Discusses the idea that legal proof should use variable standards rather than a single fixed threshold.

I discuss the knowledge account of legal proof in Moss (2023) and develop an alternative. The unifying thread throughout this article are reflections on the beyond reasonable doubt (BRD) standard of proof. In Section 1, I will introduce the details of Moss’s account and how she motivates it via the BRD standard. In Section 2, I will argue that there are important disanalogies between BRD and knowledge that undermine Moss’s argument. There is however another motivation for the (...) knowledge account: combined with auxiliary claims, that is probabilistic knowledge and moral encroachment, it can provide a general solution to the puzzle of statistical evidence. Section 3 spells out the details. In Section 4, I suggest to combine the knowledge account with pragmatic encroachment, instead of moral encroachment, in order to stay clear of the thorny issues whether corporations have moral rights. In Section 5, I argue that the verdicts of Moss’s account in cases of false justified beliefs and non-luminous knowledge conflict with the BRD standard and thus call for abandoning the account. Based on the social function of the BRD standard, I suggest a replacement for the knowledge account that is also just as potent as a general solution for the puzzle of statistical evidence. While I will grant that knowledge is neither always necessary nor always sufficient for convictions, I will argue that the concept of knowledge nonetheless plays a significant and ineliminable role in legal decision-making. (shrink)

Explanationist accounts of rational legal proof view trials as a competition between explanations. Such accounts are often criticized for being underdeveloped. One question in need of further attention is when guilt is proven beyond a reasonable doubt in criminal trials. This article defends an inference to the best explanation -based approach on which guilt is only established BARD if the best guilt explanation in a case is substantially more plausible than any innocence explanation, and there is no good (...) reason to presume that we have overlooked evidence or alternative explanations that could realistically have exonerated the defendant. This is a comparative account, which I argue is better suited for arriving at accurate verdicts than the non-comparative ‘no plausible alternative’ account that many explanationists tacitly assume. Furthermore, this account is not susceptible to the most important arguments against IBE in criminal trials or to arguments against other, non-explanationist interpretations of the BARD standard. I use a case study to illustrate how this account provides meaningful guidance for decision makers in criminal trials. (shrink)

Existing discussions of legal proof address a host of apparently disparate questions: What does it take to prove a fact beyond a reasonable doubt? Why is the reasonable doubt standard notoriously elusive, sometimes considered by courts to be impossible to define? Can the standard of proof by a preponderance of the evidence be defined in terms of probability thresholds? Why is statistical evidence often insufficient to meet the burden of proof? -/- This paper defends an account (...) of proof that addresses each of these questions. Where existing theories take a piecemeal approach to these puzzles, my theory develops an insight that unifies them—namely, the thesis that legal proof requires knowledge. Although this thesis may seem radical at first, I answer several common objections to it, and I argue that it does better than several competing accounts when it comes to making sense of our intuitions about what legal proof requires. (shrink)

Dissertation outline: I begin my dissertation by charting and assessing two competing approaches to theorise about the nature of knowledge – modalism and explanationism. According to the former, knowledge equates with a belief which is true in a relevant set of possible worlds; according to the latter, knowledge is a matter of believing the truth on the basis of the right explanation. When it comes to the competition between modalism and explanationism in traditional epistemology, I reject explanationism and I endorse (...) modalism: I move novel objections against the most recent explanationist account of knowledge and I develop a novel version of modalism. This new version of modalism consists of a different safety condition which is informed by the etiological theory of functions made popular in the philosophy of biology. I argue that it does better than both extant versions of modalism and extant versions of explanationism. I then move on to the contrast between modalism and explanationism in the context of applied legal epistemology. By emphasising a few structural connections between knowledge and legal proof, epistemologists have moved quite freely from a modalist account of knowledge to a modalist account of legal proof. A case in point is Duncan Pritchard, who proposes a modal condition for knowledge and then extends it to legal standards of proof. On this second issue, I see things differently: in legal epistemology, I endorse explanationism and I reject modalism. Accordingly, I object to influential modal accounts of legal proof and I offer an alternative explanationist account. I develop an account of legal proof as an inference to the best contrastive explanation: by drawing on up-to-date literature on abductive reasoning in the philosophy of science, I bring into focus hitherto unappreciated connections between the nature of legal proof and the structure of scientific explanation. The final upshot is a well-informed account of legal proof which does away with modal conditions and better captures the nature of juridical proof. My dissertation advances two closely related debates by emphasising a neat separation between modalism and explanationism: while the former is the right approach to theorise about the nature of knowledge, only the latter can provide a satisfactory account of legal proof. Such separation offers a new picture of the relationship between knowledge and legal proof, and it provides new insights into several debates at the intersection of traditional and applied legal epistemology. (shrink)

