In 1935, when the U.S. Supreme Court’s new building opened and displayed the phrase “Equal Justice Under Law,” racial segregation was commonplace, as were barriers limiting opportunities for men and women of all colors to participate in economic and political life. The justices on the Court and the lawyers appearing before them reflected those facts; almost all were white men. Today, the Supreme Court’s inscription has become its motto, read as if it always referenced an understanding of equality that has (...) become central to the identity and the legitimacy of courts. The judiciary “looks” somewhat different than it did and, in a sense, has become more “representative” of the range of people appearing in courts. Given the role that courts had played in sustaining discrimination, the impression that courts ought to welcome everyone is a major achievement. Yet, to assess the impact of new judicial demographics requires analysis of other major alterations in U.S. courts—the influx of diverse litigants newly entitled to pursue legal claims; the economic barriers facing many claimants; the emergence of judiciaries as agency-like promoters of agendas; and the displacement of public adjudication through the privatization of dispute resolution. Studies of women as judges focus mostly on their rulings, but probing the “difference that difference makes” requires looking beyond judicial opinions. Courts in the United States have developed structural capacities to propose rules and legislation, create education programs, commission research and task forces, and lobby for resources. When women of all colors and men of color became lawyers and judges, they created affinity organizations and pressed courts to research court-based bias and to revise rules of ethics, doctrine, and practice. Those changes are part of the impact of diversification within the legal profession, as is the backlash against affirmative efforts to reform practices. Another difference of the last decades is that new rights have brought into court many claimants with limited means. Participatory participation remains elusive, while the “justice gap” is pervasive. Worse yet, in some jurisdictions, courts have served as “revenue centers,” using court-imposed assessments as income. Failure to pay “legal financial obligations” can result in suspension of driver’s licenses, the loss of voting rights, and other sanctions levied disproportionately on people who are poor and of color. Instead of being seen as fonts of fairness, courts are coming to be identified as sites of inequality. In addition, many courts have embraced alternative forms of dispute resolution that make both processes and outcomes less visible to the public. Through doctrine and rules, U.S. courts have shifted their own practices as well as enforced mandates imposed on consumers and employers that push them out of court and out of class or joint actions. In sum, the new faces on the bench ought not to obscure that the project of representation, inclusion, and equality is far from complete. The vivid inequalities in courts are problems for courts because such disparities undermine their ability to be places of justice. (shrink)

Litigation cannot solve a public health crisis. But litigation can be an effective complementary tool to regulation by increasing the salience of a public health issue, eliciting closely guarded information to move public opinion, and prompting legislative action. From tobacco to opioids, litigants have successfully turned to courts for monetary relief, to initiate systemic change, and to hold industry accountable For years, litigators have been trying to push firearm suits into their own litigation moment. But litigation (...) against the gun industry poses special challenges. Not only has the regulatory regime failed to prevent a public safety hazard, Congress has consistently underfunded and understaffed the relevant regulatory actors. And in 2005 it legislatively immunized the gun industry from suit with the Protection of Lawful Commerce in Arms Act. This paper surveys the field of litigation in response to gun violence, tracking the limited successes of victims and stakeholders suing the gun industry. We find that victories remain confined to individual actors and unlike high-impact public litigations in other areas, aggregate class actions and major public litigation led by state attorneys general are noticeably absent in the firearm context. (shrink)

Philosophical debates over statistical evidence have long been framed and dominated by L. Jonathan Cohen's Paradox of the Gatecrasher and a related hypothetical example commonly called Prison Yard. These examples, however, raise an issue not discussed in the large and growing literature on statistical evidence – the question of what statistical evidence is supposed to be evidence of. In actual practice, the legal system does not start with a defendant and then attempt to determine if that defendant has committed some (...) unspecified or under-specified act, as these examples appear to suppose. Rather, both criminal and civil litigation start with a sufficiently specified act and then attempt to determine if the defendant has committed it. And when we start with a more fully specified act, the statistics look very different, and these prominent examples no longer present the paradox they are claimed to support. Examining the issue of specification, however, does more than simply undercut the prominent examples in a long and extensive literature. The examination also raises normative issues challenging the legal system's traditional reluctance to base liability on the conjunction of probabilities. (shrink)

