Search

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 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.

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.

Cox and Fritz state the central problem as the absence of a framework for healthcare policy decisions; but, they overlook the theoretical underpinnings of public law. In response, they propose a two-step procedure to guide fair decision-making. The first step relies on Thomas Scanlon’s ‘contractualism’ for stakeholders to consider whether, or not, they could reasonably reject policy proposals made by others; then in the second step, John Rawls’s principles of justice are applied to these proposals; a fair policy requires to pass both steps. I argue that Cox and Fritz misinterpret Rawls. His theory has two stages: first, public reason is used to generate principles of justice; second, public reason is used to interpret and apply these principles. The second stage requires that proposals are based on the principles of justice from the first stage, and these proposals have to be acceptable to reasonable persons. Thus, Rawls’s theory does not need Scanlonian supplementation. Moreover, the application of Rawls’s theory in Cox and Fritz’s model is confusing. In any case, the problems with applying Rawlsian justice to healthcare can be located elsewhere. First, Rawls’s theory would treat healthcare simply as a ‘primary good’ or resource. Social justice ought to, instead, consider healthcare as an opportunity, in the manner conceived by Amartya Sen. Second, Rawlsian justice rests, ultimately, on the conception of a reasonable person; until and unless the characteristics of reasonable stakeholders are clarified, any model of health justice will remain hostage to the unreasonable.

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.

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

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.

The reasonable man is the best known, but not the only, legal construct to be born into the nineteenth-century common law. This article introduces the man’s siblings - including those from the areas of trust law, criminal law, contract law, and intellectual property law (both patents and trademarks). The fact that some of these ‘men’ changed the law is not controversial this research further highlights that while several of these came to life in that century, only some had a significant role into the twentieth century. Those that did are tied to the foundations of our society through their role in facilitating innovation and consumer protection. The argument is that it was the constructs’ nature and their capacity to accommodate public policy issues that enabled the vitality of the ‘reasonable person’ (negligence) and the ‘person skilled in the art’ (patents).

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 …

Montgomery v Lanarkshire Health Board concerned a negligent non-disclose of certain risks involved in natural birth. The Supreme Court departed from Sidaway v Bethlem Royal Hospital, which formerly governed negligent risk disclosure. A new test was adopted: risks that are material must be disclosed, the materiality of a risk to be decided by reference to a reasonable person in the patient's position, or where the medical professional should be reasonably aware a particular patient is likely to attach significance to that risk. The Court emphasised risk disclosure practices must focus on what the patient wants to know. Yet the Court's portrayal of this change as a development of Sidaway is questionable. The decision is problematic in its engagement with precedent, the new test's future implications and statements regarding therapeutic privilege. Despite rejecting Bolam v Friern Hospital Management Committee's relevance to risk disclosure, this case is likely to remain relevant.

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 …

In sexual harassment law scholarship, it is often argued that the reasonable person standard should give way to a reasonable victim (woman) standard. Yet, this latter standard may unintentionally invite homophobic employees to attempt to use a reasonable homophobe standard to charge gay supervisors with harassment merely for being openly gay at work. In response, I argue that we currently act on an unjustifiable distinction whereby we treat sexuality behavior (behavior that indicates one's sexuality) as necessarily sexualized only for GLBTQ behavior. By disallowing this discriminatory treatment, we can preserve the reasonable victim standard and undermine the homophobe's warrantless charges.

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.

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.

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.

The New South Wales Legislative Council Select Committee published its report on the partial defence of provocation in April 2013. The Committee's recommendations are closely modelled on the framework and rationale of the loss of control defence under ss 54–56 of the Coroners and Justice Act 2009, with significant exceptions designed to circumvent the difficulties associated with the novel terminology. Interestingly, the Committee advocates the adoption of an exclusionary conduct model, despite the problems associated with s. 55(6)(c), which specifies that sexual infidelity is to be disregarded for the purposes of the concessionary mitigation. The Committee asserts that a carefully worded exclusionary conduct model would serve to restrict the partial defence whilst avoiding the issues which have manifested themselves at appellate court level in England and Wales. Irrespective of the wording, specific prohibitions which focus on the conduct of the victim are unrealistic in that they fail to account for the multitudinous and interconnected nature of loss of control/provocation claims. Nevertheless, exclusionary conduct models which concentrate on the conduct of the victim ought to be distinguished from clauses which focus on the defendant's actions. If the defendant undertakes to cause the victim to respond in a manner for the purpose of providing an excuse to use violence it is clear that the defence ought not to apply. Similarly, where a defendant becomes voluntarily intoxicated, it may be appropriate to exclude that intoxication from consideration when making the objective assessment as to whether an ordinary/reasonable person would have reacted as the defendant did in the circumstances. In this context, explicit legislative exclusions do have the potential to prevent unnecessary appellate litigation, but only in limited circumstances.

