The revised Common Rule adopts the reasonable person standard to guide research disclosure. Some members of the research community contend that the standard is confusing and ill-suited to the research oversight system. Yet the revised rule is not as radical as it might seem. During the 1970s, judges started using the standard to evaluate negligence claims brought by injured patients who said doctors had failed to obtain informed consent to the harmful procedures. In its influential (...) Belmont Report, the National Commission recommended application of a “reasonable volunteer standard” to guide IRBs evaluating research disclosures. Evidence also suggests that IRBs often invoke the reasonable person standard in deliberations about consent forms. But past application of the standard has been informal and uneven. Robust application of the reasonable person standard will require researchers and IRBs to learn more about what ordinary people want and need to know about the studies they are invited to join. Input from people with personal experience as study participants could be particularly useful to this effort. (shrink)

Laura Odwazny and Benjamin Berkman have raised several challenges regarding the new reasonable person standard in the revised Common Rule, which states that in‐ formed consent requires potential research subjects be provided with information a reasonable person would want to know to make an informed decision on whether to participate in a study. Our aim is to offer a response to the challenges Odwazny and Berkman raise, which include the need for a reasonable (...) class='Hi'>person standard that can be applied consistently across institutional review boards and that does not stigmatize marginal groups. In response, we argue that the standard ought to be based in an ordinary rather than ideal person conception of reasonable person and that the standard ought to employ what we call a liberal constraint: the reasonability standard must be malleable enough such that a wide variety of individuals with different, unique value systems would endorse it. We conclude by suggesting some of the likely consequences our view would have, if adopted. (shrink)

Among various kinds of disclosures typically required in research as well as in clinical scenarios, risk information figures prominently. A key question is, what kinds of risk information would the reasonable person want to know? I will argue, however, that the reasonable person construct is and always has been incapable of settling this very question. After parsing the nebulous if not “contentless” character of the reasonable person, I will explain how Western courts have actually (...) adjudicated cases of “negligent nondisclosure,” that is, cases in which patient‐plaintiffs allege that their informed consent rights were violated by the failure of their health providers to inform them of reasonably foreseeable risks that subsequently materialized. To support my argument, I will scrutinize the landmark decision by the United Kingdom's Supreme Court in Montgomery v. Lanarkshire Health Board and, in particular, Justice Brenda Hale's concurrence. (shrink)

In my paper on moral responsibility and mental health disabilities, I defended the use of the standard of the reasonable person (SRP), adapted from W.O. Holmes’ famous account of responsibility in The Common Law (1881). This theory is meant to be applicable to all cases of moral responsibility assessment, but it is particularly apt for ascribing moral responsibility in cases of mental illness on a realist basis. This is because it has three distinctive advantages over the alternatives, (...) that is, the reasons view and the reflective-self view. Namely, (i) it avoids reliance on subjective data, which research in situationist psychology and neuroethics has shown to be elusive, unreliable, and relatively epistemically .. (shrink)

Jeutner argues that the reasonable person is, at heart, an empathetic perspective-taking device, by tracing the standard of the reasonable person across time, legal fields and countries. Beginning with a review of imaginary legal figures in the legal systems of ancient Egypt, Greece, and Rome, the book explains why the common law's reasonable person emerged amidst the British industrialisation under the influence of Scottish Enlightenment thinking. Following the figure into colonial courts, onto battlefields (...) and into self-driving cars, the book contends that the reasonable person invites judges, jury-members, and lawyers to take another person's perspective when assessing their own or another person's conduct. The perspective of another is taken by means of empathy, by feeling what others might feel in a particular situation. Thus construed, the figure of the reasonable person can help us make more accurate judgments in a diverse world. (shrink)

I have great sympathy for what seem to be two main goals in Michelle Ciurria’s (2014) “Moral Responsibility and Mental Health: Applying the Standard of the Reasonable Person,” although I am not sure the reasonable person standard achieves either of the goals. These central goals seem to be to preserve an objective standard of moral responsibility and to do so in a way that “does not depersonalize the target individual” (Ciurria 2014, 7). In (...) this commentary, I focus on my doubts about the adequacy of the reasonable person standard, at least as presented in Ciurria’s paper, to meet either of these goals. It might be that had she chosen the example of the psychopath rather than Tourette syndrome to work through in a .. (shrink)

It is contested whether and to what extent moral responsibility can be ascribed to persons with mental health disabilities. Will Cartwright (2006) evaluates two prevalent theories of responsibility in terms of their suitability for morally appraising sociopathic personality disorder, particularly as embodied in the famous homicidal bank robber Robert Harris. Cartwright argues that our intuitions about Harris conflict because we are instantly horrified by Harris’ actions, but we are forced to reconsider our initial moral reaction when we reflect on Harris’ (...) history of extreme abuse and neglect. After considering both candidate theories—the reflective-self view and the reasons view—Cartwright decides that neither is .. (shrink)

The ‘reasonable person standard’ is often called on in difficult legal cases as the last resource to be appealed to when other solutions run out. Its complexity derives from the controversial tasks that people place on it. Two dialectics require some clarification: the objective/subjective interpretation of the standard and the ideal/ordinary person controversy. I shall move through these dialectics from the standpoint of an EV approach, assuming that on this interpretation the RPS can perform most (...) persuasively its tasks. The all-round model of phronetic agent that I present not only works better than competing models—such as the utilitarian–economic and the Rawlsian—in the law of tort but shows its best potentialities in other kinds of cases. In criminal law and matrimonial law cases the recourse to the EV approach offers through the virtues rich and substantial resources to evaluate conflictual cases. This approach makes the threshold of evaluation much closer to real life than competitors. (shrink)