Law wrangles with setting and applying standards for the practice of medicine in many different arenas. One of the most prominent is medical malpractice litigation in which the trial process examines a physician's performance and measures it against the standard of care. The profession's prevailing custom, with some substantial tolerance for “respectable minority” views, has been the gold standard for scrutinizing physician practice and treatment decisions in the malpractice context. Using the profession's custom as the measure against which a (...) physician's performance is judged defers to the expertise of medicine. Deference to the medical profession is attractive as a tool for reining in law. Reliance on customary practice is criticized, however, for driving physicians to the relative safety of the middle of the herd. Creating such a strong incentive for compliance with customary practice can dampen medical innovation and the diffusion of new clinical knowledge. The safety of the herd can also deprive individual patients of the best care in their particular circumstances.Several current trends are strengthening claims that professional practice patterns are an inappropriate tool for distinguishing between high‐quality and substandard care. In particular, advocacy for evidence‐based medicine aggressively asserts that the traditional way of making medical treatment decisions is largely untethered from scientific method or data, rendering professional judgment, even in the aggregate, suspect. (shrink)

This book shows the surprising dynamism of the field of civil procedure through its examination of a cross section of recent developments within civil procedure from around the world. It explores the field through specific approaches to its study, within specific legal systems, and within discrete sub-fields of civil procedure. The book reflects the latest research and conveys the dynamism and innovations of modern civil procedure - by field, method and system. The book's introductory chapters lay the groundwork for researchers (...) to appreciate the flux and change within the field. The concluding chapters bring the many different identified innovations and developments together to show the field's ability to adapt to modern circumstances, while retaining its coherence even across different legal systems, traditions, fields and analytic approaches. Specifically, in this book the presence of dynamism is explored in the legal systems of the EU, France, the US, Brazil, Australia, the UK and China. So too that dynamism is explored in the contributions' analyses and discussions of the changes or need for change of specific aspects of civil procedure including litigation costs, class actions, derivative actions, pleadings, and res judicata. Furthermore, most of the individual contributions may be considered to be comparative analyses of their respective subjects and, when considered as a whole, the book presents the dynamism of civil procedure in comparative perspective. Those discrete and aggregated comparative analyses permit us to better understand the dynamism in civil procedure - for change in the abstract can be less visible and its significance and impact less evident. While similar conclusions may have been drawn through examinations in isolation, employing comparative analytic methods provided a richer analysis and any identified need for change is correspondingly advanced through comparative analysis. Furthermore, if that analysis leads to a conclusion that change is necessary then comparative law may provide pertinent examples for such change - as well as methodologies for successfully transplanting any such changes. In other words, as this book so well reflects, comparative law may itself usefully contribute to dynamism in civil procedure. This has long been a raison d'être of comparative law and, as clear from this book's contributions, in this particular time and field of study we find that it is very likely to achieve its lofty promise. (shrink)

This article examines the phenomenon of collective or aggregate civil litigation, manifested in different forms as a class action, representative action, or group action. Different countries have adopted different models of collective civil litigation. This diversity presents a challenge in drawing comparisons, and raises the need to study the different techniques involved. This article summarizes the adoption of a technical perspective. Following this, the article reviews the availability and limitations of the research techniques in relation to what (...) we want. It discusses the questions of goals of collective procedures, levels of need, technical modes of operation, and evaluation. The ultimate goal is to be able to compare different techniques and decide which ones might work best and in what circumstances or types of situation. There is plenty of research to be done in this field. (shrink)

This article examines the phenomenon of collective or aggregate civil litigation, manifested in different forms as a class action, representative action, or group action. Different countries have adopted different models of collective civil litigation. This diversity presents a challenge in drawing comparisons, and raises the need to study the different techniques involved. This article summarizes the adoption of a technical perspective. Following this, the article reviews the availability and limitations of the research techniques in relation to what (...) we want. It discusses the questions of goals of collective procedures, levels of need, technical modes of operation, and evaluation. The ultimate goal is to be able to compare different techniques and decide which ones might work best and in what circumstances or types of situation. There is plenty of research to be done in this field. (shrink)

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins in Part I, Introduction, with two (...) observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice. (shrink)

At present, the task of enforcing UK competition law lies almost exclusively with a public regulator. One of the aims of the Competition Bill which is currently before Parliament is to enable private litigants to seek redress through the courts for harm caused by unlawful anti-competitive conduct. This article considers the appropriate role of private actions in the enforcement of competition law. It is argued that private actions are of both instrumental and intrinsic value: not only can private actions act (...) as a deterrent against harmful behaviour, but they also enable those harmed by unlawful anti-competitive conduct to seek compensation for injury from the perpetrator. But private enforcement suffers from several shortcomings which are not shared by public enforcement. Accordingly, it is argued that although there is a strong case for ‘privatizing competition regulation’, private enforcement should be used to supplement, rather than supplant, public enforcement. This article also explores the problems within a regulatory scheme which combines both private and public enforcement, drawing on the experience of other jurisdictions to shed light on how such ‘aggregation problems’ might best be resolved. Finally, UK competition regulation is examined from an enforcement perspective. It is argued that the UK Competition Bill has the potential to provide a significantly more effective and efficient scheme of regulation. Whether or not this potential is realized will depend on a number of factors, particularly the ability of UK courts to interpret the legislative prohibitions in a coherent, predictable, and transparent manner which is consistent with the economic theory upon which competition regulation is based. (shrink)

