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During the height of the Clinton-Lewinsky scandal, some lawyer pundits made some rather remarkable observations: Saying certain things about the scandal, they advised people, might be legally punishable. "Be careful what you say," one headline warned, when you discuss "the Starr report and Clinton/Lewinsky matter" in certain ways. Such discussions "ought to be avoided" because of the risk of legal liability. "[I]t's best to choose carefully who you share your remarks, your jokes, with....'Attorneys warn us about [legal liability],' she said. Office humor in particular 'is always quicksand'...." "There's no right [to make certain statements about the Clinton/Lewinsky affair] just because it's a public issue." "We had quite a few clients calling us when Lewinsky jokes...were making the rounds." "People think that if they hear something on TV or the radio they can say it at work [without fear of legal liability]. But that of course is not the case." What body of law, one might ask, would suppress jokes about the President, or discussion of the Starr Report? Not the most publicized free speech restriction of the Clinton years, the Communications Decency Act, which had been struck down 9-0 by the Supreme Court. Rather, this remarkable speech restriction is hostile environment harassment law. Under this doctrine, speech can lead to massive liability so long as it is "severe or pervasive" enough to create a "hostile, abusive, or offensive work environment" for the plaintiff and for a reasonable person based on the person's race, religion, sex, national origin, disability, age, veteran status, and so on. And these rather vague and broad terms have long been interpreted to cover not just face-to-face slurs or repeated indecent propositions, but also sexually themed jokes and discussions, even ones that aren't about coworkers or directed to particular coworkers. The prudent employer is wise to restrict speech like this, whether it's about Clinton, Lewinsky, Starr, or anyone else--not just because of professionalism concerns (which some employers might care more about and others less), but because of the risk that this speech will be found to have been illegal. This article explores, through the lens of four specific Clinton-era cyberspace "harassing speech" controversies, how hostile environment harassment law has rapidly become one of the broadest modern restrictions on speech generally, and on cyberspace speech in particular.

The Model Penal Code approach to mens rea was a tremendous advance. The MPC carefully defines a limited number of mens rea terms, firmly establishes element analysis in place of offense analysis, and recognizes that the doctrine of mistake is part and parcel of the basic analysis of mens rea. However, a revised Code could improve the drafting of the mens rea provisions in a number of respects: * Clarify how to distinguish result, circumstance, and result elements * Simplify the definitions of knowledge and purpose * Perhaps eliminate the category of mens rea as to conduct * Clarify the fact/law distinction, and especially the distinction between two types of mistakes of law - mistakes of governing law and mistakes of legal element - that the MPC treats differently * Clarify the meaning of the "reasonable person" test * Clarify the definition of willful blindness Moreover, more fundamental questions arise with the central concept of recklessness. A reckless actor is one who must be aware of a "substantial and unjustifiable" risk; are these independent or interdependent requirements? What type or degree of consciousness is required? Of what, precisely, must the actor be aware? Does a strict "consciousness" requirement undermine the rule that ignorance of law is no excuse? And should consciousness extend to "latent" knowledge that the actor could call up if he were to consider the matter even for a moment? Furthermore, does the MPC hierarchy always work? Is knowledge really always worse than recklessness? Is recklessness always worse than negligence? Should culpable indifference or a similar mental state be added to the hierarchy? Are the MPC categories too cognitive, or too descriptive, or too rigid? Finally, the conclusion examines some theoretical and pragmatic implications of the analysis.

The new book by two prominent competition law thinkers Maurice E. Stucke (Professor of Law at the University of Tennessee) and Ariel Ezrachi (Professor of Law at the University of Oxford) 'Competition Overdose: How Free Market Mythology Transformed Us from Citizen Kings to Market Servants' (Harper Business, USA, 2020, pp. 402) has triggered a vivid discussion over the ever-fading question on the goals of competition law, economics and policy and – more broadly – on the very nature of the multifaceted phenomenon of competition. The previous blockbuster of the tandem 'Virtual Competition: The Promise and Perils of the Algorithm-Driven Economy' (2016) has generated vocal and diverse feedback, and the authors continue their market success with publishing another thought-provoking piece. The book provokes not only thoughts. From its very title, subtitle, name of chapters, normative position, methodological argumentation and the choice of preprint reviewers, across the selection of case studies and to its very writing style, the book is designed to generate discussion. And for the right reasons. The times when competition policy was perceived as an axiomatic, mathematised, highly technical and pretty much non-controversial area of Law & Economics have gone. Over the last decade, competition has become a great theme again. Full of ideological appeals and statements, mindful of their political pedigree, competition law, economics and policy are transitioning from the mechanistic field of microeconomic modelling to the real world of geopolitical chessboards.A quick look at the composition of the book, makes clear the authors' intention to transpose their well-established and highly influential academic reasoning from the narrow world of competition theorists to the broader and more diverse audience. The key objective of the book in this respect is to convince such broader societal circles of the need to reform competition policy – or rather to revise our perception of the very essence and the very mission of economic competition as such. The book is in several senses iconoclastic. As skilful diagnosticians, the authors reveal weakness after weakness of the market-centred ethics. The main cures offered by the book – both in terms of the normative propositions as well as the politicised vocabulary and intentionally approachable argumentative apparatus – will be appealing to many. The authors aim to raise (or perhaps to refine) the ethical dimension in the otherwise morally neutral phenomenon of economic competition and its regulation, and this book's objective and mission are remarkable in themselves. It is hard to find a reasonable person disagreeing with the normative premises of the book. It is much easier to find one disagreeing with the enforceability of these intentions. In what follows I’ll try to articulate ten polemical points, written as a reflection on the book. Only a few of these points express disagreement. All are written with deep and sincere respect to both authors – the Masters of the discipline. We agree on most of the things, disagreeing rather on nuances. I believe though that some of those nuances are important.

