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

This paper questions the fairness of our current tort-law regime and the philosophical underpinnings advanced in its defense, a theory known as corrective justice. Fairness requires that the moral equality and responsibility of persons be respected in social interactions and institutions. The concept of luck has been used by many egalitarians as a way of giving content to fairness by differentiating between those benefits and burdens that result from informed choice and those that result from fate or fortune. We argue (...) that the theory of corrective justice, along with its institutional embodiment of tort law, is at odds with an egalitarian commitment to fairness because it allows luck an unjustifiable role in determining dissimilar liability for similar wrongs and dissimilar compensation for similar losses to bodily integrity. Many egalitarian political theorists have also recognized, if not defended, the notion of distinct forms of justice, namely corrective, retributive, and distributive. Although theorists of these different forms of justice have been concerned with negating unfair luck inside the operations of each form of justice, there has been little attention to the way in which luck operates to sort cases into each form of justice. We claim that there is a significant way in which luck operates to subject different people to principles of corrective, retributive, and distributive justicewhich flies in the face of the egalitarian value of fairness. After surveying the arguments put forward by theorists defending a categorical distinction between corrective justice and retributive and distributive principles, we argue that although analytical distinctions can be made between different forms of justice (although, we also suggest that the distinctions are not as sharp as some commentators suggest), there is no good reason to defend an acoustic separation between these forms of justice when doing so creates unfair outcomes. (shrink)

The tort law of negligence is one of our principal forms of protection against accidental physical injury. But it is underspecified in one respect and incomplete in another. The common law of negligence is underspecified in that its norm of reasonable care does not register clearly enough the fact that it is reasonable to take greater precautions against some kinds of physical injuries — severe and irreparable ones — than it is against other kinds — mild and fully repairable ones. (...) The common law of negligence is incomplete in that it relies on the award of money damages to induce prospective injurers to exercise reasonable care prospectively, yet does not so much as attempt to fully monetize the harm done by unreasonable risks that result in death. (shrink)

We argue that if there are laws of nature, then there must also be accidents. If the “laws” in a world suffice to determine the world’s entire history, then these “laws” cannot play various central roles characteristic of laws, and thus (we conclude) they are not laws at all. Many proposed accounts of lawhood (primitivist accounts, universals accounts, the Best System Account, the Package Deal Account, essentialist accounts) inappropriately permit worlds with laws but no accidents. We identify two otherwise dissimilar (...) accounts that correctly (on our view) deem such worlds impossible; one is Humean and the other is non-Humean. (shrink)

This paper explores some of the basic similarities and differences between fault-based and no-fault systems of automobile accident insurance from the perspective of a U.S. state and the laws of Macedonia. The majorities of U.S. states have adopted an at-fault system of compensation and therefore share more similarities with Macedonia than the laws of a dozen U.S. states that have adopted a no-fault system. Whereas Macedonia employs a system of nearly universal health care, such is not the case in (...) the United States. The respective states have adopted either a fault-based system or a no-fault system, but in either case issues of coverage for automobile accidents is more complicated for the lack of a nationalized health care system that at minimum acts as a safety net for treatment of injuries related to automobile accidents. It is posited that complications relating to the lack of universal health care coverage in the United States has led to significantly heightened regulatory intervention by the several states such that the similarities between the free-market approach of the states and of civil law (code) systems are greater than the differences. The paper is not based on empirical data of the legal systems or the medical systems, nor is the undeniable interrelation between a medical system and the corresponding legal system with regard to insurance coverage of primarily health-based issues considered other than to highlight how both may play a part in regulation of the automobile accident insurance industry in light the involvement of public health, safety and welfare. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:CRUCIFIXION: ACCIDENT OR DESIGN? Sebastian Moore, O.S.B. Downside Abbey Lastyear I was visited by an old friend from my Liverpool days. Mike and I had worked together with the young of the parish, and one summer the two of us took a couple of boys camping in France, a trial of patience which made us known to each other at some depth. He was in fact a passionately (...) convinced Catholic, and very pastoral with it. We had many and long theological discussions. On his recent visit to Downside, I was showing him and some friends round our church, when, à propos ofquite what I don't remember, he made a remark about the Catholic cult of suffering, and said, "and it's all because ofthe crucifixion, isn't it? Why don't we recognize that the crucifixion was an accident?" I didn't react, because I was dumbfounded at what seemed to be the denial ofthe mystery ofthe cross by a friend who I had no reason to believe had stopped being a Catholic. And I'm sure he hasn't. He would certainly have told me ifhe had. It has taken me over a year to figure out what is going on here, and this would not have been possible without intensive study of the work of René Girard. The only alternative to saying that the crucifixion was an accident is to say that it was "ordained by God." It is only as ordained by God that this horrible event could be presented to people as a divine affirmation that suffering is to be sought and espoused. Also, it is only as ordained by God that the crucifixion can be thought of as "appeasing God" in some way. Both the moral and the dogmatic implication ofthe crucifixion—that suffering is a good thing, and that God required a victim—are grounded in the notion that God required the crucifixion ofhis Son. And it is because this idea is quite unacceptable, unworthy of God and ofthe human mind made in God's image, that my friend concludes that the crucifixion was not required by God, not written into the eternal scheme ofthings, but an accident. 156Sebastian Moore Once the problem is clarified in these terms, more and more instances come to mind, of rejection, by Christians and others, of the whole divine ordination ofthe cross. Gore Vidal refers to Christianity as "that lugubrious religion." Mary Hunt, a prominent American Catholic feminist, introduced a workshop with the statement, "we are not about naked guys nailed to crosses, blood all over the place!" Where divine ordering is accepted the special painfulness and darkness ofthe idea is noted. Anselm refers to the doctrine as the Narnia Chronicles, to commend the notion, by referring to a dark law written into the nature ofthings beyond our comprehension. The children's suggestion that Asian should simply not comply with the Snow Queen's requirement is rejected by Asian with a mysterious impatience—the children justhaven't grown up, like the romantics who, according to Matthew Arnold, "did not know enough." Again, during a day on "the roots of violence" that I led here yesterday there was much questioning about the role ofGod die Father in the crucifixion. The problem is crystallized in the famous cry from the cross, "Why have you forsaken me?" To my confessedly lame suggestion that Jesus was "only quoting a psalm," someone remarked, "to quote that psalm at thatjuncture and not mean it, is somewhatmisleading!" Again it's the same problem. How can God be understood as ordaining the crucifixion, compatibly with the notion of God as all-loving which Christianity of course affirms? Hans Urs Von Balthasar, who is 90% pro-Girard, in the other 10% wants to hold on to something he calls "the wrath of God." Thus the seeming necessity of having God require and ordain the crucifixion is the main crisis of Christian belief. The six-year-old Willie, in Thomas Klise's amazing novel, The Last Western, puts the problem with childlike directness. He keeps interrupting catechism class with, "Why did God kill Jesus?" and is shushed by Sister. I recall that Illtyd Trethowan said to... (shrink)

