Proportionality in Action presents an empirical and comparative exploration of the proportionality doctrine, based on detailed accounts of the application of the framework by apex courts in six jurisdictions: Germany, Canada, South Africa, Israel, Poland and India. The analysis of each country is written and contextualized by a constitutional scholar from the relevant jurisdiction. Each country analysis draws upon a large sample of case law and employs a mixed methodological approach: an expansive coding scheme allows for quantitative analysis providing comparable (...) and quantifiable measurements, which is enriched by qualitative analysis that engages with the substance of the decisions and captures nuance, contextualizing the data and providing it with meaning. The book concludes with a comparative chapter that synthesizes some of the most interesting findings. Focusing on deviations of the practice of proportionality from theory, the authors conclude their argument in support of an integrated approach to the application of proportionality. (shrink)

Americans cannot live with judicial review, but they cannot live without it. There is something characteristically American about turning the most divisive political questions - like freedom of religion, same-sex marriage, affirmative action and abortion - into legal questions with the hope that courts can answer them. In Judicial Review in an Age of Moral Pluralism Ronald C. Den Otter addresses how judicial review can be improved to strike the appropriate balance between legislative and judicial power (...) under conditions of moral pluralism. His defense of judicial review is predicated on the imperative of ensuring that the reasons that the state offers on behalf of its most important laws are consistent with the freedom and equality of all persons. Den Otter ties this defense to a theory of constitutional adjudication based on John Rawls's idea of public reason and argues that a law that is not sufficiently publicly justified is unconstitutional, thus addressing when courts should invalidate laws and when they should uphold them even in the midst of reasonable disagreement about the correct outcome in particular constitutional controversies. (shrink)

This paper addresses the phenomenon of judicial greatness by developing a general concept of greatness and applying it to law. Under the view offered in the paper, greatness is connected to theoretical or methodological diversification. When applied to adjudication, this means that great judges are revered because they successfully make a prima facie case for their novel adjudicative methods. This is not a judicial duty but rather a voluntary project. However, once a judge succeeds in making such a (...) prima facie case, he is exempt from other judicial duties. This thesis challenges many theories of judicial duty, which do not allow normative room for supererogatory actions in law. The paper demonstrates these claims by discussing two paradigmatic great judges – Chief Justice Marshall and Justice Holmes. (shrink)

This article provides an exploration of the relationships between a procedural account of epistemic democracy, illegitimate laws and judicial review. I first explain how there can be illegitimate laws within a procedural account of democracy. I argue that even if democratic legitimacy is conceived procedurally, it does not imply that democracy could legitimately undermine itself or adopt grossly unjust laws. I then turn to the legitimacy of judicial review with regard to these illegitimate laws. I maintain that courts (...) do not have a moral privilege on the overthrow of illegitimate laws; in this respect the refusal of royal assent has the same status. I also explain how the rule of the clear mistake fails to restrict the action of courts to only illegitimate laws. Finally, I argue for the positive epistemic inputs of weak judicial review. (shrink)

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in (...) such inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible—even if the acts in question would not strictly count as optimal by the lights of the law or morality. This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas. This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system. (shrink)

Judicial process is an integral part of legal systems. The process rests primarily on established principles of constitutional governance and responsibility. In the last ten years, the dynamism within judicial institutions and the judicial process has gained considerable attention. The dynamism is often viewed in light of the diversity of claims being addressed, the openness of courts to foreign material, and the use of non-legal studies and findings in court proceedings. How one views the judicial process (...) in the traditional sense, and in the light of the new experiences is an important question today. Also, what new theories explain this public sphere of activity? -/- In this regard, Dr. Pathak’s book "Judicial Process" is a noteworthy contribution. The book explores the complex nature of the judicial process, along with its wider constitutional, political, and social relevance. The book builds on an understanding that the judicial process, the courts, and the judges are central to constitutional governance. With that backdrop, it engages with four aspects of the judicial process, including (1) the nature of the judicial process, (2) the engagements and interactions within the judiciary, (3) the engagements and interactions between the courts and other institutions, and (4) the protection of rights and redressal of violations function performed by courts. -/- The book includes a detailed discussion on key concepts, practices, tests, and principles. The following chapters and discussions are particularly interesting. Chapter one involves a jurisprudential take on the subject while referring to the works of Blackstone, Holmes, and Cardozo. Particularly relevant in chapter one are Indian cases that have cited Cardozo while determining important judicial matters. Further, the chapter includes foreign case law which has been cited by the Indian courts to discuss the nature of the judicial process. Chapter three on Judicial Review discusses the scope of judicial review in India and its centralizing force in constitutional governance. The author carefully explores the expansion in a judicial capacity for review. The chapter highlights the dynamism attached to the practice of judicial review, moving from the review of constitutional amendments, to that of laws, administrative actions, and policy. Further, the chapter includes a discussion on the basic structure of the Indian Constitution. Chapter four on Law of Precedent includes a discussion on stare decisis, which the author refers to as a principle conferring legitimacy and stability to the judicial system. Recent scholarship on the nature of obiter dicta of higher courts and persuasive quality of foreign case law in domestic cases has been cited. Chapter five covers the Independence of the Judiciary debates in India. It discusses the issue of post-retirement appointments of judges and recusal from judicial matters. Chapter eight Judicial Activism traces the development of the concept from its early days to the present times. The chapter adopts the five core meanings offered by Keenan Kmiec to substantiate the old and the new avatars of judicial activism. The chapter discusses the role of social action litigation in India and its hand in defining the judiciary as a protector of rights and constitutional values. -/- The book provides sufficient guidance to study the nature of the judicial process. It also makes one curious about the changing nature of the judicial process and the new waves of constitutional ethics and governance. The following are some of the themes not attended to in the book. First, the judgments of the courts. The written judgments constitute an integral part of the judicial process. The judgments constitute public law reaching out to beneficiaries including litigants, people at large, as well as foreign institutions and courts. That being said, a discussion on judgements and the written or unwritten standards governing the same needs attention. Also included in this point is the role of dissenting judgments. How should one view or study dissent in judgments of constitutional significance? A normative framework to study the same is much needed. Second, the tools and indicators to measure judicial impact. The judicial impact can include (a) the impact of judicial decisions on the law, policy, and society (b) the impact of law/legislation on the judicial process, and (c) the impact of technological and scientific advancements on the judicial process. Tools like judicial impact assessment have been widely argued to be important to the working of the courts. Further, parameters to study compliance, policy integration, and the impact of judicial decisions on other state institutions have gained attention. (shrink)