A major appellate court decision from the United States seriously questions the legal sufficiency of prevailing medical criteria for the determination of death by neurological criteria. There may be a mismatch between legal and medical standards for brain death, requiring the amendment of either or both. In South Australia, a Bill seeks to establish a legal right for a defined category of persons suffering unbearably to request voluntary euthanasia. However, an essential criterion of a voluntary decision (...) is that it is not tainted by undue influence, and this Bill falls short of providing adequate guidance to assess for undue influence. (shrink)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible (...) standard of proof, instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 146-166, October 2021.

Medicine, like law, is a pragmatic, probabilistic activity. Both require that decisions be made on the basis of available evidence, within a limited time. In contrast to law, medicine, particularly evidence-based medicine as it is currently practiced, aspires to a scientific standard of proof, one that is more certain than the standards of proof courts apply in civil and criminal proceedings. But medicine, as Dr. William Osler put it, is an "art of probabilities," or at best, a (...) "science of uncertainty." One can better practice medicine by using other evidentiary standards in addition to the "scientific." To employ only the scientific standard of proof is inappropriate, if not impossible; furthermore, as this review will show, its application in medicine is fraught with bias. Evidence is information. It supports or undermines a proposition, whether a hypothesis in science, a diagnosis in medicine, or a fact or point in question in a legal investigation. In medicine, physicians marshal evidence to make decisions on how to best prevent, diagnose, and treat disease, and improve health. In law, courts decide the facts and render justice. Judges and juries assess evidence to establish liability, to settle custody and medical issues, and to determine a defendant's guilt or innocence. (shrink)

With his contribution on "The Natural Law in the American Tradition," Judge Diarmuid O'Scannlain has begun the indispensable task of laying the groundwork for sound jurisprudential reasoning in the natural law tradition. It is on the basis of this groundwork that we can begin to appreciate what natural law reasoning might mean, and what it does not mean, for contemporary American legal thinking. More specifically, it is on the basis of this groundwork that one can begin to articulate what (...) might be called a "third way" of jurisprudential reasoning. This "third way" would steer clear of two opposed and equally problematic jurisprudential views; that is, it would steer clear of what we might call "standard legal positivism" (on the one hand), and (on the other hand) what Judge O'Scannlain calls the "aggressive" natural law jurisprudence of some contemporary theorists. (shrink)

This article analyses the regulatory handbooks produced by the new regulators for solicitors and barristers, the main legal professions in England and Wales, following the Legal Services Act 2007. It focuses on the new codes of conduct and the 10 high-level regulatory standards that are a feature of each handbook. The article examines the ways in which key interests have been dealt with in the handbooks from the perspective of the historical narratives of the legal professions (...) and their publications, including their previous codes of conduct. It is found that the barristers’ and solicitors’ codes project different ethical orientations towards the supposedly universal ‘standard conception of the lawyer’s role’ based on the principles of neutrality and partisanship. The origins, meaning and significance of the high-level standards are considered. They are found not to reflect the content of the codes of conduct or to communicate cherished elements of the professions’ historical narratives. It is argued that this is problematic in terms of the professional functions of regulation, education and communication. (shrink)

In this article, we report a study in which 109 research-active mathematicians were asked to judge the validity of a purported proof in undergraduate calculus. Significant results from our study were as follows: (a) there was substantial disagreement among mathematicians regarding whether the argument was a valid proof, (b) applied mathematicians were more likely than pure mathematicians to judge the argument valid, (c) participants who judged the argument invalid were more confident in their judgments than those who judged (...) it valid, and (d) participants who judged the argument valid usually did not change their judgment when presented with a reason raised by other mathematicians for why the proof should be judged invalid. These findings suggest that, contrary to some claims in the literature, there is not a single standard of validity among contemporary mathematicians. (shrink)

In this paper the Lorentz transformations (LT) and the standard transformations (ST) of the usual Maxwell equations (ME) with the three-dimensional (3D) vectors of the electric and magnetic fields, E and B, respectively, are examined using both the geometric algebra and tensor formalisms. Different 4D algebraic objects are used to represent the usual observer dependent and the new observer independent electric and magnetic fields. It is found that the ST of the ME differ from their LT and consequently that the (...) ME with the 3D E and B are not covariant upon the LT but upon the ST. The obtained results do not depend on the character of the 4D algebraic objects used to represent the electric and magnetic fields. The Lorentz invariant field equations are presented with 1-vectors E and B, bivectors EHv and BHv and the abstract tensors, the 4-vectors Ea and Ba. All these quantities are defined without reference frames, i.e., as absolute quantities. When some basis has been introduced, they are represented as coordinate-based geometric quantities comprising both components and a basis. It is explicitly shown that this geometric approach agrees with experiments, e.g., the Faraday disk, in all relatively moving inertial frames of reference, which is not the case with the usual approach with the 3D bf E and B and their ST. (shrink)

