This thesis considers two allegations which conservatives often level at no-fault systems — namely, that responsibility is abnegated under no-fault systems, and that no-fault systems under- and over-compensate. I argue that although each of these allegations can be satisfactorily met – the responsibility allegation rests on the mistaken assumption that to properly take responsibility for our actions we must accept liability for those losses for which we are causally responsible; and the compensation allegation rests on the mistaken assumption that (...) class='Hi'>tort law’s compensatory decisions provide a legitimate norm against which no-fault’s decisions can be compared and criticized – doing so leads in a direction which is at odds with accident law reform advocates’ typical recommendations. On my account, accident law should not just be reformed in line with no-fault’s principles, but rather it should be completely abandoned since the principles that protect no- fault systems from the conservatives’ two allegations are incompatible with retaining the category of accident law, they entail that no-fault systems are a form of social welfare and not accident law systems, and that under these systems serious deprivation – and to a lesser extent causal responsibility – should be conditions of eligibility to claim benefits. (shrink)

In "Torts, Egalitarianism and Distributive Justice" , Tsachi Keren-Paz presents impressingly detailed analysis that bolsters the case in favour of incremental tort law reform. However, although this book's greatest strength is the depth of analysis offered, at the same time supporters of radical law reform proposals may interpret the complexity of the solution that is offered as conclusive proof that tort law can only take adequate account of egalitarian aims at an unacceptably high cost.

It could be argued that tort law is failing, and arguably an example of this failure is the recent public liability and insurance (‘PL&I’) crisis. A number of solutions have been proposed, but ultimately the chosen solution should address whatever we take to be the cause of this failure. On one account, the PL&I crisis is a result of an unwarranted expansion of the scope of tort law. Proponents of this position sometimes argue that the duty of care (...) owed by defendants to plaintiffs has expanded beyond reasonable levels, such that parties who were not really responsible for another’s misfortune are successfully sued, while those who really were to blame get away without taking any responsibility. However people should take responsibility for their actions, and the only likely consequence of allowing them to shirk it is that they and others will be less likely to exercise due care in the future, since the deterrents of liability and of no compensation for accidentally self-imposed losses will not be there. Others also argue that this expansion is not warranted because it is inappropriately fueled by ‘deep pocket’ considerations rather than by considerations of fault. They argue that the presence of liability insurance sways the judiciary to award damages against defendants since they know that insurers, and not the defendant personally, will pay for it in the end anyway. But although it may seem that no real person has to bear these burdens when they are imposed onto insurers, in reality all of society bears them collectively when insurers are forced to hike their premiums to cover these increasing damages payments. In any case, it seems unfair to force insurers to cover these costs simply because they can afford to do so. If such an expansion is indeed the cause of the PL&I crisis, then a contraction of the scope of tort liability, and a pious return to the fault principle, might remedy the situation. However it could also be argued that inadequate deterrence is the cause of this crisis. On this account the problem would lie not with the tort system’s continued unwarranted expansion, but in the fact that defendants really have been too careless. If prospective injurers were appropriately deterred from engaging in unnecessarily risky activities, then fewer accidents would ever occur in the first place, and this would reduce the need for litigation at its very source. If we take this to be the cause of tort law’s failure then our solution should aim to improve deterrence. Glen Robinson has argued that improved deterrence could be achieved if plaintiffs were allowed to sue defendants for wrongful exposure to ongoing risks of future harm, even in the absence of currently materialized losses. He argues that at least in toxic injury type cases the tortious creation of risk [should be seen as] an appropriate basis of liability, with damages being assessed according to the value of the risk, as an alternative to forcing risk victims to abide the outcome of the event and seek damages only if and when harm materializes. In a sense, Robinson wishes to treat newly-acquired wrongful risks as de-facto wrongful losses, and these are what would be compensated in liability for risk creation (‘LFRC’) cases. Robinson argues that if the extent of damages were fixed to the extent of risk exposure, all detected unreasonable risk creators would be forced to bear the costs of their activities, rather than only those who could be found responsible for another’s injuries ‘on the balance of probabilities’. The incidence of accidents should decrease as a result of improved deterrence, reduce the ‘suing fest’, and so resolve the PL&I crisis. So whilst the first solution involves contracting the scope of tort liability, Robinson’s solution involves an expansion of its scope. However Robinson acknowledges that LFRC seems prima facie incompatible with current tort principles which in the least require the presence of plaintiff losses, defendant fault, and causation to be established before making defendants liable for plaintiffs’ compensation. Since losses would be absent in LFRC cases by definition, the first evidentiary requirement would always be frustrated, and in its absence proof of defendant fault and causation would also seem scant. If such an expansion of tort liability were not supported by current tort principles then it would be no better than proposals to switch accident law across to no-fault, since both solutions would require comprehensive legal reform. However Robinson argues that the above three evidentiary requirements could be met in LFRC cases to the same extent that they are met in other currently accepted cases, and hence that his solution would therefore be preferable to no-fault solutions as it would only require incremental but not comprehensive legal reform. Although I believe that actual losses should be present before allowing plaintiffs to seek compensation, I will not present a positive argument for this conclusion. My aim in this paper is not to debate the relative merits of Robinson’s solution as compared to no-fault solutions, nor to determine which account of the cause of the PL&I crisis is closer to the truth, but rather to find out whether Robinson’s solution would indeed require less radical legal reform than, for example, proposed no-fault solutions. I will argue that Robinson fails to show that current tort principles would support his proposed solution, and hence that his solution is at best on an even footing with no-fault solutions since both would require comprehensive legal reform. (shrink)