I identify the special sort of stability (invariance, resilience, etc.) that distinguishes laws from accidental truths. Although an accident can have a certain invariance under counterfactual suppositions, there is no continuum between laws and accidents here; a law's invariance is different in kind, not in degree, from an accident's. (In particular, a law's range of invariance is not "broader"--at least in the most straightforward sense.) The stability distinctive of the laws is used to explicate what it would mean (...) for there to be multiple grades (or degrees) of physical necessity. Whether there are is for science to discover. (shrink)

This article interrogates postmodern and Levinasian conceptions of ethics with recourse to Quentin Tarantino's Reservoir Dogs and certain psychoanalytical concepts formulated in Jacques Lacan's Ethics of Psychoanalysis. Since Levinas, ethical thinking has, in some quarters, moved away from conventional questions about moral agency, rights and social justice, on to a concern towards the ultimate unknowability of `the other'. Ethics depends, for Levinas, on an unpredictable, accidental encounter with something Other, that, in its singularity, demands a response; it is precisely the (...) contingency of the encounter that constitutes the ethical difference from the realm of morality and law. Tarantino's movie narratives are also structured around accidents, disclosing the pain and jouissance of accidental expenditures that lie at the heart of any relation to the Other. In the midst of trauma, the Thing emerges, around which goods and signification circulate, that both delimits the identification of the Good and marks a space beyond moral law that becomes the site of radical ethical questioning. (shrink)

I explore how agent-regret and its object—faultlessly harming someone—can call for various responses. I look at two sorts of responses. Firstly, I explore responses that respect the agent’s role as an agent. This revolves around a feature of “it was just an accident”—a common response to agent-regret—that has largely gone ignored in the literature: that it can downplay one’s role as an agent. I argue that we need to take seriously the fact that those who have caused harms are (...) genuine agents, to ignore this fails to allow these agents to move on. Secondly, following Sussman and MacKenzie, I explore responses that benefit the victim. I argue that we should strive to understand how to configure these responses in a way that does not blame the agent. To do this I look at the role of actions in our self-understanding, as people who have done particular things. I end by briefly considering the ways in which tort law and restorative justice might help us to understand how to appropriately respond to accidentally harming someone. I urge that we need to take this as a starting point to find a better way to respond to the agents of faultless harms. (shrink)

It is often claimed (most recently by Michael Friedman) that Kant intended to justify Newton’s most fundamental claims expressed in the Principia, such as his laws of motion and the law of universal gravitation. In this article, I argue that the differences between Newton’s laws of motion and Kant’s laws of mechanics are not superficial or merely apparent. Rather, they reflect fundamental differences in their respective projects. This point can be seen especially clearly by considering the nature of the various (...) projects undertaken in Germany prior to Kant that discuss the laws of motion. Wolff and his followers qua metaphysicians were especially interested in providing nonempirical justifications of their laws of motion as well as an intelligible account of the fundamental properties of bodies in terms of substance, accident, and force. Maupertuis and Euler, despite often being seen as Newtonians, both drew on traditions other than Newton’s. Physics textbooks (by figures such as Erxleben, Karsten, ‘s Gravesande, and Musschenbroek) vary considerably in their aims, but in none of these cases is Newton’s main argument of the Principia presented. In light of the fact that these projects are distinct in significant ways from Newton’s project, the differences between Newton’s laws of motion and Kant’s laws of mechanics are most likely not merely apparent but reflect the fact that Kant, too, was pursuing a project fundamentally distinct from Newton’s. (shrink)

This chapter contains sections titled: An Economic Model of Carroll Towing Relaxing the Model's Initial Assumptions Efficiency as a Norm Some Limitations of Law and Economics Conclusion References.

