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.     

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.     

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.     

Why Should Justice Be Seen to Be Done?

A well-known maxim instructs that justice should be seen to be done. When “seen” is understood in the sense of “observed”, the maxim is easily defended: open court proceedings protect against arbitrary and partial decisions. However, when “seen” is understood in the sense of “seem,” the maxim is more puzzling, since it is not obvious why courts should concern themselves with people's perceptions that justice has been done. This article addresses this issue, with a particular focus on the social and other benefits that result when judges observe procedures that are widely regarded as fair, especially in criminal trials. The article draws on empirical studies in social psychology that show that when legal authorities treat people in ways that accord with “lay” procedural expectations, they are more likely to view the authorities as legitimate, to cooperate with them, and to obey the law out of an internalized sense of obligation. The article explores the moral significance of these empirical findings, arguing that it would be superficial to see them as a recipe for social stability. The deeper truth conveyed by the empirical research is that relating to people in ways that are widely perceived to be fair is a way for authorities to engage people's moral sentiments and to enliven their virtuous capacity to put aside considerations of self-interest so as to do what is right. This dynamic provides a sound moral foundation for courts to concern themselves with perceptions of justice.     

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.     

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.     

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.     

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.     

Can these things be resolved?

This is a report of a presentation on 5th July 2006 by DavidTatham. It focuses on introducing the Uniform Domain Name DisputeResolution Policy (UDRP) and on the ADR procedure of the (then)newly launched .eu domain. The first part provides an excellentintroduction to lawyers     

Can financial development enhance transparency?

A substantial strand of literature unambiguously established the importance of financial development for economic growth. Relatively less attention has been paid to the impact that financial development of a country can have on important development outcomes like transparency. As established by existing research, strong financial institutions in a country would imply an improved and transparent banking system, better corporate governance, ease of accessing credit, greater availability of information and best practices in investment protection. All these should theoretically promise a more transparent economic system. Our empirical findings confirm this. Using several estimation strategies, our results confirm that greater financial development enhances transparency.     

‘She’s White and She’s Hot,So She Can’t Be Guilty’: Female Criminality,Penal Spectatorship,and White Protectionism

Despite mainstream criminology’s burgeoning interest in issues of race, class, and gender, very little scholarship has examined whiteness and its attendant privileges in understanding public discourse on criminal offenders. This paper examines the role of penal spectatorship as a discursive mechanism by which white, female offenders are protected in public spaces by virtue of their racial and gender identity. Using a content analysis of comments posted on the mug shot images of white women on a popular ‘mug shot website,’ we find that these women are viewed as victims of circumstance deserving of empathy and redemption rather than as criminals. We offer ‘white protectionism’ as a means by which whites extend privilege and protection to other whites who transverse the boundaries of whiteness through criminality to guard against ‘deviant’ or ‘criminal’ designations. These findings add to our understandings of penal spectatorship as yet another tool of white supremacy operating in the Post-Civil Rights era of mass incarceration.     

Can whale-fall studies inform human forensics?

Experimental knowledge of human body decomposition in the deep ocean is very limited, partly due to the logistical challenges of deep-sea research. The literature on ecological responses to the arrival of naturally sunk and implanted whale carcasses on the seafloor represents a potential source of information relevant to questions of human body survival and recovery in the deep ocean. Whale falls trigger the formation of complex, localized, and dense biological communities that have become a point of interest for marine biologists for the past 2–3 decades. Researchers have documented whale falls by whale type, size, geographic location, water depth and water chemistry, and there have been some comparative analyses of decomposition rates and faunal presence on carcasses. We undertook a review and meta-analysis of the whale-fall literature to identify and statistically model trends relevant to human forensics. Results from studies using deep-sea cameras baited with pig carcasses and simulated carrion provided further validation of noted trends. The stages of whale carcass decomposition most relevant to human forensics are those characterised by mobile scavengers that strip the soft tissues from carcasses, and to a lesser degree, other biota that degrade skeletal material. Our statistical models used the number of faunal taxa attracted to the whale carcasses as a measure of the ecological response and the potential rate of decomposition. Negative binomial models identified significant influences of carcass age and dissolved oxygen concentration on the ecological response (taxon numbers). The strongest environmental effects were identified in data from experimental studies that implanted whale carcasses across a broad range of dissolved-oxygen conditions. We propose directions for further experimental research to refine models of environmental controls on decomposition in the deep sea. Our results also highlight the potential use of publicly available global databases on environmental conditions in the deep ocean for informing body scavenging activity and thus body survival. Applying a forensic lens to whale-fall studies provides a window into an otherwise unseen world from the standpoint of human forensic taphonomy.