— Each year, hundreds of people in high-income countries take their own lives while they are in prison. Thousands engage in self-harm and thousands abuse other prisoners. Such behaviours often correlate with mental health problems, but they are also often pleas for help and for hope. Some courts have invoked the ideas of hope and the right to hope in the context of life imprisonment, but they have neither subjected the concept of hope to sustained analysis nor specified the role that hope should play in our practices of lawful punishment overall. This article offers a preliminary investigation of the role for hope in lawful punishment. It argues that one standard that both individual modes of punishment and overall systems of punishment must meet to be morally justifiable is that they be compatible with a reasonable person retaining hope both in the present and for his future after punishment. Such a hope standard narrows the scope of legitimate modes of punishment.

Legal standards of disclosure in a variety of jurisdictions require physicians to inform patients about the likely consequences of treatment, as a condition for obtaining the patient's consent. Such a duty to inform is special insofar as extensive disclosure of risks and potential benefits is not usually a condition for obtaining consent in non-medical transactions.What could morally justify the physician's special legal duty to inform? I argue that existing justifications have tried but failed to ground such special duties directly in basic and general rights, such as autonomy rights. As an alternative to such direct justifications, I develop an indirect justification of physicians' special duties from an argument in Kant's political philosophy. Kant argues that pre-legal rights to freedom are the source of a duty to form a state. The state has the authority to conclusively determine what counts as "consent" in various kinds of transactions. The Kantian account can subsequently indirectly justify at least one legal standard imposing a duty to inform, the reasonable person standard, but rules out one interpretation of a competitor, the subjective standard.

The article is devoted to the problem of Good Faith Subjects` status in law. For a better understanding of the problem, image ofgood faith subjects of law in Ancient Rome was analyzed. In particular, it was found that in roman law, the term bonus pater familias(good family father) refers to a standard of good faith subjects of law. In the English version, this concept was translated as «that of aman of ordinary prudence in managing his own affairs».The concept of a gentleman in the English legal tradition is specially studied.English noun ‘gentleman’ dates back to the Old French word ‘gentilz hom’ (graceful, refined man). That was why the social ca -te gory of gentleman is considered as “the nearest, contemporary English equivalent of the noblesse of France.” (Maurice Hugh Keen).Now, a gentleman is not just any man of good and courteous conduct, but a certain person having legal personality in accordancewith the standard of common law.In conformity with the dimension of public law, the English social category of gentleman captures a right of certen classe of theBritish nobility.But in accordance with modern private law the connotation of the term gentleman corresponds to the Rome legal institute ofbonus pater familias.The double origin of this term from the status of a knight and the social position of the merchant causes a controversial interpretationsof its meaning.In contemporary usage, the word gentleman is ambiguously defined, because “to behave like a gentleman” communicates as littlepraise or as much criticism as the speaker means to imply; thus, “to spend money like a gentleman” is criticism, but “to conduct a businesslike a gentleman” is praise (Walter Alison Phillips).In modern International Trade Law a gentleman is essentially a ‘man of sense’, ‘а man of judgment’ or a reasonable person.So United Nations Convention on Contracts for the International Sale of Goods (1980), The UNIDROIT Principles of InternationalCommercial Contract and the Principles of European Contract Law provided a rule, which offers an opportunity for such an interpretation.‘the contract is to be interpreted according to the meaning that reasonable persons of the same kind as the parties would giveto it in the same circumstances’.It led to the conclusion that the modern image of a good faith subject to the greatest extent actualizes the criterion of commonsense.

This article examines the role of the anger and fear emotions in the loss of control and duress defences and argues that, although fear is now included as a trigger in loss of control, priority is still given to anger as a triggering event. Furthermore, in duress, although fear is the overriding mental state of the duressee, it wrongly forms no part of the rationale of the defence at all. Following a brief examination of both emotions, the article – individually with respect to each defence – considers issues relating to the (in)sufficiency of the objective element contained in the defences, specifically because neither properly take fear into account as a characteristic which should be attributed to the reasonable person, and then, to a lesser extent, what impact theoretical principles, such as mechanistic and evaluative approaches, have on the role emotion plays in both defences (if any). It is clear that none of these, nor indeed the relatively new discipline of neuroscience, examined in the penultimate section of the article, can tell us about the effects of emotion on decision-making, reasoning, control and responsibility, nor can they provide an answer as to how emotions – fear especially – can be properly incorporated into both defences. Numerous emotion-based alternative solutions are disseminated, and, although no preference is expressed here, it is recommended, firstly, that fear should be more effectively incorporated into the loss of control defence and, secondly, that duress should include fear as a characteristic attributed to the reasonable person.

The notion of relevance plays a role in many accounts of knowledge and knowledge ascription. Although use of the notion is well-motivated, theorists struggle to codify relevance. A reasonable person standard of relevance addresses this codification problem, and provides an objective and flexible standard of relevance; however, treating relevance as reasonableness seems to allow practical factors to determine whether one has knowledge or not—so-called “pragmatic encroachment.” I argue that a fuller understanding of reasonableness and of the role of practical factors in the acquisition of knowledge lets us avoid pragmatic encroachment.