India is a party to several international laws which speak of the duty to prosecute, investigate, and punish crimes. In light of India’s commitments to international law, the scope of its criminal laws appears to be failing on several counts. The following are a few general and specific recommendations for penal law reforms in India. These have been framed in light of several international developments, international laws, and relevant Indian laws and judgments. The recommendations concern the following themes: 1. gaps (...) in criminal law, 2. harmonization of standards 3. liabilities for derogations from fundamental duties (cultural heritage), and 4. a project for decolonization. (shrink)

One of the challenges in secondary schools today is infringements on students’ rights, in a tortious way that may also constitute breach of the Child’s Right Act of 2003 in Nigeria. These breach on rights usually come through the administration of corporal punishments on students, and mainly because the school heads see themselves as loco parentis of the students who can, therefore, enforce any form of punishment on them in the school. This study investigated knowledge, attitude, and infringement of (...) class='Hi'>tort law among public secondary school heads on students in Osun State. All the students in Osun State public secondary schools and 723 heads constituted the population. A sample of 54 school heads and 180 students were selected using multi-stage sampling procedure. Two instruments were designed to elicit responses from the respondents. Descriptive and inferential statistics were used to answer the research questions raised for the study. The results showed that school heads do not have adequate knowledge of tort law and that both the school heads and students have poor attitude toward it tort law. The study recommends that short term training on student’s right, how they can be legally protected and tort law be organised for school heads. (shrink)

Tort law depends on three key concepts: causation, responsibility, and fault. However, I argue that the three key concepts are neither necessary, nor sufficient, for tort.

This Note offers a normative critique of cost-benefit analysis, one informed by deontological moral theory, in the context of the debate over whether tort litigation or a non-tort approach is the appropriate response to mass harm. The first Part argues that the difference between lay and expert intuitions about risk and harm often reflects a difference in normative judgments about the existing facts, rather than a difference in belief about what facts exist, which makes the lay intuitions more (...) defensible. The second Part considers how tort has dealt with this divergence between lay and expert perspectives. It also evaluates how tort's approach has differed from that of public law approaches to accident law, such as legislative compensation and risk regulation by administrative agencies. Ultimately, tort's ability to recognize the value of lay intuitions supports retaining the tort perspective as part of our societal arsenal of responses to risk and harm. This ability can also support a pro-tort perspective in two practical debates in the arena of tort law: that over preemption of tort law by administrative agency judgments, and that over access to tort recovery as part of a no-fault system. (shrink)

In ‘What Has Philosophy to Learn from Tort Law?’, Bernard Williams reaffirms J. L. Austin’s suggestion that philosophy might learn from tort law ‘the difference between practical reality and philosophical frivolity’. Yet while Austin regarded tort law as just another repository of time-tested concepts, on a par with common sense as represented by a dictionary, Williams argues that ‘the use of certain ideas in the law does more to show that those ideas have strength than is done (...) by the mere fact that they are part of the currency of common sense’. But what does it mean to show that ideas or concepts ‘have strength’? How does conceptual strength relate to the distinction between practical reality and philosophical frivolity? And what special features of the law are supposed to make it a better test of conceptual strength than common sense? In this chapter, I reconstruct and develop Williams’s answers to these questions. I show why Williams believes that we need to test the concepts forming the currency of common sense against practical reality as embodied by legal practice; I identify seven features of tort law that make it particularly suitable to act as such a test; I distinguish three respects in which concepts can show strength, and unpack Williams’s metaphor of microwave-resistant concepts: concepts capable of holding and presenting material for intense critical scrutiny without succumbing to it themselves; lastly, I show how philosophy can learn to identify systematically weak concepts, and the limits of otherwise valuable concepts, by considering which concepts fail the test. (shrink)

This essay provides an overview of the crime/tort distinction. It first investigates some of the fundamental differences between criminal law and tort law in doctrine and legal structure. It then explores some important similarities and differences in normative perspectives between the two doctrinal fields. This typology should prove analytically useful for examining some of the specific issues at the borderline of crime and torts—such as the proper scope of punitive damage liability and the question whether criminal law as (...) well as tort law should vary legal sanctions simply because of the fortuitous occurrence of harm. (shrink)

This article addresses a few moments in the evolution of human security law in Iraq, focusing in particular on the Coalition Provisional Authority, the new Iraqi Constitution, Iraqi High Tribunal (successor to the Iraqi Special Tribunal), and the International Criminal Court. It synthesizes the results of some existing research on ongoing impunity for certain crimes against political candidates, journalists, anti-corruption activists, and ethnic and religious minorities, a situation which may have tainted Iraq’s transition to a more democratic republic, while aggravating (...) other conflicts, such as those in Syria. In theory, the institutions of human and national security can help reconcile peoples whose tenuous unity had been shattered in wartime. The sometimes competing priorities and policies of Iraqi politicians, civil society groups, and judges resulted in swift justice for Iraqi officials responsible for mass killings involving Shi’a Arab, Kurdish, and other victims, but a lack of justice for other segments of the population. The emphasis of some claims of injury over others may have "reenchanted" some sectors of Iraqi society with the state and its institutions, while alienating others and contributing to ruptures in the social fabric. The Coalition Provisional Authority, Iraqi leaders, and international community ensured that the high-profile proceedings against former regime officials would not be accompanied or followed by others that some Iraqis might perceive as being as pressing as those of the Iraqi High Tribunal, relating to the impact of sanctions and aerial bombardment, the legality of Iraq's occupation, torture, etc. (shrink)