Suppose that the members of a group each hold a rational set of judgments on some interconnected questions, and imagine that the group itself has to form a collective, rational set of judgments on those questions. How should it go about dealing with this task? We argue that the question raised is subject to a difficulty that has recently been noticed in discussion of the doctrinal paradox in jurisprudence. And we show that there is a general impossibility theorem that that (...) difficulty illustrates. Our paper describes this impossibility result and provides an exploration of its significance. The result naturally invites comparison with Kenneth Arrow's famous theorem (Arrow, 1963 and 1984; Sen, 1970) and we elaborate that comparison in a companion paper (List and Pettit, 2002). The paper is in four sections. The first section documents the need for various groups to aggregate its members' judgments; the second presents the discursive paradox; the third gives an informal statement of the more general impossibility result; the formal proof is presented in an appendix. The fourth section, finally, discusses some escape routes from that impossibility. (shrink)

The aggregation of individual judgments over interrelated propositions is a newly arising field of social choice theory. I introduce several independence conditions on judgment aggregation rules, each of which protects against a specific type of manipulation by agenda setters or voters. I derive impossibility theorems whereby these independence conditions are incompatible with certain minimal requirements. Unlike earlier impossibility results, the main result here holds for any (non-trivial) agenda. However, independence conditions arguably undermine the logical structure of judgment aggregation. I therefore (...) suggest restricting independence to premises, which leads to a generalised premise-based procedure. This procedure is proven to be possible if the premises are logically independent. (shrink)

I propose a relevance-based independence axiom on how to aggregate individual yes/no judgments on given propositions into collective judgments: the collective judgment on a proposition depends only on people’s judgments on propositions which are relevant to that proposition. This axiom contrasts with the classical independence axiom: the collective judgment on a proposition depends only on people’s judgments on the same proposition. I generalize the premise-based rule and the sequential-priority rule to an arbitrary priority order of the propositions, instead of (...) a dichotomous premise/conclusion order resp. a linear priority order. I prove four impossibility theorems on relevance-based aggregation. One theorem simultaneously generalizes Arrow’s Theorem (in its general and indifference-free versions) and the well-known Arrow-like theorem in judgment aggregation. (shrink)

An aggregation procedure merges a list of objects into a representative object. This paper considers the problem of aggregating n rows in an n-by-m matrix into a summary row, where every entry is an element in an algebraic field. It focuses on consistent aggregators, which require each entry in the summary row to depend only on its column entries in the matrix and to be the same as the column entry if the column is constant. Consistent aggregators are related to (...) additive, linear and.. (shrink)

For aggregative theories of moral value, it is a challenge to rank worlds that each contain infinitely many valuable events. And, although there are several existing proposals for doing so, few provide a cardinal measure of each world's value. This raises the even greater challenge of ranking lotteries over such worlds—without a cardinal value for each world, we cannot apply expected value theory. How then can we compare such lotteries? To date, we have just one method for doing so (proposed (...) separately by Arntzenius, Bostrom, and Meacham), which is to compare the prospects for value at each individual location, and to then represent and compare lotteries by their expected values at each of those locations. But, as I show here, this approach violates several key principles of decision theory and generates some implausible verdicts. I propose an alternative—one which delivers plausible rankings of lotteries, which is implied by a plausible collection of axioms, and which can be applied alongside almost any ranking of infinite worlds. (shrink)

Several recent results on the aggregation of judgments over logically connected propositions show that, under certain conditions, dictatorships are the only propositionwise aggregation functions generating fully rational (i.e., complete and consistent) collective judgments. A frequently mentioned route to avoid dictatorships is to allow incomplete collective judgments. We show that this route does not lead very far: we obtain oligarchies rather than dictatorships if instead of full rationality we merely require that collective judgments be deductively closed, arguably a minimal condition of (...) rationality, compatible even with empty judgment sets. We derive several characterizations of oligarchies and provide illustrative applications to Arrowian preference aggregation and Kasher and Rubinsteinís group identification problem. (shrink)