Introduction. The paper attempts to find answers to the questions: will it be possible to preserve historical-cultural “face” of the city, or it will disappear under the onslaught of the advanced achievements of civilization; is there an urban space to a reasonable person, who have reached great technological heights, or directed against him; what are the ontological foundations of the modern city? The relevance of the author's approach is the analysis of the “concept” of the city as urogenous spatio-temporal macro model, which not only develops under the influence of the inhabitants, but also determines their worldview and behavior.Methodology and sources. Methodological basis of the work is the cultural and philosophical analysis of the “concept“ of the modern city in the works of domestic and foreign sociologists, and ethologists, urboecology, philosophers, anthropologists, art historians (V. G. Il’in, R. Park, L. Worth, E. Gorokhovskaya, I. A. Litvinova, V. I. Mathis, G. Simmel, E. Fromm, E. T. Hall, M. I. year-old boy, James W., Jean-Paul Ferrier, Jean-Albert Guieysse, Thierry Rebour, H. W. Zorbaugh, etc.). Used demographic statistics allowing to understand the issues of depopulation, migration and multi-ethnicity of the townspeople.Results and discussion. In modern culture hypertrophied original function of the city as a source of protection and comfort, it is a shift towards maximum convenience and independence of individuals. In the result, the urban environment is made, adapting to the challenges put forward by society. Historically “face” of the city gets lost. This jeopardizes not only the rich cultural heritage of the cities, but also the authenticity of the existence of the person. The ontological basis of the modern “concept” of the city is defined by urban characteristics: multiculturalism, multi-ethnicity, presentationhost (the image of the city), the superficiality of contact, the spontaneity of development, the blurring of boundaries. They not only make up the text of modern urban culture, but also form a macro model of society.Thus, the result of the study is the conceptualization of the contradictions of the modern city that provides for a person as comfortable as possible in the consumer environment at the same time directed against him or her.Conclusion. It is concluded that in the current ecological, demographic and economic situation, the question of understanding the role of modern urban culture in the search for a dialogue between the technogenic and informational development of civilization with nature, the historical and cultural content of the city with its image, and mass consumption with an original manifestation is most acute. The authors believe that it depends only on the person whether the urban space will exist for or against him or her.

The Covid-19 pandemic has only accelerated the need and desire to deal more openly with mortality, because the effect on survival is central to the comprehensive assessment of harms and benefits needed to meet a ‘reasonable patient’ legal standard. Taking the view that this requirement is best met through a multi-criterial decision support tool, we offer our preferred answers to the questions of What should be communicated about mortality in the tool, and How, given preferred answers to Who for, Who by, Why, When, and Where. Summary measures, including unrestricted Life Expectancy and Restricted Mean Survival Time are found to be reductionist and relative, and not as easy to understand and communicate as often asserted. Full lifetime absolute survival curves should be presented, even if they cannot be ‘evidence-based’ beyond trial follow-up limits, along with equivalent measures for other criteria in the (necessarily) multi-criterial decision. A decision support tool should relieve the reasonable person of the resulting calculation burden.

Supernatural belief does not sit easily with the law. Squaring such belief with legal concepts such as the reasonable person is a particularly vexing task (see S v Ngema 1992 (2) SACR 651 (D)). Nevertheless, it is necessary for the courts to take account of such belief as a fact of the South African society. Belief in witchcraft is an ongoing and widespread phenomenon, giving rise to the question whether such belief can play a role in exculpating, or mitigating the punishment of those who engage in criminal conduct as a consequence of such belief (see Van Blerk "Sorcery and Crime" 1978 CILSA 330; Bennett and Scholtz "Witchcraft: A Problem of Fault and Causation" 1979 CILSA 288; Motshekga "The Ideology Behind Witchcraft and the Principle of Fault in Criminal Law" 1984 Codicillus 4; Dhlodhlo "Some Views on Belief in Witchcraft as a Mitigating Factor" 1984 De Rebus 409; Van den Heever and Wildenboer "Geloof in Toorkuns as Versagtende Omstandigheid in die Suid-Afrikaanse Reg" 1985 De Jure 105; and Labuschagne "Geloof in Toorkuns: 'n Morele Dilemma vir die Strafreg" 1990 SACJ 246). A recurring problem for the courts is how to deal with the situation where a genuine belief in witchcraft provides the motivation for the killing of a suspected witch or wizard in order to protect or defend the interests of the accused or another person. Can such a belief mitigate punishment? This problem arose in the case of S v Latha (2012 (2) SACR 30 (ECG)).

There is substantial published evidence showing that countless people enroll each year in ethically deficient clinical trials. Many of the trials are problematic because the quality of the science used to justify their launch may not be sufficiently vetted while many other trials may lack requisite social value. This poses the question: why do people volunteer for them? The answer resides in large part in the fact that informed consent practices have historically masked, rather than disclosed, the information that would alert research candidates to the ethically problematic nature of the trials. The “reasonable person” and “key information” provisions in the revised US Common Rule create the opportunity to correct this historical shortcoming. Two sources are employed to shed light on what the “key information” is that should be disclosed to a “reasonable person”: the original disclosure aims of the Nuremberg Code, as well as an extensive body of meta-research evidence. Those sources jointly support a range of new disclosures in the informed consent process that would unmask the heretofore undisclosed information. The resulting proposed new disclosures pertain to the overall success prospects of clinical trials, the quality of the prior research that both forms the basis of clinical trials and informs assessment of their risks and benefits, the potential social value of clinical trials, and the commercial purposes of clinical trials.