A number of writers have drawn on Hayek’s epistemic defence of market institutions to argue that free-markets and tort law are best placed to overcome the knowledge problems associated with the environmental sphere. This paper argues to the contrary, that this Austrian School approach itself suffers from significant knowledge problems. The first of these relates to the ability of Austrian economics to assign victim compensation and the second to the difficulty of establishing causation in complex environmental problems. The paper (...) will also show how alternative approaches may not suffer from these epistemic challenges and are better placed to overcome them. (shrink)

Professor Fletcher challenges the traditional account of the development of tort doctrine as a shift from an unmoral standard of strict liability for directly causing harm to a moral standard based on fault. He then sets out two paradigms of liability to serve as constructs for understanding competing ideological viewpoints about the proper role of tort sanctions. He asserts that the paradigm of reciprocity, which looks only to the degree of risk imposed by the parties to a lawsuit (...) on each other, and to the existence of possible excusing conditions, provides greater protection of individual interests than the paradigm of reasonableness, which assigns liability instrumentally on the basis of a utilitarian calculus. Finally, Professor Fletcher examines stylistic differences between the two paradigms which may explain the modern preference for the paradigm of reasonableness. (shrink)

The elections and political parties are necessary ingredients of democratic governance. Elections are a necessary condition of representative democracy. In representative democracy citizens participate in politics primarily by choosing political authorities in competitive elections. Elections, hence, are a necessary and crucial instrument to make democracy work. In India, free and fair elections are held at regular intervals as per guidelines of the constitution and the Election Commission. To make them free of flaws it is essential to reform them from (...) time to time. Electoral reform means introducing fair electoral systems for conducting fair elections. It also rejuvenates the existing systems to enhance and increase the efficiency of the same. Following the demands of electoral reforms several committees were being set up. Some of the measures like reduction of voting age and anti defection law are appreciable but there are other vital areas in election field completely neglected. This paper will evaluate about different attempts made for electoral reforms in India. Different challenges before the Election Commission are also been discussed, also how it can be made effective as suggested by Commission in India will be presented. A comparative analysis with other democratic countries like U.S.A and U.K. is added to it. (shrink)

According to Warriner (1969) a simple way of defining land reforms is to name it “the redistribution of property or rights in land for the benefit of the landless, tenants and farm labourers”. Land reforms are mainly characterised by the government’s change of laws, regulations or customs regarding land ownership. Land reforms deal with the government in power distributing property which is in most times agricultural land. In some instances it also involves the distribution of land from the more powerful (...) or wealthy group of people such as nobles and bourgeoisie and giving potions of the land to the less powerful in society especially during the start of the post-colonial error in most countries in Southern Africa. During the pre-colonial period, land or pieces of land belonged to different ethnic groups, clans and lineages but now in the post-colonial land reform programs were to introduce individual ownership of land. There are many reasons why the government (both colonial and post-colonial) embark on land reforms and some of the factors influencing them include political reasons such promoting communism or socialism, social reasons such as separating the blacks from the whites and creating social stratification and economic reasons such as facilitating private investments and raising the country’s economic growth of the agricultural sector just but to mention a few reasons. Though some of the government’s reasons to embark on land reforms appear to be noble, local communities refuse these land reforms since they create social stratifications, at times increase poverty, destroy the matrilineal societies and are more political in nature rather than a means to better the people’s lives especially during the colonial error. The essay below will vividly portray why the government embarks on land reform programs and why local people resist these reforms using examples from both colonial and post-colonial Southern African countries. (shrink)

At the heart of Kant’s legal-political philosophy lies a liberal, republican ideal of justice understood in terms of private independence (non-domination) and subjection to public laws securing freedom for all citizens as equals. Given this basic commitment of Kant’s, it is puzzling to many that he does not consider democracy a minimal condition on a legitimate state. In addition, many find Kant ideas of reform or improvement of the historical states we have inherited vague and confusing. The aim of (...) this paper is to untangle both puzzles by exploring Kant’s idea of self-governance. I argue that Kant’s idea of self-governance gives us a very good starting point for thinking about how to leave room for a variety of political systems—different ideals—that have grown out of and responding to different contingent historical and cultural circumstances. It also helps us identify those areas where we want to take extra care to build in safeguards to secure stability and to take sufficiently seriously humankind’s truly nasty sides. (shrink)

The Law Society recently published a practice note titled 'Prosecutions of victims of trafficking'. This practice note comes many years after many lawyers had highlighted the problem and after the government machinery had chuntered into action and passed the UK Modern Slavery Act 2015 with explanatory notes and non-statutory guidelines for corporations. Since 2012 there had been issued warnings about the way defence lawyers, the Crown Prosecution Service and the UK police were dealing with trafficking and the Criminal Cases Review (...) Commission as far back as 2012 had note the severe failings by defence solicitors, prosecution and police, leading to many appeals and potential miscarriages of justice. Even in 2012 there were 946 known human trafficking victims, including 234 children. There was an attempt at a Human Trafficking Bill in 2010 which came to a halt and several reports including one by the Prison Reform Trust and Cambridge University Press, notwithstanding many books by notable academics for many years before today. This article examines the inadequacies of the Law Society practice note on defending victims and the jumble of high-ideals but short-sighted and impractical parts of the UK Modern Slavery Act 2015. (shrink)

Today, major disciplines (including psychology, philosophy, science, etc.) are seeking to forge a deeper connection with spirituality/spiritual values. Emanating from these efforts are clues about the role of spirituality as an inspiration, a fertile source, and a benchmark for research, policy-making, and reforms. In the case of law/the law, scholars explore its relationship with spirituality in light of diverse topics including human rights, crime prevention, family relations, humanitarianism, development, education, security, conflict resolution, and freedom. A few of these works offer (...) fascinating insights, and a few emphasize the need for more detailed analysis. -/- This chapter seeks to highlight a few aspects of the relationship between law and spirituality. First, it highlights the importance being given to spirituality or spiritual values across disciplines, including law. Second, it aims to map the influence of spirituality in the working of laws and legal systems. This exercise will be undertaken in light of the expressions such as spiritual needs, spiritual rights, the spiritualization of law, etc. Third, the chapter raises a few questions of conceptual and practical importance. (shrink)

