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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 situationist experiments demonstrate that most people’s behaviour is influenced by environmental factors much more than we expect, and that ordinary people can be led to behave very immorally. A number of philosophers have investigated whether these experiments demonstrate that subjects’ responsibility-relevant capacities are impeded. This paper considers how, in practice, we can assess when agents have a reduced capacity to avoid wrongdoing. It critiques some previously offered strategies including appeals to the reasonable person standard, appeals to counterfactuals and understandability of behaviour, and appeals to base rates of wrongdoing. It then proposes we should think a certain factor impeded capacities when this is the best explanation of a change in patterns of responses. With this approach in hand, I then argue that subjects in many of the situationist experiments are (mostly) excused for their actions.

In criminal cases of self-defense and provocation, and civil cases of negligence, culpability is often decided with reference to how a reasonably prudent person (RPP) would have behaved in similar circumstances. The RPP is said to be an objective standard in that it eschews consideration of a defendant's unique background or characteristics. We discuss theory and evidence suggesting that in morally relevant judgments, including those involving negligence, self-defense, and provocation, the tendency to rely on the self—on one's own values and predilections—dominates considerations of the RPP. We consider subjective standards that have been proposed as alternatives to the RPP and review research on this topic. We conclude by considering avenues for future research, particularly addressing conditions in which self-standards of reasonableness are most likely to prevail.

OBJECTIVE Custody is a legal state that requires police to Mirandize suspects and, in some jurisdictions, to record their interrogation. The present study compared the custody perceptions of police, judges, social psychologists, and laypeople. HYPOTHESES We predicted that (a) high-custody vignettes would elicit less perceived freedom than low-custody vignettes; (b) police and judges would see these situations as less custodial relative to social psychologists and laypeople; (c) these differences would arise mostly in ambiguous vignettes; and (d) participants in general would perceive suspects as objectively having more freedom to leave than they subjectively feel they have. METHOD Police officers (n = 223), trial judges (n = 219), social psychologists (n = 228), and laypeople (n = 205) read a vignette of a police-suspect encounter that presented high-, ambiguous, or low-levels of custody and indicated their perceptions of the suspect's freedom to leave. RESULTS Participants perceived the most freedom in the low-custody vignettes, followed by ambiguous and high-custody vignettes, and all groups differed significantly from each other (ηp2 = .39). Police and judges overestimated how free they thought the suspect would feel compared to social psychologists and laypeople, who did not differ from each other (ηp2 = .085). Participants in general saw the suspect as objectively freer than they thought he felt, and themselves as feeling freer than they believed the suspect did (ηp2 = .35). Police defined a "reasonable person" as someone who is mentally stable, whereas judges were more likely to cite a person of average intelligence. CONCLUSION Despite the assumption that custody can be defined by the effects of objective circumstances on the reasonable person, results revealed substantial variation of perceptions between police and judges on the one hand, and social psychologists and laypeople on the other. As a result, legal safeguards triggered by custodial interrogation may be inconsistently applied to real suspects. (PsycInfo Database Record (c) 2021 APA, all rights reserved).

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.

Discourse regarding the legal position of osteopathic clinical educators is scarce. The educator-patient-student relationship is complex and if not managed well may compromise patient and student safety. This doctrinal research paper explores how Australian Civil Liability Legislation may be applied during clinical education. The paper constitutes a thought experiment and uses reasoning by analogy, applied to a hypothetical problem scenario, set during an osteopathic student's clinical practice event for the purpose of exploring the educator's duty relationships and to tease-out possible acts or omissions that could potentially be used in an argument designed to establish a clinical educators breach of duty. The deliberations presented here illuminate the complex relationships and highlight situations in which a reasonable person may consider the clinical educator has provided poor supervision of the student's work with patients. This concept paper signposts the potential vulnerability of the patient and the student if supervision standards are not maintained and if appropriate clinical standards are not applied. Possible lines of arguments a patient may raise or a student may raise in a negligence case as well as possible defences the clinical educator may offer are presented.