As a follow-up to Stephen Deakin's analysis on the ethics of mercy killing on the battlefield in this journal, this article proposes a moral justification for this type of action, as well as a judicial framework that could clarify what qualifies as such morally permissible action. Based upon contemporary cases, it argues that the current military codes of conduct are incoherent when it comes to the punishment of soldiers who commit mercy killings, and that the military codes of justice (...) should be amended accordingly. (shrink)

Patricia Williams in her book, The Alchemy of Race and Rights, describes being denied entrance in the middle of the afternoon by a “saleschild.” Utilizing the works of Maurice Merleau-Ponty, this article explores their interaction phenomenologically. This small interaction of seemingly simple misunderstanding represents a limit condition in Merleau-Ponty’s analysis. His phenomenological framework does not explain the chasm between the “saleschild” and Williams, that in a sense they do not participate in the same world. This interaction between the “saleschild” and (...) Williams represents a moment when the two contest exactly what is reason in our society. To the extent that society discerns one’s actions as reasonable and the other’s actions as unreasonable, our society participates in determining that which constitutes reason. Williams’s work speaks precisely to this chasm as evident in her text’s subtitle, Memoirs of a Mad Woman. This decision relegates one subject to “judiciousness” and relegates the other to “madness.”. (shrink)

Democratic theorists often distinguish between two views of democratic procedures. ‘Outcomes theorists’ emphasize the instrumental nature of these procedures and argue that they are only valuable because they tend to produce good outcomes. In contrast, ‘proceduralists’ emphasize the intrinsic value of democratic procedures, for instance, on the grounds that they are fair. In this paper. I argue that we should reject pure versions of these two theories in favor of an understanding of the democratic ideal that recognizes a commitment to (...) both intrinsically valuable democratic procedures and democratic outcomes. In instances in which there is a conflict between these two commitments, I suggest they must be balanced. This balancing approach offers a justification of judicial review on the grounds that it potentially limits outcomes that undermine democracy. But judicial review is not justifiable in any instance in which a bad democratic outcome results from democratic procedures. When the loss that would result from overturning a democratic procedure is greater than the gain to democracy that would result from ensuring against an undemocratic outcome; judicial review is not justifiable. Loss or gain to democracy is defined by the negative or positive impact of each action on the core democratic values of equality and autonomy, aspects of the democratic ideal. Even when judicial review is justified, the fact that it overturns intrinsically valuable procedures suggests that such review is never ideal from the standpoint of democracy. (shrink)

I am the LawIt is hard to imagine two more disparate characters than Judge Joseph Dredd and Hercules J—the one an over-muscular, faceless and heavily armed street judge astride a Lawmaster motorcycle who overidentifies with his role ; the other devoid of any physical presence or image, and structurally decoupled from the execution of law by a fierce determination to maintain the separation of powers and accountability which Dredd so effortlessly ignores. Hercules J is the embodiment of an intellectualised, yet (...) creative, operationalisation of law. To the academic spirit, Hercules is infinitely preferable as a model of judicial activism: his world conjures a contemplative modality, ever alert to the requirements of rights and largely aligned with the temper of the post-Enlightenment. By contrast, Dredd is the personification of the worst aspects of law-and-order as the debased and politicised manifestation of the Rule of Law. His is an intensely visceral presence, the metonymic blindness of Themis replaced by the Dredd’s fractured eyeline: blindness as a signifier of impartiality yields to blindness as a symptom of institutional rage. This article interrogates the characters, actions and values of Hercules J and Dredd J, viewed primarily through the lens of Jacques Derrida’s Force of Law, focusing on the relationship between law and violence as it is exposed in Hercules’s and Dredd’s worlds, and then turning to judicial confrontation with the aporetic: the aporias, identified by Derrida and others, that law must confront. The interrogation continues, finally contemplating the current state of law in the common law world—the world of liberal democracies, suggesting that the high point of democracy may well have passed, and that we are on a Dredd-ward trajectory. (shrink)

Schwinger's action principle is formulated for the quantum system which corresponds to the classical system described by the LagrangianL c( $\dot x$ , x)=(M/2)gij(x) $\dot x$ i $\dot x$ j−v(x). It is sufficient for the purpose of deriving the laws of quantum mechanics to consider onlyc-number variations of coordinates and time. The Euler-Lagrange equation, the canonical commutation relations, and the canonical equations of motion are derived from this principle in a consistent manner. Further, it is shown that an arbitrary point (...) transformation leaves the forms of the fundamental equations invariant. The judicious choice of the quantal Lagrangian is essential in our formulation. A quantum mechanical analog of Noether's theorem, which relates the invariance of the quantal action with a conservation law, is established. The ambiguities in the quantal Lagrangian are also discussed and it is pointed out that the requirement of invariance is not sufficient to determine uniquely the quantal Lagrangian and the Hamiltonian. (shrink)

Criticism of court decisions is a favored American pastime. Typically, such criticisms are grounded in extra-legal criteria such as common sense (or lack of it) and morality (or immorality). Thus Tennessee Valley Authority v. Hill (1978) in which the Supreme Court halted the construction of the nearly completed Tellico Dam because it endangered the habitat of the snail darter, an action forbidden by the Endangered Species Act, was said to confound common sense; and many have called immoral Roe v. Wade (...) (1973) which said the right to abortion, at least through the first trimester, was constitutionally guaranteed. 1 However, even if such criticisms are justified, they do not address the legal issue, which is whether the court got the law wrong. (shrink)