Banking solves the principal–agent problem with incentive contracts which assume a Homo Economicus representative agent. However, professions can solve the principal–agent problem by assuming a 'Reasonable Person' representative agent, from tort law, who reliably tells the truth about hidden action. We describe a non‐virtuous circle in finance, which is a negative feedback loop between motivation crowding out arising from incentive contracts, and the subsequent need to offer incentive contacts because agents change from the Reasonable Person to Homo Economicus. We prescribe less reliance on incentive contracts in the practice of finance, and on Homo Economicus in the theory of finance. [ABSTRACT FROM AUTHOR]

Digital, El contrato atípico de servicios logísticos contiene prestaciones complejas diseñadas según el tráfico comercial. Empero, cuando surgen conflictos interpretativos los jueces recurren a criterios externos a la ecuación económica inicial. Esto puede llevar a consecuencias indeseadas. La presente investigación indaga por los límites de la filosofía kantiana para solucionar el problema. Se concluye que la igualdad puede ser un fundamento no utilitarista para la interpretación, pero sigue recurriendo a algo más que la voluntad. Al final, se propone el concepto de persona razonable, pues respeta la lógica comercial del negocio y al mismo tiempo es un método hermenêutico que resulta eficaz., The atypical logistics services contract contains complex services designed according to commercial traffic. However, when interpretative conflicts arise, the judges resort to criteria external to the initial economic equation. This can lead to unintended consequences. This investigation investigated the limits of Kantian philosophy to solve the problem. It is concluded that equality may be a non-utilitarian basis for interpretation, but it continues to resort to more than just the will. Finally, the concept of reasonable person is proposed, since it respects the commercial logic of the business and at the same time is a hermeneutical method that is effective., Ciencias Sociales, Derecho

Both ethicists and lawyers accept that a provider – be it a researcher or a clinician – should provide sufficient information for a reasonable person to make an informed decision about whether they wish to go ahead with the proposed intervention or treatment.1 They are bound to do so both because they have an ethical responsibility to preserve the individual’s autonomous decision making, and, in many countries, because the law obliges them to. In this month’s issue of the JME, three articles tackle ethical issues relating to consent in different contexts. Overarching these analyses is the pragmatic question of whether the process of taking consent in itself might alter the outcomes, and whether, in doing so, it can undermine the initial therapeutic or research goal – so creating another ethical question of what to prioritise. Psilocybin (a serotonergic psychedelic) is entering Phase III trials to evaluate its effect on treatment resistant depression and cancer related depression and anxiety; earlier trials have shown sustained symptom reduction in these populations. Smith and Sisti examine whether a form of enhanced consent is ethically required for these drugs.2 They explore how to adequately consent for ‘therapeutic touch’ (eg, holding someone’s hand) in a future altered state; the rare but significant mental health risks including trauma re-exposure; and the potential for a personality change given the intense experiences which many subjects have reported. They illustrate the potential for personality change with an example regarding the spiritual experiences which can occur with serotonergic psychedelics, and suggest that ‘agnostic or atheist patients may take the development of a newfound sense of spirituality or belief in God to …

The standard of the reasonable person or its equivalent, in general, is used in many jurisdictions to determine fault in the form of negligence. Although the standard is predominantly objective it is also subjective in that the subjective attributes of the person against whom the standard applies as well as the subjective circumstances present at the time of the delict or tort lend themselves to an objective-subjective application. In South African law, before a person can be judged according to the standard of the reasonable person, the person must first be held accountable. If a person cannot be held accountable, then the standard does not apply at all. The general standard of the reasonable person cannot be applied to children, the elderly, persons with physical disabilities, persons with mental impairments or experts. Therefore, depending on the subjective attributes of the person against whom the standard is being applied, the standard may have to be adjusted accordingly. The general standard of the reasonable person would be raised when dealing with experts, for instance, and lowered when dealing with persons with physical disabilities. This contribution considers whether the current application of the standard of the reasonable person in South African law is satisfactory when applied generally to all persons, no matter their age, experience, gender, physical disability and cognitive ability. The application of the standard of the reasonable person in South African law is compared to the application of the standard of the reasonable person or its equivalent in the United Kingdom, the United States of America and France. Just as South African law applies the standard of the reasonable expert to experts, this contribution explores whether the South African law should be developed to use similar adjusted standards when dealing with children, the elderly, persons with physical disabilities and so on. The general standard of the reasonable person cannot be applied to children, the elderly, persons with physical disabilities, persons with mental impairments as well as experts. Thus depending on the subjective attributes of the person against whom the standard is being applied, the standard may have to be adjusted accordingly or if the person cannot be held accountable, not applied at all. The general standard of the reasonable person would for example be raised when dealing with experts and lowered when dealing with persons with physical disabilities. This contribution considers whether the current application of the standard of the reasonable person in South African law is satisfactory when applied generally, to all persons, no matter their age, experience, gender, physical disability and cognitive ability. The application of the standard of the reasonable person in South African law is compared to the application of the standard of the reasonable person or its equivalent in the United Kingdom, the United States of America and France. Just as South African law applies the standard of the reasonable expert to experts, this contribution explores whether the South African law should be developed to use similar adjusted standards when dealing with children, the elderly, persons' with physical disabilities and so on. [1] In French law bonus pater familias as three separate words is encountered (see para 3.4 below) whereas in South African law, bonus paterfamilias, as two separate words is encountered (see for example, Neethling and Potgieter Law of Delict 142-143). In this contribution, for the sake of uniformity and convenience, bonus pater familias as three separate words will be used.

The St. Petersburg Paradox was first presented by Nicholas Bernoulli in 1713. It is related to a gambling game whose mathematical expected payoff is infinite, but no reasonable person would pay more than $25 to play it. In the history, a number of ideas in different areas have been developed to solve this paradox, and this report will mainly focus on mathematical perspective of this paradox. Different ideas and papers will be reviewed, including both classical ones of 18th and 19th century and some latest developments. Each model will be evaluated by simulation using Mathematica.

