First Published in 1988. Routledge is an imprint of Taylor & Francis, an informa company.

This article argues that a potential expert witness's decision about testifying for a libel plaintif should not be driven by an unexamined loyalty to journalists, to the press, or to broad principles of expression. Real harm done to a plaintif by libel and the advantage to the press corps and to the system of expression of having a knowledgeable expert testihing for a libel plaintif are discussed as factors that might outweigh the traditional loyalties. An ethical framework is offered to (...) help journalists and journalism educators make a reasoned determination based on what is fair and responsible for the plaintiffand for the defendant. (shrink)

The analysis of courtroom trials has attracted considerable scholarly attention. However, studies performing SFL analysis of legal texts and speeches are rare. The up-to-date published studies handled criminal cases; yet, there is a lack of SFL studies examining civil cases like divorce and defamation. The present qualitative study utilized systemic functional multimodal discourse analysis (SF-MDA) of the 2022 defamation trial sued by Johnny Depp’s lawyer (the plaintiff) against Amber Heard (the defendant). The SF-MDA of the transitivity system aimed to examine (...) and compare the experiential meaning in the speeches of the plaintiff and the defendant. The study aimed to answer the following research questions: (1) what are the differences in the plaintiff’s and defendant’s use of experiential meanings? (2) how can transitivity and multimodality aid in the experiential communicative meanings and the arrival of the final verdict in the courtroom? and (3) what were the language tactics that were manifested throughout the analysis? The plaintiff utilized material processes with the highest frequency, followed by relational and mental processes. However, the defendant made excessive use of the relational processes followed by mental and material processes. The speech of the plaintiff included more circumstances than the defendant. Some of the language techniques, used by the plaintiff and the defendant were detected. (shrink)

The Qur’an has told the stories of many prophets and past tribes in order to convey the message it wants to give to its addressee. The Qur’an has narrated the stories that were narrated in the Bible in accordance with its purpose, by correcting the distorted points and without going into the details reported in the ‘Kutub-i al-Qadim’. One of the stories told in both the Qur’an and the Bible is Dawoud (David) and the plaintiffs. In this study, the (...) story of Dawoud and the plaintiffs deals with the evaluation of the story of Davud and the plaintiffs and the opinions expressed in the interpretation of the story in the context of Mushkil al-Quran al-Karim. From the earliest times to the present day, commentators have adopted different interpretations of the story of Dawoud and the plaintiffs. Some commentators, taking into account the literal meaning of the verses, interpret the verses based on the fact that the case described in the story is real. On the other hand, some interpret the parable based on the assumption that the case event expresses a representative expression, not a genuine event. The commentators who adopt this understanding are also divided into two as those who interpret the tale over the narrated narrations and those who interpret the tale over wording. The main reason why commentators adopt different interpretations of the tale is that the narrations about the background of the tale, primarily from the Bible, whether to be accepted or not. It is stated that the different opinions expressed in the article by the commentators, whom we have included in the classification, with the fear that they will harm the authority of prophethood, are difficult for the understanding of the story. In this article, different works that emerged according to the interpretation style of the commentators will be resolved in the context of the interpretations made by the same commentators. (shrink)

This nation’s obesity epidemic is hardly a laughing matter. Approximately 300,000 Americans die from obesity-related causes each year, and without corrective measures, obesity may soon be responsible for as many deaths as cigarette smoking. Sixty-one percent of adults are overweight or obese, and the cost of obesity for the year 2000 was estimated to be 117 billion dollars.In Pelman v. McDmalds, a case decided in September 2003, a federal judge dismissed an amended complaint that attempted to hold McDonalds liable for (...) its customers’ obesity-related illnesses. While many argue that such litigation is frivolous and that the plaintiffs did not deserve direct compensation for their injuries, the debate has largely overlooked the important question raised by these cases - who should pay for the enormous financial strain that obesity places on America’s health care system? Although the courtroom may not be the appropriate forum to deal with this issue, the litigation has undoubtedly brought a great deal of much-needed attention to a vexatious social problem. (shrink)

Volume 19, Issue 7, July 2019, Page 41-43.

This chapter provides a comprehensive examination of cases in the ‘Global South docket’. In analyses 128 cases filed, pending decision, or decided in Global South countries up to May 2023. The chapter identifies key trends across the case law, including the more pronounced use of rights-based arguments in cases in the Global South, and common characteristics of the Global South docket such as the preference for implementing ‘law on the books’. The final part of the chapter discusses transnational cases—ones brought (...) in Global North courts but involving Global South plaintiffs or projects—which can be the basis for creating truly transnational coalitions of actors seeking accountability from Global North governments and corporations for their failure to reduce greenhouse gas emissions and decarbonize their economic activities. (shrink)

When a plaintiff has been negligent in the sense that he should have acted otherwise, should the same criterion of negligence apply that would apply if he were creating risks only to others? Indeed, are there any persuasive reasons not to apply a radically different criterion of negligence? Moreover, should the plaintiff's recovery be diminished, outside the category of assumption of risk, even when the plaintiff has not been negligent? What are the justifiable criteria and limits of such plaintiff strict (...) responsibility? There are reasons for caution before concluding that a victim's self-regarding conduct is negligent. A victim often deserves special sympathy in the light of his special predicament, choosing between two evils, the immediate costs of which he must personally bear. Indeed, it might appear that the law is unfair or unduly onerous when it places significant demands on a victim with respect to his own self-regarding behavior. On the other hand, we should not forget that the victim's “duty” to use reasonable care is merely conditional: it applies only in case the victim seeks a remedy against the tortfeasor. (shrink)

In most civil cases, the plaintiff's contention consists of several component elements. So the multiplication law for the mathematical probability of a conjunction entails that, if the contention as a whole is to be established on the balance of mathematical probability, there must either be very few separate components in the case or most of them must be established at a very high level of probability. Since this constraint on the complexity of civil cases is unknown to the law, the (...) mathematicist analysis is in grave difficulties here. To point out that such component elements in a complex case are rarely independent of one another is no help. Therefore, a mathematicist might claim that the balance of probability is not to be understood as the balance between the probability of the plaintiff's contention and that of its negation, but as the balance between the probability of the plaintiff's contention and that of some contrary contention by the defendant. However, this would misplace the burden of proof. To regard the balance of probability as the difference between prior and posterior probabilities is open to other objections. To claim that the plaintiff's contention as a whole is not to have its probability evaluated at all is like closing one's eyes to facts one does not like. (shrink)