Intuitively, we judge that our responsibility has more to do with what we do than what we omit to do, and that it extends more to intended effects than to side-effects of our deeds. These intuitions have been expressed in our tradition through two principles: the doctrine of acts and omissions and the doctrine of double effect. Jonathan Glover acknowledges that these two principles are important, but believes that it is eventually better to discard them and, instead, to stick to (...) the consequentialist view that our responsibility extends equally to all the consequences of our behavior. I first examine Glover’s objections against the two principles and then present Joshua Greene’s research on the neuropsychology of moral judgment. These rest heavily on our reactions to certain moral dilemmas, in particular the trolley problem, and have recourse to neuroimaging. Greene’s conclusions go in the same direction as Glover’s more conceptual arguments. However, both authors share a common philosophical view, i.e., consequentialism. Thus, in a last section I consider some difficulties that this moral view encounters, and with the aid of other neuropsychological studies, I conclude that it is not judicious to put aside the intentions of an agent. (shrink)

In Ruling Majorities and Reasoning Pluralities, Professor Saul Levmore explores the “division of labor” between the various thresholds of agreement required for collective action—supermajority, simple majority, or plurality rule. His particular emphasis is on the choice between the last two options. To improve our understanding of this choice in various settings, Professor Levmore considers the relationship between two well-known contributions to the study of group decisionmaking, namely, the Condorcet Jury Theorem and the Condorcet Criterion, which have not generally been treated (...) together. This essay explores the relationship between these two insights in the context of judicial decisionmaking. Counterintuitively, the essay demonstrates that while the Condorcet Criterion continues to hold great promise as a tool of decision in en banc appellate courts, the Condorcet Jury Theorem is most appealing in judicial contexts that appear less collegial and thus less like a jury. In contexts in which jurists engage in deliberation and in which they anticipate that their outputs will have precedential effect, the Jury Theorem has little if any role to play. In contrast, the Theorem might prove more useful in evaluating low-level judicial outputs or decisions that otherwise are not expected to be treated as precedent. Thus, common law trial court decisions and civil law court decisions are more likely to be useful benchmarks in a Condorcet Jury Theorem analysis. It is because such courts do not anticipate that their decisions will have the force of precedent that they are more likely to be derived from governing legal texts, and thus more prone to characterizations of accuracy, than are judicial outputs that are driven by policy concerns and are generated with the understanding that they will be treated as precedent. (shrink)

Recently Jeremy Waldron offered the ‘core of the case against judicial review’. Richard Fallon responded with the ‘core of an uneasy case for judicial review.’ The core case for judicial review rested on a number of important conditions, and the core case against it incorporated a number of important qualifications. The two cases are quite similar once we take the conditions and qualifications into account. At its heart Professor Fallon's case rests on the proposition that ‘[l]egislative action (...) is more likely to violate fundamental rights than legislative inaction’. I call this the libertarian presupposition in Professor Fallon's case. This article examines the libertarian presupposition, raising questions about its implication that private violations of fundamental rights are less serious or pervasive than violations of fundamental rights pursuant to legislation. It then discusses Professor Waldron's argument that an important part of the core case against judicial review is the existence of reasonable disagreement about the proper specification of fundamental rights. I argue that, while Professor Fallon provides a plausible psychological account of why the existence of such disagreement is unlikely to do much work in persuading people to accept the core case against judicial review, that psychological account offers a path toward understanding the different dispositions that lead Professors Waldron and Fallon to characterize their quite similar positions in the more dramatic ‘against-for’ manner. (shrink)

Wrongful birth actions aim to compensate litigants who are negligently deprived by health professionals of their right to reproductive choice. Access to safe and legal abortion is integral to the action and wrongful birth claims in the United Kingdom have been facilitated by the Abortion Act 1967 (as amended). The recent Australian case CES v Superclinics (1995) 38 NSWLR 47 shows how judicial confusion about the legality of abortion can result in judges condoning medical negligence. The Superclinics case (...) also suggests that doctors are not required to provide pregnant women with the same standard of care as other patients. These developments show that law can become incoherent and health professionals can act negligently with impunity when reproductive choice does not have a secure legal foundation. (shrink)

In this paper the author deals with collegial judicial decisions as a form of human action. The scope is, however, limited to three questions: What is the structure and the status of the general theory of action; Is this theory applicable to such performative acts as judicial decisions; and finally, Is it possible to speak about action in connection with collective agents such as collegial courts? The author defends the thesis that general theory of action as such is (...) applicable to collective action, too, because the difficulty is not in the structure of that theory, or in its “individual character,” but specifically in the notion of “collective will.” This kind of “will” is epistemologically always a result of a political procedure, and speaking about the “collective will” presupposes the analysis of these procedures, because in practice they and only they formulate “collective motives,”“collective beliefs” and the like. (shrink)

In the First Action of the Verrines Cicero highlights the issue of judicial corruption, which appears to be leading to the passage of legislation ending the senatorial monopoly on composition of the juries in the quaestio de repetundis. The work might theoretically, therefore, furnish an important study of how Cicero publicly positioned himself on a key political issue at a crucial point in his career. Historians, however, often dismiss the political impact of the work, arguing that jury reform was (...) essentially a fait accompli before the trial began. Rhetoricians likewise tend to understate its political importance, both because of its status as a substitute for a longer and fully elaborated oration and because of a pronounced tendency in recent scholarship to subordinate political comment in the judicial speeches to the immediate practical goals of legal advocacy. Cicero's prosecution of Verres, however, involved an unprecedented move in the orator's career. Through the trial he injected himself forcefully, and for the first time, into a contemporary political debate and thereby created for himself a new space from which to operate within the political landscape. (shrink)