The willful ignorance doctrine says defendants should sometimes be treated as if they know what they don't. This book provides a careful defense of this method of imputing mental states. Though the doctrine is only partly justified and requires reform, it also demonstrates that the criminal law needs more legal fictions of this kind. The resulting theory of when and why the criminal law can pretend we know what we don't has far-reaching implications for legal practice and reveals a (...) pressing need for change. (shrink)

Respondeat superior is a legal doctrine conferring liability from one party onto another because the latter stands in some relationship of authority over the former. Though originally a doctrine of tort law, for the past century it has been used within the criminal law, especially to the end of securing criminal liability for corporations. Here, I argue that on at least one prominent conception of criminal responsibility, we are not justified in using this doctrine in this way. Firms are (...) not answerable for the crimes committed by their employees, because firms cannot answer as to why the crime was committed; they lack the authority to offer the employee’s reasons for action. Though this rules out respondeat superior as a general principle, I show contexts in which vicarious liability is still appropriate in the criminal law, and I respond to a number of other concerns raised by this picture. (shrink)

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are (...) worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions. (shrink)

Several European countries are approving legislative reforms moving to a presumed consent system in order to increase organ donation rates. Nevertheless, irrespective of the consent system in force, family's decisional capacity probably causes a greater impact on such rates. In this contribution we have developed a systematic methodology in order to analyse and compare European organ procurement laws, and we clarify the weight given by each European law to relatives' decisional capacity over individual's preferences (expressed or not while alive) regarding (...) the destination of his or her organs after death. In this sense, the results constitute the first comprehensive and comparative legislative mapping on European transplantation laws. (shrink)

Legal theorists seek to persuade other jurists of certain theories: Textualism or purposivism; formalism or realism; natural law theory or positivism; prison reform or abolition; universal or particular human rights? Despite voluminous literature about these debates, tremendous uncertainty remains about which views experts endorse. This Article presents the first-ever empirical study of American law professors about legal theory questions. A novel dataset of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding legal theory debates. (...) -/- Law professors also debate questions about the nature of the legal academy. Descriptively, which subjects (e.g. constitutional law) and methods (e.g. law & economics) are most central within the legal academy today? And prescriptively, should today’s legal academy prioritize additional areas (e.g. legislation) or methods (e.g. critical race theory)? There is great interest in these questions but no empirical dataset of experts’ views; this results in uncertainty about which views experts endorse. This Article’s empirical study also clarifies these questions, documenting law professors’ evaluation of over one-hundred areas of law. -/- The legal theory and legal academy findings support implications for legal scholarship, education, and practice. Clearly, debates about law and the legal academy’s evolution should not be settled by a survey. Nevertheless, insofar as law professors are experts about these issues, it is instructive to discover and carefully examine what views those experts hold, so as to help determine which views are most likely to be true and how the legal academy ought to develop. (shrink)

On the fiftieth anniversary of the Treaties of Rome, the Berlin Declaration declared the period of reflection on the failed Treaty to Establish a Constitution for Europe to be at an end. To replace it, a reform treaty was signed in Lisbon in December of 2007, and newspapers from Dublin to Beijing reported on the communique issued by EU leaders in Brussels that stated ,,The Lisbon Treaty provides the Union with a stable and lasting institutional framework. We expect no (...) change in the foreseeable future, so that the Union will be able to fully concentrate on addressing the concrete challenges ahead, including globalisation and climate change ..."2 In choosing the problems to highlight in the press release for what still might constitute the legal framework for Europe in the foreseeable future, why did these leaders state, and why did these journalists repeat these two issues together - globalisation and climate change? ,,Globalisation" and the various processes it describes as such have already been thoroughly discussed in legal literature many times over. (shrink)

This research examines the implications of religious moderation on interfaith marriages in the city of Manado. The method used is qualitative with a case study approach; data collection is through observation, interviews, and documentation, which is then processed using the triangulation method. The findings show that religious moderation indirectly influences the sustainability of interfaith marriages in Manado. The implications are realized in the form of religious moderation, which aims to eliminate or minimize violence in the name of religion and uphold (...) diversity through upholding the values of tolerance, thereby increasing guarantees for the continuity of interfaith marriages. These implications become more complex than the laws governing interfaith marriages, especially the Marriage Law (UU Number 16 of 2019) and the Compilation of Islamic Law (KHI). The implications of religious moderation in interfaith marriages underscore the need for legal transformation that recognizes religious diversity as a social asset, encourages interreligious dialogue, and ensures that legal regulations do not hinder individual religious freedom. Encouraging policy reforms that respect differences in beliefs is crucial in creating inclusive spaces and respecting human rights in interfaith marriages. (shrink)

The Human Rights Studies Programme, School of International Studies (JNU), in collaboration with the Centre for Inner Asian Studies, School of International Studies (JNU), and the Indian Law Institute (Delhi), organized a Human Rights Day Webinar on the Intersections of Human Rights and Criminal Law on December 9-10, 2021. Experts and young scholars from the field shared their insights and research on the webinar theme. The presentations were organized under four sessions, including Session I on Rights Jurisprudence and Criminal Law, (...) Session II on Proposals for Criminalisation and Decriminalisation, Session III on Crimes, Victims, and Punishments, and Session IV on Reforms in the Future. The Webinar was conceptualized keeping in view the responsibility of states under international human rights law to prohibit and punish for the protection of human rights and the redressal of violations. The obligations of States to prohibit and punish inform the development of criminal rules and procedures under different legal systems, leading to the near universalization of legislative frameworks, legal justifications, and punishments. In the working of international human rights institutions, the criminal laws adopted by States are an indicator or marker of the level of compliance of States with the international mandates. In recent years, the interface between the two fields, i.e., international human rights and domestic criminal laws, has sparked great jurisprudential, political, and constitutional debates in different parts of the world. Against this backdrop, the Webinar was organized on Human Rights Day to discuss the relevant issues. (shrink)