Mistakes are a fact of life, and the criminal law is sadly no exception to the rule. Wrongful convictions are rightfully abhorred, and false acquittals can likewise inspire outrage. In these cases, we implicitly draw a distinction between a court’s finding and a defendant’s actual guilt or innocence. These are intuitive concepts, but as this paper aims to show, contemporary use of the reasonable person standard in the law of self-defense muddles them. -/- Ordinarily, we can distinguish (...) between a person's material guilt or innocence and his juridical guilt or innocence. Someone is materially guilty if his actions in fact matched the conduct proscribed by the penal law. Someone is juridically guilty if he is found guilty by a tribunal, i.e., convicted by a judge or jury. When a tribunal convicts a innocent person or acquits a guilty person, the accuracy of its verdicts can be criticized. -/- There are three definitions of the reasonable person extant amongst courts and commentators: the reasonable person is either (1) a hypothetical ordinary, average person; (2) the embodiment of a community ideal; or (3) an embodiment of an objective ethical standard, i.e., ethical principles independent of community opinion. Nonetheless, after observing the circularity, vagueness, and lack of consistency in the definitions, wise courts and commentators have sometimes resorted to identifying the reasonable person with the judgment of the jury. -/- This piece argues that failure to settle on a fixed definition of the "reasonable person" in the criminal law of self-defense effectively conflates material guilt and innocence and juridical guilt and innocence at the doctrinal level. When courts do not clearly and consistently choose between standards one, two, and three, or when they expressly treat the reasonable person as a form of words standing in for the judgment of the jury, they make it conceptually impossible for observers outside the court system to apply a fixed, definite standard to assess the actual guilt of a person apart from the judgments of tribunals. -/- This paper's main purpose is to identify a conceptual knot rather than propose reforms. Still, it recommends two small changes meant to lift the confusion surrounding the reasonable person. First, it urges that courts expressly settle on one of the three definitions canvassed above. Second, it recommends that courts be mindful of the nature of the reasonable person standard and as such, be wary of treating conclusions about reasonableness as ordinary legal precedents, and wield the power of directed verdict aggressively to protect unpopular defendants from abuse by juries. (shrink)

The reasonable person standard is used in adjudicating claims of self-defence. In US law, an individual may use defensive force if her beliefs that a threat is imminent and that force is required are beliefs that a reasonable person would have. In English law, it is sufficient that beliefs in imminence and necessity are genuinely held; but the reasonableness of so believing is given an evidential role in establishing the genuineness of the beliefs. There is, (...) of course, much contention over how to spell out when, and in virtue of what, such beliefs are reasonable. In this chapter, we identify some distinctive issues that arise when we consider that implicit racial bias might be implicated in the beliefs in imminence and necessity. Considering two prominent interpretations of the reasonable person standard, we argue that neither is acceptable. On one interpretation, we risk unfairness to the defendant-who may non-culpably harbour bias. On another, the standard embeds racist stereotypes. Whilst there are formulations of the defence that may serve to mitigate these problems, we argue that they cannot be avoided in the presence of racist social structures. (shrink)

The reasonable person standard is key to both Criminal Law and Torts. What does and does not count as reasonable behavior and decision-making is frequently deter- mined by lay jurors. Hence, laypeople’s understanding of the term must be considered, especially whether they use it predominately in an evaluative fashion. In this corpus study based on supervised machine learning models, we investigate whether laypeople use the expression ‘reasonable’ mainly as a descriptive, an evaluative, or merely a (...) value-associated term. We find that ‘reasonable’ is predicted to be an evaluative term in the majority of cases. This supports prescriptive accounts, and challenges descriptive and hybrid accounts of the term—at least given the way we operationalize the latter. Interestingly, other expressions often used interchangeably in jury instructions (e.g. ‘careful,’ ‘ordinary,’ ‘prudent,’ etc), however, are predicted to be descriptive. This indicates a discrepancy between the intended use of the term ‘reasonable’ and the understanding lay jurors might bring into the court room. (shrink)

According to a common conception of legal proof, satisfying a legal burden requires establishing a claim to a numerical threshold. Beyond reasonable doubt, for example, is often glossed as 90% or 95% likelihood given the evidence. Preponderance of evidence is interpreted as meaning at least 50% likelihood given the evidence. In light of problems with the common conception, I propose a new ‘relevant alternatives’ framework for legal standards of proof. Relevant alternative accounts of knowledge state that a person (...) knows a proposition when their evidence rules out all relevant error possibilities. I adapt this framework to model three legal standards of proof—the preponderance of evidence, clear and convincing evidence, and beyond reasonable doubt standards. I describe virtues of this framework. I argue that, by eschewing numerical thresholds, the relevant alternatives framework avoids problems inherent to rival models. I conclude by articulating aspects of legal normativity and practice illuminated by the relevant alternatives framework. (shrink)

Brian Hedden defends a radical view about the relationship between rationality, personal identity, and time. On the standard view, personal identity over time plays a central role in thinking about rationality, because there are rational norms for how a person's attitudes and actions at one time should fit with her attitudes and actions at other times. But these norms are problematic. They make what you rationally ought to believe or do depend on facts about your past that aren't (...) part of your current perspective on the world, and they make rationality depend on controversial, murky metaphysical facts about what binds different instantaneous snapshots into a single person extended in time. Hedden takes a different approach, treating the relationship between different time-slices of the same person as no different from the relationship between different people. On his account, the locus of rationality is the time-slice rather than the temporally extended agent. This impersonal, time-slice-centric approach to rationality yields a unified approach to the rationality of beliefs, preferences, and actions where what rationality demands of you is solely determined by your evidence, with no special weight given to your past beliefs or actions. (shrink)