Biological knowledge does not fit the image of science that philosophers have developed. Many argue that biology has no laws. Here I criticize standard normative accounts of law and defend an alternative, pragmatic approach. I argue that a multidimensional conceptual framework should replace the standard dichotomous law/ accident distinction in order to display important differences in the kinds of causal structure found in nature and the corresponding scientific representations of those structures. To this end I explore the dimensions of (...) stability, strength, and degree of abstraction that characterize the variety of scientific knowledge claims found in biology and other sciences. (shrink)

This book serves as a compact introduction to the economic analysis of law and organization. At the same time it covers a broad spectrum of issues. It is aimed at undergraduate economics students who are interested in law and organization, law students who want to know the economic basis for the law, and students in business and public policy schools who want to understand the economic approach to law and organization. The book covers such diverse topics as bankruptcy rules, corporate (...) law, sports rules, the organization of Congress, federalism, intellectual property, crime, accident law, and insurance. Unlike other texts on the economic analysis of law, this text is not organized by legal categories but by economic theory. The purpose of the book is to develop economic intuition and theory to a sufficient degree so that one can apply the ideas to a variety of areas in law and organization. (shrink)

The Concept of Physical Law is an original and creative defense of the Regularity theory of physical law, the concept that physical laws are nothing more than descriptions of whatever universal truths happen to be instanced in nature. Professor Swartz clearly identifies and analyzes the arguments and intuitions of the opposing Necessitarian theory, and argues that the standard objection to the Regularity theory turns on a mistaken view of what Regularists mean by 'physical impossibility'; that it is impossible to construct (...) an empirical test that can distinguish between events Necessitarians call 'mere accidents' and those they call 'nornologically necessary', and that the Necessitarian theory cannot account fot human beings' free wills. Other topics in this important work include: the distinction between instrumental scientific laws and true physical laws; the distinction between failure and doom; potentialities; miracles and marvels; predictability and uniformity; statistical and numerical laws; and necessity-in-praxis. (shrink)

The practical explication is employed to explain why accidental fulfilment of the conditions for knowledge leads us to withhold the ascription of it, and what is meant by accidental in this context. The inquirer wants her informant to have some detectable property, X, possession of which correlates well with being right about p, and for this correlation to be law‐like, and for the continuation of the correlation in any given instance to be non‐accidental. At this point, a dilemma arises: either (...) X must entail that S is right about p, or X must give a high probability of being right as to p. This property of p, inherent in the explicated concept of knowledge, thus mirrors a feature which, to judge by the discussion of the Gettier problem, the analysed concept has too. (shrink)

A doctor who lapses and injures her patient, and a driver who lapses and causes an accident, are liable under negligence law for the harm done. But lapse is not necessarily negligence, since reasonable people lapse from time to time. We show that tort liability for “reasonable” lapses distorts doctors’, drivers’, and manufacturers’ incentives to take care. Furthermore, such liability provides potential injurers with incentives to substitute activities which are less prone to lapses with activities which are more prone (...) to lapses, even if such substitution is inefficient. We propose several solutions to the inefficiencies that result from liability for lapses, and argue that under certain circumstances injurers should be entitled to invoke a “lapse defense.”. (shrink)

This chapter contains section titled: Is Biology Like Physics? Laws of Nature: The Standard Picture Why Not Laws of Biology? The Problem of Exceptions Why Not Laws of Biology? The Problem of Accidentalness A Worked Example: The “Area Law” Evolutionary Accidents as Laws of Functional Biology References Further Reading.

Every country's law permits medical experimentation on animals. While some countries protect particular kinds of animals from being subject to experimentation—notably great apes and endangered species—very few place concrete limitations on what researchers may cause animals to suffer, given sufficient scientific justification. What laws do, instead, is establish standards for the humane treatment and housing of animals in labs, and they encourage researchers to limit or seek alternatives to the use of animals, when doing that is consistent with the scientific (...) goals of their research.The system that has evolved in the United States combines elements of sometimes competing regulatory philosophies. The result is a complex, multilayered system that addresses the most important concerns, but, partly because of historical accident, also leaves some gaps. Even proponents of medical research on animals can see obvious ways in which the regulatory structure could be changed to benefit animals. Perhaps more important, though, is the fact that the existing regulatory structure, imperfect though it may be, is elastic enough to accommodate substantial changes that could reduce unnecessary animal suffering. (shrink)