In 2008 Robert Lovato coined the phrase Juan Crow. Juan Crow is a type of policy or enforcement of immigration laws that discriminate against Latino/as in the United States. This essay looks at the implications this phenomenon has for an ethics of immigration. It argues that Juan Crow, like its predecessor Jim Crow, is not merely a condemnation of federalism, but of any immigration reform that has stricter enforcement as one of its key components. Instead of advocating for increased (...) enforcement, I want to suggest that just immigration reform must adhere to two standards, equality of burdens and universal protections, and that only by doing so can the potential for Juan Crow be adequately avoided. (shrink)

Many wrongly believe that emotion plays little or no role in legal reasoning. Unfortunately, Langdell and his “scientific” case method encourage this error. A careful review of analysis in the real world, however, belies this common belief. Emotion can be cognitive, and cognition can be emotional. Additionally, modern neuroscience underscores the “co-dependence” of reason and emotion. Thus, even if law were a certain science of appellate cases (which it is not), emotion could not be torn from such “science.” -/- As (...) we reform legal education, we must recognize the role of cognitive emotion in law and legal analysis. If we fail to do this, we shortchange law schools, students, and the bar in grievous ways. We shortchange the very basics of true and best legal analysis. We shortchange at least half the universe of expression (the affective half). We shortchange the importance of watching and guarding the true interests of our clients, which interests are inextricably intertwined with affective experience. We shortchange the importance of motivation in law, life, and legal education. How can lawyers understand the motives of clients and other relevant parties without understanding the emotions that motivate them? How can lawyers hope to persuade judges, other advocates, or parties across the table in a transaction without grasping affective experience that motivates them? How can law professors fully engage students while ignoring affective experience that motivates students? Finally, we shortchange matters of life and death: emotions affect health and thus the very vigor of the bar. -/- Using insights from practice, modern neuroscience, and philosophy, I therefore explore emotion and other affective experience through a lawyer’s lens. In doing this, I reject claims that emotion and other affective experience are mere feeling (though I do not discount the importance of feeling). I also reject claims that emotion and other affective experience are necessarily irrational or beyond our control. Instead, such experience is often intentional and quite rational and controllable. After exploring law and affective experience at more “macro” levels, I consider three more specific examples of the interaction of law and emotion: (i) emotion, expression, and the first amendment, (ii) emotion in legal elements and exceptions, and (iii) emotion and lawyer mental health. To provide lawyers and legal scholars with a “one-source” overview of emotion and the law, I have also included an Appendix addressing a number of particular emotions. -/- Keywords: Emotion, Cognitive Emotion, Reason, Logos, Pathos, Legal Analysis, Legal Reasoning, Neuroscience, Philosophy, Persuasion, Rhetoric, Expression, First Amendment, Free Speech, Common Law Murder, Mental Health, NAACP v. McCrory, Anger, Contempt, Disgust, Hate, Malice. (shrink)

David McCarthy has recently suggested that our compensation and liability practices may be interpreted as reflecting a fundamental norm to hold people liable for imposing risk of harm on others. Independently, closely related ideas have been criticised by Stephen R. Perry and Arthur Ripstein as incompatible with central features of negligence law. We aim to show that these objections are unsuccessful against McCarthy’s Risk–liability theory, and that such an approach is a promising means both for understanding the moral basis of (...) liability for negligence and for reasoning about possible reforms of the institution of negligence law. (shrink)

In the first ever commentary on the Groundwork, one of Kant’s earliest critics, Gottlob August Tittel, argues that the categorical imperative is not a new principle of morality, but merely a new formula. This objection has been unjustly neglected in the secondary literature, despite the fact that Kant explicitly responds to it in a footnote in the second Critique. In this paper I seek to offer a thorough explanation of both Tittel’s ‘new formula’ objection and Kant’s response to it, as (...) well as illustrate its significance. I argue that the objection is in fact the third step in a line of argument that Tittel presents in his commentary, and that the objection is best understood within this context. I analyze Kant’s response in the second Critique footnote line-by-line so as to show that Kant both clarifies that it was never his aim to offer a new principle, but only ‘establish’ the principle that common human reason already implicitly employs. Furthermore, I show that Kant uses the opportunity to clarify the sense in which the categorical imperative is a ‘formula [Formel]’, namely as a representation of a complicated and abstract principle, like the moral law, in a way that is easier to understand and apply. I conclude by illustrating the fourth step in Tittel’s line of argument, which makes the overall significance of the ‘new formula’ objection clear: for Tittel, the problem is not that Kant seems to be offering merely a new formula, but that the categorical imperative lacks a foundation. (shrink)