The term “virtual reality” was first coined by Antonin Artaud to describe a value-adding characteristic of certain types of theatrical performances. The expression has more recently come to refer to a broad range of incipient digital technologies that many current philosophers regard as a serious threat to human autonomy and well-being. Their concerns, which are formulated most succinctly in “brain in a vat”-type thought experiments and in Robert Nozick's famous “experience machine” argument, reflect a fundamental misunderstanding of the way that such technologies would probably have to work. They also considerably underestimate the positive contributions that virtual reality (VR) technologies could make to the growth of human knowledge. Here, we examine and critique Nozick's claim that no reasonable person would want to plug into his hypothetical experience machine in light of a broadly enactivist understanding of how future VR technologies might be expected to function. We then sketch out a tentative theory of the phenomenon of truth in fiction, in order to characterize some of the distinct epistemic opportunities that VR technologies promise to provide.

Consent evolved from judge-made law in Great Britain in 1767. The term informed consent entered the judicial lexicon in 1957. The first court case to articulate a reasonable person standard adopted by the high courts in Canada and Australia was heard in the U.S. in 1972. Today, informed consent continues to develop in four areas: (i) the court-based doctrines of consent and informed consent in clinical care in judge-made law; (ii) federal regulations related to research on human study participants; (iii) shared decision making adopted by care organizations and medical societies in the US, Canada, and Europe; and (iv) areas including decision analysis, discourse analysis, ethics, linguistic analysis, patient–physician communication, risk and evidence communication, and social theory. In this paper, we will focus on consent and informed consent in the first part of the twenty-first century. We will examine a range of information and decision making frameworks from the oldest court-established frameworks of consent and informed consent to recent conceptions of information and decision making in evidence-based decision making and shared decision making in the patient–physician relationship. This paper is divided into three parts: I. What informed consent is, II. What informed consent isn't, and III. Future challenges in informed consent and shared decision making.

By its very nature, policing in general is a complex and unique occupation (Macdonald, Manz, Alpert, & Dunham, 2003). In the U.S. the characteristics of public accountability, openness to evaluation and responsiveness to citizen demands (Bayley, 1998) contribute to the inimitable nature of policing in that police officers, in interpreting and applying static and dynamic rules, are legally permitted to act in ways, such as using deadly force, that would be criminal if committed by a civilian (Macdonald et al., 2003). Specifically, while the use of excessive force violates the Fourth Amendment (Graham v. Connor, 1989) excessiveness is determined not only by the totality of the circumstances facing the police officer (Flournoy v. City of Chicago, 2016) but must be judged from the perspective of a reasonable police officer on the scene rather than a 20/20 vision of hindsight (Graham v. Connor, 1989). Thus, arguably excessiveness is profession-specific in that any force even deadly force is reasonable and legal if given the circumstances present a reasonable police officer (not a reasonable person) would have used the same degree of force. Furthermore, by working in isolation from public observation, police officers are provided with ample opportunities to misuse their authority (Dunningham & Norris, 1998; Escholz & Vaughn, 2001; Moran, 2005) in what some have argued is an occupation conducive to misconduct (Hunter, 1999; Ivkovic, 2004).

In Moral philosophy meets social psychology, Gilbert Harman argues that social psychology can educate folk morality to prevent us from committing the ‘fundamental attribution error,’ i.e. ‘the error of ignoring situational factors and overconfidently assuming that distinctive behaviour or patterns of behaviour are due to an agent’s distinctive character traits’ (Harman, Proceedings of the Aristotelian Society, 99, 315–331, 1999). An overview of the literature shows that while situationists unanimously agree with Harman on this point, they disagree on whether we also tend to commit a kind of fundamental attribution error with respect to moral responsibility and blame. Do we also tend to ignore situational factors and overconfidently assume that people are morally responsible and blameworthy for their distinctive patterns of wrongful behaviour? Very few scholars have addressed this issue, and none has ever given a comprehensive account of moral responsibility and blame from a situationist perspective. In this paper, I argue that situationist social psychology impugns subjective theories of responsibility and blame which focus on the agent’s inner states and supports an objective theory—namely, the standard of the reasonable person. I defend this standard as a tool for moral appraisal, and then I refute the common misperception that this approach lets most perpetrators off the hook and poses a threat to society.

Abstract The role that religious language should play in the ‘public square’ has long been a matter of debate. As Rawls, Rorty, Audi and others have long argued, albeit with subtle variations, discussion on public issues must be truly ‘public’ and therefore employ vocabulary, principles and reasoning which are intelligible to any reasonable person and based on public canons of validity. But does this argument do justice to religious voices? Can the growing number of such voices clamouring for the right to be heard continue to be ignored? Does excluding conviction-based language from public debate lessen the quality of that debate and the potential to find effective solutions to policy challenges? Drawing upon recent work by Jonathan Chaplin, Rowan Williams, Roger Trigg and Michael Sandel, this article examines the current state of scholarship on the question of language in public discourse, and concludes that the case for ‘confessional candour’ to be accepted in such discourse is overwhelming and could have a positive effect on policy outcomes. A prerequisite to this, however—at least within the context of New Zealand—will be a fresh debate about the meaning and scope of the term ‘secularism’.