Background Efforts to improve informed consent have led to calls for providing information a reasonable person would want to have, in a way that facilitates understanding of the reasons why one might or might not want to participate. At the same time, advances in large-scale genomic research have expanded both the opportunities and the risks for participants, families, and communities. To advance the use of effective consent materials that reflect this landscape, we used empirical data to develop model consent language, as well as brief questions to assist people in thinking about their own values relative to participation. Methods We conducted in-person interviews to gather preliminary input on these materials from a diverse sample (n = 32) of the general population in Nashville, Tennessee. We asked them to highlight information they found especially reassuring or concerning, their hypothetical willingness to participate, and their opinions about the values questions. Results Consent information most often highlighted as reassuring included the purpose of the biobank, the existence and composition of a multidisciplinary oversight committee, the importance of participants’ privacy and efforts to protect it, and controlled access to a scientific database. Information most often highlighted as concerning included the deposition of data in a publicly accessible database, the risk of unintended access to data, the potential for non-research use of data, and use of medical record information in general. Seventy-five percent of participants indicated initial willingness to participate in the hypothetical biobank; this decreased to 66% as participants more closely considered the information over the course of the interview. A large majority rated the values questions as helpful. Conclusions These results are consistent with other research on public perspectives on biobanking and genomic cohort studies, suggesting that our model language effectively captures commonly expressed reasons for and against participation. Our study enriches this literature by connecting specific consent form disclosures with qualitative data regarding what participants found especially reassuring or concerning and why. Interventions that facilitate individuals’ closer engagement with consent information may result in participation decisions more closely aligned with their values.

Care of the preterm infant has improved tremendously over the last 60 years, with attendant improvement in outcomes. For the extremely preterm infant

When The Ad Hoc Committee of Harvard Medical School to Examine the Definition of Brain Death began meeting in 1967, I was a graduate student, with committee member Ralph Potter and committee chair Henry Beecher as my mentors. The question of when to stop life support on a severely compromised patient was not clearly differentiated from the question of when someone was dead. A serious clinical problem arose when physicians realized that a patient's condition was hopeless but life support perpetuated body function. Thus, the committee stated that its first purpose was to deal with the burdens on patients and families as well as on hospitals and on patients needing hospital beds occupied by comatose patients. They intuited the strategy of "defining" these patients as dead, thus legitimating treatment stoppage. They noted that this would also serve a second purpose. Although the dead donor rule had not yet been clearly articulated, they claimed that defining patients as dead would also address controversy over obtaining organs for transplant. My mentors' discussions related to my interest in the intersection between questions primarily of medical fact (When has a human brain irreversibly ceased functioning?) and nonmedical questions of social policy (Should we treat individuals with dead brains and beating hearts as dead humans?). It quickly became clear that most committee members did not appreciate the interplay of these questions.

In this paper I examine Wittgenstein’s appeals to madness in On Certainty in light of Foucault’s Histoire de la folie. A close look at these works, usually conceived as disparate, belonging to entirely different schools of thought, reveals they actually have much in common. Both can be read as investigations into the grounds of reason, and while they offer quite different and distinct perspectives on the matter, they share some central insights. In both we find that the boundaries of reason are not only vague but also largely founded upon the relations - social in Foucault, socio-linguistic in Wittgenstein - between the reasonable person and the unreasonable person. Both perspectives reveal a curious state of affairs whereby the reasonable person is the one who dominates discourse, and yet, in his claim for reason, remains forever dependent upon the unreasonable person and his rejection. The pressing question triggered by Foucault's account is whether the boundary between reason and unreason is at all necessary. This undermines Wittgenstein’s thesis that this boundary is a matter of logical necessity upon which discourse depends. I flesh this point out in the paper also by examining the differences in Wittgenstein’s and Foucault’s treatments of Descartes’ Meditations. I conclude that Wittgenstein’s criticism of Cartesian skepticism presented in On Certainty loses much of its fortitude once examined in light of Foucault's Histoire de la folie.

In the field of Law and Literature studies, contributions on poetry are rare. This article focuses on a selection of contemporary poetic works: Cornelius Eady’s A Brutal Imagination (2001), Frédéric Boyer’s Le Goût du suicide lent (1999), Maurizio Cucchi’s Il disperso (1976) and Corrado Benigni’s Tribunale della mente (2012). Their lyrical shaping of law establishes a difference from the model of “forensic” poetry that can be found in Charles Reznikoff’s Testimony (1978–1979). Through them, this contribution shows how it is possible to challenge a reflection on the language of lyric poetry and that of law at the same time, if we interpret the lyric poetry as a non-narrative discourse., Law, Culture and the Humanities, vol. 18, no. 1, p. 229

The law of informed consent to medical treatment has recently been extensively overhauled in England. The 2015 Montgomery judgment has done away with the long-held position that the information to be disclosed by doctors when obtaining valid consent from patients should be determined on the basis of what a reasonable body of medical opinion agree ought to be disclosed in the circumstances. The UK Supreme Court concluded that the information that is material to a patient’s decision should instead be judged by reference to a new two-limbed test founded on the notions of the ‘reasonable person’ and the ‘particular patient’. The rationale outlined in Montgomery for this new test of materiality, and academic comment on the ruling’s significance, has focused on the central ethical importance that the law now (rightfully) accords to respect for patient autonomy in the process of obtaining consent from patients. In this paper, we dispute the claim that the new test of materiality articulated in Montgomery equates with respect for autonomy being given primacy in re-shaping the development of the law in this area. We also defend this position, arguing that our revised interpretation of Montgomery’s significance does not equate with a failure by the courts to give due legal consideration to what is owed to patients as autonomous decision-makers in the consent process. Instead, Montgomery correctly implies that doctors are ethically (and legally) obliged to attend to a number of relevant ethical considerations in framing decisions about consent to treatment, which include subtle interpretations of the values of autonomy and well-being. Doctors should give appropriate consideration to how these values are fleshed out and balanced in context in order to specify precisely what information ought to be disclosed to a patient as a requirement of obtaining consent, and as a core component of shared decision-making within medical encounters more generally.