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.

Although the problem of sexual harassment can be approached from a variety of perspectives, the present research focused on the role played by individuals’ perceptions, specifically those that may differ between men and women. We examined whether perceived sexual harassment would vary depending on observers’ gender, on gender of the harasser and of the victim, and on whether and what type of sexual harassment definition was provided to observers. In doing so, we attempted to update and clarify inconsistent results from prior studies. Results from 413 young adult U.S. MTurk participants responding to an online survey revealed fairly large effects for participants’ gender, such that women perceived a wider range of situations as sexual harassment than did men. In addition, the dyad of a man harassing a woman was construed as more definitely involving sexual harassment than other dyads. Surprisingly, these gender differences were smaller for situations judged as comprising sexual harassment to a lesser extent (i.e., those involving derogatory attitudes and nonsexual physical contact). Results are discussed in relation to prior findings and their legal implications, especially as they relate to a psychological assumption of the so-called “reasonable woman” standard used in U.S. courts, that women perceive sexual harassment to a greater degree than men. The results are also relevant for those wishing to curtail harassment within organizations and for those counseling victims of sexual harassment.

Cyberbullying has been defined as the “process of using the internet, cell phones or other devices to send or post text or images intended to hurt or embarrass another person.” The word “cyberbullying” is often used interchangeably with “cyber stalking” and in fact the Cybercrimes (Prohibition, Prevention, etc.) Act 2015 of Nigeria, uses the word “cyber stalking” which it defines as any course of conduct directed at a specific person that would cause a reasonable person to feel fear. By the provisions of the Act, the transmission of any communication through the means of a computer to bully, threaten or harass another person where such communication places another person in fear of death, violence or bodily harm amounts to cyber stalking. Cyberbullying is becoming a common phenomenon in Nigeria as more people engage in it especially on social media platforms. This is carried out in various ways and a common trend is posting indecent imagery of persons online such as naked pictures or videos of persons in order to humiliate them. When posted by a person, the communication is shared by others thereby causing circulation on social media. This act amounts to cyber stalking where the intention consists of those elements stated under the Cybercrimes Act. In other situations where it is shared without the aim of humiliating the victim, such act can still be incriminated under some other laws in Nigeria such as the Criminal Code Act and the Penal Code Act which for instance both criminalise obscene publications. It is worthy of note there have been reported cases where victims of cyberbullying have committed suicide as a result of fear or shame. A major observation is that cyberbullying has gained normalcy and many internet users engaged in it do not seem to be aware of the criminal connotation of their actions. This paper examines the effectiveness of legal responses to cyberbullying in Nigeria. It discusses the forms of cyberbullying commonly perpetrated in Nigeria by citing some real life instances that have happened in the past. The paper notes that most forms of cyberbullying can be prosecuted under the Cybercrimes Act, however, there has not been any notable enforcement of the law in terms of prosecution of cyberbullying cases. It appears that the lack of prosecution of offenders has fostered the act of cyberbullying especially under the present circumstances where there is widespread ignorance among internet users. The paper also notes that the absence of image rights is a precursor in many respects to some forms of cyberbullying especially when photographs and videos of victims are involved. The paper advocates the implementation and enforcement of the Cybercrimes Act as well as other laws relating to cyberbullying in Nigeria. The paper also posits that the protection of image rights will go a long way to assist in curbing the act of cyberbullying in Nigeria.

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.