In Complicity and the Rwandan Genocide (2010b), Larry May argues that complicity can be the basis for criminal liability if two conditions are met: First, the person’s actions or inactions must contribute to the harm in question, and secondly, the person must know that his actions or inactions risk contributing to this harm. May also states that the threshold for guilt for criminal liability is higher than for moral responsibility. I agree with this latter claim, but I think that it casts doubt on May’s account of criminal liability, particular in so-called performance cases in which low-level participants merely fail to help. This is because it is far from clear that passive non-helpers are morally responsible for their participation in widespread harms. Situationism purports to show that passive bystanders typically are not morally responsible for their role in such harms, because they were behaving reasonably subject to the constraints they faced. In this paper, I assess this claim, and defend it on the basis of O. W. Holmes’ standard of the reasonable person as a guide to judging criminal complicity. Finally, I provide a situationist account of the Rwandan genocide, which focuses on the systemic causes and primary perpetrators of the genocide, rather than low-level participants.

On the point that, in practices of critical thinking, we respond spontaneously in concrete situations, this paper presents an account on behalf of Wittgenstein. I argue that the ‘seeing‐things‐aright’ model of Luntley's Wittgenstein is not adequate, since it pays insufficient attention to radically new circumstances, in which the content of norms is updated. While endorsing Bailin's emphasis on criteria of critical thinking, Wittgenstein would agree with Papastephanou and Angeli's demand to look behind criteriology. He maintains the primacy of the practical, and yet contends that a reasonable person lets rules of rationality compel her. These rules are not mere heuristics. I further examine Burbules' conception of communicative reason, and, among others, his interpretation of Wittgenstein's sign‐post example.

The post-9/11 global sensitivity to fear that "terrorism" from unreasoned radicals will come stalking in the dark of night has made finding a reasonable person who is unafraid of strangers hard to find. The elevated uses of language, rhetoric, and argument with very high vocabulary fog index, confronts any serious student of the literature, be it Christian-Muslim, capitalist-communist, or populist-elitist. The fear of terrorism penetrates much of political jawing. This type of rhetoric have produced cognitive debates that are shocking, if not terrifying, as average people try to find non-paranoid views of a decent and honorable life in a mostly safe world. As co-authors of the following conversation, we make transparent our belief in honoring the scholarship of adult educators who take a macro-political view of terrorism, and who consider the human dimensions of living day to day in an unsafe environment. Many adult education scholars are aware of the range of topics on the minds of adults who bring their hopes, fears, and experiences to graduate adult education study programs. American scholarship on adult education is replete with advocates who encourage, foster, and nurture learning climates that engage discussion, explore life's options, and an understanding of human desire to establish policies that promote and assure justice. But in the Arab Middle East, one is challenged to find such literature. We should know, since we are an Iraqi and an American engaged in dialogue about the significance of andragogy as a tool for rebuilding war-torn Iraq. We are Ghada and Larry. Ghada is an Iraqi doctoral candidate in adult and higher education and Larry is her doctoral advisor. We have been involved in intensive dialogue about how we see our cultures, how we perceive the conflict in the Middle East, and how andragogical theory offers hope for changing learning and teaching approaches that can influence political and social philosophies of leadership. Ghada believes that as a woman, wife and a mother of two boys from Baghdad, Iraq, and who experienced the bombings and terror, she has insights to bring to a mentoring relationship. Larry, as a senior professor in adult education, has made a lifetime study of Asia, but has found a certain value in learning and teaching with Ghada. Both have shared their perceptions of their cultures, including their concerns about potential conflicts from issues of oil, religion, governments, and families. This conversation is a reflection of our advocacy for andragogy as a tool for change and peace. We have written in a way that allow both of our voices to be heard; Ghada--from her experience as an Iraqi and as a U.S. doctoral student, and Larry--as a senior professor in adult education and educational administration. We talk about how an inclusive education can bridge two cultures, American and Arab together in meaningful ways. Following our conversations, our combined voices contemplate the following questions. What does Andragogy have to offer to people in cultures facing distress, conflict, and war? We poignantly ask ourselves, what is the relevance? And more importantly, why should we in the field of adult education care? An Iraqi Seeks Meaning in Adult Education Study Ghada: After struggling for two years to get the opportunity to go to the United States for doctoral studies, I did not know what to expect of American professors at the University of South Dakota. Would they be prejudiced toward my heritage? Would they be open to knowing me? Or, would they be dominating, self-important, or careless about morality as often portrayed in Western movies? Would I find new meaning in my studies? Would anyone care about me as a person? What I found was shocking. My professor turned out to be extraordinary. He was real, caring, and a good listener. He offered more than I expected, his ideas, empathy, and a willingness to share with me a deep concern for trying to make peace and meaning in the world. …

Three of the concerns identified by Paul Rabinow as central to the Human Practices thrust of the SynBERC project feature in the English common law of negligence. They are the logic of practical judgment, mutual flourishing, and capacity building. In two further ways, English negligence law has relevance to the SynBERC project. It provides an example of “equipment” in the sense specified by Rabinow and it is an institution informed by a number of sometimes antagonistic purposes. This essay seeks to point up English negligence law’s relevance to the SynBERC project by focusing on three of its more prominent features. They are the way in which judges incrementally elaborate existing doctrine, the moral impulses that inform the law, and the way in which this branch of tort gives expression to an ideal of community.

