Can Tort Law Be Moral?

According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of liability under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the a‐moral (and, with regard to some interpretations, anti‐moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles.     

Can Birth Trauma Be Confused for Abuse?

Abstract: An unexpected infant death is usually investigated with a complete autopsy. If evidence of prior trauma is found at autopsy in these cases, suspicion is raised for nonaccidental trauma. In a young infant, the residua of trauma received during birth has the potential to be incorrectly interpreted as nonaccidental trauma. We report a the findings of a 4 1/2‐month‐old‐infant that died unexpectedly with a healing linear skull fracture and a circular lesion over the calvarium found at autopsy. Though this lesion was concerning, the remainder of the autopsy and the histological findings did not support a diagnosis of recent trauma. Review of the literature describing birth injuries made the diagnosis of healing, residual birth trauma more convincing in this case.     

Can There Be an Artifact Theory of Law?

The idea that particular legal institutions are artifacts is not new. However, the idea that the “law” or “legal system” is itself an artifact has seldom been directly put forward, due perhaps to the ambiguities surrounding philosophical inquiries into law. Nevertheless, such an idea has recently been invoked more often, though not always developed in detail in terms of what the characterization of the “law” or “legal system” as an artifact entails ontologically, and what consequences, if any, this has for philosophical accounts of law. As a result, the primary aim of this paper is to attempt an inquiry into what the claim that “law” by its nature or character is an artifact entails, and what an artifact theory of law might look like.     

“I Can Be Big Sister,Even If You Can’t Be Big Brother:” Spectatorship and Punishment in Anti-trafficking Efforts

Critical Criminology - Anti-human trafficking efforts by both state and non-state actors are proliferating across the United States (US). While there is ostensibly some merit in widespread...     

Using Systems Theory to Study Legal Pluralism: What Could Be Gained?

This article examines the ability of modern systems theory to provide a foundation for understanding the problematic notion of legal pluralism, and to the ability of scholars to apply that understanding to engage in the study of pluralistic legal orders. In particular, it develops the observations of systems theory of the relationship between state law and violence by adopting one of its linked ideas, that of structural coupling. It also considers the role played by translation when law is identified by reference to the application of the legal code: legal/illegal. The whole analysis is underpinned by systems theory's account of the differences between studying premodern and modern societies.     

Human Security and Managing Financial Crises: Can Human Security Be Effectively Managed?

Could the negative human security effects during the 1997 FinancialCrisis in East Asia have been mitigated? To shed light on thisquestion, we examine the reasons for the onset of the financialcrisis, the internal and external factors, and the InternationalMonetary Find's (IMF's) involvement/conditionality and how thisaffected the economies at the micro and macro level. The emphasishere is on the micro level, i.e. individuals and businesses.Our main conclusion is that one definite policy mishap was thatIMF loans were in part not available immediately when needed,and were focused on servicing debt payments. Because of this,some businesses with full order books were unable to find thenecessary working credits that could have helped them pull throughthe crisis, which in turn led to unnecessary bankruptcies.     

Videotaped Interrogations and Confessions: What’s Obvious in Hindsight May Not Be in Foresight

As expressed in the White Paper, the time has indeed come to make transparency of custodial interrogations the rule, rather than the exception. Widespread implementation of the recommendation to video record interrogations in their entirety and with a camera perspective that permits a clear view of both the suspect and interrogator(s) will achieve this goal admirably. The White Paper authors also imply that such video recordings will likely make it easier for later fact finders to detect and reject false confessions. For the sake of the innocent, all hope that this will be the case; however, anecdotal evidence and, more important, relevant psychological science suggest that it would be prudent to temper expectations in this regard.     

The Consistency of WTO Rules: Can the Single Undertaking Be Squared with Variable Geometry?