This chapter investigates the difficulty about negation. Because of the principle that p M [S] = I − p M [not-S], the mathematicist analysis implies that in civil cases the Anglo-American system is officially prepared to tolerate a quite substantial mathematical probability that a losing defendant deserved to succeed. There is a limit to the extent that this difficulty can be avoided by supposing a higher threshold for the balance of probability. Nor are the proper amounts of damages held to (...) be proportional to the strength of a winning plaintiff's proof. If there were a legal rule excluding statistical evidence in relation to voluntary acts much of the paradox here would disappear. But it would be unnecessary to suppose such a rule if the outcome of civil litigation could be construed as a victory for case-strength rather than as the division of a determinate quantity of case-merit. (shrink)

The law requires that plaintiffs in fraud cases be 'justified' in relying on a misrepresentation. I deploy the accumulated intuitions of the law to defend externalist accounts of epistemic justification and knowledge against Laurence BonJour's counterexamples involving clairvoyance. I suggest that the law can offer a well-developed model for adding a no-defeater condition to either justification or knowledge but without requiring that subjects possess positive reasons to believe in the reliability of an epistemic source.

In Athenian popular courts plaintiffs and defendants normally do not confine themselves to factual and legal arguments but make emotional appeals as well. In order to do so they often use ‘anger’ as an argument. They do not only intend to motivate the jurors to identify themselves with their own emotional state but also want to communicate that the case is relevant for the community as well, so that the court has to punish in the interest of the polis. (...) The latter is important especially in public trials. Showing their ‘anger’ and punishing according to the laws are often used synonymously. In this context the plaintiffs and the jurors do not just operate within an archaic code of behavior but strongly refer to the political sphere. (shrink)

This essay is an accessible introduction to the proof paradox in legal epistemology. -/- In 1902 the Supreme Judicial Court of Maine filed an influential legal verdict. The judge claimed that in order to find a defendant culpable, the plaintiff “must adduce evidence other than a majority of chances”. The judge thereby claimed that bare statistical evidence does not suffice for legal proof. -/- In this essay I first motivate the claim that bare statistical evidence does not suffice for legal (...) proof. I then introduce and motivate a knowledge-centred explanation of this fact. The knowledge-centred explanation rests on two premises. The first is that legal proof requires knowledge of culpability. The second is that one cannot attain knowledge that p from bare statistical evidence that p. To motivate the second premise, I suggest that beliefs based on bare statistical evidence fail to be safe—they could easily be wrong—and bare statistical evidence cannot eliminate relevant alternatives. -/- I then cast doubt on the first premise; I argue that legal proof does not require knowledge. I thereby dispute the knowledge-centred explanation of the inadequacy of bare statistical evidence for legal proof. Instead of appealing to the nature of knowledge, I suggest we should seek a more direct explanation by appealing to those more foundational epistemic properties, such as safety or eliminating relevant alternatives. (shrink)

What conception of causation is at work in the law? I argue that the law implicitly relies on a contrastive conception. In a liability case where the defendant's breach of duty must be shown to have caused the plaintiff's damages, it is not enough to consider what would have happened if the cause had not occurredthe law requires us to look to a specific replacement for the effect, which in this case is the hypothetical outcome in which the plaintiff came (...) off better. In place of I suggest the more explicit An explicitly contrastive approach can thus potentially help the lawyer phrase her causal question in a more explicit way, while shedding light on our conception of causation. (shrink)

This book in the philosophy of law and risk assessment is concerned with the topic of the standards of evidence in legal proceedings and regulatory decisions regarding the toxicity of chemicals. The book argues that the scientific and statistical criteria usually used to determine whether substances are toxic are too rigorous and time-consuming for evidentiary purposes in tort cases and for regulation. The result is the under-regulation of toxic substances and the under-compensation of plaintiffs in tort cases. The book (...) proposes the evidential standards now used should be evaluated with the purposes of the law in mind. (shrink)

In this article, I address what kinds of claims are of the right kind to ground conscientious refusals. Specifically, I investigate what conceptions of moral responsibility and moral wrongness can be permissibly presumed by conscientious objectors. I argue that we must permit HCPs to come to their own subjective conclusions about what they take to be morally wrong and what they take themselves to be morally responsible for. However, these subjective assessments of wrongness and responsibility must be constrained in several (...) important ways: they cannot involve empirical falsehoods, objectionably discriminatory attitudes, or unreasonable normative beliefs. I argue that the sources of these constraints are the basic epistemic, relational, and normative competencies needed to function as a minimally decent health-care professional. Finally, I consider practical implications for my framework, and argue that it shows us that the objection raised by the plaintiffs in Zubik v. Burwell is of the wrong sort. (shrink)

"This collection is the first book-length examination of the various epistemological issues underlying legal trials. Trials are, among other things, centrally concerned with determining truth: whether a criminal defendant has in fact culpably committed the act of which they are accused, or whether a civil defendant is in fact responsible for the damages alleged by the plaintiff. But are trials truth-conducive? Assessing the value of trials as truth-seeking endeavors requires that we consider a host of underlying social epistemological questions. The (...) contributors to this volume address a number of these pressing questions, including but not limited to the following: How much credence should they give to eyewitness testimony? How should we balance the relative epistemic value of testimony offered by defense witnesses and prosecution witnesses? Are juries an effective means of arriving at justified beliefs about a defendant's guilt or innocence? When, if ever, is statistical information about a defendant's character relevant? What degree of certainty should we require to support a verdict of 'guilty'? How should standards of proof be interpreted for allegations that contain numerous discrete components? The Social Epistemology of Legal Trials will be of interest to scholars and upper-level students working on issues at the intersection of epistemology and philosophy of law"--. (shrink)

