Fertility, Disability and Discrimination

'Societal Disregard for the Needs of the Infertile' by David Orentlicher in the forthcoming Oxford Handbook of Reproductive Ethics comments -

Social policies in the United States often favor families and encourage reproduction — but not for infertile persons. When the infertile want to have children, health care funding policy, legal rules, and popular sentiments generally are not very sympathetic. Infertile couples typically must rely on their own resources to procreate, without reimbursement by their health insurance, the law may erect barriers to assisted reproductive services, as with prohibitions against surrogate motherhood, and infertile couples may not find much concern for their plight from friends or even some family members. 

Such discounting of the needs of the infertile is unjust and reflects a misunderstanding of the nature of infertility. Infertility is a disability — and a very serious one for some people — yet it is often misperceived as not a real handicap or even as enabling. Scholars writing on reproductive issues frequently valorize life without children. These societal sentiments are reflected in anti-discrimination law. The protections that persons with other disabilities enjoy do not extend to the infertile. Respect for the fundamental interest in reproduction justifies changes in social attitudes and reforms in the law to ensure fair treatment for the infertile.

Orentlicher goes on to comment -

Public policy in the United States gives insufficient attention to the interests of infertile persons because infertility does not seem to be viewed as a serious enough problem. 

Rather than viewing infertility as a significant disability and infertile persons as deserving assistance in their efforts to procreate, many Americans dismiss the idea that infertility is disabling. To be sure, as discussed below, the law will protect infertile people from some forms of discrimination. For example, if an employer refused to hire an infertile person, the Americans with Disabilities Act would make the employer’s refusal unlawful. But that is not the kind of discrimination that infertile persons face. 

Rather, they face barriers to receiving medical treatment that will overcome their infertility, barriers that people with other medical problems do not face. And these barriers reflect a common view that being infertile is not really disabling. 

There is much evidence for the view that people do not see infertility as really disabling in the way emphysema, heart disease, paraplegia, or blindness is seen as disabling, that fertile persons frequently dismiss the idea that infertility is a significant problem. Before discussing the evidence, I will explain why infertility is a disability. … “Disability” refers to the existence of substantial limitations on a person’s “major life activities.” 

Major life activities include functions like seeing, hearing, walking, speaking, learning, and working. Commonly, disability is caused by an impairment, which is defined as a “physical or mental anomaly.” If a person has the impairment of paralyzed legs, then the person is disabled with respect to the major life activity of walking. A person with the impairment of advanced emphysema may be disabled with respect to the major life activities of walking or working. Infertile persons generally meet the definition of a disability because they have an impairment of their reproductive tracts that substantially limits the major life activity of procreation. Having children is an interest of fundamental importance to many people; for many people, it is the most important endeavor they undertake in their lives. Indeed, it would be odd to identify working at a job as a major life activity but not similarly recognize bearing and raising children as a major life activity. Because of the central role that reproduction plays in the lives of so many individuals, the Supreme Court has held both that procreation is a constitutionally-protected right and that reproduction is a major life activity. 

To be sure, some would argue that infertility is an inevitable result of aging and therefore represents a natural state, not a disabling condition. But many infertile persons are of normal childbearing age and have lost their reproductive capacity through illness or injury. Moreover, many well-recognized disabilities, including osteoporosis, are a common result of ageing. If we are willing to provide hip replacements for seniors with reduced bone density to overcome their disabilities, we also should be willing to provide treatments to people with infertility to overcome that disability. 

Infertility has psychological, as well as physical, implications — the emotional impact of infertility can be substantial, particularly for women. For people who want to reproduce, but cannot, the loss can be devastating … 

Infertility is not seen as disabling Despite the disabling nature of infertility, it often is not seen as disabling. Studies of infertile couples by academic scholars are illustrative. For example, in her research on infertility, Elizabeth Britt found that “the infertile often feel as if the seriousness of their condition is trivialized.” Disclosure of infertility might elicit “jokes about the couple not knowing how to have sex or about the fun the couple must be having trying to conceive a child.” Other people “might suggest that infertility is a blessing in disguise” or that it is not as bad as other medical conditions since reproduction “supposedly is so optional.” Or they might say something like, “Oh well, so what so you don’t have to have a baby, so what, just adopt.” 

Margarete Sandelowski found that infertility “is too often dismissed as an unfortunate physical impairment, but one perfectly compatible with good health and life.” An infertile woman might be reminded that there are far worse problems, and be told by relatives that, “‘At least you’ve got a nice husband and a nice house and plenty of food. . . . At least you don’t have cancer.’” Couples in her study of infertility “complained that infertility was not viewed as a ‘serious disease’ worthy of the resources people afflicted with other diseases can get.” Similarly, Arthur Greil found from his interviews with infertile couples that they criticized fertile people for “treating the plight of the infertile as if trivial and inconsequential.” 

The infertile also were troubled that fertile individuals “acted as if . . . infertility were a small and relatively easy problem to solve.” As one woman reported, her friends might say, “‘Why don’t you go on a cruise?’ Or ‘Why don’t you just relax? And then you’ll get pregnant.’” According to Greil, infertile couples do not feel like they are viewed as inferior because of their infertility. Rather, the discrimination they feel arises out of a “failure of others to acknowledge the seriousness of infertility.” In one typical remark, an infertile person observed, “I think [fertile people] discriminate by making light of the problem.” 

Discussion of IVF by legal and other scholars also indicates that infertility may not be seen as a real disability. In the constitutional context, law professors Carl Coleman and Radhika Rao have considered whether a ban on access to IVF or other infertility treatments would violate an infertile couple’s constitutional right to procreate. Both of them quickly dismiss the interests of infertile couples in constitutional protection and conclude that restrictions on access to infertility treatments would be constitutionally valid.  In his analysis, Coleman observes that the Constitution cannot protect every interest that people assert as deeply important to them and gives the smoking of marijuana as an example of an asserted interest that should not be given constitutional protection. 