Disability laws are crucial in ensuring a life of dignity for persons with disabilities. However, they remain limited and ineffective in the absence of adequate knowledge and awareness of the experiences with disability. The limitedness of disability laws has been spoken of in cases where the full realization of rights is subject to technological, philosophical, and market dynamics. In many cases, the law is also weakened by negative cultural beliefs and social perceptions of disability. And then there are cases where (...) disability laws perpetuate or tolerate oppression and violence. Despite their limitedness, disability laws offer normative content to facilitate engagement and critique for reform. In terms of what disability laws ‘ought’ to be, scholars write, that they should be about disabled people and the meanings provided by them. This objective has and can be fulfilled with the aid of disability studies that go beyond the inquiries of law with the right kind of research tools to theorize and re-theorize concepts and meanings about disability. Disability studies, in other words, represent the living conditions of disabled persons and the questions of how disability and/or impairment should be defined. This chapter examines the interaction between disability law and disability studies through the prism of the Convention on the Rights of Persons with Disabilities (CRPD). While discussing the models of disability (medical, social, human rights, and relational-community models) and agendas for reforming the CRPD, the chapter highlights the importance of new concepts and approaches. Further, the potential of disability laws, CRPD in particular, has been discussed keeping in mind the application of its core principles across different sectors (with a special focus on the Marrakesh treaty and copyright laws). (shrink)

In this article, responding to assertions that the principle of double effect has no place in legal analysis, I explore the overlap between double effect and negligence analysis. In both, questions of culpability arise in situations where a person acts with no intent to cause harm but where reasonable foreseeability of unintended harm exists. Under both analyses, the determination of whether such conduct is permissible involves a reasonability test that balances that foreseeable harm against the good intended by the actor's (...) conduct. In both, absent a finding that the foreseeable harm is unreasonable in light of that intended good, no liability will be imposed upon the actor. Even conceding, however, such general similarity between double effect and negligence analysis - disagreement over the proper interpretation of the reasonability criterion at play in negligence poses an additional challenge for the attempt to correlate negligence with double effect. Economic efficiency interpretations of negligence, for example, purportedly based on the Learned Hand Formula and the RESTATEMENT (SECOND) OF THE LAW OF TORTS, propose that culpability depends upon a utilitarian balancing of good effects of conduct (utility) versus its harmful foreseeable consequences (magnitude of risk of injury). Based on such an interpretation of negligence, however, contrasts between actors' states of mind, and normative differences between kinds of goods and harms, ultimately fade into the background and become irrelevant as essential conditions for properly assessing liability. This article elaborates and defends the view that double effect analysis lies at the heart of negligence theory. Part I elucidates in more detail the principle of double effect and describes its prima facie operation in negligence analysis. Part II considers and rejects the economic efficiency interpretation that has been offered as a theory of negligence, overcoming the challenge that such an interpretation presents for the effort to locate double effect analysis in the law. Part III illustrates and confirms the overlap between double effect and negligence by consideration of a series of case applications. The Article proposes that the weighing of conflicting values in double effect analysis and negligence is not achieved - as proposed by law and economics theory with respect to negligence - by imposing a consequentialist-utilitarian reduction of all value to a single concept of good and eliminating the relevance of traditional state of mind distinctions between intention and foreseeability. Instead, each mode of analysis recognizes that distinct culpability determinations flow naturally and plausibly from an appreciation of the traditional legal distinctions made between various types of goods and harms, and upon whether such goods and harms come about as result of an actor's intention or mere foreseeability. Keywords: Double effect, negligence, intention, foreseeability, choice, law and economics, utilitarianism, consequentialism, weighing of values. (shrink)

Kant infamously opposes not only revolution but also any resistance or disobedience by citizens that aims to compel states to reform themselves. This paper argues that, in fact, the Kantian account of the legitimate state has the resources for a distinctive justification of principled disobedience, including even violent or destructive resistance, that applies to citizens of contemporary Western democracies. When a state fails to enforce the law equally, this lack of equal enforcement can deprive some citizens of the equal (...) assurance of the security of their rights that, on the Kantian account, forms part of the very basis of the state’s claim of legitimate authority. This failure of equal enforcement of the law will thus be a defect of legitimacy and, as a result, those citizens may engage not only in civil disobedience but also in uncivil disobedience, even violent or destructive resistance, in order to compel the state to reform itself. In this context, such disobedience or resistance will count as furthering rather than undermining the project of governance by legitimate law. (shrink)

This article is part of a symposium on Bruce Cain's "Democracy More or Less: America’s Political Reform Quandary." It identifies the basic normative framework of Cain's skeptical "reform pluralism" as a form of democratic instrumentalism rather than political realism, and then argues that a more optimistic instrumentalist alternative is available. The instrumentalist can accept that more democracy need not entail better democracy. But the instrumentalist account of better democracy also gives us reason to believe that significant reform (...) efforts remain worth pursuing, for the simple reason that some of them have worked in the past. (shrink)

Argument about changes in the law of rape are logically dependent upon a prior definitional account. For any legal definition of an act, one can sensibly ask if that definition is right. To know whether the law is sound, one must first understand of what it is that the definition is a definition. For many parts of the criminal law, and the law of rape is one, the definitions on which the law moves are concepts perfectly accessible outside and apart (...) from the law. I have two aims for this article. The first is to argue for a particular conception of rape as the best understanding of the constellation of acts we conceptualize as rape. The second, less direct, is to show that traditional methods of conceptual analysis can contribute to legal and social scholarship and reform. (shrink)