The diversity of countries that negotiate commitments in theWorld Trade Organization (WTO), and the distinctions betweentheir legal and constitutional systems, implies important differencesin how agreements are approved, implemented, and enforced. Althoughconsistency is among the desirable attributes to which the multilateraltrading system should strive, it cannot be achieved at the expenseof all other desiderata. Among the reasons for relaxation ofthis goal is the need to accommodate the different legal systemsand levels of economic development among Member States, as wellas the demands for flexibility in negotiations. This paper reviewsthe development and current status of the debate over consistencyin the multilateral system, with special emphasis on the perspectivesof three different sets of participants: the United States,the European Union (EU), and developing countries. In the trade-offbetween the depth and the width of the trading system, the paperasks whether WTO Members should be more interested in expandingthe scope of globally agreed rules or in securing countries’adherence to them? It explores the possible consequences forthe Doha Development Agenda (DDA) if the US Congress cannotbe convinced to make a new grant of trade promotion authority(TPA) after the current one expires. It also discusses whetherthe single undertaking should continue to shape the terms ofthe DDA. In discussing the WTO’s approach to decision-makingand the possible need for reforms thereto, the paper also considershow best and on what grounds should new issues be introducedon the negotiating agenda. The paper argues that whether ornot the DDA is conducted on the basis of a single undertaking,and with or without TPA, the multilateral trading system willcontinue to provide for less than full consistency.     

Interdisciplinarity and the Authority Paradigm: Should Law Be Taken Seriously by Scientists and Social Scientists?

This article questions whether those outside law should take law seriously as an intellectual discipline capable of contributing to the development of epistemological thinking in the natural and social sciences. The discipline is approached from a diachronic and synchronic position with emphasis on the civil law tradition. It will be shown that the governing paradigm in legal studies has always been the 'authority paradigm', which results in law being closer to theology than to the social sciences. Its principal actors (judges) make assertions free from the normal constraints of scientific method; accordingly, the idea of a 'legal science' (imported into the common law tradition after 1846) must be treated with great caution. It is not a science dedicated to enquiring about the nature of the physical world, society or social relations. Its epistemological development remains trapped in the seventeenth and eighteenth centuries: thus, as a discipline, law has little to offer other social sciences.     

Can Informative Traffic Signs Also Be Obligatory? Polish Constitutional Tribunal and Supreme Court Versus Traffic Signs

This article discusses a rare instance of the highest national courts explicitly addressing traffic signs in their judgments or decisions. It critically examines the standpoint expressed by the Polish Constitutional Tribunal and the Supreme Court, according to which the basic traffic sign categories in Poland—obligatory, prohibitory, informative and warning—are not separable (not disjunctive) [e.g. prima facie non-normative signs (informative or warning) can also be normative (obligatory or prohibitory)]. These courts formulated this idea when addressing the legal question concerning the applicability of legal provision penalizing failure to comply with a traffic sign to parking a car without paying a fee in an area marked by an informative sign that indicates the need to charge a fee for parking. The article analyses and criticizes the relevant standpoint of the Polish Constitutional Tribunal and the Supreme Court. It shows how many negative consequences can result from frivolous treatment and neglect of traffic signs. It also reconstructs some possible practical recommendations concerning not only traffic signs but also visualizations of legal rules in general.     

How Large Should the Strike Zone Be in “Three Strikes and You're Out” Sentencing Laws?

So-called three strikes and you're out sentencing laws for criminal offenders have proliferated in the United States. The laws vary considerably in their definitions of what constitutes a strike. This paper adapts the classic Poisson process model of criminal offending to investigate how varying sentence lengths and definitions of what constitutes a strike affect the effectiveness and cost-effectiveness of these sentencing laws. In particular, it asks whether, by using different definitions for the first, second, and third strikes or different sentence lengths, one can make the resulting incarceration more efficient in the sense of incapacitating more crimes per cell-year served.     

Is Dwight Right? Can the Maximum Height of the Scapula Be Used for Accurate Sex Estimation?*

Abstract: This paper presents data from a sample of 803 individuals (308 females and 495 males) from the Hamann‐Todd collection testing Dwight’s century‐old assertion that maximum height of the human scapula can be used for sex estimation—males being larger than 170 mm, females falling below 140 mm. The results of this project show Dwight’s method has high accuracy when scapular height falls either above or below the sex specific demarcation points (96.81%), but a vast majority of both males and females fall in between. The overall accuracy of the method is just 29.27%. By empirically demonstrating the limited usefulness of Dwight’s technique, the author hopes the rote republication of this method in introductory texts on the subject will cease, and draw attention to the need for multiple methods of sex estimation as a response to the overlap in both size and shape between males and females.     