The idea that the desire to have children and the desire to smoke marijuana are comparable is troubling. Or consider an argument against IVF that biology professor Ruth Hubbard articulated in the early days of assisted reproduction. In response to the view that women have a right to bear children, Hubbard wrote that it “had never occurred to [her] that every woman has a right to bear a baby any more than that every woman has a ‘right’ to a 34 inch bustline or a 24 inch waist.”  Hubbard went on to acknowledge that many women genuinely suffer from their inability to have children but that the answer is not to provide IVF, which she viewed “to be a path to disaster, ”but to engage in “strong, deep, feminist, consciousness raising.” 

Anthropology professor Eric Hirsch reported a similar perspective from a British woman who participated in his discussions of assisted reproduction. As Hirsch described it, the woman worried that “children just become the next thing in the long list of material possessions one is supposed to have.” Or as the woman put it, “it’s like you get a car, a dishwasher and then a dog and then you think what next.” 

The view that infertile couples are selfish and materialistic is a common one.   Some scholars are even harsher in their critiques of women who pursue assisted reproductive technologies. A number of feminist writers have rejected the possibility that an infertile woman’s desire to reproduce reflects a genuine expression of autonomy and instead attributed the desire to “nothing more than the result of the patriarchal mandate that she reproduce.” Not only do these scholars deny the authenticity of the infertile woman’s desire to procreate, they also portray her efforts to reproduce as harmful to other, poorer women — when the privileged woman under takes expensive assisted reproduction treatments, she depletes resources that could be used to meet basic health care needs of underprivileged women.  Moreover, it is argued, infertile women are racist, eugenic, and selfish when they exhibit a preference for a white, biologically-related, infant over an orphaned, older, minority child — even though fertile couples exhibit the same preferences.

Money

'$=€=Bitcoin?' by Hilary J. Allen comments 

Bitcoin (and other virtual currencies) have the potential to revolutionize the way that payments are processed, but only if they become ubiquitous. At that scale, this Article argues that virtual currencies would pose threats to the stability of the financial system – threats that have been largely unexplored to date. Such threats will arise because the ability of a virtual currency to function as money is very fragile – Bitcoin can remain money only for so long as people have confidence that it will be readily accepted by others as a means of payment. Unlike the U.S. dollar, which is backed by both a national government and a central bank, and the euro, which is at least backed by a central bank, there is no institution that can shore up confidence in Bitcoin in the event of a panic. 

The law is very limited in its ability to contain either the development of virtual currencies, or the fragilities they may introduce into the financial system. While this Article explores some regulatory measures that might mitigate the systemic risks posed by virtual currencies, the only real way to contain such risks is for regulated banks to outcompete virtual currencies by offering better payment services, thus consigning virtual currencies to a niche role in the economy. This Article therefore concludes by exploring how the distributed ledger technology pioneered by Bitcoin could be stripped from the virtual currency and adapted to allow regulated banks to provide vastly more efficient payment services.

Productivity Commission review of Australia's IP regime

The Treasurer has requested the Productivity Commission to undertake an inquiry "into Australia's intellectual property arrangements, including their effect on investment, competition, trade, innovation and consumer welfare".

The review is to be completed within a year. The Commission is to "undertake an appropriate public consultation process, inviting public submissions and releasing a draft report to the public".

A skeptic would be forgiven for thinking that the inquiry is an ailing Government's effort to sidestep contentious copyright and patent disputes as we head towards the election. I've elsewhere savoured the irony of the Commission being handed the Treasurer's hot potato, given the Commission's hard-headed and persuasive wariness about 'magical Free trade agreements such as the TPPA. The ARLC is over-extended and the Government abolished the inconvenient Advisory Council on Intellectual Property last year

The Treasurer states that

Australia provides statutory protection for intellectual property through patents, trade marks, geographical indications, registered designs, plant breeders' rights, copyright, moral rights, performers' rights and circuit layout rights. Current laws are consistent with treaties under the auspices of the World Trade Organization, the World Intellectual Property Organization and the World Health Organization to which Australia has acceded, as well as bilateral and regional trade agreements.

The global economy and technology are changing and there have been increases in the scope and duration of intellectual property protection. The Australian Government seeks to ensure that the appropriate balance exists between incentives for innovation and investment and the interests of both individuals and businesses, including small businesses, in accessing ideas and products.

The Terms of Reference indicate that

The Australian Government wishes to ensure that the intellectual property system provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, competition, investment and access to goods and services.

In undertaking the inquiry, the Commission should:

• examine the effect of the scope and duration of protection afforded by Australia's intellectual property system on: research and innovation, including freedom to build on existing innovation access to and cost of goods and services competition, trade and investment. 

• recommend changes to the current system that would improve the overall wellbeing of Australian society, which take account of Australia's international trade obligations, including changes that would:

• encourage creativity, investment and new innovation by individuals, businesses and through collaboration while not unduly restricting access to technologies and creative works 

• allow access to an increased range of quality and value goods and services provide greater certainty to individuals and businesses as to whether they are likely to infringe the intellectual property rights of others

• reduce the compliance and administrative costs associated with intellectual property rules.

In undertaking the inquiry and proposing changes, the Commission is to have regard to:

• Australia's international arrangements, including obligations accepted under bilateral, multilateral and regional trade agreements to which Australia is a party

• the IP arrangements of Australia's top intellectual property trading partners and the experiences of these and other advanced economies in reforming their IP systems to ensure those systems meet the needs of the modern economy 

• the relative contribution of imported and domestically produced intellectual property to the Australian economy, for example to Australia's terms of trade and other economic impacts of IP protection, including on inward investment 

• the Government's desire to retain appropriate incentives for innovation and investment, including innovation that builds on existing work, and production of creative works 

• the economy-wide and distributional consequences of recommendations on changes to the existing intellectual property system, including on trade and competition 

• ensuring the intellectual property system will be efficient, effective and robust through time, in light of economic and technological changes 

• how proposed changes fit with, or may require changes to, other existing regulation or forms of assistance (such as research subsidies) currently providing incentives for the development of intellectual property 

• the findings and recommendations of the Harper Competition Policy Review in the context of the Australian Government's response, including recommendations related to parallel import restrictions in the Copyright Act 1968 and the parallel importation defence under the Trade Marks Act 1995 

• the findings and recommendations of the Advisory Council on Intellectual Property's Review of the Innovation Patent System, the Senate Economics References Committee's inquiry into Australia's innovation system, the Australian Law Reform Commission's Copyright and the Digital Economy report. 