In this paper a theoretical definition that helps to explain how the logical structure of legal presumptions is constructed by applying the Carneades model of argumentation developed in artificial intelligence. Using this model, it is shown how presumptions work as devices used in evidentiary reasoning in law in the event of a lack of evidence to assist a chain of reasoning to move forward to prove or disprove a claim. It is shown how presumptions work as practical devices that (...) may be useful in cases in which there is insufficient evidence to prove the claim to an appropriate standard of proof. (shrink)

Judges and jurors must make decisions in an environment of ignoranceand uncertainty for example by hearing statements of possibly unreliable ordishonest witnesses, assessing possibly doubtful or irrelevantevidence, and enduring attempts by the opponents to manipulate thejudge''s and the jurors'' perceptions and feelings. Three importantaspects of decision making in this environment are the quantificationof sufficient proof, the weighing of pieces of evidence, and therelevancy of evidence. This paper proposes a mathematical frameworkfor dealing with the two first aspects, namely the quantification (...) ofproof and weighing of evidence. Our approach is based on subjectivelogic, which is an extension of standard logic and probability theory,in which the notion of probability is extended by including degrees ofuncertainty. Subjective Logic is a framework for modelling humanreasoning and we show how it can be applied to legalreasoning. (shrink)

This essay introduces the ‘she said, he said’ paradox for Title IX investigations. ‘She said, he said’ cases are accusations of rape, followed by denials, with no further significant case-specific evidence available to the evaluator. In such cases, usually the accusation is true. Title IX investigations adjudicate sexual misconduct accusations in US educational institutions; I address whether they should be governed by the ‘preponderance of the evidence’ standard of proof or the higher ‘clear and convincing evidence’ standard. -/- Orthodoxy (...) holds that the ‘preponderance’ standard is satisfied if the evidence adduced renders the litigated claim more likely than not. On this view, I argue, ‘she said, he said’ cases satisfy the ‘preponderance’ standard. But this consequence conflicts with plausible liberal and feminist claims. In this essay I contrast the ‘she said, he said’ paradox with legal epistemology’s proof paradox. I explain how both paradoxes arise from the distinction between individualised and non-individualised evidence, and I critically evaluate responses to the ‘she said, he said’ paradox. (shrink)

ABSTRACTWhen used in legal forums, the persuasive abilities of narrative raise ethical questions. Depending on the jurisdiction, some ethical rules apply to persuasive legal narrative, but these ru...

Surveillance in public health is the means by which people who are responsible for preventing or controlling threats to health get the timely, ongoing, and reliable information they need about the occurrence, antecedents, time course, geographic spread, consequences, and nature of these threats among the populations they serve. “Policy surveillance” is the ongoing, systematic collection, analysis, and dissemination of information about laws and other policies of health importance.

US criminal courts have recently moved toward seeing juveniles as inherently less culpable than their adult counterparts, influenced by a growing mass of neuroscientific and psychological evidence. In support of this trend, this chapter argues that the criminal law’s notion of responsible agency requires both the cognitive capacity to understand one’s actions and the volitional control to conform one’s actions to legal standards. These capacities require, among other things, a minimal working set of executive functions—a suite of mental (...) processes, mainly realized in the prefrontal cortex, such as planning and inhibition—which remain in significant states of immaturity through late adolescence, and in some cases beyond. Drawing on scientific evidence of how these cognitive and volitional capacities develop in the maturing brain, the authors sketch a scalar structure of juvenile responsibility, and suggest some possible directions for reforming the juvenile justice system to reflect this scalar structure. (shrink)

In this paper, I argue that there is a picture of how law works that most legal theorists are implicitly committed to and take to be common ground. This Standard Picture (SP, for short) is generally unacknowledged and unargued for. SP leads to a characteristic set of concerns and problems and yields a distinctive way of thinking about how law is supposed to operate. I suggest that the issue of whether SP is correct is a fundamental one for the (...) philosophy of law, more basic, for example, than the issue that divides legal positivists and anti-positivists, at least as the latter issue is ordinarily understood. The goals of the paper are fourfold: 1) to identify and articulate in some detail the Standard Picture; 2) to show that SP is widely held and has important consequences for other debates in the philosophy of law; 3) to show that SP leads to a serious theoretical problem; 4) to sketch an alternative picture that promises to avoid this problem. I emphasize the modesty of these goals in one respect. I make no claim to refute SP or to fully develop and defend an alternative picture. (shrink)