How can the propositional attitudes of several individuals be aggregated into overall collective propositional attitudes? Although there are large bodies of work on the aggregation of various special kinds of propositional attitudes, such as preferences, judgments, probabilities and utilities, the aggregation of propositional attitudes is seldom studied in full generality. In this paper, we seek to contribute to filling this gap in the literature. We sketch the ingredients of a general theory of propositional attitude aggregation and prove two new theorems. (...) Our first theorem simultaneously characterizes some prominent aggregation rules in the cases of probability, judgment and preference aggregation, including linear opinion pooling and Arrovian dictatorships. Our second theorem abstracts even further from the specific kinds of attitudes in question and describes the properties of a large class of aggregation rules applicable to a variety of belief-like attitudes. Our approach integrates some previously disconnected areas of investigation. (shrink)

In recent years, judgement aggregation has emerged as an important area of social choice theory. Judgement aggregation is concerned with aggregating sets of individual judgements over logically connected propositions into a set of collective judgements. It has been shown that even seemingly weak conditions on the aggregation function make it impossible to find functions that produce rational collective judgements from all possible rational individual judgements. This implies that the step from individual judgements to collective judgements requires trade-offs between different desiderata, (...) such as universal domain, rationality, epistemological quality, and unbiasedness. These dilemmas challenge us to decide which conditions we should relax. The typical application for judgement aggregation is the problem of group decision making. Juries and expert committees are the stock examples. However, the relevance of judgement aggregation goes beyond these cases. In this survey I review some core results in the field of judgement aggregation and social epistemology and discuss their implications for the analysis of distributed thinking. (shrink)

An ongoing debate among legal scholars and public health advocates is the role of litigation in shaping public policy. For the most part, the debate has been waged at a conceptual level, with opponents and proponents arguing within fairly well-defined boundaries. The debate has been based either on speculation of what litigation could achieve or on ideological grounds as to why litigation should or should not be used this way. With the exception of Rosenberg's study of how (...) litigation shaped policy in civil rights, abortion, and environmental matters, there is almost no empirical support for either position.In recent years, the most ardent proponents of litigation as public policy have been public health advocates. Perhaps out of frustration with the inability to achieve desired public health goals through the legislative branch of government, public health advocates have pursued litigation as an alternative strategy. Beginning with tobacco class action litigation in the early 1990s and continuing with litigation against gun manufacturers at the end of that decade, public health advocates have waged a veritable litigation assault aimed at changing how public health policy is formed. (shrink)

Judgment aggregation is naturally applied to the modeling of collective attitudes. In the individual case, we represent agents as having not just beliefs, but also as supporting them with reasons. Can the Judgment Aggregation help model a concept of collective reason? I argue that the resources of the standard judgment aggregation framework are insufficiently general. I develop a generalization of the framework that improves along this dimension. In the new framework, new aggregation rules become available, as well as a natural (...) account of collective reasons. (shrink)

The devastating impact of the national opioid epidemic has given rise to hundreds of lawsuits. This article details the extremely broad range of legal claims, compares the opioid cases to other public health litigation efforts, including tobacco, and describes the special mechanism — a multidistrict litigation — through which more than 700 opioid-related cases have been consolidated thus far, with settlement almost certain to follow.

This paper examines the lawsuits brought by state and local government entities against prescription opioid producers and sellers. It examines their potential liability as well as some of the defenses they might raise. The paper also discusses multidistrict litigation and government lawsuits in state court. It concludes that litigation is not the best solution to the opioid crisis.

The aggregation of consistent individual judgments on logically interconnected propositions into a collective judgment on those propositions has recently drawn much attention. Seemingly reasonable aggregation procedures, such as propositionwise majority voting, cannot ensure an equally consistent collective conclusion. The literature on judgment aggregation refers to that problem as the discursive dilemma. In this paper, we motivate that many groups do not only want to reach a factually right conclusion, but also want to correctly evaluate the reasons for that conclusion. In (...) other words, we address the problem of tracking the true situation instead of merely selecting the right outcome. We set up a probabilistic model analogous to Bovens and Rabinowicz (2006) and compare several aggregation procedures by means of theoretical results, numerical simulations and practical considerations. Among them are the premise-based, the situation-based and the distance-based procedure. Our findings confirm the conjecture in Hartmann, Pigozzi and Sprenger (2008) that the premise-based procedure is a crude, but reliable and sometimes even optimal form of judgment aggregation. (shrink)