Many philosophers have believed that the laws of nature differ from the accidental truths in their invariance under counterfactual perturbations. Roughly speaking, the laws would still have held had q been the case, for any q that is consistent with the laws. (Trivially, no accident would still have held under every such counterfactual supposition.) The main problem with this slogan (even if it is true) is that it uses the laws themselves to delimit qs range. I present a means (...) of distinguishing the laws (and their logical consequences) from the accidents, in terms of their range of invariance under counterfactual antecedents, that does not appeal to physical modalities (or any cognate notion) in delimiting the relevant range of counterfactual perturbations. I then argue that this approach explicates the sense in which the laws possess a kind of necessity. (shrink)

Our research describes the experiences, views, and attitudes of participants of mediation dialogue groups involving non-related traffic accidents regarding their participation and related topics, such as responsibility, rehabilitation, and restoration. In Belgium, the criminal law holds that victims and offenders need to be informed about the option of entering a restorative mediation process during criminal proceedings. Mediation is voluntary and provided by an independent state-funded organization. We collected the data through individual semi-structured in-depth interviews with participants of two mediation dialogue (...) groups. The data were analyzed through reflexive thematic analysis. We identified three main themes: (a) the importance of shared stories, (b) blurred boundaries, and (c) opportunities and obstacles for repair. Overall, our analysis suggests that mediation involving similar but non-related incidents may provide the participants with valuable knowledge and insights about one another's lives and thoughts and lead to mutual understanding and support. For some, it may even involve a transformative experience. Importantly, our analysis reveals that (a) the presence of a “shared story” and (b) a group dynamic in which participants feel sufficiently at ease with each other are pivotal to achieving a sense of connection and resonance that allows for such mutual understanding and support. These appear to be prerequisites for enabling any kind of healing. (shrink)

Paul Maas extended the law still further: ‘The following rule applies to several metres which contain the rhythm : no word can end after a long anceps, except at the caesura in the middle of the line.’ He lists the types of metre to which the rule applies as the stichic iambic trimeters and trochaic tetrameters of the early iambographers and the Attic tragedians, the dactylo-epitrites of Bacchylides, the trochaic trimeters and dimeters of Alcman's Partheneion, the end of the iambic (...) tetrameters of Sophocles' Ichneutae, and ‘certain rare metres, whose conformity to this rule may be due to accident’. (shrink)

Beginning with the seminal work by Williams and Nagel, moral philosophers have used auto accident hypotheticals to illustrate the phenomenon of moral luck. Moral luck is present in the hypotheticals because two equally careless drivers are assessed differently because only one of them caused an accident. This Article considers whether these philosophical discussions might contribute to the public policy debate over compensation for auto accidents. Using liability and insurance practices in the United States as an illustrative example, the (...) Article explains that auto liability insurance substantially mitigates moral luck and argues that, as a result, the moral luck literature is unlikely to make a significant contribution to this public policy debate. The debate would benefit more from philosophical analysis of victims’ luck, which is not as substantially mitigated by liability insurance. (shrink)

It has been argued contra Humean accounts of scientific laws that on Humean accounts laws are flukes since they are merely true generalizations and it would be an accident or a fluke for a generalization to obtain unless there was a non-Humean law "backing" it. This paper argues that this kind of objection is mistaken. It goes on to describe an account of laws called "the Package Deal Account" that is a descendent of Lewis' BSA on which it is (...) not an accident that our universe has a best systematization. (shrink)

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

When accidents occur and people suffer injuries, who ought to bear the loss? Tort law offers a complex set of rules to answer this question, but up to now philosophers have offered little by way of analysis of these rules. In eight essays commissioned for this volume, leading legal theorists examine the philosophical foundations of tort law. Amongst the questions they address are the following: how are the notions at the core of tort practice to be understood? Is an explanation (...) based on a conception of justice feasible? How are concerns of distributive and corrective justice related? What amounts to an adequate explanation of tort law? This collection will be of interest to professionals and advanced students working in philosophy of law, social theory, political theory, and law, as well as anyone seeking a better understanding of tort law. (shrink)

Drug overdose has recently surpassed motor vehicle accidents to become the leading cause of unintentional injury death in the United States. The epidemic is largely driven by opioids such as oxycodone, hydrocodone, and methadone, which kill more Americans than heroin and cocaine combined. The demographics of overdose have changed over the past few decades as well: according to the latest data, the average overdose victim is now a non-Hispanic white man aged 45-54.These deaths — over 16,000 per year — are (...) almost entirely preventable. Opioid overdose kills by slowly depressing respiration, a process that can take several hours. It can be quickly and effectively reversed by the timely administration of naloxone, an opioid antagonist that works by displacing opioids from the brain receptors to which they attach, reversing their depressant effect. Naloxone, also known as Narcan, has many benefits and minimal risks. Although it is a prescription drug, it is not a controlled substance and has no abuse potential. (shrink)

