biggest threat to legality of our age comes from the proliferation of contractual norms, and the increasing diversion of contractual dispute-resolution into arbitration (and other ADR processes). The paper argues that those who rely on the law to recognise contracts should be subjected to an non-excludable jurisdiction of the courts in respect of all questions of law arising under those contracts, including their proper legal meaning. A compulsory arbitration clause, in other words, should be valid only subject to extensive judicial review of the arbitrator’s decisions. It is argued that contractual arbitration (and other ADR) that does not meet this condition is free-riding on the work of courts and professional lawyers, and should be regarded as antisocial – and that this is true even when it does more perfect justice between the parties. (shrink)

Arbitration is the dispute resolution method of choice in international commerce, but it rests on a complex legal foundation. In many international commercial contracts, the parties will choose the law governing any future disputes. However, where the parties do not choose a governing law, the prevailing approach in arbitration is to afford arbitrators broad and largely unfettered discretion to choose the law considered most appropriate or most applicable. The uncertainty resulting from this discretion potentially affects the parties' (...) rights and obligations, the performance of their contract, the presentation of their cases, and negotiations undertaken to settle their disputes.In this text, Dr Benjamin Hayward critically reviews the prevailing approach to the conflict of laws in international commercial arbitration. The text adopts a focused and detail-oriented analysis - being based on a study of more than 130 sets of arbitral laws and rules from around the world, and drawing heavily on arbitral case law. Nevertheless, it remains both practical and accessible, taking as its focus the needs and expectations of commercial parties, who are the ultimate users of international commercial arbitration.This text identifies the difficulties that result from resolving conflicts of laws through broad and unconstrained arbitral discretions. It establishes that a bright-line test would be a preferable way to resolve arbitral conflicts of laws. Specifically, it recommends a modified Art. 4 Rome Convention rule as the ideal basis for law reform in this area of arbitral procedure. (shrink)

Few automated legal reasoning systems have been developed in domains of law in which a judicial decision maker has extensive discretion in the exercise of his or her powers. Discretionary domains challenge existing artificial intelligence paradigms because models of judicial reasoning are difficult, if not impossible to specify. We argue that judicial discretion adds to the characterisation of law as open textured in a way which has not been addressed by artificial intelligence and law researchers in depth. (...) We demonstrate that systems for reasoning with this form of open texture can be built by integrating rule sets with neural networks trained with data collected from standard past cases. The obstacles to this approach include difficulties in generating explanations once conclusions have been inferred, difficulties associated with the collection of sufficient data from past cases and difficulties associated with integrating two vastly different paradigms. A knowledge representation scheme based on the structure of arguments proposed by Toulmin has been used to overcome these obstacles. The system, known as Split Up, predicts judicial decisions in property proceedings within family law in Australia. Predictions from the system have been compared to those from a group of lawyers with favourable results. (shrink)

BackgroundThe complexity of decision-making in the paediatric context is well recognised. In the majority of cases, parents and healthcare professionals work together to decide which treatments the paediatric patient should receive. On occasions, however, parental wishes conflict with what clinicians think is best for the paediatric patient. Where persistent disagreement between clinicians and parents exists, clinicians must ascertain if they have a moral, professional, and legal obligation to overrule the parents' decision and implement their preferred option.PurposeFew decision-making frameworks to (...) assist in addressing the ethical issues that arise in clinical decision-making relate specifically to the paediatric context. Diekema's Harm Threshold Framework and the Zone of Parental Discretion Framework assist in determining whether parental decisions should or should not be overridden. This paper examines the similarities and differences between these frameworks.MethodsThe frameworks are analysed i... (shrink)

Since rules - legal, ethical or otherwise - cannot determine their own application, they require persons of flesh and blood to interpret and apply them in concrete cases. Presidents and prime ministers, judges, prosecutors, mediators, leaders of international organizations, and even religious leaders and public intellectuals make decisions on how best to understand rules and how best to apply them. It stands to reason that their character traits influence the sort of decisions they take. This book provides the first (...) systematic framework for discussing global governance in terms of the virtues, and illustrates it with a number of detailed examples of concrete decision-making in specific situations. Virtue in Global Governance combines insights from law, ethics, and global governance studies in developing a unique approach to global governance and international law. (shrink)

The use of vague language in law has important implications for legal theory. Legal philosophers have occasionally grappled with those implications, but they have not come to grips with the characteristic phenomenon of vagueness: the sorites paradox. I discuss the paradox, and claim that it poses problems for some legal theorists (David Lyons, Hans Kelsen, and, especially, Ronald Dworkin). I propose that a good account of vagueness will have three consequences for legal theory: (i) Theories that (...) deny that vagueness in formulations of the law leads to discretion in adjudication (including Dworkin's) cannot accommodate “higher-order” vagueness, (ii) A legal theory should accept that the law is partly indeterminate when it can be stated in vague language, (iii) However, the traditional formulation of the indeterminacy claim, that a vague statement is “neither true nor false” in a borderline case, is misconceived and should be abandoned. (shrink)