Data Protection Standards

'Technical standards and the draft General Data Protection Regulation' by Eleni Kosta and Kees Stuurman in Delimatsis (ed), The Law, Economics and Politics of International Standardization (Cambridge University Press, 2016) comments

Privacy issues relate to a wide range of aspects of technical operations, including availability and integrity of services and data, confidentiality, data classification mechanisms, vendor lock-in, certification, audit and testing and so forth. The application of the European legal framework on the protection of personal data in online environments, in particular the Data Protection Directive (1995/46/EC), is a highly debated issue, not only in relation to the trans-border transfers of data originating from a European Union (EU) Member State but also to the practical application of the principles contained in the Directive in data processing operations. The current statutory framework for data processing includes a number of main principles that are directly linked to the architecture of systems and applications without any explicit reference to technical standards. However, the Directive is currently under review, and the revised European data protection framework seems to have a stronger focus on the role and significance of technical standards. The European Commission proposed the replacement of the Directive with a Regulation, which not only contains updates to existing principles and provisions of the Directive but also introduces novelties with regard to the processing of personal data. One such novelty is the explicit reference to the importance of technical standardisation initiatives in relation to data protection.  

De Hert and Papakonstantinou commented that ‘despite the fact that [technical standards] focus on the effectiveness of processes rather than an adequate level of (human rights) protection, [they] are of relevance to the international data privacy field.’ The protection of personal data has traditionally been seen as part of the protection of information in computer systems. However, the proposed General Data Protection Regulation (GDPR) puts special emphasis on the need for the development of specific standards for a number of data protection issues. The enactment of the GDPR may for instance introduce a ‘right to data portability’ (i.e. the right to transfer data from one electronic processing system to and into another, without being prevented from doing so by the controller). As a precondition and to further improve access of individuals to their personal data, it provides the right to obtain from the controller a copy of those data in a commonly used electronic and structured format) and the data protection by design and by default principle. Such novelties will put even more emphasis on the key importance of technical standards in relation to privacy compliance. Therefore, the focus of this chapter is on the role of technical standards on data processing operations in view of the ongoing review of the European data protection framework.  

In particular, this chapter explores the complex relation between data protection and technical standards from a legal perspective. It first describes the relationship between the technical standards and the European data protection legal framework. The chapter also reflects on the development of privacy standards in complex technological environments, such as cloud computing and radio-frequency identification (RFID) applications. It finally examines the role of technical standards in the GDPR and analyses the specific provisions of the GDPR that relate to standardisation.

Finding the nature of law?

'The Misguided Search for the Nature of Law'  (Osgoode Legal Studies Research Paper No. 34, 2015) by  Dan Priel comments

Within analytic jurisprudence the question “what is law?” is often taken to be of primary significance for two distinct reasons. First, it is thought to assume logical priority to normative questions: before one can say something about law, one needs to know what law is. Second, this inquiry is also thought to be uniquely philosophical, a non-empirical, pre-sociological investigation that can then tell empirical investigators what they need to look for if they want to find instances of law in the world. This article offers a general critique of this view. I start with examining several arguments claiming that jurisprudence is not conceptual, since if these arguments are true, they imply that critiques of conceptual jurisprudence are misguided. I argue that such arguments involve a terminological change more than a challenge or a substantive alternative to conceptual jurisprudence. I then turn to examining conceptual jurisprudence itself. I distinguish between two families of views on concepts, “externalism,” which conceives of concepts as abstract entities, and “internalism,” which conceives of concepts as basic units of thought. Because of this difference, these two views lead to two quite different characterizations of conceptual jurisprudence, each calling for different response. Nevertheless, I argue that both are unsuccessful. I offer a series of arguments against each view: the main argument against the externalist position is that it is viciously circular (as it necessarily assumes the view of law it defends); the main argument against the internalist view is a bad form of sociology. I conclude with brief hints as to what a non-conceptual jurisprudence would look like.

Priel states

The question I want to examine in this article looks deceptively simple: What is the object of jurisprudence? What is it about? For many legal philosophers the answer to this question is obvious: Jurisprudence is about law. Stated in a bit more detail, jurisprudence is, first and foremost, a value-neutral description of the nature of law. What I hope to show is that this seemingly obvious answer hides more than it reveals. Presented slightly differently, my target is what is sometimes called “conceptual jurisprudence,” an inquiry about law that purports to explicate, elucidate, or describe the “concept,” the “essence,” or the “nature” of law. In this essay I am trying to get a clearer sense of what is the thing being explicated, elucidated, or described. I consider various ways of answering this question. My conclusion is that conceptual jurisprudence is a hopeless enterprise. If this is true, this requires some fundamental rethinking of what is still perceived as a fundamental aim of philosophical reflection about law.  

To many defenders of this enterprise, the search for the nature or concept of law calls for clarifying and defending “conceptual analysis,” a traditional philosophical practice aimed at identifying the true nature of things. Much of the work on the aims of jurisprudence thus focused on the viability of conceptual analysis in general. Among those, Brian Leiter has probably been the most persistent critic of conceptual jurisprudence. He did so mainly by relying on general criticisms of conceptual analysis, which he then applied to the domain of jurisprudence. At times he drew on W.V.O. Quine’s work against the analytic/synthetic distinction. Quine’s argument, in a nutshell, was that conceptual analysis seeks to discover analytic truths, i.e. truth in virtue of the meaning of terms alone. If (as Quine argued) there are no analytic truths, then there is no such thing as conceptual analysis, of law as much as of anything else. A second line of argument in Leiter’s criticism of conceptual jurisprudence, again following more general critiques of conceptual analysis, has been to argue that philosophers’ failure to provide an adequate analysis of even one concept strongly suggest (even if they do not prove) that the entire enterprise is misguided.  While I do think defenders of conceptual jurisprudence have done little (even in response to Leiter’s work) to acknowledge, let alone address, the many works challenging conceptual analysis in general philosophical literature, I think Leiter’s strategy is inadequate for two reasons. First, in some of his writings Leiter seems to suggest that there is universal agreement outside legal philosophy that conceptual analysis is dead. He writes, for example, “post-Quine, we know (don’t we?) that the analytic-synthetic distinction does not mark an epistemic difference but a socio-historical one.” No doubt, if conceptual analysis in general is indefensible, the same must be true of any special case of it. But the philosophical terrain is not as clear as Leiter presents it, and Quine’s arguments are not nowadays universally accepted. The second, and to my mine more important, shortcoming of Leiter’s approach, is its inattention to the details of conceptual jurisprudence. Different writers mean different, sometimes inconsistent, things when they refer to “conceptual jurisprudence,” when they say they seek to identify “the concept/essence/nature of law,” or when they say they are answering the question “what is law?” Until these different senses are disentangled, a defender of conceptual jurisprudence may reply that what she means by conceptual jurisprudence is not affected by Quine’s (and by implication, Leiter’s) critique. My approach therefore takes on the particular arguments found in jurisprudential literature and assesses each of them individually.  This makes for a longer, and perhaps more arduous, discussion, but given the comprehensiveness of my case against conceptual jurisprudence, this approach is inescapable.  

