A vibrant history with 250 full-color photographs covers the 40-year history of Philadelphia's Electric Factory music venue, which hosted such acts as Pink Floyd, Jimi Hendrix, Bob Dylan, Bruce Springsteen, Bette Midler, Elvis Presley, Pearl Jam and many more.

I begin my analysis of consent by agreeing with Professor Hurd that consent functions as a “moral transformative” by altering the obligations and permissions that determine the Tightness of others' actions. I further agree with her that consent is intimately related to the capacity for autonomous action; one who cannot alter others' obligations through consent is not fully autonomous. I cannot improve on her elaboration of these points.

This piece is a review essay on Victor Tadros’s The Ends of Harm. Tadros rejects retributive desert but believes punishment can be justified instrumentally without succumbing to the problems of thoroughgoing consequentialism and endorsing using people as means. He believes he can achieve these results through extension of the right of self-defense. I argue that Tadros fails in this endeavor: he has a defective account of the means principle; his rejection of desert leads to gross mismatches of punishment and culpability; (...) and he cannot account for punishment of inchoate crimes. (shrink)

Freedom of association, as I understand it, refers to the liberty a person possesses to enter into relationships with others—for any and all purposes, for a momentary or long-term duration, by contract, consent, or acquiescence. It likewise refers to the liberty to refuse to enter into such relationships or to terminate them when not otherwise compelled by one's voluntary assumption of an obligation to maintain the relationship. Freedom of association thus is a quite capacious liberty.

This essay, as will become obvious, owes a huge debt to Mark Kelman, particularly to his article “Interpretative Construction in the Substantive Criminal Law.” That debt is one of both concept and content. There is rich irony in my aping Kelman's deconstructionist enterprise, for I do not share his enthusiasm for either the “insights” or the political agenda of the Critical Legal Studies movement. I do not believe that either the law in general or the criminal law in particular is (...) radically indeterminate, rife with internal contradictions, or an expression of the interests of a dominant economic class. And although, like Kelman, I believe that the freedom/determinism, act/character, and rule/principle dichotomies must ultimately be dealt with in order to have a completely satisfactory account of criminal law, I also believe that these dichotomies loom just as large in other areas of law and in normative theory generally. They are problems for Crits as well as for liberal-legalists. In any event, my intentions in undertaking this deconstructionist enterprise are modestly reformist, not revolutionary. I do not intend to shift any paradigms, but to work with well-established ones. I will assume that criminal law seeks to accomplish some blend of retributive response to and deterrence of culpable choices, choices to defy moral norms that are also legal norms. I will also assume that a culpable choice is one that reflects negatively on the values held by the chooser. Beyond these quite modest assumptions, I need not and will not venture in this paper, realizing, of course, that much has and can be written about the proper aims of punishment and the proper account of culpability. (shrink)

In this short paper, I shall answer the title’s question first in the context of criminal law and then in the context of tort law. In that latter section, I shall also mention in passing contractual and other forms of civil liability that are strict, although they will not be my principal focus. My conclusions will be that strict liability is never proper as the basis for retributive punishment; that it is a very crude device for achieving deterrence through nonretributive (...) penalties; and that with respect to tort liability, it is best justified as a means of defining insurance categories. (shrink)

American criminal law reflects the absence of any general duty of Good Samaritanism. Nonetheless, there are some circumstances in which it imposes affirmative duties to aid others. In those circumstances, however, the duty to aid is canceled whenever aiding subjects the actor to a certain level of risk or sacrifice, a level that can be less than the risk or sacrifice faced by the beneficiary if not aided. In this article, I demonstrate that this approach to limiting affirmative duties to (...) aid encounters the same problem of moral arbitrariness as does a moral catastrophe override of deontological side-constraints. (shrink)

The Covid‐19 pandemic has concentrated bioethics attention on the “lifeboat ethics” of rationing and fair allocation of scarce medical resources, such as testing, intensive care unit beds, and ventilators. This focus drives ethics resources away from persistent and systemic problems—in particular, the structural injustices that give rise to health disparities affecting disadvantaged communities of color. Bioethics, long allied with academic medicine and highly attentive to individual decision‐making, has largely neglected its responsibility to address these difficult “upstream” issues. It is time (...) to broaden our teaching, research, and practice to match the breadth of the field in order to help address these significant societal inequities and unmet health needs. (shrink)

In this essay, I attempt to measure various prevailing democratic theories against an argument that Carl Schmitt advances in the first chapter of his ‘Crisis of Parliamentary Democracy’. In practice, he claims there, democratic politics is compelled to introduce a distinction between ‘the will of the people’ and the behaviour of the empirical people, thus justifying the bracketing and unlimited suspension of the latter in the name of the former, even to the point of dictatorship. I argue that no contemporary (...) approach to democracy as a fundamental value is able to mount a compelling response to this critique and that we should therefore reconsider the status of democracy as a normative commitment. I proceed by carefully and closely reading Schmitt’s chapter and then by juxtaposing various currents of democratic theory (including liberal, deliberative, epistemic and various hybrids thereof) with the trajectory of Schmitt’s argument. This essay is therefore less of a contribution to Schmitt scholarship, in the sense that it does not take a panoramic view of his corpus to determine his final stance on democracy, and more of an intervention into contemporary democratic theory using Schmitt’s argument as a kind of lever. (shrink)

This chapter contains section titled: What Constitutions Are What Constitutions Do Are Constitutions Desirable? References.