Background Intramuscular injections are routine interventions worldwide, yet when executed incorrectly they can cause sciatic nerve injury (SNI) that leaves patients with lifelong motor-sensory disability. Although international guidelines recommend the ventrogluteal site, the dorsogluteal region remains dominant in Turkey, potentially elevating risk. This study analysed Turkish Supreme Court decisions on injection-induced SNI from public-health, ethical and legal perspectives. Methods We conducted a retrospective cross-sectional content analysis of all publicly available Supreme Court criminal and civil decisions issued between January 2006 and (...) April 2025 that contained SNI-related keywords. After deduplication and relevance screening, 92 unique cases were eligible. Two investigators independently coded each judgment; disagreements were resolved by consensus. Variables recorded were legal category, injection site, clinical indication, drug class, injector profession, defendant identity, symptom latency, electrophysiological pattern, first-instance verdict and Supreme Court outcome. Frequencies and percentages were calculated with SPSS v.29. Results Negligent bodily injury was the leading charge (50/92, 54%); 32% of files also sought monetary compensation. Gluteal injections accounted for 79% of cases, most administered for postoperative analgesia (33%) or antibiotic therapy (27%). Nurses performed 60% of injections, physicians 9%. Individual health professionals (physicians ± nurses) were defendants in 65% of lawsuits, while hospitals (alone or jointly) appeared in 23%. Symptoms emerged immediately or within 1 h in 76% of plaintiffs, and electromyography typically revealed severe axonal damage—predominantly of the peroneal division. The Supreme Court overturned 100% of firstinstance convictions and 32% of acquittals, most often citing inadequate expert evaluation (35%), contradictory reports (20%), uncertainty over negligence versus complication (18%) or missing informedconsent documentation (10%). Conclusions Injection-related sciatic nerve injuries in Turkey remain potentially preventable. The entrenched use of the dorsogluteal site, limited anatomical awareness, inadequate informed consent practices, and inconsistencies in medico-legal evaluations continue to contribute to both patient harm and an increased burden of litigation. Transitioning to the ventrogluteal technique, mandating annual refresher training, standardising consent forms, and accrediting neurophysiology expert panels could help reduce both injury incidence and courtroom burden—advancing the WHO’s “zero harm” patient safety goal. (shrink)

John Arthur philosophically addresses the problems of racism and the legacy of past racial discrimination in the United States. Offering a thorough analysis of the concepts of race and racism, Arthur also discusses racial equality, poverty and race, reparations and affirmative action, and merit in ways that cut across the usual political lines. A philosopher, former civil-rights plaintiff and professor at an historically black college in the South, Arthur draws on both his personal experiences as well as his rigorous philosophical (...) training in this account. His conclusions about the meaning of merit, the defects of affirmative action, the importance of apology, and the need for true equality deal productively with one of America's most vexing problems. His book is also relevant to any society struggling with racial differences and past injustices. (shrink)

For decades legal scholars and philosophers assumed the law and its underlying justice principles are cleansed of emotion, thus allowing reason and logic to prevail. They now acknowledge that emotions inevitably creep in and influence legal judgments and decisions by jurors and judges and at times law’s very substance. This new literature revolves heavily around empathy‐‐for plaintiffs, defendants, individuals, groups. Some writers support empathy’s role because it provides a humane counterpoint to cold abstract argumentation; others say just and predictable (...) law cannot tolerate empathy. This chapter contributes by situating empathy’s relation to law solidly within a broad empathy framework. I do this by summarizing empathy’s definition, its evidence for being a pro-social moral motive, its modes of arousal and developmental stages, and how it is shaped by causal attribution into various affects especially empathic anger and feeling of injustice that may motivate action in certain law-relevant situations. I then illustrate two ways in which empathy has contributed importantly to U.S. laws : (1) by contributing to individual personalities that interact with historical events to help prepare the country for initiating and changing laws; and (2) by contributing to how laws are made, changed and applied in the courtroom especially the U.S. Supreme Court. And finally, I discuss empathy’s inherent biases that may limit its value in legal contexts. (shrink)

The access-to-justice movement broadly concerns the extent to which people have the ability to resolve legally actionable problems. To the extent that individuals seek resolution through civil litigation, they can be disadvantaged by their unmet need for legal services, particularly in high-stakes cases and complicated areas of law. I propose an innovative legal intervention to this problem called “compensatory preliminary damages,” which builds from the work of Gideon Parchomovsky and Alex Stein. I argue that preliminary damages should function as compensatory (...) awards for harm to a plaintiff’s ability to access justice, rather than a contingency loan that might make indigent plaintiffs worse off than before if they lose. By awarding such damages, courts make plaintiffs whole for harm to their access to justice that is not conditional on a decision after the merits or their final recovery for the injuries alleged. As such, the award would not need to be repaid. (shrink)

According to common judicial standard, judgment in favor ofplaintiff should be made if and only if it is more probable than not thatthe defendant''s action was the cause for the plaintiff''s damage (or death). This paper provides formal semantics, based on structural models ofcounterfactuals, for the probability that event x was a necessary orsufficient cause (or both) of another event y. The paper then explicates conditions under which the probability of necessary (or sufficient)causation can be learned from statistical data, and (...) shows how data fromboth experimental and nonexperimental studies can be combined to yieldinformation that neither study alone can provide. Finally, we show thatnecessity and sufficiency are two independent aspects of causation, andthat both should be invoked in the construction of causal explanations for specific scenarios. (shrink)

Gordon's emphasizes that the process of prosecution is crucial to the idea of crime. One who commits a public wrong is properly called to public account for it, and the criminal trial constitutes such a public calling to account. The state is the proper prosecutor of crimes: since a crime is ‘our’ wrong, rather than only the victim's wrong, it is appropriate that we should prosecute it, collectively. The case is not simply V the victim, or P the plaintiff, against (...) D the defendant. It is brought, as the Americans properly have it, by ‘the People’, or by ‘the Commonwealth’, against the defendant. This is a useful way in which to think about crimes and criminalisation. This chapter tries to develop this conception of public wrongs a little further, which also involves complicating it more than a little. It works from a version of liberal communitarianism that rejects the metaphysical version of the individualist's ‘unencumbered self’; but the account sketched here should be compatible with all but the most radically individualist kinds of liberal theory. (shrink)