To illustrate this last point about the need to take individual arguments on their own, I will begin with a view that at first blush may appear to be entirely congruent with Leiter’s. Cognizant perhaps of the bad reputation of conceptual analysis in contemporary philosophy, several legal philosophers have argued that it is a mistake to think that jurisprudence has much to do with conceptual analysis at all. I have no doubt Leiter intended his critique to capture the work of these scholars, but so long as they claim that jurisprudence has little or nothing to do with conceptual analysis, they can declare criticisms of conceptual analysis, however sound, as having no bearing on jurisprudence. It is therefore important to examine these arguments closely and show why their arguments fail, why what are being presented as arguments dismissing conceptual jurisprudence are actually affirmation of it.  

That is the task of Part I. Following that I turn to discussing the various senses of conceptual jurisprudence. I begin by distinguishing between two families of views, which I call “externalism” and “internalism.” Roughly speaking, externalists think of concepts as entities that in some way exist outside (and regardless) of human minds, internalists treat concepts as building blocks of thought. Matters get even more complicated because there are different variants of each view. Parts II and III are dedicated to distinguishing among these different views, which are often confused in existing literature, and pointing out what I think are their weaknesses. After concluding with that discussion I turn in Part IV to several residual issues that may explain both the attraction of conceptual theories of law and their enduring popularity. Part V concludes by hinting at possible alternatives to the currently dominant conceptual jurisprudence.  

It goes without saying that I hope to convince readers that conceptual jurisprudence is not a viable enterprise, but I recognize that I am unlikely to convince everyone. I hope that even those who remain unconvinced will benefit from recognizing the need for greater clarity on what it is that they are doing when they engage in conceptual jurisprudence.

Asking "Is Jurisprudence Conceptual?" Priel goes on to state

Several writers have recently criticized the suggestion that jurisprudence is conceptual. Jurisprudence is, rather, about explaining “law itself,” not the concept of law. John Gardner, for example, wrote that “[t]he label ‘conceptual’ may give the unhappy impression that the object of study is the concept, rather than the thing of which the concept is the concept, in this case law.” Michael Moore argued that “[g]eneral jurisprudence should eschew…conceptual analysis in favour of studying the phenomenon itself, law.” And Andrei Marmor claimed that analytic jurisprudence “is not an exercise in conceptual analysis.” Instead, he stated, “an explanation of law is an explanation of observable phenomena, even if the phenomena are of a social kind.” Plainly, if these views are correct, my targeting contemporary analytic jurisprudence for its commitment to conceptual analysis is an attack on a straw man.  

Marmor’s suggestion is the most comprehensively argued, so I will start with it. It is a mistake to think that jurisprudence is concerned with conceptual analysis, he says, because the “the main methodological thrust of legal positivism is reductionism, not conceptual analysis.” The reduction in question involves “offer[ing] an explanation of law in terms of something more foundational in nature, that is, in terms of social facts, which, in turn, can be explained by reference to people’s actual conduct, beliefs, and attitudes.”  

As a description of the jurisprudential terrain this claim is revisionist in two senses. First, it flies in the face of much evidence that shows that many legal philosophers see themselves as engaged in conceptual jurisprudence: The most famous book in twentieth century jurisprudence is entitled The Concept of Law. When its author, H.L.A. Hart, reflected of his philosophical outlook he detailed his commitment to what he called “linguistic philosophy” and more specifically his indebtedness, above all others, to J.L. Austin, whose work focused on careful analysis of words and concepts. Marmor’s claim also ignores Joseph Raz’s statement in the opening pages of Practical Reason and Norms that the book was “primarily an essay in conceptual analysis,” and to the numerous defenses (some of them discussed below) of conceptual analysis within jurisprudence. To defend his view Marmor must say that not only have critics of conceptual jurisprudence misunderstood jurisprudential debates, but that all these legal philosophers (many of whose substantive views Marmor actually endorses) did not understand what they were doing. Second, to say that the methodological thrust of legal positivism is reductionism of obligations in terms of individual attitudes implies that both two of the most prominent legal positivists of the last century, Hans Kelsen and Joseph Raz, are nonpositivists. Marmor is of course entitled to redefine the boundaries between positivism and non-positivism in any he wishes, but that suggests that the argument is revisionary rather than accounting for what one finds in jurisprudential literature itself. Moreover, there is a high price for this revision: By presenting the debate between positivists and non-positivists as a debate about legal reduction, Marmor implies that the fighting camps agree on what things count as laws and only disagree on the right way to explain those things, namely on whether one can explain them reductively or not. As is well-known, however, one of the things that positivist and non-positivists disagree about is which things count as laws (for example, the status of unjust laws).  

On closer inspection it appears that Marmor’s claims involve more a redefining of terms than a challenge to conceptual jurisprudence. When he says that jurisprudence is not concerned with conceptual analysis, it is because he gives the latter a rather unusual understanding, saying it is “not distinguishable from the meaning of words in a given setting.” But that is just not how most people writing on concepts and conceptual analysis understand the term. When Raz recently said (repeating views he had expressed decades ago) that jurisprudence is not concerned with word meanings, he did not do so for the sake of distinguishing his work from conceptual analysis, for only a page later he went on to explain what concepts were (not word meanings) and explain the role of conceptual analysis within jurisprudence. Similarly, when Hart said that he was not seeking the meaning of words, he said this not in order to show that he was not doing conceptual analysis, but in order to distinguish what he was doing—conceptual analysis— from lexicography. Once again, Marmor could attribute massive confusion to all those defenders of conceptual jurisprudence, because they did not really do what they thought they were doing. I will suggest, however, they are not confused; or rather, not on this point. When we examine what defenders of conceptual jurisprudence mean by the term, it turns out that they do (or attempt to do) what they say they are doing. The surprising finding is a different one: Marmor’s views on what legal philosophy is about, presented (in the same essay) as an alternative for conceptual analysis, turn out to be a defense of conceptual jurisprudence.  