This paper explores the following question: if, as John Rawls famously suggests, justice is the first virtue of social institutions, how are we to understand the institution of contract law? On the one hand, many writers take the view that the rules of contracts are merely a tool for bringing about distributive justice; on the other hand, some libertarian writers contend that the rules of contract leave no space for any idea of distributive justice. In this paper, I propose an alternative account. I situate contract law in terms of what John Rawls calls “the social division of responsibility”: society as a whole has to provide individuals with an adequate share of opportunities and resources that they need in order to set and pursue their own conception of the good. Once individuals have those fair shares, citizens have to take responsibility for how their own lives go. An important way that people may pursue their plans is by entering into arrangements with others. This requires a system of contract rules. I argue that justice requires that we understand contract rules in terms of the idea of fair terms of interaction – that is, terms that would be accepted by reasonable persons moved by a desire for a social world in which they, as free and equal, can cooperate with others on terms they accept. The underlying idea is that of reciprocity, that is, the idea that individuals should not set the terms of their interactions with others unilaterally. Those fair terms of interaction are reasonable terms. Thus, in this paper, I claim that contractual interactions should be approached from the perspective of the reasonable person. My aim is to explain the formation of a contract, the legal response to a breach, and other issues that come up with contractual interactions from that perspective.

In October 2007, the House of Lords removed the last major obstacle to the creation of a separability doctrine in England, the suggestion that an arbitration clause is not wide enough to include issues of the main contract’s validity and enforceability. In so doing, it eliminated an entire source of arguments about the interpretation of arbitration agreements in a way which seems likely to find acceptance on a broader international scale. As with most judgments on separability, there are other forces at work. The House of Lords is applying a change in the way English law interprets contracts generally to the construction of the arbitration clause. The emphasis is now on the context of the transaction and the search for what a reasonable person in the position of the contracting parties would have intended, rather than the words used. Lord Hoffman, who delivered the leading judgment, has also become something of a separability purist, going further than the French Cour de cassation and Swiss Tribunal federal in asserting that the question of whether the main contract was ever concluded is irrelevant. He is clearly bent on bringing to an end 398 years of English case law discussion on the nature of arbitration clauses, a debate similarly reflected in other countries. Sovcomflot is a Russian state corporation. It owned Fiona Trust and Holding Corp. (‘Fiona’) which in turn owned FML. Sovcomflot operated a fleet of vessels through a series of one-ship companies which the group owned. Members of the Sovcomflot group essentially alleged that Mr Nikitin bribed Mr Primaloy, the head of FML, Mr Skarga, an official in all three companies, and Mr Borisenko of Sovcomflot into allowing Nikitin’s companies to charter ships belonging to the Sovcomflot group at preferential rates. They sued Nikitin, Primalov and Skarga. They also claimed against …

Standards of reasonableness are pervasive in law. Whether a belief or conduct is reasonable is determined by reference to what a ‘reasonable man’ similarly situated would have believed or done in similar circumstances. Feminists rightly objected that the ‘reasonable man’ standard was gender‐biased and worked to the detriment of women. Merely replacing the ‘reasonable man’ with the ‘reasonable person’ would not be sufficient, furthermore, to right this historic wrong. Rather, in a wide range of cases, feminist theorists and legal practitioners urged instead a standard of reasonableness that reflects the perceptions of women, a perspective informed by women’s vulnerability and oppression. In this essay I examine the role of the ‘reasonable woman’ standard in two areas of law – workplace sexual harassment and self‐defense – and argue that it is both legally and politically problematic.

What do witness and gender have to do with law and the emotions? Obvious associations include the fundamentality of witnessing in the procedures and paradigms of law; legal rules that alternately and discrimina torily banish or cherish certain witnesses' emotions as relevant legal facts; the binary gendering of raging, caring, and other emotions; laws' production and policing of gender and genders; and the opposed gendering of law and emotion as such. However, there is a more fundamental and formal operation performed by witness, gender, law, and emotion: individually and in concert, these terms signify practices under, through, and against which humans' encounters with our world of appearances may be ordered, in any or all the meanings ofthat word. At a minimum, "order" is to command, categorize, or rank; and is a state of peace or community of faith. Sexual harassment law in the United States reveals the work of witness, gender, law, and emotion in ordering our experiences of appearances. The movement to establish sexual harassment law was crucial in making women's labor livable. It forced judicial recognition of sexual coercion, degradation, and hazing as employment discrimination. This movement facilitated redress for individual women and acculturated various publics to a particular feminist account of gender, sexuality, and inequality. These endeavors depended entirely upon bearings of witness, on testimonies of feeling by women who were often left or kept literally silent about gendered and sexualizing exploitation, humiliation, and violence that was previously deemed legally unspeakable and socially invisible in hegemonies of heteropatriarchy and hierarchical capitalism. However, the mere admission of women's witnessing could not secure individual, let alone systemic, redress. Such witnesses had to be judged reasonable. Courts asked whether a hypothetical reasonable person would have found what these witnesses witnessed to be discriminatory. Was she right to read gendered harm into what might have been just good fun? Had her emotions got the best of her reason? Was she lying? What was she wearing? Are we sure she didn't like it? Kathryn Abrams (a coeditor of this special issue of WSQ and a key figure in sexual harassment jurisprudence) persuasively argued that the "reasonable person" standard was gender biased because it was gender blind. The reasonableness of subjects' feelings of discrimination depends wholly upon their sex assignment and gendered experience in our heteropatriarchal culture of sexually exploitative male domination. Hence Abrams successfully suggested that courts ask whether a "reasonable woman" would find discriminatory the scenes to which sexual harassment plaintiffs bear witness. However, Abrams noted too that legislatures' and courts' sexual harassment regimes-taken over by commercial interests, corporate doublespeak, and cottage industries-may proliferate unnuanced or obstructionist narratives about gender, sexuality, and inequality that conscript women's understanding of their experience in scripts as essentializing and disempowering as those enacted by sexual harassers. The trajectory of sexual harassment law suggests the vexed hermeneutical function of witness, gender, law, and emotion. Rendering sexual harassment employment discrimination was in part a struggle to force legal institutions and the culture at large to witness women's emotions. Yet legal and other institutions may exploitatively or otherwise discipline women's emotions and experience as witnesses. A recent conference richly engaged such conjunctions of witness, gender, law, and emotion. "Law and the Emotions: New Directions in Scholarship" took place in Berkeley, California, on February 8 and 9, 2007, with participants from throughout the United States, Canada, Switzerland, Japan, and Australia. The conference was organized by Kathryn Abrams (University of California, Berkeley, law), Susan Bandes (DePaul University, law), Hila Keren (Hebrew University of Jerusalem, law), and Terry Maroney (Vanderbilt University, law) and sponsored by the Gruter Institute for Law and Behavioral Research, Boalt Hall School of Law (University of California, Berkeley), the Center for the Study of Law and Society (University of California, Berkeley), Vanderbilt University Law School, and DePaul University College of Law. …