Over the last decade, attention has crawled from out of the shadows into the philosophical limelight with several important books and widely read articles. Carolyn Dicey Jennings has been a key player in the attention revolution, actively publishing in the area and promoting awareness. This book was much anticipated by insiders and does not disappoint. It is in no way redundant with respect to other recent monographs, covering both a different range of material and developing novel positions throughout. The book (...) might have been called The Attending Self, since Jennings defines attention as mental prioritization controlled by the self. This invocation of the self is among her central innovations, and may prove to be the main source of controversy. I will highlight points of contention here, but want to emphasize at the outset that the book is essential reading for anyone interested in attention. Jennings also contributes to a range of other debates, which will help a broader audience appreciate the importance this topic.After a brief introduction, Jennings provides “a philosophical landscape” of attention (chap. 2), tracing the concept through history. This is an invaluable achievement that will be welcomed by both newcomers and veterans. Jennings exhibits enormous breadth, covering areas that contemporary philosophers of mind tend to neglect: medieval philosophy, Buddhist thought, and phenomenology, to name a few. We also get perspectives on attention from core figures in the Western canon, such as Descartes, Locke, and Kant, as well as thinkers who gave the topic a more political inflection: Mary Wollstonecraft and W. E. B. DuBois. Jennings surveys contemporary literature as well, locating recent work in these older lineages. Some authors get more treatment later in the book (e.g., William James and Wayne Wu). Overall, Jennings provides the best overview of this history I have seen. She proves that attention is not a new topic, but one with deep roots and one that can inform current debates; Jennings draws on these roots throughout. I would love to see a companion piece surveying scientific theories, including “gain control” and “biased competition,” which get little airtime in the book. Some recent philosophical theories are under-explored as well, including Chris Mole’s concept of cognitive unison (Jennings discusses other aspects of his view), Carlos Montemayor and Harry Haladjian’s exploration of attention’s diversity (we get a touch of this), and my own proposal that attention is a gateway to working memory (not mentioned here). That said, no extant survey is more complete.Chapter 3 begins with the empirical claim that attention is regulated by slow brainwaves, and then takes up two issues. The first is mental causation. Endorsing moderate emergentism, Jennings argues that slow brain waves are causally efficacious even though they are not reducible to lower-level processes. (The metaphysics and neuroscience are presented accessibly, aided by three appendixes.) Second, Jennings argues that these slow brain waves indicate that attention is controlled by the self. As someone who was never moved by the mental causation problem—I don’t think overdetermination threatens efficacy—I would have welcomed more development of this second issue. For one thing, in linking attention to subjective control, Jennings eschews the idea that there can be purely “bottom-up” attention driven by stimulus features alone. This goes against the orthodoxy in attention science, and makes it hard for her to accommodate phenomena such as “pop-out,” or the commonsense idea that attention can be “captured” by a sudden flash or loud sound. For another thing, I wanted to hear more on why Jennings relates slow brain waves to the self. Does this include the slow waves that occur during deep sleep? Is there even such a thing as the self? Is there one self or many? How do slow brain waves reflect our interests, projects, values, self-conceptions, autobiographical narratives, or social identities? Does the social self invoked by Wollstonecraft and DuBois gain a foothold here? The whole chapter campaigns against metaphysical reductionism, but arrives at a perspective on the self that will strike some readers as highly reductive.In the fourth chapter, Jennings sheds further light on her conjecture that attention involves the self by advancing the thesis that attention endows sensory information with meaning. On the face of it, this may sound implausible. Object recognition, reading, and many other meaning-involving processes can take place outside of attention and outside of consciousness. But Jennings has a richer notion of “meaning” in mind. She develops the idea of “subject unity,” which is imposition of structure on perception that reflects the interests of the perceiving subject. This, she claims, is what brings perception into the space of reasons. Along the way, she has interesting observations about binding, feature integration, and demonstrative reference. The material is highly original, and Jennings’s postulation of interest-based perceptual organization is compelling. At the same time, one might wonder whether interests are really relegated to the ambit of attentional control. Consider the cocktail party effect, wherein one’s own name captures attention. This implies a preattentive filter that reflects our interests. Emotionally charged words, facial expressions, and dangerous objects also work this way, and social biases can operate preattentively as well. If these reflect our interests, then meaning may arise outside attention.Jennings’s fifth chapter explores the relationship between attention and consciousness. Some authors have argued that attention is necessary and sufficient for consciousness. Jennings focuses primarily on the necessity claim. She does not systematically review the empirical literature here, but she addresses some of the key findings, and effectively rebuts studies that allege to find consciousness outside attention. She does not rest her case there, however. Instead, she identifies a new class of examples that purport to establish the possibility of consciousness without attention. Her central example she calls “conscious entrainment,” which is what we experience when engaged in habitual or skilled activities. Other possible examples touched on in the chapter include hypervigilance in individuals with attention deficit hyperactivity disorder (ADHD), passive movie watching, dreaming, and “attentional neglect.” These states all involve intense focus, Jennings admits, but not attention. To some readers this may sound contradictory. Isn’t focus a kind of attention? Don’t these states of absorption involve stimulus selection and enhancement of relevant features, suppression of distractors, and other hallmarks of attention? Jennings says none of this is tantamount to attention. Recall that she thinks attention is controlled by the self. In these cases, we are invited to imagine that the self takes a passive role: control is either ceded to the world (movie watching) or to previously mastered routines (skills and habits). Thus, Jennings’s claim that there is no attention in these cases hangs on her contentious thesis that attention requires a controlling self. One might also push back by arguing that, in some of Jennings’s allegedly selfless examples, the self remains involved. Skilled activities and hypervigilance, for example, can reflect personal interests.Skills and hypervigilance get more airtime in chapter 6. There, Jennings turns to questions of responsibility—a neglected topic in attention research. The chapter begins with a manslaughter trial in which the teenage plaintiff was given a light sentence because the judge evidently believed that the teen’s ADHD compromised his ability to control his actions. The example may be a bit triggering for people who have a personal relationship with this diagnosis, but, putting that aside, Jennings uses it to introduce the important concept of attention-based control. With reduced control, Jennings argues, comes reduced responsibility. I am inclined to see ADHD as involving dysregulation of attention (difficulty disengaging and dividing attention, for example) rather than diminished attention, but that can still be characterized as an issue with control of attention; therefore ADHD still illustrates Jennings’s point that there is a link between responsibility and control of attention. This, it turns out, is only half of her story. Having argued for this link, one might expect Jennings to follow Wayne Wu, who contends that attention is necessary for action, and hence for responsibility. She does not. Instead, she says argues that responsibility can also arise in cases of “strategic automaticity.” This brings us back to skills. When skills are deployed, action is governed by learned pairings between stimuli and responses. The choice to exercise a skill requires attention, so attention is needed for being a responsible agent, but once a skill kicks in, attention is no longer required, and one can be held responsible for actions performed skillfully—thus attention is not required for responsibility tout court. Jennings addresses an opposing view (defended by Wu, Ellen Fridland, and Barbara Montero), according to which skills involve “automatic attention” rather than no attention. Jennings worries that this move will collapse the distinction between attention and other kinds of selection and filtering that occur throughout the nervous system, including the retina. She says that the attentional interpretation of skilled action is at odds with the lack of top-down reweighing of sensory inputs, regulated by lateral frontal cortex. These objections to automatic attention warrant response. My own view is that attention involves broadcasting to working memory, so retinal filtering is ruled out. Jennings’s insistence on top-down reweighing will not move those who believe attention can be purely bottom-up. For all that, I side with Jennings in wanting to allow for responsibility without attentional control. I think we can be responsible for implicit biases, for example. I also think attentional control is insufficient for responsibility, as when we act under duress.Jennings offers fresh perspective on the nature of attention, and its role in meaningful perception, consciousness, action, and responsibility. Each chapter can be read separately, but they hang together well, and each reflects her thesis that attention is essentially linked to the self. Though I am skeptical of that strong claim, we would do well to follow Jennings in regarding attention as interest-laden interface between mind and world. I look forward to a sequel in which attention is related to richer conceptions of identity, and where the political consequences of this link are actively explored. Meanwhile, one can hardly fault Jennings for covering too little. She tackles a remarkable range of topics, from metaphysics to ethics. Her arguments throughout demand response, repay careful study, and propel the field forward. (shrink)