To make the case for the alternative, supposedly non-conceptual, understanding of jurisprudence, Marmor argues that legal positivism is primarily a theory about reduction. In saying that ,however, he confuses a general methodological commitment with a substantive view about law. Right at the beginning of The Concept of Law Hart stated that “neither law nor any other form of social structure can be understood without an appreciation of certain crucial distinctions between two different kinds of statement,”20 namely internal and external statements. As these words make clear, Hart did not think this was a thesis about law; he took this to be a general claim about all social practices (“social structures” in his words). But Hart’s book was not a book in the philosophy of social science. If it had been, it would not have had any claim to fame, for the distinction between internal and external points of view and the explanation of social practices in terms of individual attitudes was largely assumed in the book rather than argued for, and is in any case far from original to Hart. Whatever value The Concept of Law may have lies in its contribution to the understanding of a particular social practice. The central theses in the book are not claims about the right way to explain social phenomena, they are an explanation of a particular social phenomenon. Claims such as that law is a “union of primary and secondary rules,” or that “[t]here are…two minimum conditions necessary and sufficient for the existence of a legal system,” are not methodological claims about reduction in the explanation of social phenomena (in general), and even if they presuppose certain ideas about the explanation of social phenomena, they themselves are presented as conceptual claims about law.  

Moreover, many of the debates in jurisprudence have little or nothing to do with the question of reduction. For example, the debate between inclusive and exclusive legal positivists (to which Marmor contributed) cannot be about reduction, because much of it is conducted between scholars who share roughly the same views about reduction. Thus, even if one were to accept the claim that the main dividing line between positivism and non-positivism touches on the question of reduction, it leaves much of the jurisprudential terrain untouched. That terrain, I will argue, is conceptual.  

Finally, Marmor presents reductionism as a methodological position that is somehow to be contrasted with conceptual analysis, but it is not immediately obvious that the two are in conflict. Frank Jackson’s defense of “modest” conceptual analysis is offered as a necessary ingredient in the reductive project of defending physicalism. This is particularly important in this context, because as will be discussed in more detail below, in the very same essay Marmor defends a view that is in important respects similar to Jackson’s. Like Jackson, Marmor ends up defending a version of conceptual analysis (albeit of a very different from Jackson’s) as a preliminary step in a reductive account.  

We can set aside, then, the question of reduction as an irrelevant distraction. This does not yet answer the main line of argument of the scholars who say that jurisprudence is not conceptual. Jurisprudence, they say, is about describing or explaining the law itself, and not any “concept” of law. That was what both Gardner and Moore stated. Strictly speaking, however, these claims are clearly false. First, because any description of “law itself” would have to study a myriad of events, the behaviors and attitudes of a large number of individuals, and certain social and institutional structures. This is not at all what legal philosophers are interested in. For if legal philosophers, studying “the thing of which the concept is the concept,” then their methods would have been plainly inadequate for the task at hand. Law, the “thing,” is something that exists in the world, and so investigating it requires an empirical inquiry of things in the world, not the examination of abstract entities.

What philosophers are seeking is an account of all the properties those things in the world have in virtue of which they count as law. That is a wholly different inquiry from the search for “law itself.” Only a page after Gardner’s remark just quoted he says that “[t]he question of what it takes to qualify [as law], Hart’s main question, is a classificatory one.” Marmor too, after dismissing conceptual jurisprudence, argues that substantive analytic jurisprudence (as opposed to its methodological assumptions) is concerned with identifying the “essential features” of law. All this is quite different from explaining actual “social phenomena.” It is, at most, an articulation of what something must be for the sake of explaining that social phenomena.  

Furthermore, when one looks at how proponents of this view aim to do that, what we find is the familiar conceptual inquiry, conducted in the very same way as conceptual analysis, namely by examining our intuitions regarding certain thought experiments. Marmor, for example, specifies the method of discovering the essential features of law in the following way: “A feature of a social practice is essential to it if without it the practice would either not have existed at all or would have been radically different from what it is.” And this, he tells us, is to be discovered by “ask[ing] whether a practice that is similar in all other respects [to law], but lacks [feature] F, is still close enough to what we recognize as law in our society.”  

This is where the challenge to the conceptualist understanding of jurisprudence collapses. To see this, one needs to notice two kinds of philosophical thought experiments. One kind, exemplified by some famous thought experiments in the philosophy of mind—what is like to be a bat, the Chinese room, Mary and her red rose, the zombies, and so on—are designed to act as reductios, showing the possibility or impossibility of certain claims about what things are in the world. They aim to do that by showing that a view must be wrong, because it entails an absurd outcome. Thus, such claims are intended to tell us what things in the world must or cannot be. To examine the question of consciousness, for example, we are asked to imagine whether “philosophical zombies” are possible—whether creatures that are in every respect indistinguishable from humans but have no consciousness can exist.  