Determining appropriate legal responses to the conduct of health care workers who endanger patients continues to provoke fierce debate. This is particularly true in the context of criminal law, which offers punishment as an obvious strategy. In the first of three papers which make up this issue's extended Health Care Law feature, Professor Alexander McCall Smith and Dr Alan Merry argue against the prosecution of health care workers except in circumstances where there is very dear evidence of a culpable frame (...) of mind. They do so against the backdrop of their description of proposed changes in New Zealand legislation on medical manslaughter. The catalyst for this change was a judge's refusal to countenance the prosecution of an anaesthetist for manslaughter for inadvertent error. In the authors' opinion the intervention by the New Zealand judge has given rise to a long overdue review of a harsh penal measure. However, in a commentary on McCall Smith and Merry's paper, Ron Paterson argues that all is not what it seems and that--in the light of New Zealand's 'no fault' system of compensation for medical accident--the present system should be maintained. (shrink)

A couple and their five‐year‐old daughter are in a car accident. The parents are not expected to survive. The child is transported to a children's hospital, and urgent treatment decisions must be made. Whom should the attending physician approach to make decisions for the child? When such cases arise in, for example, the hospitals where we work, the social worker or chaplain is instructed to use the Illinois Health Care Surrogacy Act as a guidepost to identify a decision‐maker. But (...) in our state and the country overall, the limitations of such statutes leave hospital workers to make a judgment call among friends, family, and clergy who may come forward. While surrogate decision‐making statutes comprehensively address surrogate decision‐makers for adults, a patchwork of laws—permanency statutes, kinship provider statutes, standby guardianship statutes, and, in some cases, surrogate decision‐making statutes—provide variable decision‐making pathways for children. (shrink)

This book examines responsibility and luck as these issues arise in tort law, criminal law, and distributive justice. The central question is: whose bad luck is a particular piece of misfortune? Arthur Ripstein argues that there is a general set of principles to be found that clarifies responsibility in those cases where luck is most obviously an issue: accidents, mistakes, emergencies, and failed attempts at crime. In revealing how the problems that arise in tort and criminal law as well as (...) distributive justice invite structurally parallel solutions, the author also shows the deep connection between individual responsibility and social equality. This is a challenging and provocative book that will be of special interest to moral and political philosophers, legal theorists, and political scientists. (shrink)

Humean accounts of laws are often contrasted with governing accounts, and recent developments have added pragmatic versions of Humeanism. This paper offers Mitchell's pragmatist, perspectival account of laws as a third option. The differences between these accounts come down to the role of modality. Mitchell's bottom-up account allows for subtle gradations of modal content to be conveyed by laws. The perspectival character of laws is not an accident or something to be eventually eliminated - it is part of how (...) this modal content is conveyed. I conclude with a discussion of the metaphysical commitments in Humeanism as requiring a perspectiveless view of the manifold from outside, and how Mitchell's situated account is better able to account for the substantive notion of possibility involved in scientific laws. (shrink)

One of the distinguishing characteristics of Byzantium, it is well known, in contrast to the medieval West, is the continuous tradition of Roman law and secular courts which the Eastern Empire possessed throughout its existence, as well as a central authority in a position to put these tools into effect. Thus the question of the nature of law and order in Byzantium would seem to be straightforward; whoever wishes to learn how the crime of killing was handled can consult the (...) tenth-century corpus of Roman law, the Basilika, where one finds that the criterion which the law applies is intention to kill, measured by the object or weapon used, and that capital punishment is inflicted even if the act of violence does not result in a death. Those who cause death by accident or through negligence receive a much reduced punishment or none at all. These regulations survive in compilations of Byzantine law until the fall of the empire. (shrink)

Scientific essentialism aims to account for the natural laws' special capacity to support counterfactuals. I argue that scientific essentialism can do so only by resorting to devices that are just as ad hoc as those that essentialists accuse Humean regularity theories of employing. I conclude by offering an account of the laws' distinctive relation to counterfactuals that portrays laws as contingent but nevertheless distinct from accidents by virtue of possessing a genuine variety of necessity.

Marc Lange’s new book on laws offers a restatement and development of the account he proposed in Natural Laws and Scientific Practice (Oxford University Press, 2000), henceforth NLSP, and the new material is helpfully summarized in the preface. Laws and Lawmakers presents the key idea from NLSP in a rather more reader-friendly manner – this idea being roughly that the difference between laws and accidents is that laws, unlike accidents, form a ‘stable’ set, i.e. a logically closed set of truths (...) such that they would all still hold under any counterfactual supposition consistent with the set. So, for example, the natural laws all still hold under counterfactual suppositions such as ‘had this match been struck …’, ‘had Bill Gates wanted to build a gold cube one mile across’ and so on; thus this set is stable. But the set of laws plus the accidental claim ‘there is no gold cube one mile across’ fails to hold under such counterfactual suppositions because had Bill Gates wanted to build a gold cube one mile across, such a cube might well have come into existence; thus this set is not stable. While the basic outline and defence of this idea is provided in Chapter 1, those wishing to delve into the intricate …. (shrink)