Purpose – This paper examines the legal standards for the interpretation of contract terms in the UNIDROIT Principles of International Commercial Contracts (PICC) and the cases thereunder in order to provide academic implication to promoting an appropriate understanding of this topic in practical business. Design/methodology – This article uses the literature research and case study under the PICC. Findings – the contract terms shall be interpreted according to the common intention of the parties. If such an intention cannot be established, the contract shall be interpreted according to the meaning that reasonable persons of the same kind as the parties would give to it in the same circumstances. The statements and other conduct of a party shall be interpreted according to that party’s intention if the other party knew or could not have been unaware of that intention. If not, the reasonable person standard will apply. In applying above articles, all relevant circumstances including the conduct of the parties, practices and usages shall be considered. Terms and expressions shall be interpreted in the light of the whole contract or statement in which they appear and contract terms shall be interpreted so as to give effect to all the terms rather than to deprive some of them of effect. Where contract terms supplied by one party are unclear, contra proferentem rule applies. Where there is discrepancy between several equally authoritative versions of a contract, a preference is given to the interpretation according to the version originally drawn up. Where the parties to a contract have not agreed regarding an important term for their rights and duties, a term which is appropriate in the circumstances shall be supplied. Originality/value – This article examines various cases regarding the topic that were determined under the PICC. By finding legal standards and rulings of relevant cases, this article will help readers in practical business to enhance the ability to apply the provisions to their contracts.

Liability for medical negligence in Australia follows the common law pattern, viz a plaintiff needs to prove duty, breach, and causation of damage which is not too remote. Australian law distinguishes sharply between two aspects of a doctor’s duty. On the one hand, diagnosis and treatment is governed largely by a standard of what is widely accepted by peer professional opinion by a significant number of respected practitioners in the field, as competent professional practice. On the other hand, doctors have a duty to advise of material risks. A risk is material if a reasonable person, in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is, or should be, reasonably aware that the particular patient, would do so.

What would motivate a reasonable person to embark on a risky course? Basically considerations of two sorts, For one thing, the chance of gain may serve as inducement to bear the chance of loss inherent in the risk. Alternatively, accepting a given risk may provide a means of averting an even greater risk—one risk may simply prove to be “the lesser evil.” In all such cases, however, rational deliberation requires some mechanism for comparing the relative magnitudes of the risks at issue. It is always a matter of weighing the options: comparing, say, the dangers of malfunction of a nuclear reactor with the impact of mining mishaps or the accidents involved in constructing and operating power sources driven by water or by wind. All evaluations of risk are comparative: a matter of seeing whether—and by how much—this alternative is preferable to that one.

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.

The ‘reasonable person standard’ (RPS) is often called on in difficult legal cases as the last resource to be appealed to when other solutions run out. Its complexity derives from the controversial tasks that people place on it. Two dialectics require some clarification: the objective/subjective interpretation of the standard and the ideal/ordinary person controversy. I shall move through these dialectics from the standpoint of an EV (ethics of virtues) approach, assuming that on this interpretation the RPS can perform most persuasively its tasks. The all-round model of phronetic agent that I present not only works better than competing models—such as the utilitarian–economic and the Rawlsian—in the law of tort but shows its best potentialities in other kinds of cases. In criminal law and matrimonial law cases the recourse to the EV approach offers through the virtues rich and substantial resources to evaluate conflictual cases. This approach makes the threshold of evaluation much closer to real life than competitors.

The adoption of director’s duty of care in the 2005 revision of the PRC Company Law made significant progress in holding directors accountable for their wrongdoings. However, certain defects still exist, most importantly the lack of a specific standard for the duty of care in the legislation. Therefore, this article adopts an empirical and comparative approach in reviewing Chinese duty of care cases in comparison with major jurisdictions such as the United Kingdom and the United States. The 86 sample cases hand-collected from the ten-year period from 2011 to 2020 reveal that the number of duty of care litigation in China is still far lower than other types of company disputes, despite an increasing trend. This article finds a divergence in judicial practice concerning at least two different standards of the duty of care, with an array of non-uniform factors considered in the judgments. Accordingly, this article adopts a selective approach concerning best practices in major jurisdictions globally and proposes several solutions specifically catered to China’s legal and commercial context, including the unified adoption of the objective reasonable person standard, the suggestion that a wholesale transplant of the business judgment rule is undesirable while some of its elements could be borrowed for reference, the shifting of evidentiary burden to the defendants and the promotion of director’s liability insurance. By incorporating these changes, China’s company law stands to benefit from striking an appropriate balance between director’s authority to manage the companies and shareholder’s right to hold them accountable.