Besides the vigorous debates on these questions themselves, there is a lively debate within philosophy on whether (or when) we can trust arguments based on such thought experiments. These, however, are not at all the kind of thought experiments Marmor and other legal philosophers have in mind. Here, the aim is to tell us what something is. The best known examples of thought experiments of this kind are the so-called Gettier cases in epistemology. In these thought experiments we are asked to imagine a scenario and decide whether we should still call it an instance of “knowledge,” or—if it any different—whether it is an instance of knowledge. That is conceptual (or analytic) epistemology, and it is its exactly legal counterpart that Marmor proposes is the primary task of jurisprudence. The thought experiments proposed by Marmor do not aim to ask whether a slightly-changed social practice he imagines (law without a certain feature we find in law in the real world) is impossible. The practices we are asked to imagine in order to examine the essential features of law is clearly conceivable, possible and not absurd. The only question the imagined social practice is supposed to help us answer is whether we should still call it “law,” or—if it is any different—whether it is law. (Presumably if it is law, it is also correct to call it “law”.) This is what most people within legal philosophy call “conceptual jurisprudence,” and this is the target of this essay. Thus, both what Marmor presents as an alternative to conceptual analysis and the method he proposes to answer his question are identical to those of conceptual legal philosophers. But since my debate is not over terminology, if one does not wish to call this inquiry “conceptual analysis,” so be it: Call it “the search for the nature (or essence) of law.” That is what Marmor, Gardner, and Moore think is a fundamental task of jurisprudence, and that (too) is the target of this essay. 

'Metaphor of the Living Dead: Or, the Effect of the Zombie Apocalypse on Public Policy Discourse' by Daniel W. Drezner in (2014) 81(4) Social Research: An International Quarterly 825-849 comments

Whether one looks at films, songs, games, or books, the zombie genre is clearly on the rise. According to conservative estimates, well more than one-third of all zombie films have been released since the September 11, 2001, terrorist attacks (Bishop 2008). By any observable metric, the living dead have become the hottest paranormal pop culture phenomenon of this century. As the pace of zombie movie production has accelerated, the 2013 film version of World War Z has grossed more than half a billion dollars worldwide. Robert Kirkwood’s AMC series The Walking Dead has become a ratings powerhouse. Pundits, corporations, interest groups, and even government agencies have embraced the living dead as a tool for developing and advancing their own ideas and interests. 

Why do zombies continue to ride so high in the cultural sky? And, frankly, is this good for the humans? The spread of the living dead reflects a variety of anxieties in an American body politic buffeted by asymmetric threats and economic uncertainty. Surfing the cultural zeitgeist, a number of actors have adopted the zombie trope to advance their own political message. There are clear advantages in using the living dead as a pop culture hook for promoting political and policy ideas. The superficial homogeneity of the zombie canon, however,  also poses some drawbacks for its use going forward. Simply put, zombies are unique in genre literature in emphasizing the breakdown of modern society in the wake of an external threat. In propagating this narrative, constant references to the zombie canon can reinforce an apocalyptic perception about the future of modern society. As interest groups also appropriate and exploit the zombie narrative to pursue their own political agendas, their millenarian rhetoric helps to lay the groundwork for the societal breakdown that they claim to fear. The best solution to this conundrum lies in an embrace of more heterogeneous zombie narratives.

Robert Smith (ed) Mathematical Modelling of Zombies (University of Ottawa Press, 2014) - in building on the famous 2009 'When zombies attack!: Mathematical modelling of an outbreak of zombie infection' by Munz, Hudea, Imad and Smith - features several chapters of interest to scholars of personhood and emergencies, including

What Can Zombies Teach Us About Mathematics by Robert Smith 

Viral Spread of a Zombie Media Story by Robert Smith 

The Undead: A Plague on Humanity of a Powerful New Tool for Epidemiological Research by  Jane M. Heffernan and Derek J. Wilson 

When Zombies Attack! Alternate Ending by Phil Munz 

When Humans Strike Back! Adaptive Strategies for Zombie Attacks by Bard Ermentrout and Kyle Ermentrout 

Increasing Survivability in a Zombie Epidemic by Ben Tippett 

How Long Can We Survive? by Thomas E. Woolley, Ruth E. Baker, Eamonn A. Gaffney and Philip K. Maini 

Demographics of Zombies in the United States by Daniel Zelterman 

Is It Safe to Go Out Yet? Statistical Inference in a Zombie Outbreak Model by Ben Calderhead, Mark Girolami and Desmond J. Higham 

Is There a Zombicidal Maniac Near You? You'd Better Hope So! by Nick Beeton, Alex Hoare and Brody Walker 

An Evolvable Linear Representation for Simulating Government Policy in Zombie Outbreaks by Daniel Ashlock, Joseph Alexander Brown and Clinton Innes

Doctrine

'What is Legal Doctrine? On the Aims and Methods of Legal-Dogmatic Research' by Jan M. Smits seeks

to obtain a better understanding of the aims and methods of doctrinal legal scholarship. It argues that legal doctrine serves the three main goals of description, prescription and justification and makes clear that many methodological choices have to be made in order to pursue these goals. One important finding is that legal doctrine reflects the normative complexity of the law: it offers detailed and sophisticated information about how to deal with conflicting arguments. Stripping the law from this practical knowledge by reducing it to general principles or policies, or by trading it in for economic or empirical analysis, is not helpful. In addition, the doctrinal approach is in many ways the necessary prerequisite for undertaking any other type of analysis of law (such as economic, comparative, empirical or behavioural work). All this contributes to carving out the proper place of legal doctrine in current legal scholarship.

Smits argues

Doctrinal legal scholarship finds itself in an uncertain state. On the one hand, legal doctrine and a focus on the systematic elaboration of rules and principles of the positive law are no longer very much en vogue and are looked upon with suspicion. This is not only true for the United States, but is increasingly also the case in various European countries. On the other hand, this development has been lamented for being at odds with what legal scholarship should be really about. Even in American legal academia, so much characterised by theoretical and interdisciplinary work, there is a continuing concern about the decline of the doctrinal method, expressed by authors as diverse as Richard Posner and Harry T. Edwards. In Europe, despite fierce criticism, traditional doctrinal work still seems to be the most important type of research in which legal scholars engage. Many even see the ability to do quality doctrinal work as the most distinctive feature of a good legal academic or lawyer.  The doctrinal approach has therefore been described as ‘mother’s milk to academic lawyers’  as the method  through which students learn to ‘think like a lawyer’ and even as the ‘nerve centre’ of legal science.  

The aim of this paper is to obtain a better understanding of the aims and methods of doctrinal legal scholarship. It has been observed time and again that despite the persistence of this type of research, we are insufficiently aware of its exact nature. There is little doubt that the doctrinal approach provides a separate mode of thinking about the law, but both its proponents and critics seems too little aware of its foundations. This calls for a better understanding of what doctrinal work in law is really about. The oft-heard counterargument that the only reason to do this would be for the benefit of outsiders, while legal academics themselves know very well what they are doing, cannot be accepted. Even if it were true that doctrinalists know what they do, this knowledge is only very implicit. Hence, I also do not believe that it is impossible to ‘demystify’ doctrinal reasoning. 