While in many countries the liability of public authorities in negligence resembles the liability of ordinary persons quite well, several exceptions which shield public authorities from liability remain important. A policy consideration which often seems to be given weight is the risk of defensive behaviour by public officials. From a legal perspective, concerns regarding defensive behaviour are often dealt with by the rules related to discretionary decisions. We examine to what extent these rules in England, France and Germany are in accordance with the most elementary principles of the economics of defensive behaviour. We find that the rules are compliant to a considerable extent in France and Germany, and to a lesser extent in England, with the economic principles underlying defensive behaviour. Immunity is mainly granted when there is considerable uncertainty in decision-making and often is not granted when the law specifies the precise action to be taken by the public authority or when no reasonable person could come to the decision made by the public authority.

Criminal law commonly requires judges and juries to decide whether defendants acted “reasonably.” Nevertheless, issues of reasonableness fall into two distinct categories: (1) where reasonableness concerns events and states, including risks of which an actor is conscious, that can be justly assessed without regard to the actor’s individual traits, and (2) where reasonableness concerns culpable mental states and emotions that cannot justly be assessed without reference to the actor’s capacities. This distinction is significant because, while the “reasonable person” by which category-1 cases are assessed is a disembodied and impersonal ideal that consists of nothing but the uncompromising values of the jurisdiction, the reasonable person by which category-2 cases are measured must necessarily incorporate some of an actor’s individual traits or risk blaming the blameless. Courts and commentators have thus far approached the task of individualizing or subjectivizing reasonableness in category 2 by trying to determine in advance which individual traits are generally relevant and which are not. I propose an alternative approach that, in addition to applying to negligence and voluntary manslaughter cases alike, derives its content from the social practice of blaming. I propose that a reasonable person in category-2 cases consists of every physical, psychological, and emotional trait an actor possesses, with one exception—the exception being that he possesses proper respect for the values of the people of the state as reflected and incorporated in the statute at hand.

In common law jurisdictions, the reasonable person is a commonly encountered ¢gure.The reasonable person and the associated idea of reasonableness feature in a number of ¢elds, notably negligence law, criminal law, administrative law, and the law relating to sexual harassment in the workplace. In these areas of the law, judges invoke the reasonable person as a standard by reference towhich they assess the conduct of defendants, claimants, and the decisions of public o⁄cials. But who is the reasonable person? In negligence law, judges and commentators have emphasised the reasonable person’s ordinariness. Thus, they have spoken of the ‘man’ (or, nowadays,‘person’) on the Clapham omnibus or the Bondi tram. This emphasis on ordinariness brings with it a concern with community standards as relevant to the question ‘What is reasonable?’ Hence the reasonable person has been described as ‘the ordinary citizen’ who seeks to act on those considerations that regulate ‘community behaviour’. Here, we are presentedwith a picture of an addressee of the law who is co-operative (perhaps even other-regarding) and, as such, ready to play his or her unremarkable, but practically useful, part in community life. Moreover, descriptions of this sort bespeak negligence law’s com