The Standard Picture holds that the contribution to the law made by an authoritative legal pronouncement is directly explained by the linguistic content of that pronouncement. This essay defends the Standard Picture from Mark Greenberg’s purported counterexamples drawn from patterns of statutory interpretation in U.S. criminal law. Once relevant features of the U.S. rule of recognition are admitted into the analysis—namely, that it arranges sources of law hierarchically, and that judicial decisions are sources of valid law—Greenberg’s counterexamples are revealed (...) as only apparent, not genuine. The legal norms that result from the patterns of interpretation he identifies can be directly explained in terms of the linguistic contents of authoritative pronouncements: judicial decisions. Furthermore, those norms can be understood as modifications of the valid norms contained in their originating statutes because judicial decisions are permitted ‘explanatory intermediaries’ of statutes by the rule of recognition. (shrink)

Smith argues that, unlike other forms of evidence, naked statistical evidence fails to satisfy normic support. This is his solution to the puzzles of statistical evidence in legal proof. This paper focuses on Smith’s claim that DNA evidence in cold-hit cases does not satisfy normic support. I argue that if this claim is correct, virtually no other form of evidence used at trial can satisfy normic support. This is troublesome. I discuss a few ways in which Smith can (...) respond. (shrink)

This paper argues for a coherentist theory of the justification of evidentiary judgments in law, according to which a hypothesis about the events being litigated is justified if and only if it is such that an epistemically responsible fact-finder might have accepted it as justified by virtue of its coherence in like circumstances. It claims that this version of coherentism has the resources to address a main problem facing coherence theories of evidence and legal proof, namely, the problem (...) of the coherence bias. The paper then develops an aretaic approach to the standards of epistemic responsibility which govern legal fact-finding. It concludes by exploring some implications of the proposed account of the justification of evidentiary judgments in law for the epistemology of legal proof. (shrink)

This author shows how the main principle would endorse a new ground-level principle of weak legal paternalism, the most reliable judgment standard, and compares this standard with the most influential nonconsequentialist standard, Joel Feinberg’s voluntariness standard. The most reliable judgment standard will permit legal paternalism if it is reasonable to believe that the subject will or would come to unequivocally endorse it. The chapter illustrates the difference between his and Feinberg’s standards with hypothetical examples of drug and (...) suicide prohibitions. The chapter explains his consequentialist account of autonomy and shows how that account fits the legal standard of autonomy. However, it does not fit the standard statement of the insanity defense. The chapter explains why the insanity defense should be revised. (shrink)

In February 1993, Judge Charles R. Richey of the United States District Court issued a summary judgment in the case of Animal Legal Defense Fund, et al. v. The Secretary of Agriculture, et al. The decision, which was in favor of the Animal Legal Defense Fund, requires the U.S. Department of Agriculture to withdraw its current regulations governing exercise for dogs and the psychological well-being of nonhuman primates used for biomedical research and to issue new regulations containing only (...) minimum, measurable standards. Both plaintiffs and defendants contended that they were seeking the best interests of the laboratory animals. The issue at stake is whether animals are better protected if the government establishes limited minimal standards or is allowed to require institutions to provide additional standards, which will be judged on the basis of their effectiveness in maintaining healthy animals. The Court avoided this dispute, however, by placing primary emphasis on applying the Administrative Procedures Act and stating that it was merely interpreting the "plain meaning" of the Animal Welfare Act, as amended. In this article, arguments are presented for interpreting the law in a far more flexible way than Judge Richey did. The conclusion is also reached that there were no winners in the Animal Legal Defense Fund case and that the real losers are the laboratory animals. (shrink)