The article deals with the concept of the court’s fault in the action for damages against a state suffered due to infringement of European Union law. The author searches for the right position of the criterion in the system of the conditions of state liability and discusses whether European Union law establishes a uniform standard of fault, or at least the guidance on the application of the criterion that would enable uniform national judicial practices concerning state liability for the (...) infringements attributable to the courts of last instance. The article also analyses national legal regulation and jurisprudence of several Member States such as France, Belgium and Italy, providing the definitions of different forms of fault and (or) examples of their practical implementation. (shrink)

This monograph opens with an examination of the aid industry and the claims of leading practitioners that the industry is experiencing a crisis of confidence due to an absence of clear moral guidelines. The book then undertakes a critical review of the leading philosophical accounts of the duty to aid, including the narrow, instructive accounts in the writings of John Rawls and Peter Singer, and broad, disruptive accounts in the writings of Onora O’Neill and Amartya Sen. Through an elaboration of (...) the elements of interconnection, responsible action, inclusive engagement, and accumulative duties, the comparative approach developed in the book has the potential to overcome the philosophical tensions between the accounts and provide guidance to aid practitioners, donors and recipients in the complex contemporary circumstances of assistance. Informed by real world examples, this book grapples with complex and multi-dimensional questions concerning practices and the ethics of aid. The author judiciously guides us through the debate between deontological and consequentialist moral theories to arrive at a sophisticated consequentialist account that does justice to the complexity of the problems and facilitates our deliberation in discharging our duty to aid, without yielding, as it should not, a determinate answer for each specific situation. Researchers, students, and practitioners of international aid will all find this book rewarding. Win-chiat Lee, Professor and Chair, Department of Philosophy, Wake Forest University Susan Murphy’s book offers us a sophisticated exploration of the philosophical basis for aid. It is grounded in a full understanding of the complexities and pitfalls of the aid industry, but its particular strength lies, mainly through an extensive discussion of Singer, Rawls, O’Neill and Sen, in a comparison of consequentialist and duty-based approaches, eventually endorsing a broad non-idealised, situated consequentialist account in what she calls an interconnected ethical approach to the practice of assistance. For anyone wanting to think carefully about why we should give aid, this book has much to offer. Dr Nigel Dower Honorary Senior Lecturer, University of Aberdeen Author of World Ethics – the New Agenda. (shrink)

Georgios Pentzaropoulos continues his investigation undertaken in 'Generating Stable Knowledge via Reduction in Entropy' (Philosophy Pathways Issue 167, 28 November 2011) looking at knowledge not as something we 'possess' -- the knowledge contained in a book, for example -- but rather as an active, or interactive process of increasing understanding through the judicious sifting and processing of raw information. As Macmurray argued in his Gifford Lectures, 'All knowledge is for the sake of action.' Instead of seeking to define some abstract (...) notion of knowledge in a vacuum, what philosophers should be getting to grips with is the notion of actionable knowledge. - Geoffrey Klempner, Editor. (shrink)

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

Resources for Feminist Research, Vol. 3, No. 4, pp. 44-45, 1985 In this brief article, written in 1984 and published the following year, Lucinda Vandervort sets out a comprehensive agenda for enforcement of sexual assault laws in Canada. Those familiar with her subsequent writing are aware that the legal implications of the distinction between the “social” and “legal” definitions of sexual assault, identified here as crucial for interpretation and implementation of the law of sexual assault, are analyzed at length in (...) “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1986), published at (1987-88) 2(2) Canadian Journal of Women and the Law, 233 309. In that article the author argued that most mistakes about consent are not mistakes about a “fact” that may sometimes negative mens rea, but are actually mistakes about the law that afford accused no excuse under either Canadian common law or statutory criminal law. She argued further that consent must be interpreted as “voluntary agreement” and must be affirmatively and unequivocally communicated in order to operate as an effective waiver of a person’s legal right to be free from interference with his or her bodily integrity. That article was a central reference point in the consultations leading to the 1992 amendments to the sexual assault provisions in the Canadian Criminal Code and in some key decisions by the Supreme Court of Canada in sexual assault cases in the 1990’s. As a result of a gradual transformation of theoretical analysis of the law of mens rea and consent in Canada, culpable awareness is now understood by many jurists and criminal law theorists quite differently than it was twenty-five years ago. As Vandervort acknowledged in her 1984 Agenda for Action, however, clarity in legal theory and legal doctrine is no guarantee of how sexual assault laws will operate in practice. Theory and practice, doctrine and its implementation, often diverge. This phenomenon is still seen in some decisions taken at the trial, pre-trial, and pre-charge stages in sexual assault cases. Police, prosecutors, and many trial judges, like accused, may often be influenced by traditional attitudes about sexual consent and mistaken about the law of consent. Accordingly, in her recent work Vandervort re-visits and re-examines the exercise of discretion by police, prosecutors, and the judiciary. An example is her 2009 article “Legal Subversion of the Criminal Justice Process? Judicial, Prosecutorial and Police Discretion in R. v. Edmondson, Kindrat and Brown” in Sexual Assault Law, Practice & Activism in a Post-Jane Doe Era, edited by Elizabeth Sheehy (Ottawa: University of Ottawa Press, 2012). In this and some of her other recent work, the distinctions between social and legal norms and questions of fact and law, previously analyzed with the objective of clarifying the law, are used to control the effects of social ignorance and partiality in the handling of sexual assault complaints by decision-makers in the criminal justice system at trial and pre-trial. Lucinda Vandervort’s published and unpublished legal and philosophical writings on sexual assault and sexual assault law illustrate the development of a socio-legal scholar’s “Agenda for Action” into a principled, pragmatic, open-ended exercise in “institutional design.” Across two centuries, from the revolutionary era of the 18th century to the present, other radical egalitarians would recognize both the impetus for the project and many features of the political and cultural resistance to it. (shrink)