In this paper, I revisit Kimberlé Crenshaw's argument in “Demarginalizing the Intersection of Race and Sex” (1989) to recover a companion metaphor that has been largely forgotten in the “mainstreaming” of intersectionality in (white-dominated) feminist theory. In addition to the now-famous intersection metaphor, Crenshaw offers the basement metaphor to show how—by privileging monistic, mutually exclusive, and analogically constituted categories of “race” and “sex” tethered, respectively, to masculinity and whiteness—antidiscrimination law functions to reproduce social hierarchy, rather than to remedy it, denying (...) Black women plaintiffs legal redress. I argue that in leaving the basement behind, deployments of “intersectionality” that deracinate the concept from its origins in Black feminist thought also occlude Crenshaw's account of the socio-legal reproduction of hierarchical power. (shrink)

In many toxic-tort cases - notably in Oxendine v. Merrell Dow Pharmaceuticals, Inc, and in Joiner v. G.E., - plaintiffs argue that the expert testimony they wish to present, though no part of it is sufficient by itself to establish causation "by a preponderance of the evidence," is jointly sufficient to meet this standard of proof; and defendants sometimes argue in response that it is a mistake to imagine that a collection of pieces of weak evidence can be any (...) stronger than its individual components. This article draws on the epistemological theory I first presented in 1993 in Evidence and Inquiry, and then amplified and refined in 2003 in Defending Science - Within Reason. This theory of evidence shows that, under certain conditions, a combination of pieces of evidence none of which is sufficient by itself really can warrant a casual conclusion to a higher degree than any of its components alone. When my account is applied to the very complex congeries of evidence typically proffered to prove general causation in these toxic-tort cases, it improves on the influential "Bradford Hill criteria" for assessing causation; and it suggests answers to questions frequently raised in such cases: e.g., whether epidemiological evidence is essential for proof of causation, and whether such evidence should be excluded if it is not statistically significant. Moreover, the argument of this paper reveals that by obliging courts to screen each item of expert testimony individually for reliability, the atomism implicit in Daubert will sometimes stand in the way of an accurate assessment of the worth of complex causation evidence. (shrink)

The elements of the tort of negligence are well known: injury, duty, breach, and actual and proximate cause. It is uncontroversial that the plaintiff must establish each of these elements to make out the prima facie case of negligence. Accordingly, there is no tort unless all of these elements are established. As torts are understood to be wrongs, it seems to follow that there is a wrong if and only if all of the elements of the tort of negligence are (...) satisfied. It seems to follow, then, that the wrong of negligence is constituted by the completed tort of negligence. This is the conclusion that I wish to challenge here. I shall contend that the wrong of negligence does not require the kind of legally cognisable injury that the tort of negligence plainly requires. Causing a material harm to another is not a prerequisite for wronging them. Instead, one wrongs another when one breaches the duty of care that one owes to them. (shrink)

Court rulings are among the most important documents in all legal systems. This article describes a study in which natural language processing is used for the automatic characterization of Spanish judgments that deal with the physical custody (joint or individual) of minors. The model was trained to identify a set of elements: the type of custody requested by the plaintiff, the type of custody decided on by the court, and eight of the most commonly used arguments in this type of (...) judgment. Two jurists independently annotated more than 3000 judgments, which were used to train a model based on transformers. The main difficulties encountered in this task were the complexity of the judicial language and the need to work with appellate court rulings that have a more complicated structure than decisions at first instance. For the complete court rulings, the F1 score of the inter-annotator agreement ranged from 0.60 to 0.86 and the Kappa index from 0.33 to 0.73. The F1 score of the agreement between the model and the annotators ranged from 0.66 to 0.93 and the Kappa index from 0.57 to 0.80. These results in which the model performance exceeds even the inter-annotator agreement show the high ability of transformers to identify abstract entities in legal texts. (shrink)