Decision-making typically requires judgments about causal relations: we need to know the causal effects of our actions and the causal relevance of various environmental factors. We investigate how several individuals' causal judgments can be aggregated into collective causal judgments. First, we consider the aggregation of causal judgments via the aggregation of probabilistic judgments, and identify the limitations of this approach. We then explore the possibility of aggregating causal judgments independently of probabilistic ones. Formally, we introduce the problem of causal-network aggregation. (...) Finally, we revisit the aggregation of probabilistic judgments when this is constrained by prior aggregation of qualitative causal judgments. (shrink)

How might we extend aggregative moral theories to compare infinite worlds? In particular, how might we extend them to compare worlds with infinite spatial volume, infinite temporal duration, and infinitely many morally valuable phenomena? When doing so, we face various impossibility results from the existing literature. For instance, the view we adopt can endorse the claim that worlds are made better if we increase the value in every region of space and time, or that they are made better if we (...) increase the value obtained by every person. But they cannot endorse both claims, so we must choose. In this paper I show that, if we choose the latter, our view will face serious problems such as generating incomparability in many realistic cases. Opting instead to endorse the first claim, I articulate and defend a spatiotemporal, expansionist view of infinite aggregation. Spatiotemporal views such as this do face some difficulties, but I show that these can be overcome. With modification, they can provide plausible comparisons in cases that we care about most. (shrink)

In solving judgment aggregation problems, groups often face constraints. Many decision problems can be modelled in terms the acceptance or rejection of certain propositions in a language, and constraints as propositions that the decisions should be consistent with. For example, court judgments in breach-of-contract cases should be consistent with the constraint that action and obligation are necessary and sufficient for liability; judgments on how to rank several options in an order of preference with the constraint of transitivity; and judgments on (...) budget items with budgetary constraints. Often more or less demanding constraints on decisions are imaginable. For instance, in preference ranking problems, the transitivity constraint is often contrasted with the weaker acyclicity constraint. In this paper, we make constraints explicit in judgment aggregation by relativizing the rationality conditions of consistency and deductive closure to a constraint set, whose variation yields more or less strong notions of rationality. We review several general results on judgment aggregation in light of such constraints. (shrink)

This book elucidates the theoretical structure and scope of interpersonal and intra-personal aggregation--a trade-off between benefits to a group of individuals and losses to another group of individuals--and defends a form of aggregation -- formal aggregation -- that resolves a variety of outstanding problems arising from the conventional understanding of aggregation, including the Number Problem concerning the moral relevance of the number of individuals.

All existing impossibility theorems on judgment aggregation require individual and collective judgment sets to be consistent and complete, arguably a demanding rationality requirement. They do not carry over to aggregation functions mapping profiles of consistent individual judgment sets to consistent collective ones. We prove that, whenever the agenda of propositions under consideration exhibits mild interconnections, any such aggregation function that is "neutral" between the acceptance and rejection of each proposition is dictatorial. We relate this theorem to the literature.

Aggregative moral theories face a series of devastating problems when we apply them in a physically realistic setting. According to current physics, our universe is likely _infinitely large_, and will contain infinitely many morally valuable events. But standard aggregative theories are ill-equipped to compare outcomes containing infinite total value. So, applied in a realistic setting, they cannot compare any outcomes a real-world agent must ever choose between. This problem has been discussed extensively, and non-standard aggregative theories proposed to overcome it. (...) This paper addresses a further problem of similar severity. Physics tells us that, in our universe, how remotely in time an event occurs is _relative_. But our most promising aggregative theories, designed to compare outcomes containing infinitely many valuable events, are sensitive to how remote in time those events are. As I show, the evaluations of those theories are then relative too. But this is absurd; evaluations of outcomes must be absolute! So we must reject such theories. Is this objection fatal for all aggregative theories, at least in a relativistic universe like ours? I demonstrate here that, by further modifying these theories to fit with the physics, we can overcome it. (shrink)

This paper argues that, according to Leibniz's view of entia per aggregationem, there are (or, at any rate, there could be) aggregates that are entirely mind-independent.

