Arising from the dead: challenges of posthumous procreation

The medical capabilities derived from modern reproductive technology, such as in vitro fertilization and cryopreservation, have enabled physicians and scientists to intervene in the procreative process in innumerable ways. However, this intervention in the natural reproductive process raises both moral and legal concerns. In this Article, Professor Schiff explores some of the conflicts that may result when an individual or couple elects to cryopreserve gametes or embryos and subsequently, one or both of the contributors dies, or when gametes are harvested from a dead body. This Article will specifically address the moral and legal responses to circumstances where the decedent has either clearly expressed opposition to posthumous use of the reproductive material or else the decedent's intent regarding posthumous use of the material is ambiguous. By discussing philosophical and moral positions relating to personhood and the body and analyzing legal issues such as reproductive choice and organ donation, Professor Schiff creates the necessary format to examine and recommend the proper legal treatment of this controversial aspect of posthumous procreation.     

Our wildest imagination: violence,narrative, and sympathetic identification

ABSTRACT

At this polarizing moment in American politics identifying with the experiences of others feels especially difficult, but it is vital for sharing a world in common. Scholars in a variety of disciplines have argued that narratives, and especially literary ones, can help us cultivate this capacity by soliciting sympathetic identification with particular characters. In doing so, narratives can help us to be more ethically and political responsive to other human beings. This is a limited view of the potential for narratives to solicit sympathetic identification, and it prevents us from identifying and grappling with our resistances to identifying with others. In this article I propose a more expansive view – inspired by Elizabeth Costello, a character in JM Coetzee’s novel of the same name – that there are no bounds to our capacities for sympathetic identification. Through critical readings of Waiting for the Barbarians and Animal Farm I explore the possibility that we might identify with people who cause others to suffer, and perhaps even with animals too. Both sorts of identification engender fierce resistance. Identifying with those who cause suffering demands that we grapple with our own capacities for cruelty and violence. Identifying with animals demands that we confront what is animal in ourselves – the perilous instincts that, unmoderated, incline us to aggression. Acknowledging and working through – without rejecting or disavowing – our capacities for cruelty and our animal instincts is necessary for the practices of sympathetic identification upon which sharing a world depends.     

Absurd Asymmetry – a Comment on R v Cottrell and Fletcher1 and BM,KK and DP (Petitioners) v Scottish Criminal Cases Review Commission2

This note examines two cases in which English and Scottish courts have insisted that the English and Scottish Criminal Cases Review Commissions adopt the same definition and approach as them to alleged ‘miscarriages of justice’ in order to reduce the number of potential referrals and increase finality, and to reduce the challenge posed by these Commissions to the courts' authority in the legal sphere. The authors consider whether the courts' approach is either necessary or appropriate.     

Disobedience to Law – Debbie Purdy's Case

This case note examines the implications of the House of Lords decision to order the DPP to issue offence specific guidelines allowing those contemplating assisting terminally ill persons to commit suicide to know the risk they face of prosecution under section 2(1) of the Suicide Act 1961. On the assumption that these guidelines will be law, and binding upon the DPP as well as the CPS, does this represent a change in the law, or a situation in which it may be unlawful to enforce the law, or even generate a legal right of disobedience to law?     

Trials and Miscarriages: an evolutionary socio-historical analysis

Periodically miscarriages of justice become newsworthy and inform not only those who may have some responsibility for their occurrence and rectification, but the general public as well. At those times proposals for reform tend to ensue, and reforms occur. But such occasions are rarely considered historically or understood from an evolutionary perspective. This article undertakes to offer that missing feature. It attempts to inform the periodic highly charged discussion of miscarriages of justice with an understanding of their ingredients illustrated by both some recent and some much older history. The article presents the thesis that miscarriages of justice are a component of the workings of all criminal justice systems, part of their operations, rather than their malfunction. It shows how miscarriages of justice are the criminal justice system’s answer to a prior problem, the functional need to convict more persons than can be shown, with certainty, to have committed the crimes of which they have been charged. This thesis has the implication of inserting some modesty into proposals for reform, not to decry their attempts, but to inspire less naivety. The article focuses on the changing methods of the criminal trial, throughout the second millennium and up to the present day, as an expression of the underlying problématique that represents its thesis.