What are the ethical obligations of the sellers of financial products to their customers? Stockbrokers in the U.S. have a legal and ethical requirement to recommend only “suitable” investments to their customers. This is a fairly weak standard. Currently, there are proposals to raise the standard to a fiduciary one in which the recommendations would have to be in the best interests of the clients. Brokers sell solutions to financial problems. Similar to an auto mechanic or a doctor, the (...) product often consists of both the professional advice and its implementation. There are numerous conflicts of interest between brokerage firms and their customers in that the products that pay the highest commissions may not be the best ones for the customers. The societal perspective adds complications, however. Society depends on modern financial markets to raise capital for productive enterprises and to spread risk. Issuers of financial products need distribution channels for their products just like the producers of any other products. Commissions create powerful incentives for the distribution channels, but at the same time produce conflicts of interest—a type of ethical pollution. Just as our society tolerates some pollution as a byproduct of other useful activities, it may be useful to tolerate some of these financial conflicts of interest. The nature of the relationship should govern the ethical standard. Those selling advice, regardless of how they label themselves, should adhere to a best-interest fiduciary standard. More limited relationships should be limited to the mandate involved in the relationship. (shrink)

Argues that throughout the classical period in China, the word `fa' consistently means measurable, publicly accessible standards for the application of terms used in behavioral guidance. Review of the Daoist analysis of the meaning of fa; Original philosophical role of fa; Detail of Chinese philosopher Han Feizi's theories on the legal use of the term `fa.'.

Federal efforts beginning in the 1990's have successfully increased pediatric research to improve medical care for all children. Since 1997, the FDA has requested 800 pediatric studies involving 45,000 children. Much of this research is "non-beneficial"; that is, it exposes pediatric subjects to risk even though these children will not benefit from participating in the research. Non-beneficial pediatric research (NBPR) seems, by definition, contrary to the best interests of pediatric subjects, which is why one state supreme court has essentially prohibited (...) it. It also appears that the only plausible rationale for this research is utilitarian, as it risks some children for the good of all. But that rationale is troubling. This Article answers two related questions: (1) What is the appropriate legal relationship between NBPR and the "best interests of the child" standard? (2) What is the ethical justification for this research? I argue that courts should hold that the "best interests" standard governs pediatric research. But, contrary to existing case law, courts must consider the benefits to each child, including pediatric subjects, from a policy that permits NBPR, and not simply consider that a non-beneficial protocol presents more risk than potential benefit to a child. Moreover, I argue that the justification for the practice need not be utilitarian. There is no need to appeal to the greater good to justify the research because each child has reason to endorse a policy permitting NBPR where there is a very low ceiling on acceptable risk, and each child has reason to participate in a practice from which she benefits. More controversially, I argue that each child, like other persons, has reason to help others when she can do so at little to no cost to herself. The Article then highlights practical implications of the offered justifications. (shrink)

Law Schools are now required to provide education to law students on bias, cross-cultural competency, and racism under ABA Standard 303(c). Law clinics, with their social justice orientation, have long taught about structural causes of bias and oppression and ways to intervene at system levels to prevent problems. Medical legal partnership (MLP) clinics have done so by employing concepts from social work and health science programs on structural competency. This article examines MLP and related curriculum to meet the ABA (...) mandate. (shrink)

Is it right to convict a person of a crime on the basis of purely statistical evidence? Many who have considered this question agree that it is not, posing a direct challenge to legal probabilism – the claim that the criminal standard of proof should be understood in terms of a high probability threshold. Some defenders of legal probabilism have, however, held their ground: Schoeman (1987) argues that there are no clear epistemic or moral problems with convictions (...) based on purely statistical evidence, and speculates that our aversion to such convictions may be nothing more than an irrational bias. More recently, Hedden and Colyvan (2019, section VI) describe our reluctance to convict on the basis of purely statistical evidence as an ‘intuition’, but suggest that there may be no ‘in principle’ problem with such convictions (see also Papineau, forthcoming, section 6). In this paper, I argue that there is, in some cases, an in principle problem with a conviction based upon statistical evidence alone – namely, it commits us to a precedent which, if consistently followed through, could lead to the deliberate conviction of an innocent person. I conclude with some reflections on the idea that the criminal justice system should strive to maximise the accuracy of its verdicts – and the related idea that we should each strive to maximise the accuracy of our beliefs. (shrink)

The best interest standard is the threshold most frequently employed by physicians and ethics consultants in challenging a parent’s refusal to provide consent for a child’s medical care. In this article, I will argue that the best interest standard has evolved to serve two different functions, and that these functions differ sufficiently that they require separate standards. While the best interest standard is appropriate for choosing among alternative treatment options for children, making recommendations to parents, and making decisions on (...) behalf of a child when the legal decision makers are either unable to make a decision or are in dispute, a different standard is required for deciding when to seek state interference with parental decision-making authority. I will suggest that the harm principle provides a more appropriate threshold for determining when to seek state intervention than the best interest standard. (shrink)