According to the conventional view, causal and moral responsibility have a strict hierarchical relationship. Determining causal responsibility comes first; then we sort through the factors to which we have assigned causal responsibility and determine which, if any, should be assigned moral responsibility too. Moral inquiry accordingly stands not only apart but also above causal inquiry. But I am going to argue that this way of looking at causal and moral responsibility is a mistake. Rather than being separate and independent inquires (...) with different purposes and concerns, I am going to argue that finding causal responsibility actually entails finding moral responsibility even when there is no evidence of what we would call traditional fault. Indeed, I am going to argue we cannot find someone causally responsible without finding them morally responsible too. (shrink)

This book provides a current analysis of the legal and ethical challenges in preparing for and responding to chemical, biological, radiological, nuclear and explosive crises. From past events like the Chernobyl nuclear incident in Russia or the Bhopal chemical calamity in India, to the more recent tsunami and nuclear accident in Japan or the Ebola crisis in Africa, and with the on-going threat of bioterrorism, the need to be ready to respond to CBRNE crises is uncontroversial. What is controversial (...) is whether we are on a path that adequately prepares us for the next event. The ethical and legal scholars in this volume hold that much work remains to be done and offer this book to stimulate further reflection and dialogue around CBRNE crises. This is an indispensable book for both students and scholars of bioethics, international law, public health, as well as for regulators and administrators developing policy and legislation related to public health planning and emergency responses. (shrink)

An important feature of some recent jurisprudential writings is the tendency to reject the precept of liberal individualism which affirms the priority of the principles of the "right conduct" over the substantive conceptions of "the good". This rejection, explicit in a recent book by Rogers M. Smith, and implicit in a recent work by Guido Calabresi, leads to strikingly illiberal consequences; hence, this provides indirect confirmation that the priority of the right over the good constitutes the most reliable defense of (...) individual liberty against majoritarian oppression. In Smith, an attempt to replace this priority with the principle of "rational liberty" leads to the disappearance of the guarantees of minority rights against orthodox majorities; in Calabresi, the doctrine of weighing and balancing competing moral principles of "the good" fails to provide an explanation for the strongly held moral intuition that some external preferences have to be disqualified at the outset, before they enter the forum of moral bargaining. (shrink)

On August 29, 2006, the United States Court of Appeals for the District of Columbia Circuit held that an injured ERISA plan beneficiary need not be “made whole” by any injury-related recovery from a third party in order for her ERISA plan to assert subrogation or reimbursement rights if the plan's terms either 1) “unambiguously establish a plan priority” to any funds a beneficiary recovers from a third party, or 2) are reasonably interpreted to establish such a priority by an (...) ERISA plan fiduciary clearly authorized to do so.In 1991, appellants William and Judith Moore purchased an ERISA health insurance policy from Blue Cross Blue Shield of the National Capital Area and its wholly-owned subsidiary CapitalCare. On September 10, 1992, the Moores’ daughter Alistaire, a plan beneficiary, was seriously injured in an automobile accident. (shrink)

The primary aim of this chapter is to show that several missteps made by others in in their thinking about law as an artefact are due to misconceptions about the role of intentions in understanding law as an artefact. I first briefly recap my own contention that law is a genre of institutionalized abstract artefacts (put forth in The Functions of Law (OUP 2016) and subsequent papers), mostly following Searle’s understanding of institutions and Thomasson’s understanding of public artefacts. I highlight (...) the central place that this theory affords law’s functions, without requiring the theorist to say that possession or performance of the function is either necessary or sufficient for inclusion in the class of law. Some of the most common misunderstandings are exemplified in Brian Leiter’s paper ‘Legal Positivism about the Artifact Law’. He thinks that holding an intentionalist view of artefacts commits the theorist to privileging drafters’ intentions when interpreting law. (It doesn’t.) He also has confusions about the differences between artefact tokens and artefact types leading him to a problematically broad understanding of artefacts. Another problem can be seen in thinking that functional understandings of artefacts are vulnerable to the same problems that arise in functional explanations for biological systems. I go on to consider the work of Luka Burazin and Corrado Roversi, addressing worries that making intentionality central to artefacts implies too much conscious thought is required to make one, noting that several theories of intentionality do not require conscious thought in the execution of intentional action. While those who think a central place for intentionality threatens to leave us unable to explain customary law, this can be dealt with by noting the important distinction between customary rules and customary laws (where the latter requires a decision to enlist public aid in redressing violations). I claim that authors’ intentions are communicated requests for the artefacts’ audiences to see the artefacts as members of their putative kinds. Finally, I address the question of whether or not legal systems are themselves artefacts and institutions, given that they may or may not have been intentionally created. An early lawgiver might have created a legal system by accident in the process of handing down the first laws. I raise the possibility that we might want to impute intentionality to necessary by-products of artefact creation, seeing those by-products as artefacts as well. (shrink)