In determining when sexual behavior in the workplace creates a hostile working environment, some courts have asked, Would a reasonableperson view this as a hostile environment? Two recent court decisions, recognizing male-female differences in the perception of social sexual behavior at work, modified this standard to ask, Would a reasonablevictim view this as a hostile environment? As yet, there is no consensus in the legal community regarding which of these standards is just.We propose that moral theory provides the framework (...) from which business people can construct just procedures regarding sexually hostile environments. We argue that the natural duty of mutual respect of persons and the natural duty not to harm the innocent compels business people to identify sexually hostile work environments from the perspective of the reasonable victim, usually from the woman's perspective. (shrink)

What does the law demand when it requires citizens to conform to standards of reasonableness? I propose and defend the view that the law should demand that citizens conform their behavior to some actual conduct in society. I contrast this idea against what might be called the ``empty vessel'' view of reasonableness, where the standard is understood to function like an empty vessel in the law, allowing courts to use various norms and moral judgments to determine what seems (...) class='Hi'>reasonable in the circumstances. The empty vessel account is the more common approach for understanding reasonableness, but it leaves obscure whether and how assessments about appropriate conduct connect with facts about citizens' actual conduct. I argue for a ``binocular'' view that focuses our attention on actual practices and thereby establishes how these standards provide a stable guide to conduct and support the rule of law. (shrink)

What does the law demand when it requirescitizens to conform to standards ofreasonableness? I propose and defend theview that the law should demand thatcitizens conform their behavior to someactual conduct in society. I contrast thisidea against what might be called the``empty vessel'' view of reasonableness,where the standard is understood tofunction like an empty vessel in the law,allowing courts to use various norms andmoral judgments to determine what seemsreasonable in the circumstances. Theempty vessel account is the more commonapproach for understanding (...) reasonableness,but it leaves obscure whether and howassessments about appropriate conductconnect with facts about citizens' actualconduct. I argue for a ``binocular'' viewthat focuses our attention on actualpractices and thereby establishes howthese standards provide a stable guide toconduct and support the rule of law. (shrink)

When making decisions for adults who lack decision-making capacity and have no discernable preferences, widespread support exists for using the Best Interests Standard. This policy appeals to adults and is compatible with many important recommendations for persons facing end-of-life choices.Common objections to the policy are discussed as well as different meanings of this Standard identified, such as using it to express goals or ideals and to make practical decisions incorporating what reasonable persons would want. For reasons of (...) consistency, fairness, and compassion, this standard should be used for all incapacitated persons. (shrink)

The best-interests standard is a widely used ethical, legal, and social basis for policy and decision-making involving children and other incompetent persons. It is under attack, however, as self-defeating, individualistic, unknowable, vague, dangerous, and open to abuse. The author defends this standard by identifying its employment, first, as a threshold for intervention and judgment (as in child abuse and neglect rulings), second, as an ideal to establish policies or prima facie duties, and, third, as a standard of (...) reasonableness. Criticisms of the best-interests standard are reconsidered after clarifying these different meanings. (shrink)

Shared decision making has become the standard of care, yet there remains no consensus about how it should be conducted. Most accounts are concerned with threats to patient autonomy, and they address the dangers of a power imbalance by foregrounding the patient as a person whose complex preferences it is the practitioner's task to support. Other corrective models fear that this level of mutuality risks abdicating the practitioner's responsibilities as an expert, and they address that concern by recovering (...) a nuanced but genuinely directive clinical role. Cribb and Entwistle helpfully categorize models of shared decision making as ‘narrower’ and ‘broader’ and praise the latter's ‘open‐ended and fully dialogical ways of relating’. However, they stop short of providing a philosophical account of how that dialogue works. In this paper, a nurse–midwife and a philosopher collaborate to argue that the Socratic model of dialogue offers a solution to the practitioner–patient dilemma. In the Theaetetus, Socrates compares dialogical reasoning to ‘midwifery with all its standard features’. By means of a three‐way analogy, elements of midwifery practice are used to illuminate features of Socrates' claim that his dialogue is like midwifery; those features are then translated into an approach to shared decision making as the ‘midwifery of good thinking’ which both midwives and physicians would do well to adopt. A key concept that emerges is the need for practitioners to make a risk‐confidence assessment of the particular content of any decision to appropriately modulate their role in the practice of shared decision making. (shrink)

This study investigates the impact of fraud/lawsuit revelation on U.S. top executive turnover and compensation. It also examines potential explanatory variables affecting the executive turnover and compensation among U.S. fraud/lawsuit firms. Four important findings are documented. First, there was significantly higher executive turnover among U.S. firms with fraud/lawsuit revelation in the Wall Street Journal than matched firms without such revelation. Second, although on average, U.S. top executives received an increase in cash compensation after fraud/lawsuit revelation, this increase is smaller than (...) that of matched non-fraud/lawsuit firms. Third, fraud/lawsuit firms were more likely to change top executive when chief executive officer (CEO) was not the board chairman and CEO had been on the board for a short time. Fourth, fraud/lawsuit firms were more likely to reduce their executive cash compensation when profitability was low, firms were involved in fraud, the compensation committee size was small, and the board met more often. These findings indicate that although, in general, U.S. fraud/lawsuits firms did not reduce their executive cash compensation, those involved in fraud were more likely to reduce their executive cash compensation than to change their top executives. The finding, that ethical standards is not a significant factor for U.S. executive turnover nor compensation reduction, suggests that ethics appears to play no part in the board’s decisions, and that U.S. firms may have ethical standards in writing but they do not implement nor enforce the standards. (shrink)