As the ongoing literature on the paradoxes of the Lottery and the Preface reminds us, the nature of the relation between probability and rational acceptability remains far from settled. This article provides a novel perspective on the matter by exploiting a recently noted structural parallel with the problem of judgment aggregation. After offering a number of general desiderata on the relation between finite probability models and sets of accepted sentences in a Boolean sentential language, it is noted that a number (...) of these constraints will be satisfied if and only if acceptable sentences are true under all valuations in a distinguished non-empty set W. Drawing inspiration from distance-based aggregation procedures, various scoring rule based membership conditions for W are discussed and a possible point of contact with ranking theory is considered. The paper closes with various suggestions for further research. (shrink)

Is there any number of people you should save from paralysis rather than saving one person from death? Is there any number of people you should save from a headache rather than saving one person from death? Many people answer ‘yes’ and ‘no’, respectively. They therefore accept a partially aggregative moral view. Patrick Tomlin has recently argued that the most promising partially aggregative views in the literature have implausible implications in certain cases in which there are additions or subtractions to (...) the groups of people that we can save. Several philosophers have begun responding to this argument by developing partially aggregative views that avoid the relevant implications. In this paper, I extend Tomlin’s argument to create a dilemma that no partially aggregative view can avoid. I conclude that we should accept a fully aggregative moral view. (shrink)

This paper addresses how multiple individual credences on logically related issues should be aggregated into collective binary beliefs. We call this binarizing belief aggregation. It is vulnerable to dilemmas such as the discursive dilemma or the lottery paradox: proposition-wise independent aggregation can generate inconsistent or not deductively closed collective judgments. Addressing this challenge using the familiar axiomatic approach, we introduce general conditions on a binarizing belief aggregation rule, including rationality conditions on individual inputs and collective outputs, and determine which rules (...) (if any) satisfy different combinations of these conditions. Furthermore, we analyze similarities and differences between our proofs and other related proofs in the literature and conclude that the problem of binarizing belief aggregation is a free-standing aggregation problem not reducible to judgment aggregation or probabilistic opinion pooling. (shrink)

Our aim in this survey article is to provide an accessible overview of some key results and questions in the theory of judgment aggregation. We omit proofs and technical details, focusing instead on concepts and underlying ideas.

Judgment aggregation theory generalizes social choice theory by having the aggregation rule bear on judgments of all kinds instead of barely judgments of preference. The theory derives from Kornhauser and Sager’s doctrinal paradox and Pettit’s discursive dilemma, which List and Pettit turned into an impossibility theorem – the first of a long list to come. After mentioning this formative stage, the paper restates what is now regarded as the “canonical theorem” of judgment aggregation theory. The last part of paper discusses (...) how judgment aggregation theory connects with social choice theory and can contribute to it; it singles out two representative applications, one to Arrow’s impossibility theorem and the other to the group identification problem. (shrink)

This paper is about the role of interpersonal comparisons in Harsanyi's aggregation theorem. Harsanyi interpreted his theorem to show that a broadly utilitarian theory of distribution must be true even if there are no interpersonal comparisons of well-being. How is this possible? The orthodox view is that it is not. Some argue that the interpersonal comparability of well-being is hidden in Harsanyi's premises. Others argue that it is a surprising conclusion of Harsanyi's theorem, which is not presupposed by any one (...) of the premises. I argue instead that Harsanyi was right: his theorem and its weighted-utilitarian conclusion do not require interpersonal comparisons of well-being. The key to making sense of this possibility is to treat Harsanyi's weights as dimensional constants rather than dimensionless numbers. (shrink)

Most non-consequentialists “let the numbers count” when one can save either a lesser or greater number from equal or similar harm. But they are wary of doing so when one can save either a small number from grave harm or instead a very large number from minor harm. Limited aggregation is an approach that reconciles these two commitments. It is motivated by a powerful idea: our decision whom to save should respect each person who has a claim to our help, (...) including those whom we fail to save. However, it has recently been argued that it is open to decisive objections. I develop a new limitedly aggregative view:Hybrid Balance Relevant Claims. This view is well grounded in the reasons we have to be skeptical of aggregation and resolves all recent challenges by paying careful attention to the rationale for limited aggregation. (shrink)

Prioritarianism is a family of views comparing distributions of well-being. What unites prioritarians is the thought that when deciding whether a distribution is overall better than another, the worse off have priority. There are different ways of making this idea more precise. However, some of these views have extreme aggregative implications and others have extreme anti-aggregative implications. This raises the question: can prioritarians accommodate partial aggregation (aggregating in some but not all cases) and avoid both extremes? In this paper, I (...) explore and focus on a neglected anti-aggregation condition. I identify a family of views I call ‘bounded prioritarianism’ that meet this condition by placing an upper bound on the moral significance of benefits. I argue that anyone sympathetic to partial aggregation ought to opt for a version of bounded prioritarianism. (shrink)