Self-defense is one of those areas of law in which one can immediately grasp the apparent contradiction between the solutions that follow from standard criminal law systems and those that derive from an examination of normative considerations. The gap between these two solutions is more inexcusable in this context than in any other. The chapter reviews these tensions in the context of the law applicable to putative self-defence (involving, for example, a non-culpable aggressor). It claims that the standard of “a reasonable person in the defendant’s situation” belongs to the concept of wrongdoing, and can be applied to solve problems of putative justification (putative self-defence, putative necessity, putative law enforcement and consent), and that it may be possible to admit a claim of justification if the “rational and well-grounded” nature of the belief is used as an objective criterion with which to judge the defensive reaction that took place.

There are certain areas of the law where even Justice Scalia has acknowledged that we cannot be governed by rules alone. Justice Scalia identified torts as such an area. I think Justice Kennedy correctly identified federalism as another. The absence of formal rules in an area of law does not need to mean there cannot be principled guidance given, it just means that the guidance needs to be given through a more flexible discursive practice. We have a sense of what the law of torts demands of us even if the reasonable person does not provide us with clear rules. In considering how to resolve thorny questions involving federalism, Justice Kennedy was drawn to the notion of achieving a balance between federal and state power. And, in at least one important area of federalism jurisprudence (the proportionality test from Boerne), Kennedy did successfully establish a rule of proportionality. Nevertheless, most of Kennedy’s efforts at importing a type of proportionality analysis failed and, even where such an analysis was formally adopted, it has been applied in a wooden manner more reminiscent of a rule. In this chapter, I consider these failures. I argue that Kennedy was correct to believe that a vibrant federalism jurisprudence requires a proportionality analysis and, further, that such an analysis can be done in a principled manner that provides substantial guidance to judges, policymakers and citizens. Because I believe the underlying the conception was sound, I diagnose the problem as relating to its execution. The successful application of a standard like proportionality requires sustained thoughtful public engagement through time. Alas, most of the other justices, and even Justice Kennedy himself, did not participate in such a discourse, even in the cases trying to apply Boerne’s proportionality test. This failure was not necessary. The constitutional courts of other nations, and even our own, do apply proportionality type tests satisfactorily and one day our courts may do so as to federalism, following on the hints, if not the practice, of Justice Kennedy.

The debate over risk-related standards of decisional capacity remains one of the most important and unresolved challenges to our understanding of the demands of informed consent. On one hand, risk-related standards benefit from significant intuitive support. On the other hand, risk-related standards appear to be committed to asymmetrical capacity—a conceptual incoherence. This latter objection can be avoided by holding that risk-related standards are the result of evidential considerations introduced by (i) the reasonable person standard and (ii) the standing assumption that patients have capacity. This evidential approach to justifying risk-related standards of capacity avoids the most significant challenges faced by extant views while grounding risk-related standards in two fairly uncontroversial views in biomedical ethics.

Among various kinds of disclosures typically required in research as well as in clinical scenarios, risk information figures prominently. A key question is, what kinds of risk information would the reasonable person want to know? I will argue, however, that the reasonable person construct is and always has been incapable of settling this very question. After parsing the nebulous if not "contentless" character of the reasonable person, I will explain how Western courts have actually adjudicated cases of "negligent nondisclosure," that is, cases in which patient-plaintiffs allege that their informed consent rights were violated by the failure of their health providers to inform them of reasonably foreseeable risks that subsequently materialized. To support my argument, I will scrutinize the landmark decision by the United Kingdom's Supreme Court in Montgomery v. Lanarkshire Health Board and, in particular, Justice Brenda Hale's concurrence.

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

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.