When Justice Can’t Be Done: The Obligation to Govern and Rights in the State of Terror

This article explores a view nearly absent from modern political theory, that there is a duty to create and secure government which imposes on some a duty to govern. This duty is grounded in philosophers as disparate as Aquinas, Locke, Hobbes and Finnis. To fail one??s duty to govern, especially over the range of goods that can only be secured by government, is to have committed a wrong against another. If there is an obligation to govern that is rooted in the common good, then one might believe there is an obligation to maintain a government which pursues the common good. After disentangling the duty to govern from political duties which are much better explored, I focus on the more subtle question of how political legitimacy and the obligation to obey the law may clash with a duty to govern. Again, it is surprising that this claim can be located in scholars as disparate as Kant, Hobbes and Finnis. Yet in each example these thinkers give us, we are troubled by the tension between the duty to maintain a government and its conceptual fellow travelers, legitimate government and the obligation to obey. Nor is this question one restricted to abstract political philosophy. Particularly troubling are scenarios in which a threat to governance might lead to a reasonable belief that the government must maintain itself by taking actions which appear illegitimate. A scenario where a government must racially profile or violate civil liberties to guard against threats to the ability to govern brings the problem to life. Difficult moments of American history ?C the interment of the Japanese during World War II, racial profiling after September 11th and the use of torture by the United States government were surely mistakes. But they make live the perceived and potential clash between a duty to maintain a government, legitimate government and our duty to obey the law.     

From Sullivan to Nike: Will the Noble Purpose of the Landmark Free Speech Case Be Subverted to Immunize False Advertising?

In deciding not to rule in Nike, Inc. v. Kasky, the Supreme Court of the United States passed up an ideal opportunity to answer an urgent question that derives from two legacies of New York Times v. Sullivan: When speech implicates both the commercial speech doctrine and the political speech doctrine, how should that speech be assessed in terms of First Amendment protection? This analysis focuses upon the essential principles emphasized in Sullivan's landmark assessment of the societal value in protecting some false speech in the discussion of public issues. Concerns over the Nike case's implications for corporate expression must be weighed against the societal interest in preventing false commercial speech from being immunized by attaching it to a public issue.     

Should Police Identities Be Disclosed in Anti-riot Operations Transpiring in Cyprus? A Juxtaposition of Novice and Senior Police Constables’ Perceptions

European Journal on Criminal Policy and Research - The article sets out to examine the stances of novice and senior Cypriot law enforcers towards the disclosure of their identities in anti-riot...     

Can APB 2000 Be Used to Discern Sincerity of Effort in Unimpaired Subjects from Maximal Performance in Subjects with Shoulder Pain?

The automated pegboard (APB 2000), which has been found to objectively quantify motor performance, was used to differentiate maximal motor performance among subjects with shoulder pain, healthy unimpaired subjects performing normally and also while feigning shoulder pain. Six participants with shoulder pain and 15 healthy unimpaired individuals participated. Individuals with shoulder pain were tested on the APB 2000 using their affected upper extremity. Unimpaired participants were instructed to perform normally on the test with randomly selected upper extremity and to feign shoulder pain with the other upper extremity. The two tests for the unimpaired participants were conducted 1 week apart. There were significant differences in mean performance time for normal, patient, and feigned performance, with 80, 111, and 149 sec for the three groups respectively (p < 0.0005). There was also considerable overlap in the three distributions of performance times. These preliminary findings suggest that the APB 2000 is able to distinguish performance time between these three groups. Whether it can be used to distinguish between maximal performance and submaximal performance in individuals suspected of submaximal performance requires further study.     

Operationalizing The Law of Jurisdiction: Where in the World Can I Be Sued for Operating a World Wide Web Page?

The concept of personal jurisdiction-the power of a court to decide the rights of a person and issue a binding judgment-is becoming increasingly complex in cases involving the World Wide Web. The two approaches courts currently use to assert personal jurisdiction are inadequate and inconsistently employed, leaving individuals who perform services or conduct business over the Web without clear answers about where they may be haled into court. The "Zippo test" fails to consistently take an accurate account of the complete picture of the contacts generated from Internet use, and the "Calder effects test" is not applicable in all cases. This article outlines a "Web-contacts" approach as a consistent way to operationalize "purposeful availment" for personal jurisdiction based on contacts via the Web.