The following two theses seem both plausible and consistent: in cases where it is indeterminate whether the relevant legal language applies to the relevant set of facts, officials are not bound to decide the case one way rather than the other, but may reason either way; all reasons for action are—in some relevant sense—knowable. In this paper, I point out what I take to be a robust but unacknowledged tension between these two claims. The tension requires some careful teasing (...) out, but the basic idea is that given certain further plausible assumptions concerning law, language, and normativity, the two claims turn out to be inconsistent. In addition to examining the sources of the tension in some detail, I also address several possible objections to my argument and discuss which of the many theses should be rejected. (shrink)

This paper poses a puzzle for contemporary Kantian political philosophy. Kantian political philosophers hold that the state’s purpose is to secure the conditions for people’s innate right to equal freedom, while at the same time claiming that innate right does not give a determinate set of conditions that the state is to bring about. Officials, then, have to make decisions in cases where the considerations of innate right provide no further guidance. I argue that, intuitively, in such cases there are (...) (i) some further considerations that officials may appeal to and (ii) some further considerations that officials may not appeal to in order to decide among the options consistent with people’s innate right and then raise difficulties for the ability of current Kantian accounts to explain how they can accept both (i) and (ii). I conclude by suggesting one potential path forward for Kantians to address this puzzle. (shrink)

Consent in medical practice is a process riddled with layers of complexities. To some extent, this is inevitable given that different medical conditions raise different sets of issues for doctors and patients. Informed consent and risk assessment are highly significant public health issues that have become even more prominent during the course of the Covid-19 pandemic. In this article we identity relevant factors for clinicians to consider when ensuring consent for solid organ transplantation. Consent to undergo solid organ transplantation is (...) more complex than most surgical and other clinical interventions because of the many factors involved, the complexity of the options and the need to balance competing risks. We first out the context in which consent is given by the patient. We then outline the legal principles pertaining to consent in medical practice as it applies in the UK and the implication of recent legal judgments. The third section highlights specific complexities of consent in organ transplantation and identifies relevant factors in determining consent for organ transplantation. The fourth section offers practical recommendations. We propose a novel ‘multi-factor approach’ to informed consent in transplantation which includes understanding risk, effective communication, and robust review processes. Whilst understanding risk and communication are a given, our suggestion is that including review processes into the consent process is essential. By this we specifically mean identifying and creating room for discretion in decision-making to better ensure that informed consent is given in practice. Discretion implies that health care professionals use their judgement to use the legal judgements as guidance rather than prescriptive. Discretion is further defined by identifying the relevant options and scope of clinical and personal factors in specified transplantation decisions. In particular, we also highlight the need to pay attention to the institutional dimension in the consent process. To that end, our recommendations identify a gap in the current approaches to consent. The identification of areas of discretion in decision-making processes is essential for determining when patients need to be involved. In other words, clinicians and healthcare professionals need to consider carefully when there is room for direction and where there is little or no room for exercising discretion. In sum, our proposed approach is a modest contribution to the on-going debate about consent in medicine. (shrink)

As Next Generation Sequencing technologies are increasingly implemented in biomedical research and care, the number of study participants and patients who ask for release of their genomic raw data is set to increase. This raises the question whether research participants and patients have a legal and moral right to receive their genomic raw data and, if so, how this right should be implemented into practice. In a first step we clarify some central concepts such as “raw data”; in a (...) second step we sketch the international legal framework. The third step provides an extensive ethical analysis which comprehends two parts: an evaluation of whether there is a prima facie moral right to receive one’s raw data, and a contextualization and discussion of the right in light of potentially conflicting interests and rights of the data subject herself and third parties; in a last fourth step we emphasize the main practical consequences of the ethical analyses and propose recommendations for the release of raw data. In several legislations like the new European General Data Protection Regulation, patients do in principle have the right to receive their raw data. However, the procedural implementation of this right and whether it involves genetic counselling is at the discretion of the Member States. Even more questions remain with respect to the research context. The ethical analysis suggests that patients and research subjects have a moral right to receive their genomic raw data and addresses aspects which are also of relevance for the legal discussion such as the costs of release of raw data and its impact on academic freedom. Taking into account the specific nature and implications of genomic raw data and the contexts of research and health care, several concerns and potentially conflicting interests of the data subjects themselves and involved researchers, physicians, biomedical institutions and relatives arise. Instead of using them to argue in favor of restrictions of the data subjects’ legal and moral right to genomic raw data, the concerns should be addressed through provision of information and other measures. To this end, we propose relevant recommendations. (shrink)