Courts, Litigants, and the Digital Age examines the ramifications of technology for courts, judges, and the administration of justice. It sets out the issues raised by technology, and, particularly, the Internet, so that conventional paradigms can be updated in the judicial context. In particular, the book dwells on issues such as proper judicial use of Internet sources, judicial ethics and social networking, electronic court records and anonymization techniques, control of the courtroom and jurors' use of new technologies, as well as (...) the Internet's impact on judicial appointments and the diversity of the judiciary. The second edition includes discussion of current issues in this rapidly developing area, such as privacy protection, the "right to be forgotten," cyber intimidation, freedom of digital speech, and litigant anonymity. Through examination of relevant practical, legal, and ethical issues, it endeavours to extract lessons from the developing issues surveyed and proposes forward-thinking approaches based on proportionality principles. (shrink)

Over the past twenty-five years, thirty-seven states and the US Congress have passed mental health and substance use disorder (MH/SUD) parity laws to secure nondiscriminatory insurance coverage for MH/SUD services in the private health insurance market and through certain public insurance programs. However, in the intervening years, litigation has been brought by numerous parties alleging violations of insurance parity. We examine the critical issues underlying these legal challenges as a framework for understanding the areas in which parity enforcement is (...) lacking, as well as ongoing areas of ambiguity in the interpretation of these laws. We identified all private litigation involving federal and state parity laws and extracted themes from a final sample of thirty-seven lawsuits. The primary substantive topics at issue include the scope of services guaranteed by parity laws, coverage of certain habilitative therapies such as applied behavioral analysis for autism spectrum disorders, credentialing standards for MH/SUD providers, determinations regarding the medical necessity of MH/SUD services, and the application of nonquantitative treatment limitations under the 2008 federal parity law. Ongoing efforts to achieve nondiscriminatory insurance coverage for MH/SUDs should attend to the major issues subject to private legal action as important areas for facilitating and monitoring insurer compliance. (shrink)

In an ongoing class action suit against large tobacco companies, including Philip Morris, Inc., and R.J. Reynolds Tobacco Co., Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York issued an opinion on October 15, 2002 making statistical proof available to address plaintiffs’ common questions and prove required elements of consumer fraud.The dilemmas inherent in tobacco litigation as a mass tort action include overcoming the collective action problem, mobilizing appropriate and persuasive legal theories (...) for recovery, and meeting the standards of proof, all in a timely and cost-effective manner. While some tobacco cases have proceeded on products liability theories of defective or negligent design, many recent cases are grounded in consumer fraud laws. (shrink)

This article examines a legal dispute over the ownership of nine bondservants between a Buddhist monastery and two monks and a nun, focusing on the legal apparatus and practices in Dunhuang when it was under Tibetan control. During the Tang, eminent monks of the Buddhist clergy petitioned for exemptions from public courts in order to restrict trials of ordained Buddhists at alternative venues. Such petitions were declined, granted, or revoked by different Tang emperors. This case study demonstrates that ordained Buddhists (...) on this Sino-Tibetan frontier affiliated with the Buddhist clergy in Dunhuang did not enjoy this privilege. Instead of being shielded from public attention, two Buddhist monks and a nun successfully litigated against a Buddhist monastery in a public court. (shrink)

This paper explores, first, the common law principles of personal injury litigation explored through court decisions relating to sports injuries in (primarily) England and Wales and, second, the statutory schemes relating to concussion liability and young players in the United States. It explores the difficulties of using those strategies as a means of establishing liability for injuries arising from sports-related concussion (SRC) and explains why they are of such limited utility. While proposed class actions over historically acquired injuries or (...) individual litigation over recent catastrophic injury may have some merit, and while future amendments to the US laws might remove some of their inherent flaws, the difficulties in establishing liability for personal injury will always be exacerbated by the specific characteristics of SRC and the legal, factual and evidential issues that arise. For those reasons, the paper considers the potential benefits of other means of concussion prevention and mitigation, including no-fault compensation and mandatory insurance, the more widespread use of effective, nuanced concussion protocols, and inter-disciplinary research that engages with doctrinal legal research. (shrink)

Richard Levins’ distinction between aggregate, composed and evolved systems acquires new significance as we recognize the importance of mechanistic explanation. Criteria for aggregativity provide limiting cases for absence of organization, so through their failure, can provide rich detectors for organizational properties. I explore the use of failures of aggregativity for the analysis of mechanistic systems in diverse contexts. Aggregativity appears theoretically desireable, but we are easily fooled. It may be exaggerated through approximation, conditions of derivation, and extrapolating from some (...) conditions of decomposition illegtimately to others. Evolved systems particularly may require analyses under alternative complementary decompositions. Exploring these conditions helps us to better understand the strengths and limits of reductionistic methods. (shrink)