One of the significant modifications to the Common Rule is the requirement that prospective participants are given information sufficient for a “reasonable person”. However, there is limited research on what types of information patients, caregivers, and providers consider “key information”. Although certain aspects of informed consent (IC) may be considered standard, considering individualized needs and preferences of patients is necessary for patient-centered consent. In the current study, we qualitatively examined the specific types of information that patients and caregivers involved in hematopoietic cell transplantation (HCT), as well as their providers, believe are important and necessary as part of the IC process in order to make a decision about participating in clinical research; and further, how these perspectives are aligned. Our findings suggest opportunities for improving the IC document and process by emphasizing information of importance to patients such as the benefits to others and contributions to science that are associated with participation in clinical research. Further, increasing patient engagement during the IC process may enable providers to streamline information that is aligned with patient information needs and preferences.

When contracting party fails to perform the contract for the international sale of goods, then the other party can use certain remedies, including the right to terminate the contract. The termination of the contract in situation when the debtor has breached his contractual obligation opposes the principle pacta sunt servanda and all legal systems provide for the conditions and limitations under which creditor can acquire and realize that right. The most important limitation in that sense refers to the requirement that the breach of contract must be serious and severe. The Vienna Convention on Contracts for the International Sale of Goods in this respect provides for the concept of fundamental breach of contract, as the general ground for termination the contract due to it's non-performance. General because it takes no account what exactly debtor do or not do when violated the contract; it is only important that his actions fits with the conditions for qualification the fundamental breach of contract. In that sense the Convention sets three criteria for estimate that question: first, that the debtor has breached the contract; second, it has resulted in such detriment to the other party as substantially deprives him of what he is entitled to expect under the contract and third, the debtor did not foresee such a damage as a consequence of breach of contract nor such a result could forese a reasonable person of the same kind in the same circumstances. The concept of fundamental breach of contract is the original solution of the Vienna Convention and is the result of decades of work on the unification of the law of the international sale of goods. The most important achievement of such solution is that it introduced applicable objective criteria and standards for the evaluation of the significance and severity of the breach of the contract which are sufficient to activate the creditor's right to terminate it. Several decades of successful implementation of the Convention contributed to the developing of that concept in practice and to its increasingly application not only in other international sources of law for the contract of sale of goods, but also in significant number of national laws. On that way legal systems harmonize over time in relation to this question, which contributes to the simplification of trading on the international market and to economic development and prosperity.

This article argues that restrictions on expression based on ‘gross offensiveness’ or similar public morality notions embedded in speech offences are not and cannot be politically neutral and be evenly applied to political speech, no matter who is the author. Such concepts draw on a majoritarian perspective purporting to be reflective of unified base values of the ‘national community’. The article explores why such concepts of unacceptable speech are a poor fit for a deeply heterogeneous community, and all the more so on the internet, where those who engage in public discourse are even more numerous and more diverse in ethnic, cultural, political and social terms. Set against such a diverse speech landscape the prohibition of ‘gross offensiveness’, or what are considered the outer boundaries of acceptability, is repressive of minorities and of challenges to conventional opinions and existing power dynamics, and is liable to reinforce the very bigotry it seeks to relieve.

Sports law can be regarded as one of the latest developments in law. As applied to the school setting, and with special reference to sport coaching, this article deals with the five fundamental elements of the law of delict that influence and inform the execution of the duty of care of the educator-coach. This article pays special attention to the legal aspects related to the security, on the one hand, of the learners as participants, but also the educator-coach in his or her respective roles as coach, organiser of sport events, referee and sport official on the other. The basic research question is: To what extent can educator-coaches increase their own security by ensuring safer participation of learners? How can these educators prevent or minimise the occurrence of serious injuries during practices (as coaches) and during meetings, contests or matches (as officials, such as being referees)? A certain amount of risk is typical of and inherent to most types of sports, especially those that involve physical contact or in which potentially dangerous implements are used. In contrast, many learners are coached by educators that do not necessarily have enough experience, skills or knowledge regarding the more advanced techniques of the specific sports code. This contrast between the inherent risks and the lack of expertise of many educator-coaches creates an amount of insecurity for both the participants and the coaches. This article includes a discussion of the application of the five fundamental elements of the South African law of delict to school sports coaching. To illustrate the ways in which courts consider sports law issues, examples from court cases related to different types of sports are analysed, and, where applicable, cases from other countries and from outside the sphere of education are also included. This discussion is followed by an overview of those legal provisions that impact on sports participation at school. The legal duty of care of all educators stems from the special relationship between an educator and a learner. Not acting to ensure the safety of a participant constitutes wrongfulness on the side of the educator-coach, which may lead to being held liable for damage to the participant. This article specifically considers the higher standard of care expected from the educator-coach, as compared to the normal reasonable person, based on the former's specific training in working with learners. The acts or omissions of higher qualified and more experienced educator-coaches will also be measured against a higher standard. This article concludes with the recommendation that educator-coaches should not be overly reassured by section 60 of the South African Schools Act . Ensuring the safety and security of learners should still be the main priority for all educators. Educatorcoaches should remember that, true to their calling as educators, and consistent with section 28(2) of the Constitution, a child's best interests are of paramount importance in every matter concerning the child. KEYWORDS: Delictual liability; school sports coach; education law; educator liability