Police custody activates important legal safeguards. To determine custody, courts examine objective conditions and ask whether a “reasonable person” would feel free to leave while being questioned. In Study 1, student participants were either interviewed or interrogated about a staged theft they believed to be real. Interviews and interrogations embodied specific factors considered noncustodial or custodial, respectively. Observers then watched videos of these sessions. Participants in interviews did not feel significantly freer to leave than those in interrogations, though observers did make this distinction. In Study 2, some participants were explicitly pre-advised of their freedom to leave. The advisement induced participants to report they were free to leave as an objective matter but did not significantly affect their subjective feelings of freedom. In both studies, the actor–observer divergence vanished when observers imagined themselves from the actor's perspective. These results challenge legal assumptions about custody and suggest lines of future research.

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.

This article compares two models of discharge for repudiation. The first – termed the “mirror image model” – has come to the fore only in recent years. It treats the applicable principles as the mirror image of those that govern discharge for failure to perform a contractual term. Under the second model – the “differentiated model” – repudiation is analysed in terms of various criteria that respond to conceptual diversity within the basis for discharge. The two models diverge, at the heart of the repudiation doctrine, when the issue is whether a reasonable person would regard the promisor as having refused to perform the contract. It is argued that the differentiated model is the better model, and also the preferred view of the common law.

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

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, …

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.

This chapter consists of a brief discussion on some legal aspects concerning scientists’ responsibility in risk prevention processes. After proposing some introductory considerations on scientists’ responsibility as such, the author deals with the L’Aquila earthquake crisis of 2009, when a strong quake destroyed significant parts of L’Aquila (Italy) and surrounding villages, killing more than 300 people. The chapter focuses on the relations between scientific knowledge, normative expectations, decision-making and criminal negligence for ‘failed’ risk assessment and management, paying particular attention to the role of ‘regulatory science’ in constructing the ‘reasonable person’ normative standard of care in the theory of criminal negligence. This allows explaining why the first judgement in the L’Aquila trial (2012) is not convincing, having misunderstood how policy-relevant science should participate in prevention processes and the construction of normative standards. In his conclusions, the author suggests some reasons for the recent tendency to blame experts when natural or technological disasters occur.

This note discusses the standard that should be applied for asylum seekers who are fleeing religious persecution in their home country. In order to gain asylum in the United States, applicants must meet the standard of a refugee, meaning that, among other things, they must demonstrate that they have a “well-founded fear” of returning to their country of origin. “Well-founded fear” has been defined as when the applicant has a “subjectively genuine and an objectively reasonable fear”. The subjective fear is established when an applicant is found to have testified credibly concerning their fear of return. The objective standard is more difficult to define but has been likened to the “reasonable person standard”, when “a reasonable person in his circumstances would fear persecution” upon return to the native country. This standard is inconsistent with the way in which other religious legal issues are typically addressed, and becomes impossible to apply when an individual fears religious persecution such as black magic, voodoo, or witchcraft that is incompatible with the Western perspective of a “reasonable” fear. Evaluating another culture’s religious beliefs through the lens of a “reasonable person” standard results in blanket discrimination against non-Western ideologies. The Supreme Court’s long-standing approach to determining an individual’s religious beliefs is that it is only appropriate to determine the sincerity of the belief, not the underlying veracity of the belief itself. The same standard should be applied towards asylum seekers whose fear of returning to their home country is rooted in their religious beliefs.

Since the enactment of the Trafficking Victims Protection Act of 2000 and its requirement that victims and prosecutors make a showing of coercion under a reasonable person standard, an entire class of victims effectively became unprotected and no longer deemed victims. The inability to meet such a high burden not only produces a lower rate of successful criminal and civil prosecutions, but also—and most alarmingly—precludes many a victim’s participation in basic and highly needed governmental services, required both to cope with and recover from the trauma. The consequences are particularly egregious in the context of domestic servitude, where traffickers successfully rely on the prosecution’s inability to disprove consent. From the perspective of Policy-Oriented Jurisprudence, this article analyzes the conditioning factors leading to the adoption of the reasonable person standard in our trafficking legislation, all relevant judicial, legislative, and executive actions enforcing it. In addition, it criticizes the standard’s conceptual and practical limitations. In the interest of making our anti-trafficking regime better approximate a public order of human dignity and current international.