Various real and imagined criminal law cases rest on “naked statistical evidence”. That is, they rest more or less entirely on a probability for guilt/liability derived from a single statistical model. The intuition is that there is something missing in these cases, high as the probability for guilt/liability may be, such that the relevant standard for legal proof is not met. Here we contribute to the considerable debate about how this intuition is best explained and what it teaches (...) us about evidential reasoning in the legal setting. We part ways with the recent scholarship, however. Unlike most others, our diagnosis is not that there is an important qualitative property that some evidence or bodies of evidence have, and that naked statistical evidence, most strikingly, lacks. Rather, we see cases resting on naked statistical evidence as lying at the extreme of a continuum of cases that are vulnerable to challenge due to “meta-uncertainty” about the underlying model. (shrink)

This article explores gender inequities and sexual double standards in teens’ digital image exchange, drawing on a UK qualitative research project on youth ‘sexting’. We develop a critique of ‘postfeminist’ media cultures, suggesting teen ‘sexting’ presents specific age and gender related contradictions: teen girls are called upon to produce particular forms of ‘sexy’ self display, yet face legal repercussions, moral condemnation and ‘slut shaming’ when they do so. We examine the production/circulation of gendered value and sexual morality via (...) teens’ discussions of activities on Facebook and Blackberry. For instance, some boys accumulated ‘ratings’ by possessing and exchanging images of girls’ breasts, which operated as a form of currency and value. Girls, in contrast, largely discussed the taking, sharing or posting of such images as risky, potentially inciting blame and shame around sexual reputation (e.g. being called ‘slut’, ‘slag’ or ‘sket’). The daily negotiations of these new digitally mediated, heterosexualised, classed and raced norms of performing teen feminine and masculine desirability are considered. (shrink)

In Part 1 of this article, the legal and scientific origins of the concept of psychological safety are examined as background to, and support for, the new Canadian National Standard on Psychological Health and Safety in the Workplace (CSA Z1003/bnq 9700). It is shown that five factors influencing psychological safety can be identified as being common to both legal and scientific perspectives: job demands and requirements of effort, job control or influence, reward, fairness, and support. This convergence of (...) evidence from legal and scientific perspectives creates a powerful case for the development of a national standard built around these five factors. In Part 2, it is proposed that the introduction of a national standard can be expected in the long run to have positive social benefits since the health or harm that is generated in the workplace does not remain there but migrates into families, communities, and society at large in the form of either social capital or social exhaust. Consequently, psychological safety is a concept that connects the dynamics of the workplace to the health, resilience, and well-being of society at large. (shrink)

On December 7,1999, a divided Oklahoma Supreme Court held in Nealis v. Baird that a claim may be brought under Oklahoma's wrongful death statute on behalf of a nonviable fetus born alive. The decision represents a departure from the traditional notion that “viability”—the ability of a fetus to sustain life outside the womb with or without medical assistance—is the standard for wrongful death recovery. In replacing the “viability” standard with a “live birth” standard, the majority maintained that live birth is (...) the “unassailable point at which legal rights must be said to attach to the human person. “ By holding a nonviable fetus a legal “person” for the purpose of a wrongful death claim, the court's decision emphasizes the limited application of the United States Supreme Court's holding in Roe v. Wade that a fetus is not a person for the purposes of the Fourteenth Amendment. (shrink)

In this paper, we introduce the systems ns-ACA₀ and ns-WKL₀ of non-standard second-order arithmetic in which we can formalize non-standard arguments in ACA₀ and WKL₀, respectively. Then, we give direct transformations from non-standard proofs in ns-ACA₀ or ns-WKL₀ into proofs in ACA₀ or WKL₀.

The coronavirus crisis is causing considerable disruption and anguish. However, the COVID-19 pandemic and consequent explosion of telehealth services also provide an unparalleled opportunity to consider ethical, legal, and social issues beyond immediate needs. Ethicists, informaticians, and others can learn from experience, and evaluate information technology practices and evidence on which to base policy and standards, identify significant values and issues, and revise ethical guidelines. This paper builds on professional organizations’ guidelines and ELSI scholarship to develop emerging concerns (...) illuminated by current experience. Four ethical themes characterized previous literature: quality of care and the doctor–patient relationship, access, consent, and privacy. More attention is needed to these and to expanding the scope of ethical analysis to include health information technologies. An applied ethics approach to ELSI would addresses context-specific issues and the relationships between people and technologies, and facilitate effective and ethical institutionalization of telehealth and other health information technologies. (shrink)