This paper presents a series of studies (total N=579) which demonstrate that folk judgments concerning the reasonableness of decisions and actions depend strongly on whether they engender positive or negative consequences. A particular decision is deemed more reasonable in retrospect when it produces beneficial consequences than when it produces harmful consequences, even if the situation in which the decision was taken and the epistemic circumstances of the agent are held fixed across conditions. This finding is worrisome for the law, (...) where the reasonable person standard plays a prominent role. The legal concept of reasonableness is outcome-insensitive: whether the defendant acted in a reasonable fashion or not depends exclusively on her context of action, no matter how things play out. Folk judgments of reasonableness are thus inconsistent with the legal concept of reasonableness. Problematically, in common law jurisdictions, the decision whether a defendant’s behavior was reasonable or not is frequently (though not necessarily) delegated to a lay jury. (shrink)

This chapter contains sections titled: Reincarnation/Rebirth Karma Causality Problem of Evil Determinism, Freedom, and Moral Responsibility Karma and Release Transfer of Merit Recent Developments Works cited.

I have little to say on this passage, where it seems necessary to maintain the vulgate notwith standing its obvious defects. My only reason for discussing it is to call attention to the strangeness of Jebb's proceeding when seeking to support Hermann's conjecture παλλλοιν which he admits into the text. The objection to Hermann's view is that, as he himself admits, there is no evidence that πáλληλος could be used in the sense of λληλιφóνος. For that, I suppose, is the (...) meaning of ‘mutual hands,’ which both Jebb and Campbell suggest as a translation, although ‘mutual violence’ would be better. But the chief purpose of this note is to protest against the mode of interpretation applied to Philo de Mose 3. 36. II. p. 175 M. διà τàς ν δασι καí πνρì γνιμéνας συνχς καì παλλλονς φθορáς Turnebu s rightl yrenders ‘alternas interneciones,’ and why Jebb supposes him to have meant ‘mutual’ I do not know. Anyhow he admits that Philo used the word in its ordinary sense of successive, and proceeds to paraphrase ‘owing to the continuous and rapid succession of calamities by flood and fire’ . All this is quite beside the mark, for the reference is to the alternate destruction of the world at the κπρωσις by fire and at the ξγρωσιςby water. I must take leave to refer to the evidence collected in my book on Zeno and Cleanthes, p. 253, to which should be added a most instructive passage of Origen : περì τν κακν λóγος ο μνóντων ì ν τατᾦ διà τν τοι τηροσαν τà πì γ$$$ς πρóνοιαν κατακλνσμο καì κπνρ03CE;σσι καθαíρονσαν.Add the passages from Lucan quoted by Mr. Heitland in his Introduction, p. xliii. (shrink)

We live in a world of one-size-fits-all law. People are different, but the laws that govern them are uniform. "Personalized Law" - rules that vary person by person - will change that. Here is a vision of a brave new world, where each person is bound by their own personally-tailored law. "Reasonable person" standards would be replaced by a multitude of personalized commands, each individual with their own "reasonable you" rule. Skilled doctors would be (...) held to higher standards of care, the most vulnerable consumers and employees would receive stronger protections, age restrictions for driving or for the consumption of alcohol would vary according the recklessness risk that each person poses, and borrowers would be entitled to personalized loan disclosures tailored to their unique needs and delivered in a format fitting their mental capacity. The data and algorithms to administer personalize law are at our doorstep, and embryos of this regime are sprouting. Should we welcome this transformation of the law? Does personalized law harbor a utopic promise, or would it produce alienation, demoralization, and discrimination? This book is the first to explore personalized law, offering a vision of law and robotics that delegates to machines those tasks humans are least able to perform well. It inquires how personalized law can be designed to deliver precision and justice and what pitfalls the regime would have to prudently avoid. (shrink)

The reasonable person standard is of great importance to US criminal and tort law. According to the law, whether or not an agent acted reasonably does not depend on features of the outcome which are not under her control. Mock juror attributions of reasonableness, however, are shown to be outcome-dependent. A series of experiments reveals that this outcome-dependence does not constitute a bias, since the very folk concept of reasonableness is outcome-sensitive. Consequently, the law makes a mistaken (...) assumption as to what kind of concept of reasonableness lay jurors will apply in court. This conceptual misalignment, it is argued, could lead to serious injustice in US trials. This paper presents a series of studies (total N=579) which demonstrate that folk judgments concerning the reasonableness of decisions and actions depend strongly on whether they engender positive or negative consequences. A particular decision is deemed more reasonable in retrospect when it produces beneficial consequences than when it produces harmful consequences, even if the situation in which the decision was taken and the epistemic circumstances of the agent are held fixed across conditions. This finding is worrisome for the law, where the reasonable person standard plays a prominent role. The legal concept of reasonableness is outcome-insensitive: whether the defendant acted in a reasonable fashion or not depends exclusively on her context of action, no matter how things play out. Folk judgments of reasonableness are thus inconsistent with the legal concept of reasonableness. Problematically, in common law jurisdictions, the decision whether a defendant’s behavior was reasonable or not is frequently (though not necessarily) delegated to a lay jury. (shrink)