One of the most important principles of the European Community law is the prohibition of the abuse of a dominant position based on Article 82 of the EC Treaty. Predatory pricing is one of the forms of the abuse of a dominant position. It is likely that the world financial and economic crisis will lead to an increase in competition among the undertakings. The fact that some dominant undertakings seeking to sustain or increase their market share might decide to engage (...) in predatory pricing and that no comprehensive research on predatory pricing has been carried out by legal scholars in Lithuania and the European Union up to date, underlines the relevance of this study. To decide whether dominant undertaking has become a “predator”, it is necessary to evaluate several issues, such as the ability of the dominant undertaking to recoup its losses incurred during the alleged application of predatory pricing strategy. The judicial institutions of the European Union pay little attention to this issue and might recognize that predatory pricing took place even without the evidence on the possibility for the undertaking to recoup its predatory losses. This study analyses the recovery of predatory losses by the dominant undertaking and the importance of such recovery in determining whether or not the dominant undertaking engaged in predatory pricing. (shrink)

The research analyzes the process of formation of the ethics committee as a new institution in the system of regulation of genetic research. The external factors of this process are the increasing digitalization of medical and research practices, as well as the special situation that is developing in the field of genomic research and the use of genetic technologies, where issues of philosophy, jurisprudence and administration have generated many fundamentally new, and sometimes unexpected contexts. The author shows the similarity and (...) difference of approaches to the inclusion of the ethics committee in the national regulatory systems of different countries and determines the prospects for further integration of the new institution into normative and administrative-regulatory and law enforcement practices. The research applies all the main methods of system analysis and structural and functional analysis, as well as the comparative legal method. At the stage of generalization of empirical material, the author turns to the means and methods of philosophical phenomenology and phenomenological sociology. The study revealed that the ethics committee may have different institutional and regulatory functions in a variety of management and legal systems. Being hybrid in nature, the ethics committee performs various functions, and in various state legal systems and traditions it can combine elements of legislative, executive and judicial power. At times, the ethics committee may go beyond the scope of both a purely administrative and exclusively legal regulator. All this indicates that the integration of this institution into the legal system and into a variety of social practices is far from being completed. (shrink)

In Italy in recent years, an exponential increase in the frequency of medical malpractice claims relating to the issue of informed consent has substantially altered not only medical ethics, but medical practice as well. Total or partial lack of consent has become the cornerstone of many malpractice lawsuits, and continues to be one of the primary cudgels against defendant physicians in Italian courtrooms. Physicians have responded to the rising number of claims with an increase in ‘defensive medicine’ and a prevailing (...) preoccupation with the purely formal aspects of consent. The result is a plethora of consent forms, believed to be a guarantee of ‘informed consent’, as well as a growing reliance on informed consent as a shield against judicial action brought by the patient. Physicians ‘inform’ patients without really sharing information, often delegating the task of communication to other professionals who are not doctors. Italian judges always condemn the physician when information to the patient has been inadequate, thus leading insurance companies to consider the lack of valid informed consent as the total responsibility of the physician and/or the hospital. It is necessary to change tack, to remove this idea of consent which permeates the defensive culture of medical practice. Italian physicians need to be trained, first of all, to become aware that information and consent are two distinct processes, albeit closely connected. Valid communication demands a higher level of professionalism from physicians. (shrink)

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

ExcerptRecently, I bore witness to events on the Yale campus that made me wonder about the meaning of being Jewish at the present, and that recollected to my mind the tales of the Mishnah, which delineate, in tractate Nezikin, judicial actions for damages. Section one explores how humans should behave in relation to the famous “goring ox.”1 Amidst the many concrete cases stands one in which the ox of a man of “sound sense” gores the ox of a (...) “deaf-mute, an imbecile, or a minor” (m BK 4.4). In this instance, the sound-minded man is culpable for damages, whereas the opposite holds true for the owner who is deaf, intellectually disabled, or a minor. However, this matter cannot end there since the ox of these latter owners must be prohibited from inflicting further damage without consequence. The court “must appoint a guardian” over these owners unless their status changes, at which point the court can deem the ox harmless once again (m BK 4.4). (shrink)

Chief Judge Achilles and Judge Hera – uniqueness of proceedings – the nature of judicial decision-making – the judicial order of Mega-city One – source of judicial power – judicial styles – qualities required for judicial office – context of judicial action – requirement of reflection – interpretation and meaning in enforcement of law – adjudicative models – law as horrific – legal theories – Hans Kelsen – Justice Hercules – Jacques DerridaJudge Howard – (...) critical assessment of judicial order of Mega-city One – Hans Kelsen, positivism and democracy – merging of law fondatrice and law conservatrice – the “soul of the law” – fracture of the Rule of Law – fascism – comparisons with fascist regimes of twentieth Century Europe – signifiers in judicial uniform – consequences of dissent – reasons for, and consequences of, resignationChief Judge AchillesJudge HeraJudgement delivered 3 March 2138.Grand Hall of Justice, Mega-city One. (shrink)

In many ways, Roe v. Wade marked a new chapter in American life. By assuring women of greater reproductive freedom., It gave women greater economic and social freedom, Inflamed a partisan battle between pro-life and pro-choice camps, and provoked a public debate regarding the proper sphere of judicial action. Hence, just as Roe has been critical to the changing politics of gender, it has been the focus of a political debate about the meaning of personhood and morality of abortion, (...) the scope of individual freedom, and the judiciary's role in effecting social change. (shrink)

This article reviews David Strauss's recent book,The Living Constitution. The thesis of Strauss's book is that constitutional law is a kind of common law, based largely on judicial precedent and commonsense judgments about what works and what is fair. In defending this claim, Strauss argues that central constitutional prohibitions of discrimination and protections of free speech have a common-law basis and that the originalist should consequently reject them. The review disputes this contention. It examines Strauss's account of the common (...) law and argues that it cannot support our First Amendment protections of subversive advocacy, as Strauss says it does. The review then offers an alternative account of the common law based on the “classical” common-law theory associated with Coke and Hale. The latter account does support our protections of subversive advocacy but is much less appealing to those distrustful of ambitious and large-scale judicial action. (shrink)

Justifying judicial review as a democratic institution is a core concern of Cristina Lafont’s splendid new book. Even though her interpretation is appealing, this also poses some problems. This is due to the non-thematization of ideology that results from Lafont’s ideal-theoretical and argument-privileging approach. I will first address this ideology-problem and then reflect on the implications that this has for the question of what is considered legitimate political action.