The claim of “not guilty by reason of insanity,” or “NGRI,” is dramatized frequently in the media and popular social circles. However, it is actually quite rarer, and more difficult to uphold in court, than most outside of forensics may think. The classic “Yates Case” in Texas in 2001 brought much attention to the NGRI rulings that continue to emphasize the importance of untangling the mind at the time the wrongful act occurred, an always challenging task that we as forensic mental health experts are assigned to carry out. In similar fashion, the case you will see illustrated in this chapter details an unfortunate circumstance one healthcare provider found herself in when she suffered an injury at the hands of a patient. The assault itself is not in question, nor is the status of the individual’s present mental competence, but rather the mental state available to the defendant at the time of the event in question. As with many other cases, I may not know the legal outcome of the inquiry. Our job is to be highly analytical to arrive to an opinion and able to explain as best as possible what the diagnosis I may provide means, in simple terms that a court can use to instruct jurors with. It is in this capacity that I often find it most helpful to use basic language and phrases to convey the points I wish to make. We rely on the review of medical, including mental health records, police investigative reports, and legal guides and criteria before examining a defendant. Most importantly, I try to use evidence from the reports and documents I gather to help support the opinions I form and will cite them as much as possible when helping to bolster a report.

The autonomy of patients participating in research means that a proper informed consent process must take place. This means that information must be given according to a reasonable person standard implying what legally and ethical a reasonable person participating in the research would want to know. The research must assure that the patient has understood all the information given and that a voluntary choice has been made. This means that no form of coercion must take place and that information must not be manipulated in such a way as to influence the participant. No undue pressure or persuasion must either occur. Particular attention must be paid to vulnerable groups and participants must be competent and have the capacity to consent. Where necessary the use of a proxy to act on behalf of a patient who does not have legal capacity must be used and the best interests of the patient must be asserted. In research consent must always include a signed consent form which again is duly explained and authorized by the research ethics committee.

Greenblum and Hubbard argue that physicians are duty-bound by the constraints of Rawlsian ‘public reason’ to avoid engaging their patients’ religious considerations in medical decision-making.1 This position offers a number of appealing benefits to physicians. It will appear plausible because Rawls’s philosophical tradition of Political Liberalism enjoys the status of ideological orthodoxy in institutions tasked with forming the moral imaginations of physicians and other elites.2 3 It casts the physician in the role of a ‘reasonable person’ occupying the space of public reason whose medical and ethical judgments are opposed by ‘sectarian’ religious patients who refuse to be reasonable. This narrative authorises the exclusion of patient religious considerations from medical decision making when they do not ‘translate’ into reasons recognised by ‘reasonable’ medical professionals and manages the trauma of overwhelmed physicians by legitimising disengagement from difficult interactions with religious patients. The authors’ arguments depend on concepts from Rawls’s Political Liberalism 4 and are presented as if the premises of Liberal theory are incontestable—despite the fact that a large body of philosophical literature challenging its premises and core concepts has existed for decades.3 5–7 This ‘nothing to see here, move along’ approach saves more space for anecdotes about religious people, at which …

This chapter demonstrates how, in the fight for better behaviour, those who can’t or won’t conform to the norm come to be figured as unreasonable. By investigating reasonableness frameworks from sexual harassment law to ‘reasonable accommodations’ for disability, Kirsty Sedgman examines the places where seemingly common-sense assumptions break down. This chapter uses theatre etiquette to explore broader power dynamics behind the act of ‘being together’ in public space.