Abstract: On standard accounts, actions are caused by reasons (Davidson), and reasons are taken to be neural phenomena. Since neural phenomena are wholly understandable from a third-person perspective, standard views have no room for any ineliminable first-personal elements in an account of the causation of action. This article aims to show that first-person perspectives play essential roles in both human and nonhuman agency. Nonhuman agents have rudimentary first-person perspectives, whereas human agents—at least rational agents and (...) moral agents—have robust first-person perspectives. The author concludes with a view of intentional causation, according to which reasons are constituted by (but not identical to) neural phenomena. The idea of constitution without identity allows for a causal account of action that automatically includes first-personal aspects of agency. (shrink)

This article examines Lamb, Gable & de Ruyter's critique of consent as the standard by which one can determine if a sexual encounter is ethical in their ‘Mutuality in sexual relationships: a standard of ethical sex?’. Their examination of this issue is to be welcomed for a number of reasons, including growing criticism of ‘consent’ as the gold standard in medical and social science research ethics. The focus of this article is specifically on school sex education (principally, (...) for 11–16-year-olds). Contrary to Lamb et al., I argue that it is difficult to maintain that ‘The standard of mutuality should be taught in all schools and the government should indeed demand or support this, even with checks to see if children have learned this standard, at least in attitudes about sexual behavior’ for three reasons. First, while there are good arguments in favour of school children being introduced to the ideal of mutuality, it seems too high a bar to require children to ‘have learned’—a phrase that can be taken to mean to ‘have come to accept’ rather than merely to ‘understand’—this; consent is a more appropriate requirement and is itself a sufficiently rich term that it merits analysis by students, aided by their teachers. Second, my judgement as a sex educator is that sex education is more effective when students are given the opportunity to explore what is good and what is right, rather than simply being told. Third, if we have to adopt a single principle, there is much to be said for ‘respect for others’ to trump both ‘consent’ and ‘mutuality’. (shrink)

The debate over risk-related standards of decisional capacity remains one of the most important and unresolved challenges to our understanding of the demands of informed consent. On one hand, risk-related standards benefit from significant intuitive support. On the other hand, risk-related standards appear to be committed to asymmetrical capacity—a conceptual incoherence. This latter objection can be avoided by holding that risk-related standards are the result of evidential considerations introduced by (i) the reasonable person standard and (ii) the (...) standing assumption that patients have capacity. This evidential approach to justifying risk-related standards of capacity avoids the most significant challenges faced by extant views while grounding risk-related standards in two fairly uncontroversial views in biomedical ethics. (shrink)

The problem of standard of care in clinical research concerns the level of treatment that investigators must provide to subjects in clinical trials. Commentators often formulate answers to this problem by appealing to two distinct types of obligations: professional obligations and natural duties. In this article, I investigate whether investigators also possess institutional obligations that are directly relevant to the problem of standard of care, that is, those obligations a person has because she occupies a particular institutional (...) role. I examine two types of institutional contexts: (1) public research agencies – agencies or departments of states that fund or conduct clinical research in the public interest; and (2) private-for-profit corporations. I argue that investigators who are employed or have their research sponsored by the former have a distinctive institutional obligation to conduct their research in a way that is consistent with the state's duty of distributive justice to provide its citizens with access to basic health care, and its duty to aid citizens of lower income countries. By contrast, I argue that investigators who are employed or have their research sponsored by private-for-profit corporations do not possess this obligation nor any other institutional obligation that is directly relevant to the ethics of RCTs. My account of the institutional obligations of investigators aims to contribute to the development of a reasonable, distributive justice-based account of standard of care. (shrink)