In his Complaint of Peace, the great sixteenth-century humanist Erasmus allows "Peace" to talk. Peace speaks as a plaintiff, protesting her shabby treatment at the hands of humankind and our ever-ready inclination to launch wars. Against this lure of warfare, Erasmus pits the higher task of peace-building, which can only succeed through the cultivation of justice and respect for all human life. First articulated in 1517, the complaint of peace has echoed through subsequent centuries and down to our age--an age (...) convulsed by world wars, holocausts, and ethnic cleansings. Distinguished political scientist Fred Dallmayr traces this complaint from the writings of Erasmus through the evolution of the "law of nations" to recent and contemporary co-plaintiffs in the West. He also highlights the role of non-Western thinkers and teachings in giving voice to "Peace." In addition to Erasmus, Dallmayr engages major thinkers such as Francisco de Vitoria, Hugo Grotius, Immanuel Kant, Hannah Arendt, Martin Heidegger, Mahatma Ghandi, the Dalai Lama, John Rawls, and Martha Nussbaum. This timely book urgently pleads for greater attentiveness to peace's complaint as an antidote to the prevailing culture of violence and the escalating danger of nuclear catastrophe. Dallmayr offers not only a compelling historical narrative, but powerful ethical and religious arguments vindicating the primacy of peace over violence and war. (shrink)

Pregnancy-based employment discrimination has long been a topic of interest for gender inequality scholars and civil rights agencies. Prior work suggests that employer stereotypes and financial interests leave pregnant women vulnerable to being fired. We still know little, however, about women’s interpretations of their terminations and how employers justify such decisions in the face of arguably protective laws. This article provides much needed, in-depth analyses of such dynamics and a relational account of pregnancy-based employment discrimination claims. Elaborating on theoretical expositions (...) of power and research surrounding the patriarchal character of organizational life, we draw on unique quantitative and qualitative data from verified cases of pregnancy-based firing discrimination. Our analyses reveal a two-pronged legitimation process where employers symbolically vilified pregnant workers while simultaneously amplifying ostensibly meritocratic organizational procedures and concerns. Pregnancy discrimination plaintiffs attempted to counter employer arguments. Yet, their limited power within the organizational hierarchy along with the culturally resonant nature of employer logics—logics that seem gender-neutral but that reify gendered assumptions and prioritize business profit—place pregnant women at a considerable disadvantage. Without attending to such cultural and structural power imbalances and the relational processes that undergird them, pregnancy discrimination will remain a significant problem. (shrink)

INTRODUCTIONEconomic accounts of tort law tell us why tortfeasors face monetary sanctions for certain sorts of conduct. That is not enough, according to corrective justice theorists Jules Coleman and Ernest Weinrib.See, e.g., Jules L. Coleman, RISKS AND WRONGS (1992); Ernest J. Weinrib, THE IDEA OF PRIVATE LAW (1995). See also Arthur Ripstein, EQUALITY, RESPONSIBILITY AND THE LAW (1998); Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151 (1973); George P. Fletcher, Fairness and Utility in Tort Theory, (...) 85 HARV. L. REV. 537 (1972); Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449 (1992). Economic theoriesThe most thorough, and impressive, attempt to provide a positive theory of tort law from an economic perspective is that of William Landes and Richard Posner. William M. Landes & Richard A. Posner, THE ECONOMIC STRUCTURE OF TORT LAW (1987). See also, Guido Calabresi, THE COSTS OF ACCIDENTS (1970); Steven Shavell, ECONOMIC ANALYSIS OF ACCIDENT LAW (1987); Guido Calabresi & Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972); Ronald Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960). do not offer an adequate explanation of why the defendant is required to pay these monetary sanctions to the plaintiff. Perhaps some argument can be made that it is efficient to reward private parties for bringing tort actions. Yet even if this were plausible, it would make the plaintiff-driven nature of tort law a purely contingent matter. The plaintiff-defendant structure of tort law is essential to it, not merely contingent. The economic account is therefore fatally flawed, like an account of the criminal law that fails to mention the role of the state, or an account of Shakespeare’s literary genius that fails to mention his poetry. This is called the “bipolarity” critique of law and economics. (shrink)