Suppose that unobtanium-346 is a rare radioactive isotope. Consider: (1) Every Un346 atom, at its creation, decays within 7 microseconds (µs). (50%) Every Un346 atom, at its creation, has a 50% chance of decaying within 7µs. (1) and (50%) can be true together, but (1) and (50%) cannot together be laws of nature. Indeed, (50%)'s mere (non-vacuous) truth logically precludes (1)'s lawhood. A satisfactory analysis of chance and lawhood should nicely account for this relation. I shall argue first that David (...) Lewis's Humean picture accounts for this relation only by inserting this relation ‘by hand’. Next, I shall argue that this relation between law and chance also threatens a radically non-Humean picture of laws and chances. Finally, I shall offer an account of natural law that nicely explains the relation between chancy facts and deterministic laws. This explanation is not ad hoc because it derives the relation from the very same features of lawhood that account for the laws' special relation to counterfactuals and explain how the laws (unlike the accidents) possess a variety of necessity. The reason that a chancy fact such as (50%) keeps (1) from being a law, without keeping (1) from being true, is ultimately that a chancy fact constrains the subjunctive facts and (1)'s lawhood, unlike (1)'s truth, depends upon the subjunctive facts. (shrink)

Untoward injuries are unacceptably common in medical treatment, at times with tragic consequences for patients. The phrases 'an epidemic of error' and 'the medical toll' have been coined to describe this problem of 'iatrogenic harm', which it has been suggested may have contributed to 98,000 deaths per year in the US. Some of these incidents are the result of negligence on the part of doctors, but more usually they are no more than inevitable concomitants of the complexity of modern healthcare. (...) This book is fundamentally about distinguishing the former from the latter. Although medicine is used as the book's primary example, the points made apply equally to aviation, industrial activities, and many other fields of human endeavour. The book advocates a more informed alternative to the blaming culture which has increasingly come to dominate our response to accidents, whether in the medical field or elsewhere. (shrink)

La metafísica de la Superveniencia Humeana ha sido atacada por dos alternativas explícitamente anti-Humeanas: el Realismo Nómico y el Esencialismo Disposicional. Cada una de estas alternativas ofrece una explicación ontológica de la actual distribución de instanciaciones de primer orden. Ambas sostienen, contra el Humeano, que esta distribución no es un accidente metafísico. En este artículo argumento que las explicaciones ofrecidas por ellas son ilusorias. -/- The metaphysics of Humean Supervenience has been attacked by two explicitly anti-Humean alternatives: Nomic Realism and (...) Dispositional Essentialism. Each one of these alternatives offers an ontological explanation of the actual distribution of first-order instantiations. They both claim, against the Humean, that this distribution is not a metaphysical accident. In this paper, I argue that the explanations offered by them are illusory. (shrink)

It has long been held that humans need government to impose social order on a chaotic, dangerous world. How, then, did early humans survive on the Serengeti Plain, surrounded by faster, stronger, and bigger predators in a harsh and forbidding environment? Pirates, Prisoners, and Lepers examines an array of natural experiments and accidents of human history to explore the fundamental nature of how human beings act when beyond the scope of the law. Pirates of the 1700s, the leper colony on (...) Molokai Island, prisoners of the Nazis, hippie communes of the 1970s, shipwreck and plane crash survivors, and many more diverse groups--all existed in the absence of formal rules, punishments, and hierarchies. Paul and Sarah Robinson draw on these real-life stories to suggest that humans are predisposed to be cooperative within limits. What these "communities" did and how they managed have dramatic implications for shaping our modern institutions. Should today's criminal justice system build on people's shared intuitions about justice? Or are we better off acknowledging this aspect of human nature but using law to temper it? Knowing the true nature of our human character and our innate ideas about justice offers a roadmap to a better society. (shrink)