Alice Renteln, The Cultural Defense. New York: Oxford University Press, 2004, 404 pp. Legal theorists have long been considering the myriad ways in which US legal practice and discourse navigates cultural particularity within a supposedly universal and a-cultural legal system. In her sharp and comprehensive book, the Cultural Defense, Alice Renteln mobilizes both policy arguments and Liberal legal theory (Minow 1990) in order to challenge contemporary judicial resistance to the use of cultural evidence and cultural defenses in criminal and civil cases. Like many other scholars who have interrogated claims to objectivity made by Liberal legalism in the US, (Kennedy 1997) Renteln uses her exploration of "the cultural defense" to chart how legal processes imagined as most neutral are themselves constituted by the cultural particularity of the dominant hegemony. In this, Rentlen joins those who critique Liberal legalism by showing how US law enforces dominant cultural norms under guise of legal neutrality (Brown and Halley 2002). Yet at the same time Renteln foundationally relies on Liberal legalism to support a formal cultural defense in law, arguing that the exclusion of non-dominant cultural norms from adjudication work against the fundamental principles of Liberal legalism within its own terms. While providing on a clear and rigorous analysis of cases involving the notorious "cultural defense," Renteln shows how culture, and the interpretation of culture by anthropologists and mediators, centrally constitutes legal determinations of guilt and innocence in the US. As such, Renteln persuasively argues that courts and legislatures must change the current rules for the admission of cultural evidence in US courts in order to maintain legitimacy, while also offering principles and policy guidelines by which to manage such changes (Butler 1997). Before charting the specific course of Rentlen's argument and conclusion, it may first be helpful to explore what exactly is meant by "a cultural defense" in contemporary US legal practice. According to the Federal Rules of Evidence, in both civil and criminal cases, all evidence may be admitted according to the judge's discretion concerning the evidence's relevance, unless otherwise specified by statute or federal rule (Maguigan 1995). While determinations of relevance routinely rely on cultural assumptions (25), most judges consider evidence of a defendant or litigant's cultural background to involve an exception determination of relevance that would not be required for evidence considered to be culturally neutral (Maguigan 1995). Additionally, many legal determinations of culpability rely on the "reasonable person standard," which asks what an objectively reasonable person would and should do in the circumstances (15, 93). Critiquing the dominant cultural bias inherent in any such standard, Renteln argues for a formal cultural defense that would 1) require judges to admit evidence of a defendant or litigant's cultural background and practices, and 2) consider a reasonable person of the defendant or litigant's cultural background when applying the reasonable person test (15, 35-39, 93). While nothing prevents a judge from considering a defendant or litigant's cultural background as evidence that bears upon a determination of guilt, wrongdoing, damages, etc., an overwhelming number of judges exclude such evidence, most often in ways that prejudice the interests of cultural minorities within the US (7). Through her case studies, Renteln shows that many times, judges exclude cultural evidence due to assumptions that courts should enforce principles of cultural assimilation (104, 200), while simultaneously imagining that all other adjudications of culpability are not themselves constituted by cultural norms and practices (201). In response, Renteln argues that legislatures must institute a formal cultural defense. By formal defense, Renteln does not mean that cultural context would provide a complete excuse for legally regulated behavior, but rather that it would be available as a partial defense (188, 190, 191), with judges unable to use their discretion in order to exclude cultural evidence (9,187). …

Contemporary theory of the constitutionally reasonable public servant, established by the U.S. Supreme Court in 1982 in Harlow v. Fitzgerald, is measured in reference to clearly established constitutional or statutory rights that a reasonable person would have known. In this article, the author seeks to elucidate the evolving contours of the objective reasonableness standard and examines how federal courts have applied it. To gain a firsthand impression of how public officials challenged in federal courts are measuring up to the objective reasonableness standard, the author provides a snapshot of 449 recent court cases selected from two federal circuits, the Eighth and the District of Columbia circuits. He concludes that public officials in these two circuits have fared very well under the standard of objective reasonableness. The flip side is that aggrieved individual citizens must carry a heavy burden to protect their constitutional rights.

I Introduction The relevance of answers depends, of course, on getting the questions right. Sometimes, however, we are not quite sure that we actually know what the question is. The doctrine that underlies the title question to this essay is commonly ascribed to William Blackstone. in Commentaries on the Laws of England (1769), Blackstone wrote that "the law holds that it is better that ten guilty persons escape, than that one innocent suffer." (1) This formulation is not the only version of the doctrine. For example, in his book on Evidence (1824), another British scholar, Thomas Starkie, insisted "that it is better that ninety-nine ... offenders shall escape than that one innocent man be condemned." (2) The various versions of this idea in circulation inspired Jeremy Bentham to make the following skeptical comment in A Treatise on Judicial Evidence (1825): At first it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim more striking, fixed on the number ten, a third made this ten a hundred, and a fourth made it a thousand. All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused to be condemned, unless the evidence amount to mathematical or absolute certainty. According to this maxim, nobody ought to be punished, lest an innocent man be punished. (3) II A Doctrine and Its Interpretation I shall take it for granted that no reasonable person could possibly endorse the version implicitly ridiculed by Bentham: "It is better that all guilty persons go free than that one innocent person be convicted." Nevertheless, in the light of Bentham's remarks, it seems equally clear that it would be futile to embark on an exercise in moral mathematics in order to fix and justify the correct ratio of false acquittals of the guilty to false convictions of the innocent. I shall presuppose, moreover, that any ratio one might come up with, say forty-two to one, (4) should not be taken to indicate that it is forty-two times worse to convict an innocent person than to acquit a guilty one. Rather, I think that a more adequate interpretation of the doctrine is to be found in a U.S. Supreme Court case from 1895, Coffin v. U.S. In this case, Justice White, who delivered the opinion of the court, dated the doctrine back to Roman law. He quoted a Roman official who wrote that "it was better to let the crime of a guilty person go unpunished than to condemn the innocent." (5) I take this doctrine, which I shall call the Roman doctrine, to articulate the strong intuition of everyday morality: it is worse to convict innocent people than to acquit guilty people. Significantly, to argue that some phenomena are morally better than some other phenomena is to presuppose that they are comparable with respect to some common moral standard of comparison, for example, a particular conception of criminal justice. There is no further need to presuppose a single scale of units of value allowing for quantification or measurement of how much better it is to reduce the number of false convictions rather than to reduce the number of false acquittals. Most people take for granted that the Roman doctrine is basically sound, yet it does not follow that it is easy to articulate a rationale for it. Still, in a certain narrow interpretation, it seems as if the doctrine is trivially true. Consider two comparable cases of murder, both of which are wrongly decided. In one case a murderer is acquitted, in another case an innocent person is convicted of murder. According to the doctrine, the outcome in the former case is better, or rather, less worse or less bad, than the outcome of the latter case. How could that fail to be true, we might ask. After all, by punishing the innocent, the guilty person is still out there enjoying his freedom. In the TV series The Fugitive, when Dr. Kimble was wrongly convicted for the murder of his wife, he was the only person who kept looking for the one-armed man. …