Social policy, broadly understood, is an intervention by government or other public institution designed to promote the well‐being of its members or intended to rectify perceived social problems. Governmental policy can issue from legislative, executive, or judicial actions. Regulations and rules governing major public establishments, such as universities or medical institutions, and directed at promoting the aims of the larger social body can also be considered instruments of social policy. Social policy is sometimes understood more narrowly as interventions (...) of the state in the domain of distribution or redistribution, when action has been thought necessary to correct for the instability inherent in a given social structure or created by pressures for social change. In this sense, it pertains to welfare policies aimed at the poor. In this article, we will deal primarily with social policy in the broad sense, reserving a brief discussion at the end on social policy in the narrow sense, as welfare policy. (shrink)

As far as the judicial system is concerned, the legal actions that can be brought before the Union courts, the Court of Justice, the General Court, and specialized courts, do not provide for a comprehensive system of procedural remedies. The main procedural remedy to address this problem is the preliminary ruling procedure, which enables all national courts, and obliges some of them, to suspend the main proceedings before it and refer questions concerning the interpretation and validity of Union (...) law to the Court of Justice for a binding ruling. According to Article 267(1) Treaty on the Functioning of the European Union (TFEU), the Court of Justice have jurisdiction to give preliminary rulings concerning: the interpretation of the treaties and the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union. A decision of the Court of Justice is given in the form of a judgment. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:EugenicsMary Carrington Coutts (bio) and Pat Milmoe McCarrick (bio)The word eugenics (from the Greek eugenes or well-born) was coined in 1883 by Francis Galton, an Englishman and cousin of Charles Darwin, who applied Darwinian science to develop theories about heredity and good or noble birth (I, Kevles 1985, p. x).The entry under "eugenics" in the Encyclopedia of Bioethics notes that the term has had different meanings in different eras: (...) "a science that investigates methods to ameliorate the genetic composition of the human race; a program to foster such betterment; a social movement; and in its perverted form, a pseudo-scientific retreat for bigots and racists" (V, Ludmerer 1978, p. 457). Kevles, who places a stronger emphasis than Ludmerer on the degeneration of eugenics, says that by 1935 it "had become 'hopelessly perverted' into a pseudoscientific facade for 'advocates of race and class prejudice, defenders of vested interests of church and state, Fascists, Hitlerites, and reactionaries generally'" (I, Kevles 1985, p. 164).Phrases such as "survival of the fittest" and "struggle for existence" came into use at the end of the nineteenth century when eugenics societies were created throughout the world to popularize genetic science. "Negative eugenics" utilized marriage restriction, sterilization, or custodial commitment of those thought to have unwanted characteristics. "Positive eugenics" tried to encourage the population perceived as "superior" to have more offspring (V, Ludmerer 1978, p. 459).In the United States, after World War I, new information, such as the importance of environmental influences and the more complex concept of multi-gene effects in inheritance, diminished the scientific justification for eugenics, but this knowledge did not decrease the pressure for legislation, judicial action, or immigration controls. The U.S. Immigration Restriction Act of 1924 favored immigration from northern Europe and greatly restricted the entry of persons from other areas referred to as "biologically inferior." Between 1907 and 1937, 32 [End Page 163] states required sterilization of various citizens viewed as undesirable: the mentally ill or handicapped; those convicted of sexual, drug, or alcohol crimes; and others viewed as "degenerate" (V, Larson 1991).In Germany, interest in eugenics flourished after the turn of the century when Dr. Alfred Ploetz founded the Archives of Race-Theory and Social Biology in 1904 and the German Society of Racial Hygiene in 1905. The German term Rassenhygiene or race hygiene encompassed more than the word "eugenics;" it included all attempts to improve hereditary qualities as well as measures directed at population increase (III, Weiss 1987). By the 1920s, various German textbooks incorporated ideas of heredity and racial hygiene, and German professors were participating in the international eugenics movement. The Kaiser Wilhelm Institute of Anthropology, Human Heredity, and Eugenics was founded in 1927; by 1933 a sterilization law, the Law for the Prevention of Congenitally Ill Progeny, which originally was entitled "Eugenics in the Service of Public Welfare," indicated compulsory sterilization "for the prevention of progeny with hereditary defects" in cases of "congenital mental defects, schizophrenia, manic-depressive psychosis, hereditary epilepsy... and severe alcoholism." (III, Müller-Hill 1988, p. 10).The co-mingling of science, politics, and Weltanschauung (ideological or religious world view) caused the darkest period for eugenics when Nazi Germans embarked on their "final solution" to the Jewish "problem", or the Holocaust. The Nazi racial-hygiene program began with involuntary sterilizations and ended with genocide. Beginning with the 1933 Law for the Prevention of Congenitally Ill Progeny, 350,000 schizophrenic and other mentally ill persons were involuntarily sterilized, and marriage or sexual contact between Jews and other Germans was banned. Several hundred black children and 30,000 German Gypsies were sterilized. By 1945, when the allies liberated those remaining in Nazi concentration camps, six million Jews, 750,000 Gypsies, and 70,000 German psychiatric patients had been killed by the Nazis (III, Müller-Hill 1992, p. 47). As a result of the German experience, eugenic thought dropped to its nadir, and to the present day, the term "eugenics" invokes a sense of horror in some people.Great Britain, the United States, and Germany were the countries most involved with eugenic science in the first half of this century, but interest was present in Europe and other... (shrink)