The aim of the paper is to present some non-standard modalities (such as non-contingency, contingency, essence and accident) based on S5-models in a framework of cut-free hypersequent calculi. We also study negated modalities, i.e. negated necessity and negated possibility, which produce paraconsistent and paracomplete negations respectively. As a basis for our calculi, we use Restall's cut-free hypersequent calculus for S5. We modify its rules for the above-mentioned modalities and prove strong soundness and completeness theorems by a Hintikka-style argument. As a (...) consequence, we obtain a cut admissibility theorem. Finally, we present a constructive syntactic proof of cut elimination theorem. (shrink)

Conducting marine mammal research can raise several important ethical issues. For example, the continuation of whaling for commercial purposes despite the international moratorium provides opportunities for scientists to obtain data and tissue samples. In 2021 we analysed 35 peer-reviewed papers reporting research based on collaborations with Icelandic whalers. Results highlighted little consideration or understanding of the legal and ethical issues associated with the deliberate killing of whales amongst those researchers, funding bodies, universities and journals involved. Ethical statements were rarely (...) provided. Those that were written were incomplete. Whilst research using whaling data may seem acceptable to some, it often becomes hard to justify when subject to scrutiny by the media and the public. Thus, there is a particular danger of reputational harm for early career researchers who may become unwittingly involved in such activities. Here we also consider the broader variety of ethical issues raised by non-lethal research (both historical and recent) on marine mammals including tagging and biopsy. We discuss instances where study animals were harmed or even killed and where the public mistook tags for harpoons. Without clear guidelines, reviewers and journal editors are put in an impossible position when considering whether to reject papers on ethical grounds. We propose that for such studies, universities, funders, journals, and permit issuers must require ethical assessments and that journals more effectively implement their existing policies on publishing ethical statements. The professional marine mammal societies need to work together to produce modern ethical guidance. Such guidance should require transparency in the provenance of data and samples while including advice on law, welfare issues, involvement of local scientists, and offshoring. Furthermore, it should require appraisal of and justification for the absolute necessity of invasive procedures. As is already the case in biomedical disciplines, ethical statements should be required in marine mammal science. (shrink)

A new analysis of the Best Interests Standard is given and applied to the controversy about testing children for untreatable, severe late-onset genetic diseases, such as Huntington's disease or Alzheimer's disease. A professional consensus recommends against such predictive testing, because it is not in children's best interest. Critics disagree. The Best Interests Standard can be a powerful way to resolve such disputes. This paper begins by analyzing its meaning into three necessary and jointly sufficient conditions showing it: is an "umbrella" (...) standard, used differently in different contexts, has objective and subjective features, is more than people's intuitions about how to rank potential benefits and risks in deciding for others but also includes evidence, established rights, duties and thresholds of acceptable care, and can have different professional, medical, moral and legal uses, as in this dispute. Using this standard, support is given for the professional consensus based on concerns about discrimination, analogies to adult choices, consistency with clinical judgments for adults, and desires to preserve of an open future for children. Support is also given for parents' legal authority to decide what genetic tests to do. (shrink)

In the United Kingdom, the question of how much information is required to be given to patients about the benefits and risks of proposed treatment remains extant. Issues about whether healthcare resources can accommodate extended shared decision-making processes are yet to be resolved. COVID-19 has now stepped into this arena of uncertainty, adding more complexity. U.K. public health responses to the pandemic raise important questions about professional standards regarding how the obtaining and recording of consent might change or be (...) maintained in such emergency conditions, particularly in settings where equipment, medicines, and appropriately trained or specialized staff are in short supply. Such conditions have important implications for the professional capacity and knowledge available to discuss the risks and benefits of and alternatives to proposed treatment with patients. The government’s drive to expedite the recruitment to wards of medical students nearing the end of their studies, as well as inviting retired practitioners back into practice, raises questions about the ability of such healthcare providers to engage fully in shared decision-making.This article explores whether the legal duty on healthcare practitioners to disclose the material risks of a proposed medical treatment to a patient should be upheld during pandemic conditions or whether the pre-eminence of patient autonomy should be partly sacrificed in such exceptional circumstances. We argue that measures to protect public health and to respect autonomous decision-making are not mutually exclusive and that there are good reasons to maintain professional standards in obtaining consent to treatment even during acute pressures on public health systems. (shrink)