This handbook consists of essays on contemporary issues in criminal law and their theoretical underpinnings. Some of the essays deal with the relationship between morality and criminalization. Others deal with criminalization in the context of specific crimes such as fraud, blackmail, and revenge pornography. The contributors also address questions of responsible agency such as the effects of addiction or insanity, and some deal with punishment, its mode and severity, and the justness of the state’s imposition of it. These chapters are (...) authored by some of the most distinguished scholars in the fields of applied ethics, criminal law, and jurisprudence. (shrink)

In this article I take up a conceptual question: What is the distinction between ‘the law’ and the behavior the law regulates, or, as I formulate it, the distinction between what is ‘inside’ the law and what is ‘outside’ it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn (...) on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is ‘inside’ and ‘outside’ the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy. (shrink)

At first, despairing of justifying the Court's new-found rights as the products of interpreting the Constitution, many of the Court's supporters bit the bullet and proclaimed the legitimacy of "noninterpretivism." As an approach to justifying purportedly constitutional decisions, however, noninterpretivism's oxymoronic quality made it an easy target for the Court's detractors, who asserted that noninterpretivism was nothing more than rule by a federal judiciary unrestrained by any positive law.

Much has been written about the importance of narrative in teaching ethics and humanities to medical students and residents, as well as the value of narratives in clinical care. Relatively little has been said about the essential role of narrative in bioethics consultations. For most consults, the interpretation of narratives is the central moral feature, and the ethics consultant is inevitably one of the narrators. In a recent consult in which I participated, at least three narratives were in play. The (...) medical record itself was a narrative, or really, a variety of narratives. A second distinct narrative was the story of why this case had come to be categorized as an ethical concern for the medical team. A third narrative was the tentative sketch running through my mind as a consultant‐partly factual, partly anticipatory and conjectural, inevitably personal‐about what was going on here. (shrink)

"This book maps the moral terrain in the grounded reality of human experience without relying on theories or systems of ethics as the primary orienting strategy. Moral awareness needs first to be appreciated for what it is before it is made to conform to theories or systems. And moral consciousness is not a steady or stable set of perceptions; as we change so do the moral challenges that most concern us"--.

In this paper I argue that punishment should be proportional to desert; that desert turns solely on culpability and not on results: that culpability is a function of what the actor perceives are the risks of his act to others’ interests and the reasons he perceives that might justify, excuse, or aggravate taking those risks; that because culpability is a complex function, ordinally ranking acts in terms of culpability is quite difficult; that converting the ordinal ranking into cardinal measures of (...) deserved punishment must perforce be controversial; and that deserved punishment, which is deserved suffering, must somehow deal with the fact that the actor may have already suffered undeservedly. (shrink)

In March 1996, the General Accounting Office (GAO) issued the reportScientific Research: Continued Vigilance Critical to Protecting Human Subjects.It stated that “an inherent conflict of interest exists when physician-researchers include their patients in research protocols. If the physicians do not clearly distinguish between research and treatment in their attempt to inform subjects, the possible benefits of a study can be overemphasized and the risks minimized.” The report also acknowledged that “the line between research and treatment is not always cleartoclinicians. Controversy (...) exists regarding whether certain medical procedures should be categorized as research.”This problem currently plagues gene transfer research. A few months prior to the GAO report, an ad hoc committee appointed by National Institutes of Health (NIH) Director Harold Varmus expressed similar concerns in its assessment of NIH investment in research on gene therapy. (shrink)

Preceded by Comprehensive textbook of psychotherapy: theory, and practice / edited by Bruce Bongar, Larry E. Beutler. 1995.

In March 1996, the General Accounting Office issued the report Scientific Research: Continued Vigilance Critical to Protecting Human Subjects. It stated that “an inherent conflict of interest exists when physician-researchers include their patients in research protocols. If the physicians do not clearly distinguish between research and treatment in their attempt to inform subjects, the possible benefits of a study can be overemphasized and the risks minimized.” The report also acknowledged that “the line between research and treatment is not always clear (...) to clinicians. Controversy exists regarding whether certain medical procedures should be categorized as research.”This problem currently plagues gene transfer research. A few months prior to the GAO report, an ad hoc committee appointed by National Institutes of Health Director Harold Varmus expressed similar concerns in its assessment of NIH investment in research on gene therapy. (shrink)

In a recent article in The Journal of Clinical Ethics, David Wendler argues that worries about the therapeutic misconception (TM) are not only misconceived, but detract from the larger agenda of a proper informed consent for subjects involved in clinical research. By contrast, we argue that Wendler mischaracterizes those who support TM research, and that his arguments are fragmentary, often illogical, and neglect a critical difference between clinical care and clinical research. A clear explanation about the chief aim of research (...) is, in fact, what gives the other elements in a consent process their meaning. We argue that informed consent must be both trial-specific and context-sensitive, and that concern about the TM is needed now more than ever. (shrink)