The dynamics of the superior judiciary in Pakistan have undergone a drastic transformation in its approach and working in post 2007 emergency followed by a landmark movement of civil and legal fraternity for restoration of constitutional supremacy. The neo-jurisprudence is being applauded and criticized at the same time. The excessive use of Suo-motto and public interest litigation at one hand and frequent judicial review of executive and legislative action on other have been the main source of contention between judiciary (...) and other two pillars of state, legislature and executive. The Superior Court is being recognized as the ultimate savior of fundamental rights and guardian of the constitution as well as rights of the people. At the other extreme, the criticism like activist judiciary; disrespect for popular will and making rather interpreting law are most commonly attributed to Superior Judiciary. The study is qualitative in nature and presents a comparative analysis of trends in Superior Court before and after Lawyers’ movement. The study also aims in justifying the proactive approach especially in providing social justice on failure of state organs to respond to the exigency of time. (shrink)

Kidney donation by young children and the mentally retarded has been supported by court decisions, arguments based on obligations inherent in family relationships, an array of contextual factors, and the principle of beneficence. These justifications for taking organs from people who cannot protect themselves are problematic and must be weighed against our obligation to protect the vulnerable. A compromise solution is presented that strongly protects young children and the mentally retarded but does not abdicate all responsibility to relieve suffering. Guidelines (...) are proposed that prohibit the retrieval of kidneys from young children and the mentally retarded but permit one exception. They would allow retrieval of a kidney when the consequence to a first order relative with whom the donor has a meaningful and valuable relationship is otherwise imminent death. This would be done in accordance with additional guidelines that minimize harm to the donor. Since most patients with end stage renal disease can be maintained on dialysis the need for a kidney to prevent death should be an uncommon occurrence. This compromise is proposed as a solution to a dilemma that exists because two ethical principles are in conflict and one cannot be honored without violating the other. (shrink)

Time is central to Luhmann’s writings on social systems. Social systems, as systems of meaning, operate within three dimensions: factual, social and temporal. Each of these dimensions entails selections of actualities from potentialities (or contingencies) within horizons. Whilst the factual dimension involves selections based on distinguishing ‘this’ from ‘something else’, and the social distinguishes between alter and ego (asking with respect to any meaning whether another experiences it as I do), the temporal dimension operates with the primary distinction of before (...) and after. In the temporal dimension, everything is ‘ordered only according to the when and not to the who/what/where/how of experience and action’ (Luhmann in Social systems. Stanford University Press, Stanford, 1995, p. 78). In this paper, we explore the connection between the temporal dimension of meaning within the legal system and its connection to justice. We begin by setting out succinctly the role played by justice within the legal system, as presented by Luhmann, particularly in his book Law as a social system (2004). From this beginning, we move on to consider the relationship between law, justice and time, taking two examples. The first is the temporality of judicial decisions. The second concerns the relationship between the temporal meaning of law’s own operations, and the presumption of innocence. (shrink)

According to common judicial standard, judgment in favor ofplaintiff should be made if and only if it is more probable than not thatthe defendant''s action was the cause for the plaintiff''s damage (or death). This paper provides formal semantics, based on structural models ofcounterfactuals, for the probability that event x was a necessary orsufficient cause (or both) of another event y. The paper then explicates conditions under which the probability of necessary (or sufficient)causation can be learned from statistical data, (...) and shows how data fromboth experimental and nonexperimental studies can be combined to yieldinformation that neither study alone can provide. Finally, we show thatnecessity and sufficiency are two independent aspects of causation, andthat both should be invoked in the construction of causal explanations for specific scenarios. (shrink)

Since 2014, two legislative actions, the Transgender Persons (Protection of Rights)Act 2019, and the Draft Trafficking in Persons (Prevention, Care and Rehabilitation) Bill 2021, have been pivotal in re-inscribing the Indian state’s colonial policing of queer kinship networks. By criminalising relationalities outside the heteropatriarchal conjugal home, the sexual subaltern is exposed to the state’s mechanisms of rescue and rehabilitation. These developments have occurred alongside the constitutional recognition of privacy in K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 (...) and the decriminalisation of the anti-sodomy law in Navtej Johar v. Union of India 2018 (10) SCALE 386 which have been celebrated as victories of self-determination and dignity for queer kinship. These judicial pronouncements, although symbolically pertinent, fail to materially protect queer kinship, and with the contemporary advocacy around queer marriage, the need for legal and cultural recognition has obfuscated the substantive needs of pre-existing queer alliances. Queer communities continue to organise for their own emancipation and despite their vulnerability, queer visibility offers a public counter-narrative of resistance and survival against the brutalities of society and the state. (shrink)

This paper explores ‘reasonable doubt’ as an enlightening notion to think of reasoning and decision-making generally, beyond the judicial domain. The paper starts from a decision-theoretic understanding of the notion, whereby it can be defined in terms of degrees of belief and a probabilistic confirmation threshold for action. It then highlights some of the limits of this notion, and proposes a richer analysis of epistemic states and reasoning through the lens of ‘reasonable doubt’, which in turn is likely to (...) supplement the DT framework. The strategy consists in fighting on two fronts: with DT, the paper claims that there is no absolute notion of ‘reasonable doubt’ but, pace DT, it shows that reasonable doubt cannot be accounted for only in terms of degrees of belief and probabilistic threshold. We argue that the lens of reasonable doubt sheds light on aspects of belief dynamics, as well as of the nature of epistemic attitudes, which are often obscured by belief-centred approaches. In particular, when it comes to acknowledging the necessary ignorance and irreducible uncertainty that we face in our everyday-life decisions, studying the various facets of doubt rather than focusing on what can be believed, enables one to do justice to the richness and diversity of the mental states in play. (shrink)