Standard views on surrogate decision making present alternative ideal models of what ideal surrogates should consider in rendering a decision. They do not, however, explain the physician''s responsibility to a patient who lacks decisional capacity or how a physician should regard surrogates and surrogate decisions. The authors argue that it is critical to recognize the moral difference between a patient''s decisions and a surrogate''s and the professional responsibilities implied by that distinction. In every case involving a patient who lacks (...) decisional capacity, physicians and the treatment team have to make judgments about the appropriateness of both the surrogate and the surrogate''s decision. They have to assess the surrogate''s decisional capacity and attitude toward the patient as well as the reasons that support the surrogate''s decision. This paper provides a model for acceptable surrogate decisions and a standard for blocking inappropriate surrogates. Only decisions based on widely shared reasons are allowable for surrogate refusal of highly beneficial treatment. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Standards of Music Education and the Easily Administered Child/Citizen: The Alchemy of Pedagogy and Social Inclusion/Exclusion Thomas S. Popkewitz and Ruth Gustafson University of Wisconsin-Madison Educational standards are forsome a corrective device to promote the twin goals of excellence and equity by making explicit the performance outcomes ofschooling. For others, performance standards do not do what they say and install the wrong goals for teaching. But various sides in (...) the debate assume that school subjects teach the subjects and what is needed are more effective and efficient classroom practices. Our approach is different. We consider the standards of school subjects as related to the conditions of state governing. School subjects inscribe principles that administer the conduct ofthe child who is to grow into the "reasonable citizen." The Standards Movement is more than what is publicly discussed. Pedagogy embodies particular ways ofthinking or a system ofreason in which pedagogy orders who we are, who we should become, and who are not qualifiedto become that "we." If we think of modern schooling as an inscription device in the fonning of the citizen through the development ofthe child, the crux of the debate is not whether to have standards. It is how particular standards are inscribed through pedagogicalpractices. Ifwe treat school subjects as analogous to a uniform system of taxes, the developmentofuniformmeasurements, andurban planning in the modem state, our concern is with the boundaries created about the rules and standards of reason and the reasonable person. Pedagogygoverns inadoublesense: schoolmusic embodies representations that constitute the objects that children act on as real, and it generates principles to orderand patrol the borders that qualify and disqualify individuals for participation. The standards that govern music education can be thought about as an alchemy.1 The field of music is transported and translated into school subjects andpedagogical content. As the sorcerer ofthe middle ages sought to turn lead into gold, a specializedpedagogyplaces children in a new set ofrelations that is no longerthe academic field of music. Why is the alchemy important? First, the alchemy ofschool subjects is a particular system of reason that fabricates the kinds of people administered in schooling. Second, the alchemy reconfigures the sensitivities and awarenesses of the field of music to make the child's "soul" the site of administration. That soul in music and other school subjects is talked about today as personaldevelopment, self-reflection,personality, and character. Third, school subjects are sites in which the relations between the state, society, community, and individuality are worked and reworked to produce the borders ofinclusion and exclusion. The first section of this paper considers school subjects as a practice of governing that administersprinciples (orstandards ifwecanplay with that word) about who we are and should be. The second section considers psychology as the translation device that transports academic disciplines into school subjects. It may seem odd at firstglancebutthesamepsychologicaltransportation systems exist across school subjects. The historical intervention of the transportation system, we argue in the third section, has little to do with understanding music or science, but with governing the soul. In that section we examine the different cultural practices that overlap to©Philosophy ofMusic Education Review 10, no. 2 (Fall, 2002): 80-91. Thomas S. Popkewitz/Ruth Gustafson 81 generate principles that orderthe nature ofmusic, the child/childhood, teaching, and reflection and subjectivity in music education. The discussion is not about the internal structure or the goodness ofmusic education but the particular frames of reference that form the evidence and possibilities of reform in school subjects. We take up the task ofinquiry into the alchemy of music as part of a broader project to show the contingency ofthe arrangement that we live by showing how thought has played a part in holding those arrangements together and to contestthe strategiesthatgovernthehumanpossibilities. The Art ofGoverning: Standards as Mapping Who We are/to Become Themodern state governs through developing a precise system of classifications and the correct sorting devices to chart a course ofaction that will change society for the better and which will prevent any futurejoining ofthe ranks ofthe poorly performing. To govern is to develop systems ofclassification that calculate and make legiblepeople fortheadministrationofthe society and the citizen. Mass schooling is a central institution in... (shrink)

The notion of relevance plays a role in many accounts of knowledge and knowledge ascription. Although use of the notion is well-motivated, theorists struggle to codify relevance. A reasonable person standard of relevance addresses this codification problem, and provides an objective and flexible standard of relevance; however, treating relevance as reasonableness seems to allow practical factors to determine whether one has knowledge or not—so-called “pragmatic encroachment.” I argue that a fuller understanding of reasonableness and of the (...) role of practical factors in the acquisition of knowledge lets us avoid pragmatic encroachment. (shrink)

A person presented with adequate but not conclusive evidence for a proposition is in a position voluntarily to acquire a belief in that proposition, or to suspend judgment about it. The availability of doxastic options in such cases grounds a moderate form of doxastic voluntarism not based on practical motives, and therefore distinct from pragmatism. In such cases, belief-acquisition or suspension of judgment meets standard conditions on willing: it can express stable character traits of the agent, it can (...) be responsive to reasons, and it is compatible with a subjective awareness of the available options. (shrink)

Sentencing outcomes turn on moral and evaluative determinations. For example, a finding of “irreparable corruption” is generally a precondition for juvenile life without parole. A finding that the “aggravating factors outweigh the mitigating factors” determines whether a defendant receives the death penalty. Should such moral determinations that expose defendants to extraordinary penalties be subject to a standard of proof? A broad range of federal and state courts have purported to decide this issue “in the abstract and without reference to (...) our sentencing case law,” as the Supreme Court recently put it. Kansas v. Carr, 577 U.S. 108, 119 (2016). According to these courts, “it would mean nothing” to ask whether the defendant “deserves mercy beyond a reasonable doubt” or “more-likely-than-not deserves it” because moral questions are not “factual.” Instead, moral determinations are highly subjective “value calls” to which concepts of doubt and certainty do not intelligibly apply. -/- Implicit in these rulings is a controversial view of the nature of moral judgment. This Article traces the contours of the view and argues that it is out of step with the way the broader public thinks about morality and fails to address the issues defendants have raised. Courts should avoid wading into such controversial waters for two reasons. First, the judiciary has historically maintained neutrality on issues of significant public concern. Second, even if moral determinations are not factual, applying a standard of proof to at least some moral decisions at sentencing would change the outcome of the sentencer’s deliberations, and improve the legitimacy of the legal system. For the reasonableness of doubt depends on context; and moral questions—"are you certain the defendant deserves death?”—make salient the stakes relative to which a person should decide what to believe about ordinary empirical matters. On the resulting view, reasonable doubt in the final moral analysis is not just intelligible, but essential for correcting a bias in the structure of the bifurcated criminal trial that systematically disadvantages defendants: the tendency for de-contextualized "factual findings” in the guilt phase to control outcomes at sentencing. (shrink)