This paper discusses Robert Audi’s argument for the rationality of altruism as it is presented in his Architecture of Reason. The argument departs from the assumption of a close connection between rational intrinsic desires and intrinsic goodness: If an intrinsic desire should be rational, it must be a desire for something intrinsically good. According to Audi’s axiology, qualities of experiences are those entities that can be intrinsically good or bad. If these assumptions hold and if human beings are essentially alike, it seems appropriate to claim that a self-centered desire for something intrinsically good is as rational as an altruistic desire for the very same thing, i.e. a desire for someone else’s experience of this intrinsically good quality. The paper provides a detailed reconstruction of Audi’s argument and continues by scrutinizing four concepts central to it. First, the applied notion of rationality and reasonableness is analyzed. Second, Audi’s conceptualization of altruism with its tight connection to an impersonal understanding of intrinsic desires is discussed. Thirdly, several possible interpretations of the central premise of human similarity are described and compared. Finally, the idea of integration, according to which a reasonable person strives for an adequate balance and responsiveness between her beliefs and her desires, is scrutinized.

This paper considers the views of two figures whose work falls on either side of the heyday of American pragmatism, Thomas Reid (1710-96) and Ludwig Wittgenstein (1889-1951). The broad similarities between Reid’s and (the later) Wittgenstein’s views, and in particular their epistemological views, has been well documented. Here, I argue that such similarities extend to the relation in their work between common sense and the presence of elements in their thought that can be considered pragmatist in some important respect. Beginning with Reid, I argue that some specific theses commonly associated with pragmatism – e.g., that meaning, truth, or the justifiedness of a belief in a matter of practical effects or efficacy – clearly run counter to his stated views, and stand in tension with the well-known common sense character of his work. At the same time, however, and as others have noted, other pragmatist themes and ideas – e.g., about the close relations between belief (and doubt) and action, theory and practice, and facts and values – do have a clear precedent in Reid (§2). Most fundamentally, however, Reid’s epistemological views in particular display an adherence to the idea that practice is somehow primary – an idea that’s central to pragmatism ‘broadly conceived’, as Brandom calls it and, according to some others (e.g., Putnam, Cavell), to pragmatism per se. What’s more, once we are clear on the respect(s) in which Reid’s views do incorporate an important pragmatist element, it becomes clear that far from being at odds with, or needing supplementation by, the latter, common sense is in fact inseparable from it (§3). Finally, I turn (§4) to Wittgenstein, and suggest that the same close connection between pragmatist elements and common sense as we find in Reid is present here as well: like Reid, Wittgenstein rejects several ‘narrow’ pragmatist theses; but he too ascribes practice a crucial role. And while he seldom explicitly refers to common sense, the notions of good judgment, and of the reasonable person – hallmarks of common sense, as Reid conceives of it – are at the heart of Wittgenstein’s later epistemological views as well.

The UK Supreme Court Montgomery judgment marks a decisive shift in the legal test of duty of care in the context of consent to treatment, from the perspective of the clinician (as represented by Bolam rules) to that of the patient. A majority of commentators on Montgomery have focused on the implications of the judgment for disclosure of risk. In this article, we set risk disclosure in context with three further elements of the judgment: benefits, options, and dialogue. These elements, we argue, taken together with risk disclosure, reflect the origins of the Montgomery ruling in a model of consent based on autonomy of patient choice through shared decision-making with their doctor. This model reflects recent developments in both law and medicine and is widely regarded (by the General Medical Council and others) as representing best practice in contemporary person-centred medicine. So understood, we suggest, the shift marked by Montgomery in the basis of duty of care is a shift in underpinning values: it is a shift from the clinician's interpretation about what would be best for patients to the values of (to what is significant or matters from the perspective of) the particular patient concerned in the decision in question. But the values of the particular patient do not thereby become paramount. The Montgomery test of duty of care requires the values of the particular patient to be balanced alongside the values of a reasonable person in the patient's position. We illustrate some of the practical challenges arising from the balance of considerations required by Montgomery with examples from surgical care. These examples show the extent to which Montgomery, in mirroring the realities of clinical decision-making, provides elbowroom for best practice in person-centred clinical care.