This article maintains that it is the constitutional responsibility of the courts, here the courts of the State of Michigan, to engage in judicial policymaking in the process of formulating common law rules. The article is written in response to the views expressed by some Justices of the Michigan Supreme Court that separation of powers concerns should impose significant limits on the power of the courts to establish and develop the common law of Michigan. Specifically, the contention is that policymaking (...) is exclusively the province of the legislature, so that the courts cannot properly formulate common law rules that may have significant social and economic effects. The article strongly disagrees with the proposition that there is any kind of constitutional constraint, either prudential or structural, on the power, and indeed, the constitutional responsibility of the Michigan courts (or the courts of any state) to engage in judicial policymaking in the process of formulating common law rules.The judicial power given to the Michigan courts by the Michigan Constitution includes the power to do what courts have always done in the Anglo-American legal system. The judicial power gives the courts the responsibility to adjudicate controversies between private persons and in the process to develop a common law through the workings of binding precedent and stare decisis. In so doing, the courts may properly take into account considerations of social and economic policy just as the legislature does when it engages in the process of enacting legislation. The difference between what the courts do and what the legislature does is a difference in process, not a difference in substance. Judicial policymaking takes place within the judicial process, that is, in the adjudication of controversies between persons in which the courts promulgate common law rules. The common law develops in a line of growth through the workings of binding precedent and stare decisis, and to the extent that there are limitations on the development of the common law, these are limitations that inhere in the judicial process itself. When the courts, for example, consider whether a new claim or a new defense should be recognized by the common law, they must consider whether that new claim or defense properly follows in the line of growth from existing doctrine and precedent. But if the courts conclude that it does, that is, if the claim or defense is consistent with the line of growth of existing doctrine and precedent, the courts are not constrained from recognizing the claim or defense on the ground that the substance of the claim or defense is a matter for the legislature rather than for the courts or that the resulting common law rule may have significant social and economic effects. The legislature, in contrast, enacts legislation through the legislative process. That process is a freewheeling one, often dependent on political compromise and completely unrestrained by the kind of limitations that inhere the judicial process. There is no legislative concept of line of growth, and the legislature can and often does enact legislation that brings about fundamental societal change or reverses the course of public policy. In our constitutional system, the most important questions of public policy are, of course, determined by the Legislature. Where the legislature disagrees with the policy choices reflected in a common law rule, the legislature has the power to enact legislation changing the common law rule. But there are many areas of private law where the legislature has not acted. In our constitutional system, where the matter in issue is not covered or preempted by legislation, the courts may formulate a common law rule to cover that matter, and in so doing may engage in judicial policymaking. Judicial policymaking is a part of the development of the common law, and the courts cannot avoid their responsibility to engage in judicial policymaking to the extent that it is necessary in the process of formulating the common law. As a constitutional matter, there are no separation of powers considerations that prohibit the courts from engaging in judicial policymaking. This part of the article traces judicial policymaking and the common law back to the seminal writings of Oliver Wendell Holmes, Roscoe Pound and Benjamin Cardozo.The article then discusses at length judicial policymaking and the development of the common law in Michigan. It shows that the clearest history of judicial policymaking in development of the common law is the liability-limiting rules of the late nineteenth century that were promulgated in the wake of the Industrial Revolution to protect the newly-emerging industries. During that time the courts in Michigan and elsewhere grafted on to the general principles of negligence law liability rules such as assumption of risk, contributory negligence, and the fellow servant doctrine, all of which had the effect of denying recovery to workers and other victims of industrial accidents. Beginning in the middle of the twentieth century, however, the Michigan Supreme Court began excising its constitutional power to make changes in the common law, expanding significantly the scope of tort liability in Michigan. Emphasizing that "rules created by the court could be altered by the court," and that the court had a "corrective responsibility when dealing with judge-made law," the Court, in approximately a 30 year period: eliminated the imputed negligence doctrine, under which the driver's negligence was imputed to the passenger in the passenger's suit against a third party; eliminated charitable immunity as a defense to a tort action; held that a wife could maintain at tort action for loss of her husband's consortium; abrogated the defense of assumption of risk, which had been applied outside of the employment area, held that there could be recovery for pre-natal injuries and finally abolished contributory negligence as a complete bar to recovery in favor of a comparative negligence approach. In these cases the Court discussed the relevant policy considerations influencing their decisions with respect to the common law rule at issue. In the last quarter century, the Court continued to take into account policy considerations in developing the common law, but not infrequently there was disagreement on the Court as to where policy considerations should lead, with some Justices arguing that policy considerations supported the imposition of tort liability, while other Justices argued that they did not.The article concludes that it has been demonstrated that in the development of the common law of Michigan, the Michigan Supreme Court has at all times engaged in judicial policymaking. From the liability-limiting rules of the late nineteenth century designed to protect the newly-emerging industries in this state, to the Court's exercise of its power to change the common law in Michigan over a 30 year period by expanding significantly the scope of tort liability in Michigan, to its recognition of new claims, such as a child's right to recover for loss of a parent's consortium caused by a negligent injury, to its imposition of limits on tort recovery, such as the open and obvious doctrine, the Court has invoked considerations of policy in support of its decisions. In these cases, the Court's invocation of policy considerations was sometimes accompanied by substantial disagreement among members of the Court over where policy should lead, but at no time did the Court ever suggest that separation of powers considerations should somehow operate as a kind of restraint on the Court's use of policy in the development of the common law. It is the power and responsibility of the Michigan Courts under the Michigan Constitution to make policy choices in formulating the common law. (shrink)

Ceteris-paribus clauses are nothing to worry about; aceteris-paribus qualifier is not poisonously indeterminate in meaning. Ceteris-paribus laws teach us that a law need not be associated straightforwardly with a regularity in the manner demanded by regularity analyses of law and analyses of laws as relations among universals. This lesson enables us to understand the sense in which the laws of nature would have been no different under various counterfactual suppositions — a feature even of those laws that involve no ceteris-paribus (...) qualification and are actually associated with exceptionless regularities. Ceteris-paribus generalizations of an‘inexact science’ qualify as laws of that science in virtue of their distinctive relation to counterfactuals: they form a set that is stable for the purposes of that field. (Though an accident may possess tremendous resilience under counterfactual suppositions, the laws are sharply distinguished from the accidents in that the laws are collectively as resilient as they could logically possibly be.) The stability of an inexact science's laws may involve their remaining reliable even under certain counterfactual suppositions violating fundamental laws of physics. The ceteris-paribus laws of an inexact science may thus possess a kind of necessity lacking in the fundamental laws of physics. A nomological explanation supplied by an inexact science would then be irreducible to an explanation of the same phenomenon at the level of fundamental physics. Island biogeography is used to illustrate how a special science could be autonomous in this manner. (shrink)