In Brennan and Democracy, a leading thinker in U.S. constitutional law offers some powerful reflections on the idea of "constitutional democracy," a concept in which many have seen the makings of paradox. Here Frank Michelman explores the apparently conflicting commitments of a democratic governmental system where key aspects of such important social issues as affirmative action, campaign finance reform, and abortion rights are settled not by a legislative vote but by the decisions of unelected judges. Can we--or should we--embrace the (...) values of democracy together with constitutionalism, judicial supervision, and the rule of law? To answer this question, Michelman calls into service the judicial career of Supreme Court Justice William Brennan, the country's model "activist" judge for the past forty years. Michelman draws on Brennan's record and writings to suggest how the Justice himself might have understood the judiciary's role in the simultaneous promotion of both democratic and constitutional government.The first chapter prompts us to reflect on how tough and delicate an act it is for the members of a society to attempt living together as a people devoted to self-government. The second chapter seeks to renew our appreciation for democratic liberal political ideals, and includes an extensive treatment of Brennan's judicial opinions, which places them in relation to opposing communitarian and libertarian positions. Michelman also draws on the views of two other prominent constitutional theorists, Robert Post and Ronald Dworkin, to build a provocative discussion of whether democracy is best conceived as a "procedural" or a "substantive" ideal. (shrink)

Responsible citizens are expected to combine ethical judgement with judiciously exercised social activism to preserve the moral foundation of democratic society and prevent political injustice. But do they? Utilizing a research model integrating insights from rational choice theory and cognitive developmental psychology this book carefully explores three exemplary cases of morally inspired activism: Jewish rescue in wartime Europe, abortion politics in the United States, and peace and settler activism in Israel. From all three analyses a single conclusion emerges: the most (...) politically competent individuals are, most often, the least morally competent. This is the central paradox of political morality. These findings cast doubt on strong models of political morality characterized by enlightened moral reasoning and concerted political action while affirming alternative weak models that fuse activism with sectarian moral interests. They provide empirical support to further upend the liberal vision of democratic character, education, and society. (shrink)

Antibiotic resistance (AR) is a major threat to public health and healthcare worldwide. In this article, we analyse and discuss the claim that taking actions to minimize AR is everyone's responsibility, focusing on individual moral responsibility. This should not be merely interpreted as a function of knowledge of AR and the proper use of antibiotics. Instead, we suggest a circumstantial account of individual responsibility for AR, where individuals do or do not engage in judicious antibiotic behaviour with different degrees (...) of voluntariness. Furthermore, we suggest a notion of responsibility as a virtue, in which individuals have the opportunity to develop a sensitivity towards the AR theme and, consequently, are capable of engaging, actively and voluntarily, in judicious antibiotic behaviour. The development of such sensitivity depends on the creation of adequate circumstances, that is individual capacities and availability of resources. (shrink)

Scholars in science and technology studies (STS) have recently been called upon to advise governments on the design of procedures for public engagement. Any such instrumental function should be carried out consistently with STS’s interpretive and normative obligations as a social science discipline. This article illustrates how such threefold integration can be achieved by reviewing current US participatory politics against a 70-year backdrop of tacit constitutional developments in governing science and technology. Two broad cycles of constitutional adjustment are discerned: the (...) first enlarging the scope of state action as well as public participation, with liberalized rules of access and sympathetic judicial review; the second cutting back on the role of the state, fostering the rise of an academic-industrial complex for technology transfer, and privatizing value debates through increasing delegation to professional ethicists. New rules for public engagement in the United Sates should take account of these historical developments and seek to counteract some of the anti-democratic tendencies observable in recent decades. (shrink)

I explore the increasingly important issue of cooperation in immoral actions, particularly in connection with healthcare. Conscientious objection, especially as pertains to religious freedom in healthcare, has become a pressing issue in the light of the US Supreme Court judgement inHobby Lobby. Section ‘Moral evaluation using the basic principles of cooperation’ outlines a theory of cooperation inspired by Catholic moral theologians such as those cited by the court. The theory has independent plausibility and is at least worthy of serious (...) consideration—in part because it is an instance of double-effect reasoning, which is also independently plausible despite its association with moral theology. Section ‘Case study:Burwell v. Hobby Lobby’ examinesHobby Lobbyin detail. Even if the judgement was correct in that case the reasoning was not, as it involved applying a ‘mere sincerity’ test to the cooperation question. The mere sincerity test leads to absurd consequences, whereas a reasonableness test applied using the theory of cooperation defended here would avoid absurdity. Section ‘A question of remoteness: “accommodations” and opt-outs’ explores the post-Hobby Lobbyproblem further, examining opt-outs and accommodations: theLittle Sisters of the Poorcase shows how opt-outs are misunderstood on a mere sincerity test, which the court rightly rejected. Section 'Application to the medical field:Doogan and Wood’ discusses the UK case ofDoogan and Wood, concerning participation in abortion. Again, a judicially recognised ethic of cooperation, if it were part of the fabric of legal reasoning in such cases, would have enabled the conscientious objectors in this and similar situations to have their freedom of conscience and religion respected in a way that it currently is not. (shrink)

In the standard analysis of economic institutions--which include social conventions, the working rules of an economy, and entitlement regimes --economists invoke the same theories they use when analyzing individual behavior. In this profoundly innovative book, Daniel Bromley challenges these theories, arguing instead for "volitional pragmatism" as a plausible way of thinking about the evolution of economic institutions. Economies are always in the process of becoming. Here is a theory of how they become. Bromley argues that standard economic accounts see institutions (...) as mere constraints on otherwise autonomous individual action. Some approaches to institutional economics--particularly the "new" institutional economics--suggest that economic institutions emerge spontaneously from the voluntary interaction of economic agents as they go about pursuing their best advantage. He suggests that this approach misses the central fact that economic institutions are the explicit and intended result of authoritative agents--legislators, judges, administrative officers, heads of states, village leaders--who volitionally decide upon working rules and entitlement regimes whose very purpose is to induce behaviors that constitute the sufficient reasons for the institutional arrangements they create. Bromley's approach avoids the prescriptive consequentialism of contemporary economics and asks, instead, that we see these emergent and evolving institutions as the reasons for the individual and aggregate behavior their very adoption anticipates. These hoped-for outcomes comprise sufficient reasons for new laws, judicial decrees, and administrative rulings, which then become instrumental to the realization of desired individual behaviors and thus aggregate outcomes. (shrink)