Many legal jurisdictions permit victims of targeted hate speech to sue for damages in civil courts. In the US plaintiffs may sue for damages using the tort of intentional infliction of emotional distress. Indeed, back in 1982 Richard Delgado proposed the introduction of a new tort of racial insult to handle such cases. In South Africa plaintiffs can use the delict of injuria. Although there have been some successful lawsuits, the tort of intentional infliction of emotional distress has (...) been an unreliable means of recovering damages for psychological harms caused by targeted hate speech. One major obstacle to recovery in the US has been the tendency of courts to view the use of racial insults, for instance, as too ordinary or commonplace to count as ‘extreme and outrageous conduct’. Even Delgado’s tort of racial insult would not recognise as a cause of action the mere use of a racial insult; the insult must demean. But once again this opens up significant leeway for courts to treat many commonplace racial insults as non-demeaning. In South Africa the courts have interpreted the delict of injuria using the abstract test of whether the speech ‘impaired the plaintiff’s dignity’. The open-textured nature of this test has led courts to diverge in their understanding of the dignitary threat posed by almost identical forms of hate speech. In this article I argue that these two torts and one delict should be comprehensively rethought. At the level of theory, we should think of them as protecting people’s fundamental rights to human dignity and the expression of human dignity as well as people’s fundamental rights to civic dignity and confidence in their civic dignity. And, at the level of practice, courts should adopt what I am proposing as two new legal tests for degradation and humiliation as a way of interpreting and operationalising these two torts and one delict in cases of targeted hate speech. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Plausibility in the Greek OratorsThomas A. SchmitzWhen Tzvetan Todorov edited a special issue of the journal Communications on vraisemblance (verisimilitude) in 1968, he described the origin of the concept as follows (I paraphrase):One day during the fifth century B.C., there was a trial in some Sicilian city. Neither the plaintiff nor the defendant could produce witnesses or any other form of evidence to corroborate their version of the events, (...) so they had to convince the judges by the sheer power of their arguments. This was the day the principle of vraisemblance was discovered.Todorov's tongue-in-cheek explanation refers to a concept which in Greek was called. The word combines two aspects that modern logic differentiates: the "objective" meaning of probability (what is probable by the laws of nature) and the "subjective" meaning of plausibility (what the addressee of a message considers plausible). Aristotle's use of the word shows that the Greek concept does not draw a sharp distinction between these two elements.1 Their intricate connection becomes evident in, e.g., his Rhetoric (2.25 1402b14-16) where he defines enthymemes. They are drawn from probability, he explains, when they are based upon things which occur regularly or are perceived to occur regularly (). The same definition combines objective, purely statistical probability () and subjective plausibility ().Ancient rhetorical theory in general highlighted the subjective aspect, as is evident in the definition of that Anaximenes (?) gives in his Rhetorica ad Alexandrum (7.3.4 1428a27-35): [End Page 47]Plausibility is achieved if the listeners have examples of what is said in mind. To wit, if somebody were to say that he wants his fatherland to be great and his friends to be lucky and his enemies to be unlucky and similar things, this, in short, will seem plausible. For every listener is aware that he himself has similar desires about these and like matters. Hence we must always take care in our speeches to secure our listeners' concurrence in the matters about which we are speaking. For they are likely to trust these statements most.Anaximenes thus defines as an attentiveness to the public's assumptions rather than an objective quality inherent in certain facts. His aim is to train future orators. Whereas a philosopher such as Aristotle wants to explore the very foundations of rhetorical persuasion and thus is interested in all aspects of, orators will be concerned with persuading their audiences instead of speculating about the laws of nature. Yet it could be argued that the modern distinction is largely illusory. Even the most "objective" probability must appear probable to someone; if there are no observers bringing in their own experiences and presuppositions, there is no probability.From its earliest period, Greek oratory made extensive use of this concept. It is impossible to pinpoint its exact origin2—it probably was "discovered" several times. Anastassiou's suggestion (1981, 358-60) that was first used as a means of reaching a decision in cases of insufficient evidence and was not employed by orators as a strategy of persuasion until later3 strains the imagination. As soon as there was a case of insufficient evidence, both parties were sure to use to further their point of view, trying to persuade the judges of the plausibility of their [End Page 48] version. From early times, certainly was no less a means of discourse than a tool of knowledge about the world.One of our earliest examples for this rhetorical use comes from the Homeric Hymn to Hermes. When Apollo accuses Hermes of having stolen his cattle, Hermes answers that he, a mere baby, is not likely to be a cattle thief (, 265). So far, discussions of this passage4 have seldom mentioned one important feature: Hermes is lying. Against all appearances and probabilities, the mere baby did indeed steal Apollo's cattle. Thus not only is the author of the hymn familiar with this particular form of argument, he also knows that it can be employed deceptively. His use of the device appears to be a playful parody of arguments that he considered typical of court speeches. This seems to presuppose that at the time of... (shrink)

Do terminally ill patients who have exhausted all other available, government-approved treatment options have a constitutional right to experimental treatment that may prolong their lives? On May 2, 2006, a divided panel of the U.S. Court of Appeals for the District of Columbia, in a startling opinion, Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, held “Yes.” The plaintiffs, Abigail Alliance for Better Access to Developmental Drugs and Washington Legal Foundation, sought to enjoin the Food and (...) Drug Administration from refusing to allow the sale of investigational new drugs that had not yet received FDA approval. The terminally ill plaintiffs contended that they quite literally could not wait that long for the drugs. With no other treatment options available, the plaintiffs urged the court to recognize a fundamental, constitutional right to take potentially life-saving or life-prolonging drugs, even though the treatment had not been fully tested through human trials for safety and effectiveness and could not be legally marketed to the public. (shrink)

Wrongful life is an action brought by a defective child who sues to recover for pecuniary or emotional damages suffered as a result of being conceived or born with deformities. In such cases, plaintiff alleges that the negligence of a responsible third party,1 such as physician, hospital, or medical laboratory, is the proximate cause of plaintiff's being born or conceived and thus being compelled to suffer the debilitating effects of a deformity. The child does not sue to recover for the (...) deformity, but rather it is claimed in such cases that the child's life is itself a wrong to the child; hence, the name wrongful life.The present essay explores how the language of rights enters into wrongful life suits and critically evaluates rights appeals in these cases. Philosophical analysis yields the result that the ascription of rights to plaintiffs in wrongful life suits entails consequences we are unwilling to accept. (shrink)

A "wrongful life" suit is based on the purported tortious liability of a genetic counsellor towards an infant with hereditary defects, with the latter asserting that he or she would not have been born at all if not for the counsellor's negligence. This negligence allegedly lies in the failure on the part of the defendant adequately to advice the parents or to conduct properly the relevant testing and thereby prevent the child's conception or birth. This paper will offer support for (...) the thesis that it would be both feasible and desirable to endorse "wrongful life" compensation actions. The genetic counsellor owed a duty of due professional care to the impaired newborn who now claims that but for the counsellor's negligence, he or she would not have been born at all. The plaintiff's defective life constitutes a compensable injury. A sufficient causal link may exist between the plaintiff's injury and the defendant's breach of duty of due professional care and an appropriate measure of damages can be allocated to the disabled newborn. Sanctioning a "wrongful life" cause of action does not necessarily entail abandoning valuable constraints with regard to abortion and euthanasia. Nor does it inevitably lead to an uncontrolled slide down a "slippery slope". (shrink)

Tort law has traditionally prioritized physical over emotional injury claims, due in part to insufficient methods of quantifying the latter. But advances in neuroimaging now make it possible to measure the distinct (and often chronic) neurological damage caused by PTSD, suggesting that it should be treated as both a physical and emotional harm. I argue that this recategorization may help PTSD victims win just restitution, especially for those from marginalized groups whose suffering has traditionally been overlooked and underappreciated by the (...) legal system. Lingering probative and prejudicial flaws will likely limit current judicial applications of PTSD neuroimaging to citations of aggregate research. Until the technology improves in accuracy and sensitivity, individual PTSD neuroimaging on tort plaintiffs will fail to meet most state and federal evidentiary standards. When it does achieve sufficient reliability, neuroimaging precedent for traumatic brain injury may offer guidance on how to incorporate the technology without creating a “CSI effect” that harms plaintiffs unable to access or afford brain scans. PTSD neuroimaging may ultimately foster a greater appreciation for the physical toll of psychological illnesses, catalyzing the movement to dismantle the mind-body divide in tort jurisprudence. (shrink)

