The United States Court of Appeals for the District of Columbia Circuit held that the district court did not have jurisdiction over the American Chiropractor's Association's federal question claims brought under the Medicare Act, despite affirming the ACA's prudential standing to pursue its claims. The Appeals Court reversed the lower court's decision allowing a doctor of medicine or osteopathy to perform manual manipulations of the spine on Medicare beneficiaries to correct a subluxation.The Medicare program “subsidizes medical insurance for elderly and (...) disabled persons.” An enrollee selects a physician or obtains medical services through a managed-care provider, such as a health maintenance organization. (shrink)

v. 1. Books I and II -- v. 2. Books III, IV, and V -- v. 3. Books VI and VII -- v. 4. Books VIII and IX.

“I would prefer not”HERMAN MELVILLE, BARTLEBY THE SCRIVENER: A STORY OF WALL STREET (1853), reprinted in THE PIAZZA TALES 32, 48 (London, Sampson Low, Son & Co. 1856). Scholars have recently challenged the claim in classical deterrence theory that law influences behavior only through the expected sanction imposed. Some go further and argue that law may also “shape preferences,” changing people’s wants and values. In this Article, we analyze existing claims that criminal and civil law alter preferences and conclude that (...) none suggest that the law shapes preferences. We first clarify this preference-shaping claim by elaborating the structure of rational choice theory generally and “preference” in particular. We then investigate three mechanisms of legal influence suggested by the preference-shaping literature: (1) the “serious harm” mechanism; (2) the “social norm” mechanism; and (3) the “self-improvement” mechanism. We then show that each of these mechanisms operates by changing the agent’s beliefs about the attributes or consequences of her choice options rather than by changing her preferences. (shrink)

The path of those who would approach the study of Bentham's writings on Evidence has been considerably smoothed by the recent publication of William Twining's work on the evidence theories of Bentham and Wigmore. The material on evidence is now being tackled by the Bentham Project. It presents no easy task. The central core, The Rationale of Judicial Evidence, edited and published by John Stuart Mill in 1827, exists only in the printed version, the MSS from which Mill worked having (...) disappeared. But a substantial body of related material which survives has yet to be thoroughly investigated, though William Twining has made a gallant start. A new edition of the work hitherto known as ‘An Introductory View of the Rationale of Evidence’, first printed in full in the Bowring edition of the Works of Jeremy Bentham is in preparation. The first fruits of this endeavour is that the title of that work as it should appear in due course in the new Collected Works will be Introduction to the Rationale of Evidence: An Introductory View for the Use of Lawyers as well as Non-lawyers, the title in fact given to the work by Bentham. It is intended that what follows should similarly be of use to non-lawyers as well as lawyers. (shrink)

There is a considerable literature about causation. A great many investigators constantly employ the notion of causation in some form. But with the exception of a very few items, these investigators will find little of use in this literature.

Analyses of complex entities such as bureaucracies, courts, legislatures, and firms typically personify them. A strong conception of personification requires that these entities have rational interests, rational beliefs, and rational normative judgments. On one account of personification, such personified rationality should be aggregate rationality : the interests, beliefs, and normative judgments should depend only on the interests, beliefs, and judgments of the individuals who constitute the complex entity. I argue that aggregate rationality is too strong a normative requirement to impose (...) on courts and legislatures. Key Words: collective rationality • personification • adjudication • doctrinal paradox. (shrink)

This essay disentangles the complex relations between economic logic and legal logic. It distinguishes economic logic as a social process from economic logic as economic reasoning; economic reasoning to explain behavior from economic reasoning to evaluate behavioral outcomes; and legal reasoning in judicial contexts from legal reasoning in other contexts such as legislation and legal enforcement or compliance. It then argues first that economic logic as the logic of social processes deepens our understanding of how law develops and how it (...) influences behavior. But the essay argues second that economic logic plays at best a limited role in the logic of legal reasoning for two reasons. Much legal reasoning seeks to identify the goals we should and do pursue while economic logic takes such goals as given. Further, the instrumental role of economic logic will vary with the institutional context in which legal reasoning occurs. (shrink)

How do we use our mental images of the present to reconstruct our past? Maurice Halbwachs addressed this question for the first time in his work on collective memory, which established him as a major figure in the history of sociology. This volume, the first comprehensive English-language translation of Halbwach's writings on the social construction of memory, fills a major gap in the literature on the sociology of knowledge. Halbwachs' primary thesis is that human memory can only function within a (...) collective context. Collective memory, Halbwachs asserts, is always selective; various groups of people have different collective memories, which in turn give rise to different modes of behavior. Halbwachs shows, for example, how pilgrims to the Holy Land over the centuries evoked very different images of the events of Jesus' life; how wealthy old families in France have a memory of the past that diverges sharply from that of the nouveaux riches; and how working class construction of reality differ from those of their middle-class counterparts. With a detailed introduction by Lewis A. Coser, this translation will be an indispensable source for new research in historical sociology and cultural memory. Lewis A. Coser is Distinguished Professor of Sociology Emeritus at the State University of New York and Adjunct Professor of Sociology at Boston College. (shrink)

This chapter contains section titled: Introduction A Characterization of Economic Analysis of Law Normativity Preference and Obligation Concluding Remarks Note References.

This essay investigates consequentialist reasoning in law. It begins with a brief exposition of the structure of consequentialist reasoning. It then turns to the role of consequentialist reasoning in two aspects of legal decision-making. Legal officials must reason both about ends and about the choice of means to achieve those ends. Legal instrumentalism, however, takes many forms, and different forms identify different officials to engage in the task of reasoning consequentially to choose means. The essay then considers the difficulties posed (...) by the fact that legal decision-makers choose policies or institutions that structure the outcomes they hope to achieve. Finally, the essay considers the role that consequentialist reasoning may play in choosing ends. (shrink)

Law and History contains a collection of essays by prominent legal historians, which explore the ways in which history has been used by lawyers past and present to answer legal questions. In common with earlier volumes in the Current Legal Issues series, it seeks both a theoretical and methodological focus. This volume covers a broad range of topics, from a discussion of the nature of norms in the middle ages to the role of war crimes trials in the twentieth century. (...) It includes wide-ranging historiographical discussions, which examine the nature and aims of the legal historian, as well as contributions which explore the methodology and aims of writers such as Coke, Maine, Weber, Montesquieu, and Kames, who sought to use historical models to explain law. A number of contributions examine developments in legal doctrine, particularly in the nineteenth century, including developments in the law of contract, administrative law, and perjury. These raise important questions about the nature of the legal categorizations which developed in that era. Law and History also includes a collection of contributons on the use of history in twentieth century trials, including the Nuremberg trials, the trial of the Gang of Four, and trials arising from the events in the former Yugoslavia and Rwanda. (shrink)