This is not the place to go at length into the reasons for the asserted decline of doctrinal work.  These reasons are complicated and not only have to do with changing perceptions of what legal research should be about, but also with changes in university governance. It seems that doctrinal work is under attack from at least three different angles: it is considered too provincial from an international perspective, too narrow from an interdisciplinary perspective and not creative enough from an academic perspective. In other words: mainstream legal research should become less national, less one-sided and less oldfashioned. The consequence of giving in to these objections, leading to a decline of the importance of legal doctrine, will necessarily be that the intricate link between legal academia and legal practice weakens.  

Although this may be self-evident, this paper does not argue that the doctrinal approach is the only relevant, or even the most important, way of doing legal research. Legal scholarship can consist of much more than only doctrinal work. However, the following does not only show that the doctrinal approach is in many ways the necessary prerequisite for undertaking any other type of  analysis of law (such as economic, comparative, empirical or behavioural work), it is also claimed that the bad reputation of doctrinal work is undeserved. This requires scrutiny of what we mean by legal doctrine (section 2), as well as an investigation of its aims (section 3) and methods (section 4). Section 5 concludes.

In attempting a definition of  Legal doctrine Smits comments

It is surprising that, while the nature of comparative, economic and empirical research in law is widely discussed, this is not the case for doctrinal work. Although any jurist has some idea of what legal doctrine is about, it is more difficult to define it. Terms such as legal doctrine, black letter law, formalism, doctrinalism and legal-dogmatic research  are all used to denote (the product of) a similar approach towards the law, be it with some national variations.  It is probably best described as research that aims to give a systematic exposition of the principles, rules and concepts governing a particular legal field or institution and analyses the relationship between these principles, rules and concepts with a view to solving unclarities and gaps in the existing law. This doctrinal approach is largely identical among the various subfields of the law. Although originally developed for private law, it was taken over by scholars working in constitutional and criminal law (and other fields).  Three elements in this description deserve separate attention. First, it is an essential feature of the doctrinal approach that it adopts an internal perspective: the doctrinalist places himself inside the legal system. This was already noted by Oliver Wendell Holmes  and repeated time and again by others in both the common law and the civil law tradition.  The legal system is not only the subject of the inquiry, it also provides the normative framework for analysis. The separate discourse that results from this does not need anything outside of the law to be carried out.  Put otherwise: in the doctrinal approach the law is intelligible in its own terms. This remarkable feature of doctrinal work allows legal scholars to speak as if they are judges or legislators and to address these official lawmakers on their own terms, suggesting alternatives for the outcomes they reach. It is also reflected in the law curriculum, which is essentially about teaching students to work as a judge, legislator or lawyer and in fact make a decision in concrete disputes. This ‘unity of discourse’ does not exist in other disciplines, where it would be unthinkable that the academic would make use of exactly the same terminology as the object of his study. Thus, the biologist describing the behaviour of the manatee does so in his own academic language and not in that of the manatee itself. Likewise, the sociologist studying the banking profession does not have to know how to make (or lose) money himself.  It can well be argued that it is exactly this internal perspective that turns legal scholarship into an autonomous discipline: as soon as it starts to adopt an external (economic, sociological, historical, etc.) viewpoint, there is no longer a legal approach to the problem in question.  

It must be emphasised that this does not mean that we cannot debate about the sources that should be taken into account in this internal discourse. There will be consensus about the need to incorporate the ‘official’ sources of national legislation and case law, but not about the need to also involve e.g. European and international sources, private regulation, etc. Many choices need to be made in order to select the relevant sources. It will be seen in section 4 that it is inter alia these choices that affect the extent to which doctrinal research is original or not.  

Secondly, it is crucial for the doctrinal approach that the law is seen as a system. It would be a grave misunderstanding to regard legal doctrine as a mere description of existing legislation and case law. It requires the organisation and reorganisation of the products of the institutions officially tasked with creating law into coherent principles, rules and concepts before we can speak of doctrine.  Or, as the Council of Australian Law Deans states: ‘Doctrinal research, at its best, involves rigorous analysis and creative synthesis, the making of connections between seemingly disparate doctrinal strands, and the challenge of extracting general principles from an inchoate mass of primary materials.’ All relevant elements are thus fitted together into one working whole, resolving internal inconsistencies among seemingly contradictory materials. The law is only a system because of the explicit choice to consider it as such, by treating principles, cases and concepts as signs of an internal intelligibility.   

It will be seen in section 3 that this systematising approach can serve different goals, including the intelligible description of law and the steering of its application. Here it must already be accentuated that, again, doctrinalists have to make many choices regarding the method of systematisation. There is not one way of doing this.  

The third essential feature of the doctrinal approach is that it systematises the present law. It is surely possible to systematise law that is not applicable, such as the law of the past or a foreign law, but this would not qualify as legal doctrine. Crucial for the legal-dogmatic approach is that it is able to accommodate new developments such as recent case law and legislation against the background of societal change. This engagement with legal practice by reacting to changes to the law by legislators and courts turns legal doctrine into a living system that aims to achieve both constancy and change in the development of the law.  This is well captured in the original meaning of the Latin term doctrina, which refers to knowledge or learning which is passed on from one generation to the next. This sets the doctrinal approach apart from the historical and comparative method, that are both geared towards the different goal of understanding how other legal systems than the positive law are best understood. This does not mean that past or foreign elements cannot be taken into account in further developing the system of present-day law, but only as part of this prevailing system.  

Any well-trained legal academic or lawyer will recognise these three common traits of the doctrinal approach. But this does not mean that there is clarity about its aims and methods. As I have argued elsewhere, the proper reaction to the asserted lack of ‘academic level’ of traditional legal scholarship (as sometimes expressed by outsiders) should not be to give up this type of work, but to further develop its intellectual foundations. There is a dire need to do so, thus to be clear about aims and methods of the discipline. The doctrinal paradigm is intuitive, if not arcane and this has severe consequences for the position of law among the other disciplines practiced at universities that are better able to market their work to funding agencies and to the outside world. The implicit knowledge that we have about legal doctrine should be made explicit.