Healing the Fracture. Decolonial Ecology, Climate Justice and Human Rights in Climate Case Bonaire This article examines Climate Case Bonaire (Klimaatzaak Bonaire) from the perspective of Malcom Ferdinand’s decolonial ecology theory. Greenpeace and eight individual plaintiffs argue that the Dutch State does not meet its human rights obligations to protect the inhabitants of Bonaire, a Caribbean island that is part of the Netherlands, against the adverse effects of climate change. The article shows how this pending case puts the main (...) principles of decolonial ecology to practice, by departing from the Caribbean environmental experience, integrating ecological and postcolonial critiques, and treating climate change as an issue of justice. The productive synergy between case and theory foregrounds several legal-philosophical implications concerning climate justice and the constraints and potential of integrating human rights in a decolonial approach. (shrink)

Just as court reporters are the “ears” of the courtroom, court artists are the “eyes” of the courtroom. The adage “a picture is worth a thousand words” shows the importance of the integrity of that image. Because the artist’s sketch can convey information pertaining to the health of a defendant/plaintiff/witness, misrepresentation by the artist must be avoided so as to foster honest journalism. From a bioethics perspective, courtroom art should align to the live, physical (visible) presentation, even if one or (...) more elements of the physical presentation has been fabricated. Similarly, invisible illnesses and symptoms should not be added to courtroom sketches. The court artist has a duty of objectivity and clinical honesty in their artwork. This fosters justice and journalistic integrity. (shrink)

As improvements in neuroscience have enabled a better understanding of disorders of consciousness as well as methods to treat them, a hurdle that has become all too prevalent is the denial of coverage for treatment and rehabilitation services. In 2011, a settlement emerged from a Vermont District Court case, Jimmo v. Sebelius, which was brought to stop the use of an “improvement standard” that required tangible progress over an identifiable period of time for Medicare coverage of services. While the use (...) of this standard can have deleterious effects on those with many chronic conditions, it is especially burdensome for those in the minimally conscious state, where improvements are unpredictable and often not manifested through repeatable overt behaviors. Though the focus of this paper is on the challenges of brain injury and the minimally conscious state, which an estimated 100,000 to 200,000 individuals suffer from in the United States, the post-Jimmo arguments presented can and should have a broad impact as envisioned by the plaintiffs who brought the case on behalf of multiple advocacy groups representing patients with a range of chronic care conditions. (shrink)

Over the past two decades, the United States has seen a dramatic increase in the number and magnitude of punitive damages verdicts rendered by juries in civil trials. Probably the most extraordinary example is the July 2000 award of $144.8 billion in the Florida class action lawsuit brought against cigarette manufacturers. Or consider two recent verdicts against the auto manufacturer BMW in Alabama. In identical cases, argued in the same court before the same judge, one jury awarded $4 million in (...) punitive damages, while the other awarded no punitive damages at all. In cases involving accidents, civil rights, and the environment, multimillion-dollar punitive awards have been a subject of intense controversy. But how do juries actually make decisions about punitive damages? To find out, the authors-experts in psychology, economics, and the law-present the results of controlled experiments with more than 600 mock juries involving the responses of more than 8,000 jury-eligible citizens. Although juries tended to agree in their moral judgments about the defendant's conduct, they rendered erratic and unpredictable dollar awards. The experiments also showed that instead of moderating juror verdicts, the process of jury deliberation produced a striking "severity shift" toward ever-higher awards. Jurors also tended to ignore instructions from the judges; were influenced by whatever amount the plaintiff happened to request; showed "hindsight bias," believing that what happened should have been foreseen; and penalized corporations that had based their decisions on careful cost-benefit analyses. While judges made many of the same errors, they performed better in some areas, suggesting that judges (or other specialists) may be better equipped than juries to decide punitive damages. Using a wealth of new experimental data, and offering a host of provocative findings, this book documents a wide range of systematic biases in jury behavior. It will be indispensable for anyone interested not only in punitive damages, but also jury behavior, psychology, and how people think about punishment. (shrink)

In order for a religious conviction to receive protection under the First Amendment or the Religious Freedom Restoration Act (RFRA), it must be a sincere religious conviction. Some critics of the Supreme Court’s ruling in Burwell v. Hobby Lobby have suggested that the plaintiffs in that case and in related cases were motivated more by political ideology than by sincere religious conviction. The remedy, they argue, is for courts to be quicker to scrutinize claims of religious sincerity. In this (...) article, I consider another possibility—namely, that current sociopolitical partisanship in the United States has eroded a clear distinction between political ideology and religious conviction for plaintiffs in cases like Burwell v. Hobby Lobby. If this theory is correct, it is far less obvious what the proper remedy is. I consider and reject the view that newly formed religious convictions with political origins should be treated as less than sincere on those grounds. However, I do argue that whether a religious conviction seems to have been newly generated by political circumstances should be taken into account when deciding religious free exercise cases. I suggest that this could best be accounted for if the courts adopted a balanced interests approach instead of the winner-takes-all “checklist” approaches that have developed under Employment Division v. Smith and RFRA. (shrink)

The settlements surrounding the Exxon Valdez oil spill prove to be an interesting case of retributive and corrective justice in regard to damage to the ecology of the commons, particularly in light of the recent Deepwater Horizon spill in the Gulf of Mexico. After reviewing the harm done to the ecology of Prince William Sound by the spill, and an account of Exxon Corporation’s responsibility, I examine the details of the litigation, particularly the Supreme Court decision in this matter. In (...) the early settlement, there is a clear disproportion between damage awards to plaintiffs representing the current economic users of Prince William Sound versus the trustees for the Sound’s commons. I argue that the disproportion reveals not only a thoroughly economic understanding of ecological commons, but bias in the treatment of its current economic users, as opposed to an understanding of such ecologies as true commons shared over generations. I argue that such biases fail reasonable moral tests and do not stand up to common principles of retributive justice. I end by suggesting a legal maneuver to correct such tendencies. (shrink)