Research demonstrates that people overestimate their ability to detect visual stimuli in a variety of contexts. These errors in visual metacognition have legal implications, as they may cause decision makers to misweigh evidence and misallocate responsibility. We describe 4 experiments that bridge the gap between lab studies of visual metacognition and 1 relevant legal context: negligence litigation. In the first 2 experiments, we expand on the existing visual metacognition research by demonstrating that participants’ overestimation persists when they are asked what an observer should see and what an observer can be blamed for failing to see. Then, we examine the extent to which participants treat their presumptions that someone should have seen a stimulus like evidence of verified visual detection. Finally, we use vignettes of negligence cases modeled on existing change blindness and inattention blindness research to drive home the potential legal consequence of visual metacognitive errors: defendants may be found negligent for failing to detect stimuli that the ordinary, reasonable person would not have seen.

Few topics in medical ethics stimulate as much heated debate as the question of the proper place of religious beliefs in medical practice. Typically, this debate is orientated towards questions about the religious beliefs held by medical practitioners, and in particular the appropriate limits that ought to be placed on these beliefs shaping care in ways that might impact negatively on patients’ interests. In this issue, however, it is the religious beliefs of patients themselves, and how these beliefs ought to be responded to by clinicians, that is the focus of analysis. In their Feature Article, Greenblum and Hubbard (pages 705–10) articulate a strong position in response to this issue. Their fundamental claim is that clinicians should not deliberate about religious commitments with religious patients when these patients are drawing on these commitments in the medical decision-making process. They present two main arguments in support of this claim: the public reason argument and the fiduciary argument , and they contend that the discussion of religious considerations should be compartmentalised and farmed out to another appropriately placed person, such as a member of the clergy. Stimulating six commentaries that interrogate aspects of both arguments and the authors’ practical proposal, Greenblum and Hubbard’s paper gets to the heart of the challenge of reconciling the public role of medical practitioners with the private encounters that substantiate the performance of this role. Greenblum and Hubbard’s first argument is that clinicians ought to limit their deliberations in decisions made with patients to presenting ‘considerations that any reasonable person could recognise as counting in favour of something’ (page 707). Drawing on the work of John Rawls and Robert Audi, the authors discount the place of religious reasons in …

ObjectiveIn approximately half the states in the USA, and more recently in the UK, informed consent is legally defined as what a reasonable patient would wish to know. Our objective was to discern the information needs of a hospitalised, ‘reasonable patient’ during the informed-consent process.DesignWe performed a cross-sectional study to develop a survey instrument and better define ‘reasonable person’ in relation to informed consent in a hypothetical scenario where an invasive procedure may be an option.SettingA 10-question survey was administered from April 19 through 22 October 2018 to three groups: student nurses (n=76), health professions educators (n=63) and a US national population (n=1067).Primary and secondary outcome measuresThe primary outcome measure was the average intensity, on a 5-point scale, by which survey groups wished to have each of 10 questions answered. The secondary outcome was to discern relationships between survey demographics and the intensity by which participants wanted an answer.ResultsDespite substantial demographic differences in the nursing-student group and health-professions-educator group, the average intensity scores were within 0.2 units on nine of 10 questions. The national survey revealed a strong desire to have an answer to each question (range 3.98–4.60 units). It showed that women desired answers more than men and older adults desired answers more than younger adults.ConclusionsBased on responses to 10 survey questions regarding wishes of people in a situation where an invasive procedure may be necessary, the vast majority want an answer to each question. They wanted to know about all treatment options, risky drugs, decision aids, who will perform the procedure, and the cost. They wanted their advocate present, periodic review of their medical record, a full day to review documents and expected outcomes and restrictions after the procedure.

All medical treatments have potential harms as well as benefits, and it is vital that everyone has a good understanding of what these might be, how dramatic they might be and how likely. In fact, in the UK, the Montgomery judgement in the supreme court in 2015 (see Box 1) has made it a legal necessity for patients to be given comprehensible, personally relevant information about all reasonable treatment options, including none.1 So, how should we ensure good, clear communication of relevant evidence? Box 1. ### The Montgomery judgement In 1999, Nadine Montgomery was preparing for the birth of her son Sam. She was of small stature, with diabetes, and was concerned about being able to give birth naturally. Unfortunately, difficulties did arise during birth, and Sam suffered brain damage as a result. Her obstetrician had not discussed the risk of this particular complication occurring, deeming it best Nadine attempted a vaginal birth. On appeal at the supreme court, Nadine Montgomery won her case. This laid down a new legal basis for informed consent, in line with the General Medical Council guidelines;1 > “The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.” > > “The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. ” > > “The assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude” > > “The doctor’s advisory role involves dialogue, …

A recent District Court decision held that the Affordable Care Act (ACA), absent a tax penalty relating to the individual mandate, was unconstitutional. This follows on a Circuit Court decision that the ACA wellness provisions should be nullified. This editorial reviews the similarities and differences between the rulings and asks if a reasonable person would believe that offering financial incentives aimed at supporting a modicum of effort at self-care is rational. One survey of employers and health care consumers indicates 91 percent of those surveyed agree that wellness programs are a perk that helps employees improve health and, interestingly, the same percent agree these programs are sponsored by employers to cut costs. Where some may view the cost containment objectives of employee wellness as dubious, it's a minority view. Still, some minorities should and do carry inordinate sway in public health such as the small percent of those living with chronic conditions who are unwilling to participate in a healthy living program that is associated with their receiving full benefits. Are incentives a worthwhile strategy if they fail to motivate those who would benefit most from health improvement?