Defamation law offers a remedy when the plaintiff’s reputation is harmed by something the defendant publishes. At the heart of the action lies the question—what do the words complained about actually mean? The process of determining defamatory meaning depends heavily on what the court finds to be the imputations conveyed by the matter concerned to ‘ordinary, reasonable people’. The process relies on assumption and conjecture, rather than on evidence. This article examines how this process applied in the Hockey v Fairfax Media case brought by Australia’s former Federal Treasurer Joe Hockey against Fairfax Media, which presented a paradox—the court described the journalists’ articles concerned in glowing terms but still found for the plaintiff.

It is widely agreed that pharmaceutical research has serious problems, but there is no consensus on what to do about them. The first of these is concerned with issues of political morality, while the second focuses on scientific methodology, yet they turn out to be surprisingly related. The general idea is that everyone's medical needs are covered free of cost to the individual. On utilitarian grounds, socialized medicine does the most good for the least cost. Once aware of the issues involved in medical research, especially pharmaceutical, any reasonable person will be horrified and want to make changes. In his contribution to this volume Reiss argues for two important points. The first is to banish patents entirely, on the grounds that they do not promote innovation but rather stifle it. The second major suggestion Reiss makes is that randomized controlled trials are overrated when it comes to evidence in medical research.

In bioethics literature, the primary justification for the requirement of informed consent has been the protection of autonomous choices. To allow patients to be autonomous decision-makers, physicians are supposed to disclose and share information related to all treatment, procedures and risks. Advocates of the autonomy-based informed consent model argue that in informed consent cases, the disclosure of information should be according to the reasonable person standard or reasonable patient standard, rather than the average competent physician standard. In the Indian medicolegal context, the concept of consent has evolved through the discussion of informed consent and by referring to the concepts of informed consent in other countries, such as the USA, the UK and Canada. In cases of medical negligence in India, the concept of "real or valid consent" has been adopted from British case law rather than the "informed consent" of the USA. This paper examines the doctrinal rules of the concept of real or valid consent through an analysis of Samira Kohli's case - a landmark court case and a major precedent case in India that referred to "real or valid consent". In analysing this case, the paper will examine the judiciary's decision on the nature of and standard for the disclosure of information. Thus, the paper will reflect on the underlying ethical and legal principles of the doctrine of real or valid consent in the Indian context. This paper uses a hermeneutic approach to the landmark case to provide a qualitative interpretation of the Indian medical judiciary's concept of consent and the autonomy of the patient.

Following American legal sources, I argue that the use of the reasonable person standard in criminal law is inaccurate and unfair, and, therefore, inconvenientto evaluate human behaviour based on three arguments which address flaws of the standard underanalysis. Firstly, this standard is by definition abstract, theoretical and general, not reflecting appropriately the person’s sensory and ideational perception of the situation. Secondly,the trend in American legislation and case-law is to apply, in criminal cases, e.g., self-defence,a hybrid criterion, which consists in the consideration of a person’s belief and the correspondenceof such a belief to what a reasonable person would believe under the circumstances, as opposed to apurely objective standard. The principle of individual criminal culpability underlies this.Thirdly, the reasonable person standard imposes a sort of majority’s dictatorship by perpetuating apredominant culture disregarding the viewpoints from minority groups. Siguiendo fuentes jurídicas americanas, sostengo que el uso del estándar de la persona razonable en derecho penal es inexacto e injusto y, por lo tanto,inconveniente para evaluar conducta humana sobre la base de tres argumentos que abordan lasimperfecciones del estándar bajo análisis. Primero, este estándar es por definición abstracto,teórico y general y no refleja apropiadamente la percepción sensorial y cognitiva de la situación.Segundo, la tendencia en legislación y jurisprudencia americanas, en casos penales, por ejemplo,defensa propia, es el uso de un criterio híbrido, el cual consiste en la consideración de lacreencia de la persona y la correspondencia de dicha creencia con lo que la persona razonablecreería bajo las circunstancias, lo que es opuesto a un estándar puramente objetivo. Tercero, elestándar de la persona razonable impone una suerte de dictadura de la mayoría al perpetuar unacultura predominante sin considerar los puntos de vista de los grupos minoritarios.