Philosophers and others with inquisitive minds have busied their brains for millennia with questions such as: ‘Does god exist? What is the meaning of life? Are we free or determined? What is truth? Is there any knowledge which is so certain that no reasonable person could doubt it? What is reality? What is good? What is beautiful? Why exist? What is “to be”? What is justice? What did Kant mean by the categorical imperative?’ Are all these topics equally (un)important or is there a ranking of philosophical problems? If there is such a ranking, is there a need to set priorities? What philosophical problem is most urgent?

In order to make moral judgments about death and dying issues in bioethics—or on any moral issue—it is necessary to have a value theory and a set of normative principles that allow us to identify which things have value, what that value is, and to what degree the objects have it, and then to act on that information. Perhaps the most plausible theory is one based on a form of pragmatism that builds its foundation on how we individually and as a community actually perceive morality. The result will not be simple, but it will provide reason to use it and respect other’s use of it because it is built on what we already think is true.

Tom Carson’s recent paper on “Deception and Withholding Information in Sales” contains a critique of my contribution to sales ethics. In this response I outline the approach I develop in two earlier papers and address the four criticisms Carson makes. These criticisms are largely based on a misunderstanding of my position. I suggest that our fundamentally different approaches to applied ethics may lie at the root of Carson’s misunderstanding. Carson uses what I call a theory-application model in which the search for justification in terms of fundamental rules is central, while I attempt to contextualize ethical judgments and consider alternative ways of structuring social roles. In contrasting these approaches I raise the question of which way of doing applied ethics is likely to be more fruitful.

What is the best way to reflect human diversity in the structure of the provocation defence, and similar excusatory defences in the criminal law? The House of Lords recently concluded that the right way is to allow the jury to personalise and thereby qualify the apparently uniform ‘reasonable person’ standard mentioned in section 3 of the Homicide Act 1957. In this paper we argue that this is not the right way at all. We argue that the reasonable person standard, unqualified, already accommodates the only variations between people that the law should want to accommodate in an excusatory defence. To defend this view we revive the common law's tripartite analysis of the ‘objective’ (or impersonal) issues in the provocation defence: first, was there an action capable of constituting a provocation? second, how provocative was it? and third, how much self-control should have been exhibited in the face of it? We show that these questions each have a built-in sensitivity to certain variations between different defendants' situations, but that this does not detract from their objectivity (or impersonality). We argue that no more sensitivity is needed in the name of human diversity, and what is more that no more sensitivity is desirable.

Cet article examine la notion tres controversee de personne ordinaire/ raisonnable a partir de la doctrine juridique de la provocation, basee elle-meme sur la notion de choix contraint. L'article montre en quoi les sciences sociales et comportementales divergent sur ce point avec le droit et la jurisprudence, detaches de la theorie culturelle

Many philosophers regard “coercion” as lexically normative. This understanding of “coercion,” however, places too great a restriction upon its use. Furthermore, it gravely complicates our understanding of the term insofar as we would be expected to endorse a particular ethical evaluation prior to its use. For instance, if a definition of “coercion” contains expressions like “the wrongful use of” or “the unfair application of power over,” then we must be prepared to identify instances of what is to count as wrongful or unfair before we can identify an instance of coercion. To the extent that identifying and distinguishing what is wrongful and not wrongful or what is fair and unfair plunges us into the demanding intricacies of ethical theory, then so too would using a lexically normative definition of “coercion.” Whoever asserts that something is an instance of coercion would be expected to defend the lexically entailed claim that it is, among other things, wrong or unfair.