The paper aims at finding a way out of deadlocks in Malthus scholarship concerning his relationship to utilitarianism. The main claim is that Malthus viewed his own population theory and political economy as Hifsdisziplinen to moral and political philosophy, that is, empirical enquiries required in order to be able to pronounce justified value judgments on such matters as the Poor Laws. On the other hand, Malthus’s population theory and political economy were no value-free science and his policy advice – far (...) from being “utilitarian” – resulted from his overall system of ideas and was explicitly based on a set of traditional moral assumptions. These in turn were justified by a peculiar meta-ethical theory, which has been named in a somewhat improper way “theological utilitarianism” and which I propose to name instead “consequentialist voluntarism”. The issue of poverty and its remedies is the one where Malthus’s peculiar approach, once applied to a real-world issue, displays it potentialities, yielding a kind of policy-advice that is softer and more flexible than the one that may be drawn from Benthamite utilitarianism. The reconstruction shows how, through subsequent approximations and under pressure of critics, Malthus yields finally a kind of Institutional approach to policies concerning poverty, making room for generalized basic education, free markets for labour and for corn, colonies, and private beneficence. Such a mix of policies should bring about for the lower classes of society “the means of being respectable, virtuous and happy”. -/- . (shrink)

The prosecution of international crimes is a challenge both under international and domestic law. Taking the example of international criminal law (ICL) , the fullest realization of its objectives is influenced by many factors including; (a) the adoption of appropriate laws by states, (b) the adequacy of the ICL framework on definitions of crimes and principles of criminal responsibility, (c) the level of political control and involvement in decision making related to investigation, prosecution or extradition, (d) Problems with exclusion including (...) restrictions on the rights of victims with regard to the proceedings and to reparation, and (e) The application of provisions for amnesties and similar measures of impunity. -/- Over the years, the mandate of States under ICL has expanded. Key reforms under ICL and domestic laws have been led by the above mentioned concerns. The scope of state obligations, in particular, has been shaped by the standards adopted under the ICL framework including the "duty to prosecute" international crimes. The article discusses the normative significance of the "duty to prosecute". (shrink)

This article argues in favor of modifying the medical model of severe psychiatric disturbances that underlies calling them "mental illness." The key reason for this proposal is that numerous specialists other than physicians as well as non-specialists contribute to the process of assisting a person recover from what the author suggests might better be called "extraordinary functional disability." There is little uniformity in existing definitions under state laws, but all involve three types of intervention: civil commitment; civil determination of legal (...) competency; and standing to be subject to criminal law. Physicians typically make relevant determinations in each of these areas; but non-physicians are the principal care-givers once a determination has been made. (shrink)

This article draws upon the civic republican tradition to offer new conceptual resources for the normative assessment of mental capacity law. The republican conception of liberty as non-domination is used to identify ways in which such laws generate arbitrary power that can underpin relationships of servility and insecurity. It also shows how non-domination provides a basis for critiquing legal tests of decision-making that rely upon ‘diagnostic’ rather than ‘functional’ criteria. In response, two main civic republican strategies are recommended for securing (...) freedom in the context of the legal regulation of psychological disability: self-authorisation techniques and participatory shaping of power. The result is a series of proposals for the reform of decisional capacity law, including a transition towards purely functional assessment of decisional capacity, surer legal footing for advanced care planning, and greater control over the design and administration of decision-making capacity laws by those with psychological disabilities. (shrink)

Democratic transitions of Eastern countries brought about the need to shifting from eastern into western paradigms. Transitioning into western models of media, more specifically to the public system of broadcasting became a prerequisite for achieving the EU status for Eastern European transitioning countries. It has been twelve years since Albania entered the process of transformation from being a State TV towards becoming a Public Television. The article aims to provide a theoretical framework of public television networks in western countries pointing (...) to the pertaining relationships with their political systems. Using this methodology, the article evaluates the developmental process of RTSH, and traces the evolution of certain fundamental laws to determine that political elites have not put forth any efforts to reform laws to establish self-regulatory instruments and guarantee the media independence as a self regulated institution. Despite international recommendations and internal pressures for change, the practices in the area of public network television services have served the private interest of political parliamentary forces. Using the Hallin and Mancini comparative models for media, we established that efforts towards reformation, the changes of Albanian public television are not guided towards a liberal democratic model; instead they resemble a Mediterranean or polarized system. Political arbitration in choosing key institutions that ensure self regulation and the direction of public service broadcasting reflects similarities with the Italian model of Lottizzazione.However, the design of hybrid laws whose structures and functions do not serve public interests, but instead ensure the interest of political elites, is not a formula that guarantees public service broadcasting. By choosing to pursue the old trend of TVSH’s broadcasting methods, politics is channeling the future of public service broadcasting towards a polarizing model. The approach that would allow a liberalization of Public Service Broadcasting, demands a political emancipation and consensus on this particular issue. For now, the sings of consensus are nowhere to be seen, and as such the fate of public service broadcasting remains in a pending status. One of the main consequences in this process, remains the under informed public that is a vital element in a viable democracy. In this case, society becomes the victim of an autocratic system, perpetually stuck in a vicious cycle against democratic interest. (shrink)

Debate about legal and policy reform has been haunted by a pernicious confusion about human nature, the idea that it is a set of rigid dispositions, today generally conceived as genetic, that is manifested the same way in all circumstances. Opponents of egalitarian alternatives argue that we cannot depart far from the status quo because human nature stands in the way. Advocates of such reforms too often deny the existence of human nature because, sharing this conception, they think it (...) would prevent changes they deem desirable. Both views rest on deep errors about what it is to have a nature and how genetics works. Human nature, like the nature of anything else, is a set of potentials to behave certain ways in given environments, not a nonsocial genetic something that inevitably produces the same result in any environment. To say that existing inequalities, are due to our genes, inalterable because heritable, ignores that genetic propensities may be differently manifested in different environments. Heritability has meaning only relative to an environment and a population and implies nothing about inevitability. A better sort of inegalitarian argument is that a proposed reform, given our nature, would be too costly even if possible. However, this sort of argument is too rarely supported by evidence and generally ignores the costs of existing inequalities. But egalitarians err in supposing that, if behavior is unconstrained by biology, the status quo is easily alterable. The environment may be extremely hard to change. Legal and policy debate should adopt a correct understanding of human nature as a set of propensities and ask of any proposed reform agreed to be otherwise desirable what and how alterable are its causes, genetic, environmental, or more accurately both. (shrink)