Children are the real victims of world hunger: at least 70% of the malnourished people of the world are children. By best estimates forty thousand children a day die of starvation (FAO 1989: 5). Children do not have the ability to forage for themselves, and their nutritional needs are exceptionally high. Hence, they are unable to survive for long on their own, especially in lean times. Moreover, they are especially susceptible to diseases and conditions which are the staple of undernourished (...) people: simple infections and simple diarrhea (UNICEF 1993: 22). Unless others provide adequate food, water, and care, children will suffer and die (WHO 1974: 677, 679). This fact must frame any moral discussions of the problem. And so it does — at least pre-philosophically. When most of us first see pictures of seriously undernourished children, we want to help them, we have a sense of responsibility to them, we feel sympathy toward them (Hume 1978: 368-71). Even those who think we needn't or shouldn't help the starving take this initial response seriously: they go to great pains to show that this sympathetic response should be constrained. They typically claim that assisting the hungry will demand too much of us, or that assistance would be useless and probably detrimental. The efforts of objectors to undermine this natural sympathetic reaction would be pointless unless they saw its psychological force. We want to explain and bolster this sympathetic reaction — this conviction that those of us in a position to help are responsible to the.. (shrink)

The American Journal of Bioethics, Volume 11, Issue 7, Page 15-16, July 2011.

This user-friendly companion to the comprehensive Guidelines for the Systematic Treatment of the Depressed Patient outlines psycho-behavioral interventions to help practicing clinicians select the appropriate therapeutic procedure for various patients. This brief reference book for professional psychotherapists is intended to help practicing clinicians select the appropriate therapeutic procedure for various patients.

Self-defense and other-defense are uses of force against another person—an attacker—for the purpose of preventing the attacker from harming a victim. When such force is exercised by the victim, it is self-defense; when by a third party, other-defense. Self-defense and other-defense are preemptive uses of force because they occur before the acts they are intended to prevent occur. Thus, they operate in the realm of epistemic uncertainty. Victims and third parties can never be certain the feared acts will occur. They (...) can never be certain of what their consequences will be if the acts occur. They can never be certain what alternative exists to self-defense and other-defense for averting the feared harms. And they can never be certain what the status of the presumed attacker is—that is, whether the presumed attacker is culpable or nonculpable. Such epistemic points are addressed in this chapter. (shrink)

The authors address problems with “compulsory” arbitration clauses in contracts. Specifically, they note that consumers are misguided about their rights in such cases. In addition, arbitration clauses do not allow the press to cover any proceedings that may result. The arbitration clauses in contracts are written in legalese that consumers do not understand. The authors found that even university students had difficulty understanding the information in such clauses. An example of an actual case is included.

The hallmark of modern liberalism is its embrace of the Millian harm principle and its antipathy to legal moralism. In this article I consider whether aesthetic regulations can be justified under the harm principle as that principle has been elaborated by Joel Feinberg. I conclude that aesthetic and other regulations that most liberals regard as unproblematic are actually instances of legal moralism.

Edmund Pellegrino claims that medical ethics must be derived from a perception of the patient's damaged humanity, rather than from the self-imposed duties of professionals. This essay explores the meaning and examines the challenges to this patient-centered ethic. Social scientific and bioethical interpretations of medicine constitute one kind of challenge. A more pervasive challenge is the ascendancy of managed care, and especially investor-owned, for-profit managed care. A list of questions addressed to patients, physicians and organizations is offered as one means (...) of assessing this threat and moving toward morally trustworthy relationships. (shrink)

Our culture is well on its way to reducing medical ethics to legal requirements, general citizen ethics, or personal values. A distinctive ethic for medicine provides critical distance and moral meaning for the profession and an enriched societal ethic.

Two decades ago, I wrote an essay expressing my skepticism about the nascent movement to certify bioethics consultants. My concerns were numerous. For example, I worried that the move toward certification would give too much weight to moral theory and neglect the importance of the less formal moral reasoning of patients and their families. I was also concerned that the effort to certify competence, complete with standardized testing, would be largely self-promotional and make unfounded claims about who has the capacity (...) to do this work. My worries were prescient. Notice, for example, the way that the American Society for Bioethics and Humanities was advertising its new Healthcare Ethics... (shrink)

Existing and proposed provisions of the Model Penal Code refer to believing something “recklessly.” In this chapter, we examine the notion of reckless beliefs and determine what that notion cannot be and what it might be.

Lauris Kaldjian makes a strong case for respecting the role of conscience in the practice of medicine. His excellent book, Practicing Medicine and Ethics, presents an historically informed and carefully crafted explication of the role of conscience in Western ethics and its relevance for medical practitioners. The essay that initiates the discussion in this issue of Perspectives in Biology and Medicine is an equally well-written and lucid account of this important component of morality. But it is also worrisome in its (...) implications for insulating conscience from the other facets of moral thinking and feeling. The reasons Kaldjian's account is not finally compelling stem from his tethering conscience too... (shrink)

Volume 19, Issue 11, November 2019, Page 63-64.