The aggregation of consistent individual judgments on logically interconnected propositions into a collective judgment on the same propositions has recently drawn much attention. Seemingly reasonable aggregation procedures, such as propositionwise majority voting, cannot ensure an equally consistent collective conclusion. The literature on judgment aggregation refers to such a problem as the \textit{discursive dilemma}. In this paper we assume that the decision which the group is trying to reach is factually right or wrong. Hence, we address the question of how good (...) the various approaches are at selecting the right conclusion. We focus on two approaches: distance-based procedures and a Bayesian analysis. They correspond to group-internal and group-external decision-making, respectively. We compare those methods in a probabilistic model, demonstrate the robustness of our results over various generalizations and discuss their applicability in different situations. The findings vindicate (i) that in judgment aggregation problems, reasons should carry higher weight than conclusions and (ii) that considering members of an advisory board to be highly competent is a better strategy than to underestimate their advice.". (shrink)

This article considers the reach of arguments for saving the greater number without interpersonal aggregation, and argues that interpersonal aggregation is useful to encompass the proper respect due to each separate person. I first give a precise definition of interpersonal aggregation, which many non-utilitarians try to avoid. Then, I show that consequentialism and Scanlon can justify the case for the greater number without interpersonal aggregation. However, I propose the Aggregation Approach, which justifies the case for the greater number in some (...) cases and the case for tossing a fair coin in other cases. I conclude that interpersonal aggregation does not disrespect the separate person. (shrink)

In 'How Should We Aggregate Competing Claims', Alex Voorhoeve suggests accommodating intuitions about duties in rescue cases by combining aggregative and non-aggregative elements into one theory. In this paper, I discuss two problems Voorhoeve’s theory faces as a result of requiring a cyclic pattern of choice, and argue that his attempt to solve them does not succeed.

In solving judgment aggregation problems, groups often face constraints. Many decision problems can be modelled in terms the acceptance or rejection of certain propositions in a language, and constraints as propositions that the decisions should be consistent with. For example, court judgments in breach-of-contract cases should be consistent with the constraint that action and obligation are necessary and sufficient for liability; judgments on how to rank several options in an order of preference with the constraint of transitivity; and judgments on (...) budget items with budgetary constraints. Often more or less demanding constraints on decisions are imaginable. For instance, in preference ranking problems, the transitivity constraint is often contrasted with the weaker acyclicity constraint. In this paper, we make constraints explicit in judgment aggregation by relativizing the rationality conditions of consistency and deductive closure to a constraint set, whose variation yields more or less strong notions of rationality. We review several general results on judgment aggregation in light of such constraints. (shrink)

In recent years, a number of prominent scholars have touted the use of litigation as an effective tool for making public health policy. For example, Stephen Teret and Michael Jacobs have asserted that product liability claims against car makers have played a significant role in reducing automobile-related injuries, Peter Jacobson and Kenneth Warner have argued that litigation against cigarette manufacturers has advanced the cause of tobacco control, and Phil Cook and Jens Ludwig have suggested that lawsuits against the (...) firearms industry can reduce gun violence. Critics have attacked this use of litigation as doing more harm than good to public health and as a misuse of the courts. This debate involves two distinct controversies: one over whether the public health benefits of litigation outweigh its costs and the other over the proper role of courts within our system of government. (shrink)

Against the background of a deeply uneven package of work–family reconciliation measures and an increasing focus on engaging men in unpaid care work, in this article I discuss the extension of the Irish discrimination law framework to provide protection against family status discrimination to workers who are engaged in certain care relationships. While this development of the law to recognize a relational understanding of inequality is welcome, its confined definition of family status fails to capture the range of workers’ caring (...) relationships and networks. Adopting a contextualized assessment of 12 years of litigation generated under the ‘family status’ ground, with reference to complainants’ gender and work status, the study considers the types of experiences being litigated as ‘family status’ discrimination. The study show how much of the nature and forms of inequality presented before the tribunals are beyond the conceptual boundaries of the principle of equal treatment that depends upon a sameness of treatment model with the ‘care-less’ comparator. Despite its potential to question the neutrality of workplace structures predicated upon the division between paid work and unpaid care, the principle of indirect family status discrimination has been under utilised as a litigation strategy. The most successful dimension of family status discrimination protection has been in respect of its ability to capture the negative stereotyping of worker–carers who continue to perform as ideal workers. I suggest that this extension of a limited negative rights framework, when considered alongside the state’s extremely poor support for workcare reconciliation more broadly, places negligible obligations on employers, and that the gender neutrality implicit in its provisions have yet to impact on gender equality as regards work–care reconciliation. (shrink)