A multilevel consultative approach to governmental decision-making is increasingly being adopted in the European Union. On the back of this shift, it is prudent to consider the use of such consultative approaches in reforming digital copyright law. The adoption of a multilevel consultative approach has the potential to significantly benefit European Member States and increase political integration in Europe. Such an approach can address the complex dispersion of power amongst different levels of public institutions in the European Union and support (...) effective decision-making. The 2014 Charter for Multilevel Governance (‘Charter’) established a sophisticated governance framework to enhance operational and institutional cooperation and decision-making mechanisms among European Member States. Subsequently, the Charter and the concept of multilevel consultation formed an important facet of the European Union’s review of copyright regulation. The objective of this article is to evaluate the merits of a multilevel consultative approach by analysing its use in the European Union digital copyright law review process. (shrink)

This paper intends to articulate the jurisdictional issue of the Court of International Trade(CIT), particularly dealing with a legal dispute of the Anti-dumping law. While the international trade grows to be marshaled by a new institutional arrangement of WTO dispute settlement system, the role of CIT correspondingly plays a great deal of effect on this area of laws. It is considered that both arbitrating institutions have to drive a reasonable rule over the trade issues. This is particularly so in various (...) viewpoints. The law of USA has influenced significantly over WTO, and its take is fairly greater than other WTO members in economic terms. Under this background, I attempt to probe an attitude of CIT in dealing with jurisdictional issues including the extent of judicial activism and theoretical ground for resolving those issues while providing a comparative articulation to the general doctrine of administrative law. I also point out the significance as well as characteristics of jurisdictional issue in terms of the U. S. legal system, which, I hope, can provide a little guidance to the current Korean jurisprudence. Lastly, I stress the need for judicial reform within Korea as well as more affluent provision of legal counselling, which I think vital to accommodate a rapid development of trade environment. (shrink)

There is an old and powerful argument for the claim that divine foreknowledge is incompatible with the freedom to do otherwise. A recent response to this argument, sometimes called the “dependence response,” centers around the claim that God’s relevant past beliefs depend on the relevant agent’s current or future behavior in a certain way. This paper offers a new argument for the dependence response, one that revolves around different cases of time travel. Somewhat serendipitously, the argument also paves the way (...) for a new reply to a compelling objection to the dependence response, the challenge from prepunishment. But perhaps not so serendipitously, the argument also renders the dependence response incompatible with certain views of providence. (shrink)

Corporate governance is developing rapidly in many countries across the world. In this article, the existing state of corporate governance in Jordan is examined. Jordan does not have a corporate governance code per se. The article reveals that overall Jordan has in place some of the features of corporate governance best practice, but that there remains further progress to be made in areas such as independence of directors, compensation, and correlation between shareholding and entitlement to seats on the board. The (...) article recommends legal reforms in order to enhance corporate governance in Jordan. (shrink)

Suppose Molinism is true and God placed Adam in the garden because God knew Adam would freely eat of the fruit. Suppose further that, had it not been true that Adam would freely eat of the fruit, were he placed in the garden, God would have placed someone else there instead. When Adam freely eats of the fruit, is he free to do otherwise? This paper argues that there is a strong case for both a positive and a negative answer. (...) Assuming such cases are possible under Molinism, we are left with a puzzling question: if Molinism is true, what can you do? (shrink)

Let (leeway) incompatibilism be the thesis that causal determinism is incompatible with the freedom to do otherwise. Several prominent authors have claimed that incompatibilism alone can capture, or at least best captures, the intuitive appeal behind Jorge Luis Borges's famous “Garden of Forking Paths” metaphor. The thought, briefly, is this: the “single path” leading up to one's present decision represents the past; the forking paths that one must decide between represent those possible futures consistent with the past and the laws (...) of nature. But if determinism is true, there is only one possible future consistent with the past and the laws and, hence, only one path to choose from. That is, if determinism is true, then we are not free to do otherwise. In this paper, I argue that this understanding of the Garden of Forking Paths faces a number of problems and ought to be rejected even by incompatibilists. I then present an alternative understanding that not only avoids these problems but still supports incompatibilism. Finally, I consider how various versions of (leeway) compatibilism fit with the Garden of Forking Paths as well as the broader question of whether metaphors, however intuitive, have any dialectical force in the debates over freedom. (shrink)

Is the virtue of the good citizen the same as the virtue of the good man? Aristotle addresses this in Politics 3.4. His answer is twofold. On the one hand, (the account for Difference) they are not the same both because what the citizen’s virtue is depends on the constitution, on what preserves it, and on the role the citizen plays in it, and because the good citizens in the best constitution cannot all be good men, whereas the good man’s (...) virtue is uniform. On the other hand, (the account for Identity) the two virtues are identical in the good men in the best constitution, in which all are good citizens, each possessing the ability for ruling and for being ruled. This nuanced answer can be seen as Aristotle’s synthesis of a Periclean view (contribution to state blots out personal wrongs) and a Socratic view (no good citizen is without justice). Its nuances reflect the extent to which Aristotle’s conceptions of good citizenship and the best constitution accommodate deviations of what is probable from the human ideal set out in his ethical writings. In the present chapter, I will first address three puzzles regarding the nuances of Aristotle’s answer. Second, I will consider one question about its implication: Does Aristotle’s account for Difference turn out to entail something ultra-Periclean: that no one can simultaneously be a good man and a good citizen in any constitution other than the best? I shall argue the negative. (shrink)