A patient’s decision-making capacity or competence is among the prerequisites for valid consent to medical treatment, and is regarded as the gatekeeping element in ensuring respect for patients’ self-determination. The issue is especially relevant in the case of vulnerable persons, such as patients who are cognitively or mentally impaired, and where medical decisions carry far-reaching consequences. As a grounding principle, DMC is a priori assumed, and challenged only when substantial doubts arise owing to observed or assumed deficiencies of the capacities (...) commonly considered relevant for competent decision making ; in this sense, the onus is on... (shrink)

The problem of standard of care in clinical research concerns the level of treatment that investigators must provide to subjects in clinical trials. Commentators often formulate answers to this problem by appealing to two distinct types of obligations: professional obligations and natural duties. In this article, I investigate whether investigators also possess institutional obligations that are directly relevant to the problem of standard of care, that is, those obligations a person has because she occupies a particular institutional (...) role. I examine two types of institutional contexts: (1) public research agencies – agencies or departments of states that fund or conduct clinical research in the public interest; and (2) private‐for‐profit corporations. I argue that investigators who are employed or have their research sponsored by the former have a distinctive institutional obligation to conduct their research in a way that is consistent with the state's duty of distributive justice to provide its citizens with access to basic health care, and its duty to aid citizens of lower income countries. By contrast, I argue that investigators who are employed or have their research sponsored by private‐for‐profit corporations do not possess this obligation nor any other institutional obligation that is directly relevant to the ethics of RCTs. My account of the institutional obligations of investigators aims to contribute to the development of a reasonable, distributive justice‐based account of standard of care. (shrink)

A classic debate concerns whether reasonableness should be understood statistically (e.g., reasonableness is what is common) or prescriptively (e.g., reasonableness is what is good). This Article elaborates and defends a third possibility. Reasonableness is a partly statistical and partly prescriptive “hybrid,” reflecting both statistical and prescriptive considerations. Experiments reveal that people apply reasonableness as a hybrid concept, and the Article argues that a hybrid account offers the best general theory of reasonableness. -/- First, the Article investigates how ordinary people judge (...) what is reasonable. Reasonableness sits at the core of countless legal standards, yet little work has investigated how ordinary people (i.e., potential jurors) actually make reasonableness judgments. Experiments reveal that judgments of reasonableness are systematically intermediate between judgments of the relevant average and ideal across numerous legal domains. For example, participants’ mean judgment of the legally reasonable number of weeks’ delay before a criminal trial (ten weeks) falls between the judged average (seventeen weeks) and ideal (seven weeks). So too for the reasonable num- ber of days to accept a contract offer, the reasonable rate of attorneys’ fees, the reasonable loan interest rate, and the reasonable annual number of loud events on a football field in a residential neighborhood. Judgment of reasonableness is better predicted by both statistical and prescriptive factors than by either factor alone. -/- This Article uses this experimental discovery to develop a normative view of reasonableness. It elaborates an account of reasonableness as a hybrid standard, arguing that this view offers the best general theory of reasonableness, one that applies correctly across multiple legal domains. Moreover, this hybrid feature is the historical essence of legal reasonableness: the original use of the “reasonable person” and the “man on the Clapham omnibus” aimed to reflect both statistical and prescriptive considerations. Empirically, reasonableness is a hybrid judgment. And normatively, reasonableness should be applied as a hybrid standard. (shrink)

In 2017, federal officials issued a revised version of the Common Rule, the federal regulations that govern much of the human subject research conducted in the United States. Two provisions on information disclosure have reportedly provoked confusion among researchers and people responsible for research oversight. These provisions incorporate the familiar and foundational legal concept known as the reasonable person standard, applying this to research disclosure. Although other, long‐standing Common Rule provisions require reasonableness judgments, the new provisions differ (...) in that they require reasonableness to be judged from the ordinary person's perspective instead of the perspective of scientists, clinicians, and other experts generally involved in designing and reviewing human studies. (shrink)

We all know that being reasonable is important in daily life. Beyond daily life, major political and ethical theorists give central place to reasonableness in their accounts of just and moral behaviour. In the law, at least in the Anglo-American setting, reasonableness is the standard for a wide range of behaviour, from administrative decisions to torts. But what is it to be reasonable? In answer, I provide a genealogical account of reasonableness. The functional perspective afforded by a (...) genealogical account has numerous payoffs, explaining important features of reasonableness, and enabling us to respond to worries about vagueness or subjectivity in the meaning of ‘reasonable’. (shrink)

The standard paradigm for mental causation is a person’s acting for a reason. Something happens - she intentionally φ’s - the occurrence of which we explain by citing a relevant belief or desire. In the present context, I simply take for granted the following two conditions on the appropriateness of this explanation. First, the agent φ’s _because_ she believes/desires what we say she does, where this is expressive of a _causal_ dependence.1 Second, her believing/desiring this gives her a (...) _reason_ for φ-ing: recognizing that she has this belief/desire makes her φ-ing intelligible as rational in the light of her other attitudes and circumstances. A further condition must be met, though, if this is to be a genuine psychological explanation, a case of her acting _for_ the reason in question. Consider the following example of Davidson’s (1973, p. 79). An exhausted climber is desperate to rid herself of the weight and danger of holding her partner on a rope; and her sudden realization that simply letting go would achieve this so unnerves her that her grip loosens slightly and he falls. Her releasing him causally depends upon her having this belief and desire, which provide _a_ reason for doing what she does. But this is not _why_ she does it: it would be at best misleading to say that she dropped him, intentionally, because she was fed up with holding his weight, or because she thought that she might otherwise fall. Her letting go does not depend upon her having these reasons in the right way. The reason-giving relation is causally irrelevant. If we are to explain a person’s acting _for_ a reason, then her doing. (shrink)