HAIs

'Point-of-Care Genetic Tests for Infectious Disease: Legal Considerations' by Adrian Thorogood, Ma'n H. Zawati and Bartha M Knoppers in (2014) 12 Current Pharmacogenomics and Personalized Medicine 43-50 comments

Personalized medicine will play an important role in the treatment of infectious diseases. Molecular microbiology diagnostics have the potential to identify pathogens with great accuracy and rapidity. The speed of identification is particularly crucial to effective clinical management of many infections. An important complement to precision diagnostic techniques is moving towards point-of-care application, to avoid the costly diagnostic delays associated with transport and laboratory analysis. Point-of-care molecular diagnostics are expected to have a significant impact in combating hospital acquired infections (‘HAIs’). HAIs are a major cause of increased morbidity and death among patients in health care settings globally. These infections are often antibiotic resistant, and affect already weakened patients. It is hoped that molecular diagnostics will eventually allow for the rapid identification of a particular strain of pathogen(s), even for unculturable and polymicrobial infections.  

This article considers how the existing legal and normative framework governing hospitals’ responses to HAIs may affect the introduction of rapid, point-of-care molecular diagnostics. To this end, we carried out a review of international, national, and institutional guidelines addressing hospital duties to prevent, control, and rapidly diagnose HAIs. We also reviewed relevant legislation and case law in Canada and the United States. In particular, we consider if the complex normative framework governing hospitals helps or hinders the adoption and implementation of precision diagnostic tools. We conclude that health-care institutions are likely to come under increasing pressure – both ethical and legal – to adopt rapid molecular diagnostics as part of their response to HAIs.

Breach

'Strategic News Bundling and Privacy Breach Disclosures' by Sebastien Gay considers

 how firms strategically bundle news reports to offset the negative effects of a privacy breach disclosure. Using a complete dataset of privacy breaches from 2005 to 2014, I find that firms experience a small and significant 0.27% decrease in their stock price on average following the breaking news disclosure of the privacy breach. But controlling for media coverage, this small decline is offset by an increase in the effect of a larger than usual number of positive news reports released by the firm on that day, which could increase the returns by 0.47% for every additional positive news report compared to their usual media coverage. I further find that disclosure laws have a significant and negative effect on the returns, even when news releases are used to alleviate the decrease. Moreover, a portfolio constructed with breached firms controlling for state disclosure laws outperforms the market over the 2007-2014 period, especially in the case of breached firms in mandatory disclosure states.

Gay comments

The development of online transactions and data aggregation storage for companies has increased the risk of privacy breaches in the past ten years. According to Privacy Rights Clearinghouse, in fact, there were more than 4,540 breaches reported over the period 2005- 2014, compared to less than 1,000 over 1995-2005. The increase is primarily due to the increased use, retention, and repackaging of data by companies.  

On February 4, 2015, Anthem, Inc., one of the largest health insurance companies in the United States, announced that 80 million customers’ and employees’ data were stolen. Critical information (social security numbers, names, and dates of birth) for the 80 million affected people was at risk of fraudulent use, making the Anthem breach one of the largest privacy breaches in history. During the next trading day, however, the Anthem stock barely went down from its closed value of $137.6 of the day prior to the brach announcement. The close price represented a decrease of 0.31%, in line with the overall market decrease. The Anthem stock was unaffected by this (random) event. This is one of many examples of data breaches that affected a large amount of customers and their highly personal and sensitive data but did not lead to a market sellout of the firm’s stock.  

This paper examines why stocks of breached firms do not seem to be significantly affected after reporting a privacy breach. I empirically show that firms counterbalance the effect of a privacy breach disclosure by bundling this negative and potentially costly release with more positive news reports to alleviate any expected decrease in stock value. I also find that firms tend to release the disclosure during a period when there are a smaller than usual amount of negative news reports. My analysis is reinforced by the fact that privacy breaches happen at random times for any given firm, but firms have some small leeway to time their disclosures. States have different laws regarding disclosures that can allow firms to announce the privacy breach event to customers or the state attorney general with different timeframes, usually between a day to up to two months after the firm discovers the breach. Moreover, privacy breaches are known to be indicative of negative news since they indicate that private information from customers or employees (or possibly both) has been stolen. Also, privacy breach disclosures, contrary to more frequent and pre-scheduled corporate disclosures, are good identifiable random events to test strategic (voluntary) disclosures by firms. Despite not all states requiring disclosures, firms may want to disclose a privacy breach to avoid developing a negative reputation.  

This empirical analysis answers two main questions using privacy breach disclosures: First, can firms counterbalance the negative effect of a privacy breach disclosure by strategically timing the release of more positive media coverage than usual? Second, do disclosure laws have a significant effect on the stock price of the firms that experience a privacy breach?

He concludes

This paper analyzes the effects of privacy breach disclosures and its potential bundling with positive news on that day on the stock market. My key finding is that firms manage to avoid the full negative effect of a privacy breach event disclosure by releasing on the same day an abnormal amount of positive news to the market. Specifically, I show that after the “breaking news” release of a privacy breach a large amount of positive news to the market tends to have a dominating effect. My results suggest that a larger abnormal amount of positive news on the day of the breach disclosure more than offsets the negative effect of the disclosure. These findings are consistent with the empirical behavioral literature where bad news reports are usually released to the market when investors are not paying attention. In my particular case of privacy breaches, investors are distracted by the negative news report on privacy breaches. I provide evidence that firms tend to release bundled news to the market to offset negative random events, potentially stocking good news. Contrary to planned news that firms prepare months in advance, most privacy breaches need to be disclosed within two months of discovery. I find that there exists a strategic bundling of news by firms around unexpected negative events. My interpretation focuses on the premise that firms are not entirely in control of a privacy breach release and will try to bundle positive news to be able to control the effect of the privacy breach disclosure on their stock.  

A trading strategy based on the mix of breaking news and disclosure laws outperforms the market. In essence, disclosure laws seem to punish breached firms, especially if the disclosure is reinforced by breaking news reports. It may be an indirect way for the FTC to ensure firms are setting the right standards of protection against privacy breaches.blockquote>