Food standards, which are used to signal adherence to sustainability goals or a specific origin, have deep political implications. Standards crafted by retailers, processors, or third-party actors such as non-governmental organizations (NGOs) often disempower farmers. Moreover, due to the liberalization and globalization of many food value chains, producer organizations (POs) lost some of their legal privileges and market protections. This paper analyzes how POs in the Global North sought to regain their control over food markets by establishing (...) their own standards. These strategies and their consequences are considered across three dimensions: the internal life of the PO, the relevant market institutions, and the relationship between the PO and the state. Our case studies (N = 5) performed in France and in Québec, a French-speaking province of Canada, span across a variety of food sectors. Drawing on qualitative material, we designed our explanatory framework through an abductive, iterative method. Although standards crafted by POs have, in some cases, reshaped market institutions to their advantage and have repositioned them in the governance of food markets, they come at a cost. They may create tensions within POs and clash with the agrarian values of solidarity, democracy, and autonomy. Overall, this article challenges the assumption that food standards are mainly governed by private actors and sheds light on the new alliances and new identities of POs. (shrink)

BackgroundWhenever South African research institutions share human biological material and associated data for health research or clinical trials they are legally compelled to have a material transfer agreement in place that uses as framework the standard MTA newly gazetted by the South African Minister of Health.Main bodyThe article offers a legal analysis of the SA MTA and focuses on its substantive fit with the broader legal environment in South Africa, and the clarity and practicality of its terms. The (...) following problematic aspects of the SA MTA are highlighted: Where only data and no human biological material are transferred, the SA MTA does not apply, leaving a lacuna; Health Research Ethics Committees are required to be parties to a MTA despite it being outside their legal mandate and undermining their oversight function; the SA MTA’s consent provisions are not aligned with extant law; and, similarly, its provision on donor ownership is misaligned with extant law; its creation of fictitious performance can only cause frustration on the part of an injured party; its benefit-sharing provision is vague and will have little practical effect; its dispute-resolution provisions fail to adequately protect South African research institutions and research participants; it fails to provide substantive guidance regarding intellectual property as its provisions relating to intellectual property may cause practical problems; and, finally, its data privacy provision is insufficiently specific, is overbroad, and fails to provide terms that in general would facilitate the international sharing of human biological material and associated data in terms of existing privacy law.ConclusionsWhile some of the problematic aspects of the SA MTA are intricate and require consultative processes with stakeholders and others, to develop comprehensive solutions, most of the problematic aspects can be resolved immediately through amendments by the South African Minister of Health. The formulation of such amendments is proposed and, where possible, interim measures are suggested that may ameliorate the problems presented by the SA MTA. (shrink)

Decision-making capacity (DMC) is, in many ways, a central organizing concept of modern health care ethics. Patients with DMC have the moral—if not always the legal—authority to make all manner of...

A standard view in legal and political theory is that, to a first approximation, (1) we should aim to bring about the most legitimate institutions possible to solve the problems that should be solved at the level of politics, and (2) individual people are required to follow the directives of legitimate institutions, at least insofar as those institutions have the authority to issue those directives, and insofar as other considerations are nearly equal.1 On this standard view, the philosophical analysis (...) of institutional legitimacy can appear to be of the utmost importance because it can seem to answer the most important questions about what we should actually do in the realm of law and politics, and because it may also seem to serve as the crucial bridge between ideal and nonideal theory, at least if institutional legitimacy is analyzed as it often is as a matter of doing well enough along dimensions that are familiar from ideal APA NEWSLETTER | PHILOSOPHY AND LAW theory (e.g., ideal justice, universal consent, respecting basic rights, social welfare maximization, and so on). In what follows I identify a number of possible counterexamples to this standard view, which suggest that there may be no straightforward connection between institutional legitimacy and facts about what reasons, rights, and duties we actually have, and what institutions we should actually try to bring about, contrary to what the standard view assumes. (shrink)

In this paper, we discuss the notion of inevitable ignorance that the Italian Constitutional Court has introduced in justifying a restriction of the legal maxim Ignorantia legis non excusat. In particular, we argue that the epistemic flavor of the notion extends to the notion of inevitability beside that of ignorance, and we offer an epistemic analysis of the notion. This analysis is based both on the legal-theoretical framework defined by the justification of the restriction of the maxim, and (...) on a discussion of some paradigmatic Italian cases where the standard of excusability involving inevitable ignorance is applied. The analysis reveals that the notion of inevitable ignorance is closely connected to a number of notions also used in formal epistemology, such as belief, evidence, rationality, and trust. (shrink)

We present a new proof for the standardization theorem in $\lambda$-calculus, which is largely built upon a structural induction on $\lambda$-terms. We then extract some bounds for the number of $\beta$-reduction steps in the standard $\beta$-reduction sequence obtained from transforming a given $\beta$-reduction sequence, sharpening the standardization theorem. As an application, we establish a super exponential bound for the lengths of $\beta$-reduction sequences from any given simply typed $\lambda$-terms.