How can we motivate ourselves to do what we think we ought? How can we deliberate about personal values and priorities? Bennett Helm argues that standard philosophical answers to these questions presuppose a sharp distinction between cognition and conation that undermines an adequate understanding of values and their connection to motivation and deliberation. Rejecting this distinction, Helm argues that emotions are fundamental to any account of value and motivation, and he develops a detailed alternative theory both of emotions, desires (...) and evaluative judgements and of their rational interconnections. The result is an innovative theory of practical rationality and of how we can control not only what we do but also what we value and who we are as persons. (shrink)

This paper examines relationships between accountants’ personal values and their moral reasoning. In particular, we hypothesize that there is an inverse relationship between accountants’ “Conformity” values and principled moral reasoning. This investigation is important because the literature suggests that conformity with rule-based standards may be one reason for professional accountants’ relatively lower scores on measures of moral reasoning (Abdolmohammadi et al. J Bus Ethics 16 (1997) 1717). We administered the Rokeach Values Survey (RVS) (Rokeach: 1973, The Nature of Human Values (...) (The Free Press, New York)) and the Defining Issues Test (DIT) (Rest: 1979, Development in Judgment Moral Issues (University of Minnesota Press, Minneapolis, MN)) to164 graduating accounting students enrolled in capstone courses at two universities in the Northeastern United States. As potential entrants into the accounting profession, these subjects bring their values and moral reasoning to bear on attitudes and behaviors in the workplace. We find a highly significant inverse relationship between “Conformity” values and principled moral reasoning (i.e., those who prefer Conformity values have lower levels of moral reasoning). However, we also find that accounting students as a group do not prefer Conformity values above other values such as Self-actualization and Idealism, and we find positive relationships between Self-actualization and Idealism values and moral reasoning. Implications for values and ethics research are discussed. (shrink)

Steven Wall has two compelling arguments for what I shall call public reason liberalism's reflexivity requirement. The political concerns to reconcile persons who hold diverse moral views, and to avoid authoritarianism in politics not only require the public justification of coercion but the public justification of the standard used to determine when coercion is publicly justified. The reflexivity requirement is said to entail that public reason is self-defeating. Once RR is correctly formulated, however, cases of self-defeat will be rare, (...) as citizens seldom employ public justification requirements as reasons. When they do, such requirements are rarely their sole reason for supporting political coercion. A properly formulated reflexivity requirement, therefore, does not imply self-defeat. It also allows for a more ecumenical understanding that establish the processes of public justification. (shrink)

Standards of reasonableness are pervasive in law. Whether a belief or conduct is reasonable is determined by reference to what a ?reasonable man? similarly situated would have believed or done in similar circumstances. Feminists rightly objected that the ?reasonable man? standard was gender?biased and worked to the detriment of women. Merely replacing the ?reasonable man? with the ?reasonable person? would not be sufficient, furthermore, to right this historic wrong. Rather, in a wide range (...) of cases, feminist theorists and legal practitioners urged instead a standard of reasonableness that reflects the perceptions of women, a perspective informed by women?s vulnerability and oppression. In this essay I examine the role of the ?reasonable woman? standard in two areas of law ? workplace sexual harassment and self?defense ? and argue that it is both legally and politically problematic. (shrink)

In this essay, I examine the relationship between lawsuits for medical malpractice and the legal standard of care. I suggest that there is an insidious, dynamic relationship between physicians' reactions to the recent increase in malpractice litigation and an artificial elevation of the legal standard of care. Since, that is, the legal standard for proper medical care is based upon the community standard of care rather than the reasonable person standard, to the extent (...) that overtreatment or “defensive” medicine becomes widespread as a reaction to malpractice litigation, the legal standard becomes elevated as well. Thus, it will increasingly be the case that unless a physician practices defensive medicine, and hence practices unreasonably, she risks being found liable for medical malpractice. (shrink)

A satisfactory theory of “strong evaluation” should manage to do two things: first of all, make sense of the distinction between impersonal ethical issues and personal orientation. Secondly, the deontic layer of reasons and norms should be taken into account, among other things because the central indicators of strong evaluation, namely praise and blame, presuppose norms and reasons as standards of praiseworthiness and blameworthiness. These two desiderata seem to pull in different directions. The suggested analysis of the deontic layer in (...) terms of external, value-based reasons for action may make it seem even more difficult to allow for reasons of one’s own. I argue that there can be reasons of one’s own, depending on one’s orientations, commitments and the actual shape of one’s affective-conative responses. First I discuss the general reasons that decisions and commitments create, and general (stance-insensitive) reasons for making a commitment to X. These suffice as a reply to MacIntyre’s worry (9.2). Yet the picture can be developed further. Drawing on the idea of exclusionary reasons (introduced in 9.1), I discuss the general reasons for having an orientation of one’s own and the difference between an orientation to the good and a commitment to a good. The difference is the role they have as reasons for action. Commitments play a stronger role in practical reasoning because they are exclusionary reasons (9.3). Then I turn to non-uniformity and stance-sensitivity of reasons, and ask whether different people have stance-sensitive reasons to make different commitments (9.4). In the last section I analyze more closely the nature of personal resonance and the difference it may make (9.5). (shrink)