Judges apply law to facts. While this‘umpire’ description of judicial decision-making is rhetorically (and often politically and publicly) attractive, it is of course a very incomplete account of judicial decision-making.1 Judges frequently experience factual ‘gaps’ they need to fill in order to reach a decision. Judge Richard Posner has recently suggested this is a very significant problem facing judges in the twenty-first century as the technological complexity of cases before courts exponentially increases.2 The judiciary, the legal profession, and the academy have failed to respond to the challenges of filling ‘gaps’ in the factual record, through the use of extra-legal knowledge from disciplines outside the law.3 Adjudicative facts,4 presented by the parties and admitted in accordance with the rules of evidence, are sometimes (and perhaps often) simply not enough to enable a judge to reach a decision. Legal standards, for example, the ‘reasonable person’ or the ‘best interests of the child’, may incorporate broad judicial discretion which requires judges to apply wider understandings of the nature of the world and society and how human beings behave. Adjudicative fact evidence may not have meaning without the application of a ‘lens’ or framework of broader knowledge (through expert evidence or knowledge of other disciplines).5 Judges may be unable to evaluate the veracity of forensic expert evidence6 without an understanding of whether there is actually a scientific basis for the relevant forensic claims; what processes must be followed to ensure the reliability of forensic testing; and what cognitive impact the particular ways of presenting forensic evidence to judges and juries may have on ultimate decision-making.7 The advent of the internet and social media means knowledge can be rapidly and extensively disseminated and accessed across the world. Yet, paradoxically, despite this the relationship between the law and knowledge from other disciplines, including science and social science, is at best uneasy and at worst counter-productive to just outcomes. We argue that the silos around law and other academic disciplines need to be broken down.8

Observers who are angered by rule violations and punish violators often play a critical role in enforcement. Hence a key question is: when will noncompliance provoke anger, and when will it be excused? This paper develops a theory of rule compliance as the outcome of a two-person Bayesian game. The core of the model is its description of what constitutes an excuse. Noncompliance is excused when a “reasonable person” in similar circumstances would also have failed to comply. Phenomena explained include the role of “legitimacy” in enforcement; corruption traps; graduated sanctions for repeat offenders; and tolerance of self-interestedness in markets.

IT’S 2034. A drunken man walking along a sidewalk at night trips and falls directly in front of a driverless car, which strikes him square on, killing him instantly. Had a human been at the wheel, the death would have been considered an accident because the pedestrian was clearly at fault and no reasonable person could have swerved in time. But the "reasonable person" legal standard for driver negligence disappeared back in the 2020s, when the proliferation of driverless cars reduced crash rates by 90 percent. Now the standard is that of the reasonable robot. The victim's family sues the vehicle manufacturer on that ground, claiming that, although the car didn't have time to brake, it could have swerved around the pedestrian, crossing the double yellow line and colliding with the empty driverless vehicle in the next lane. A reconstruction of the crash using data from the vehicle's own sensors confirms this. The plaintiff's attorney, deposing the car's lead software designer, asks: "Why didn't the car swerve?"

Self-learning algorithms are gradually dominating more and more aspects of our lives. They do so by performing tasks and reaching decisions that were once reserved exclusively for human beings. And not only that—in certain contexts, their decision-making performance is shown to be superior to that of humans. However, as superior as they may be, self-learning algorithms (also referred to as artificial intelligence (AI) systems, “smart robots,” or “autonomous machines”) can still cause damage. When determining the liability of a human tortfeasor causing damage, the applicable legal framework is generally that of negligence. To be found negligent, the tortfeasor must have acted in a manner not compliant with the standard of “the reasonable person.” Given the growing similarity of self-learning algorithms to humans in the nature of decisions they make and the type of damages they may cause (for example, a human driver and a driverless vehicle causing similar car accidents), several scholars have proposed the development of a “reasonable algorithm” standard, to be applied to self-learning systems. To date, however, academia has not attempted to address the practical question of how such a standard might be applied to algorithms, and what the content of analysis ought to be in order to achieve the goals behind tort law of promoting safety and victims’ compensation on the one hand, and achieving the right balance between these goals and encouraging the development of beneficial technologies on the other. This Article analyzes the “reasonableness” standard used in tort law in the context of the unique qualities, weaknesses, and strengths that algorithms possess comparatively to human actors and also examines whether the reasonableness standard is at all compatible with self-learning algorithms. Concluding that it generally is, the Article’s main contribution is its proposal of a concrete “reasonable algorithm” standard that could be practically applied by decisionmakers. This standard accounts for the differences between human and algorithmic decision-making. The “reasonable algorithm” standard also allows the application of the reasonableness standard to algorithms in a manner that promotes the aims of tort law while avoiding a dampening effect on the development and usage of new, beneficial technologies.

The paper aims to determine the situations when the air carrier is liable for the transmission of COVID-19 in the course of air transport. It must be emphasized here that the carrier's liability results from bodily injury or death that are caused by an accident on board an aircraft or during the operations of embarking or disembarking. Accordingly, in this paper, we addressed if the transmission of COVID-19 an ‘accident’ within the Conventions' meaning and the period of air carrier's liability for passengers' contraction of COVID-19, taking into consideration the exoneration of air carrier's liability in COVID-19 cases. In addition, this paper will study the scope of the safety measures as required by ICAO to prevent the spread of COVID-19 and therefore protect the passengers' safety. In our opinion, we found that the estimate is left to the judge because the assessment of this matter is based on an objective criterion based on the reasonable person test and the fact of each case.