The day I stumbled on "A Trial in Germany," I felt a call to arms. The piece of incriminating evidence was there. Time and again, common law lawyers observe the civil law system with the curiosity of tourists who visit the Tower of Pisa. Eventually, they offer advice on how we could straighten it up. In the present case, an American professor witnesses a criminal trial under German law. His reflections also encompass the court dynamics. This approach is original for Europeans, strangers to the concept of Court TV or "gavel to gavel" media reports. The commentary unfolds on three levels. The criminal trial becomes the bridge to a "trial" of the German judiciary and the German code of penal procedure. The author's conclusions are somewhat less than favorable, both on the outcome of the case and its technicalities. Under the circumstances, offering a European perspective appears the natural thing to do. A long-time adept of comparative law, I thrive on opportunities to referee legal systems in a fair and square confrontation. In the gladiatorial contest between the common law system, with the United States on one side, and the Continental system, with Germany on the other side, the stakes are high. To be totally honest, it is not solely the desire for equilibrium that motivates me. The deeper reason goes back to my experience as a law student in the United States. I remember comparative law classes as exercises in great frustration. A fervent believer in the values of the continental system, I felt under constant attack from my American colleagues. Discussions appeared to me to be a pretext for emphasizing the superiority of my guest country's legal accomplishments. You need only mention adversarial versus inquisitorial proceedings to feel a chilling breeze on the back. Every reasonable person chooses an encounter of equals over a rerun of the Spanish Inquisition. When I came out of the closet not solely as a sitting judge in the civil law tradition, but also as one who practiced during a dictatorship, I became a downright outcast. Professors seemed oblivious to the cold war unraveling under their very eyes. The only comment I received on my exam paper read: "Why are you so angry?" Subsequent exposure to the French press shook away some of the victim status in which I was self-righteously indulging. To provide a glimpse of the bitter taste of European prejudice, consider an interview of Daniel Zagury, an expert psychiatrist at the Appeals Court in Paris, offering explanations on "why the majority of serial killers are American." His first argument is geographical: large spaces encourage serial criminals. His other argument--of questionable historical merit--follows these lines: In the United States, the historically recent conquest of the New World rendered precarious the passage from a state of wilderness to civilization and a reversal remains always possible. Puritanism and sexual hypocrisy probably also pay an important role: they provide a permanent manichean confrontation of good and evil.(1) The casual manner in which personal fantasies stand for expertise made me aware that when it comes to legal issues, we would rather be patriots than scientific researchers. Language bears witness to such internalized biases. Take, for instance, the antonyms domestic and foreign law. In common language "domestic" suggests the family realm or things we know and control. The opposite is the unexplored, the dangerous, the threatening. Following this line of thought, a domestic animal may be contrasted with a wild beast. Remembering the times when crossing the ocean was an adventure, we can detect the opposition between domestic and international flights. We might now live in the era of the global village, but language still preserves the memory of ancient fears. As it happens, fear of the unknown leads to prejudice. The same seems true in comparative law. When emotions trump reason, the expectation of a reciprocal profitable exchange is eluded. …

The aim of this essay is to interrogate the rhetoric of judicial opinions in the context of sexual harassment disputes. I pay particular attention to six appeals and Supreme Court opinions, whose factual findings, outcomes, and legal rationales are summarized in the Appendix. I have chosen these particular cases because they allow me to examine two especially interesting concepts unique to hostile environment claims in sexual harassment law: the "reasonable woman" standard of review, and the curious legal category "welcome harassment."' "Welcome harassment," as Judge Richard Posner pointed out in his 1994 opinion in Carr v. Allison Gas Turbine Division (see Appendix), is obviously an oxymoron (1008). That its classification as such will not allow us to summarily dismiss the possibility of its legal existence is made clear by a strenuous dissent to Posner's opinion arguing that welcome harassment was recognized by precedent in the court's district (1013). The dissent could well have referred to precedent in many other districts; the existence of welcome harassment is implied by numerous judicial opinions referring to its logical counterpart, "unwelcome harassment" (my emphasis). Though the concept of "welcomeness" is of great importance in sexual harassment law and is frequently analyzed, the creation and derivation of "welcome harassment" has itself been the subject of very little notice or commentary. The "reasonable woman" standard, in marked contrast, has received a great deal of attention since its use in a majority opinion in Ellison v. Brady in 1991 (see Appendix). Relying on the dissent to a 1986 case, Rabidue v. Osceola Refining Co. (see Appendix), the Ellison court held that the reasonable woman standard was more appropriate than the "reasonable person" standard derived from tort law (itself a replacement of the traditional "reasonable man" standard) to determine whether behavior directed toward women creates a hostile work environment and thereby constitutes harassment. Decried by some as signaling a feminist "attack on all rational discourse" (Letwin 34) and hailed by others as a way to allow justices to "borrow" (Brenneman 1301) the perspective of the "usual victim" (Rabidue 626) of sexual harassment, the reasonable woman standard has nevertheless so far failed to revolutionize this area of law. As I examine these two terms-welcome harassment and the reasonable woman-I wish to make two major claims. First, I argue that a

The aim of this paper is to investigate Plato's conception of the whole in the Phaedrus and the theory of medical dialectic underlying this conception. Through this analysis Plato's conception of kairos will also be adressed. It will be argued that the epistemological holism developed in the dialogue and the patient-typology emerging from it provides us with a way of perceiving individual situations of medical discourse and decision-making that makes it possible to bridge the gap between observations of a professional nature, i.e. of diagnostics and therapy--of whom to treat and in what magnitude--and individual patients' perceptions of their situation. Besides, it will be argued that such a patient-typology represents a conceptual framework to assess and deal normatively with patients' ailments and needs that is more robust than the current standards in use, i.e. the Subjective Standard, the Reasonable Person Standard and the Professional Practice Standard. Finally, it will be argued that the possession of kairos, which according to Plato is the hallmark of a true physician, represents a normative conception of time that today's medicine is in need of revisiting.