bluuebunny/crossref_metadata_2025 huggingface dataset:
Why When She Says No She Doesn't Mean Maybe and Doesn't Mean Yes: A Critical Reconstruction of Consent, Sex, and The Law
Authors: McGregor Joan
Published: February 2009

A little more than two years ago, a Texas woman, faced with a knife-wielding intruder demanding sex from her, tried to talk her attacker into wearing a condom to protect herself against the possibility of contracting AIDS. A grand jury refused to indict the man because jurors believed that the woman's act of self-protection implied that she had consented to sex.
Infelicitous Sex
Authors: Sherwin Emily
Published: February 2009

Proposing and consenting to sex are things that ordinary people manage to do all the time, yet legal regulation of sex seems to be an intractable problem. No one is satisfied with rape law, but no one knows quite what to do about it.
A Comment on Consent, Sex, and Rape
Authors: West Robin
Published: February 2009

During the last 25 years, rape law has undergone a profound transformation, as the articles in this symposium clearly show. To mention just three of the more striking doctrinal reformations: All states have repealed the most egregious aspects of die marital rape exception; most have abandoned the “utmost resistance” requirement; and all have enacted rape shield laws to protect complaining witnesses from intrusive inquiries into their sexual history. All three reforms were the product of feminist agitation, all three were aimed toward the general end of redirecting rape law toward the protection of women's, rather than men's, interests, and all three did, to some degree, broaden and democratize the scope of the law's protection: Wives, prostitutes, promiscuous girls, and women not inclined to risk their deaths by fighting off their rapists “to the utmost” are now protected by the law of rape against sexual assault, at least in theory, and at least to the same degree as non-wives and non-prostitutes, fighters, and virgins. All of this, virtually every contributor to this symposium agrees, is very much to the good.
Commodification and Phenomenology: Evading Consent in Theory Regarding Rape
Authors: Bogart John H.
Published: February 2009

In a recent essay, Donald Dripps advanced what he calls a “commodification theory” of rape, offered as an alternative to understanding rape in terms of lack of consent. Under the “commodification theory,” rape is understood as the expropriation of sexual services, i.e., obtaining sex through “illegitimate” means. One aim of Dripps's effort was to show the inadequacy of consent approaches to understanding rape. Robin West, while accepting Dripps's critique of consent theories, criticizes Dripps's commodification approach. In its place, West suggests a more phenomenological approach.

The author argues that (1) neither Dripps nor West offers convincing critiques of consent-based theories; (2) the alternatives they offer presuppose the vitality of a consent-based approach to understanding rape; and (3) that both Dripps and West consistently conflate more general moral and political issues with that of the nature of rape.
What's Distinctive about Feminist Analysis of Law?:A Conceptual Analysis of Women's Exclusion from Law
Authors: Réaume Denise G.
Published: February 2009

What is distinctive about a feminist analysis of law? Conversely, what does it mean to characterize the law (or a law) as distinctively “male” as a way of criticizing its injustice? It is widely assumed by both feminist scholars and nonfeminists or curious onlookers that a feminist analysis of law must have distinctive features that set it off from mainstream/“malestream” theories of law. Feminist scholars often try to “sell” feminist analysis to interested newcomers and try to break down the recalcitrance of those who seem to want to marginalize and dismiss it precisely by claiming a difference of perspective for feminist analysis of which no well-educated lawyer or legal commentator can afford to be ignorant. Meanwhile, feminist claims are also challenged by those who think they can reach the same conclusion on independent grounds for therefore not beingdistinctivelyfeminist; “What makes that particularly feminist?” the communitarian, for example, will ask, faced with an argument that feminism is critical of the individualistic bias of the legal system.
Enslaving the Image:The Origins of the Tort of Appropriation of Identity Reconsidered
Authors: Kahn Jonathan
Published: February 2009

There is no escaping the fact that law shapes identity. Laws tells us who we are and where we stand in society. While sometimes benign, such classification can also be a devastatingly powerful instrument of ostracism and subjugation. Legally enforced racial segregation sent a cold and harsh message about what the dominant society thought it meant to be black. The recent backlash against affirmative action resurrects degrading stereotypes and sends old messages wrapped in new code words about racial identity. “English-only” laws and attempts to restrict public support for immigrants define targeted groups as “outsiders,” people who do not belong in America. The acceptance of anti-sodomy laws brands homosexuals as deviant And the slow, grudging history of legal recognition of sexual harassment, the defeat of the Equal Rights Amendment, and the persistence of the “reasonable man” standard effaces the distinctive experiences of women in society while subjecting all to measurement against a male norm.
Voluntary Obligations and the Scope of the Law of Contract
Authors: Penner J. E.
Published: February 2009

By building upon Raz's analysis of the spectrum of voluntary obligations, the author produces a typology of agreements, and then assesses the extent to which these different kinds of agreements underpin the common law of contract. While recognizing that the law of contract purports to deal with a broad range of voluntarily undertaken obligations, the typology of agreements suggests that the present law is primarily suited to dealing only with bargains. This suggests that there are situations in which agreements should be legally recognized, but which should not be dealt with by all of the conceptual tools of contract law, for these agreements and voluntary undertakings serve the interests of those undertaking them in significantly different ways than do bargains.
Should the Law Distinguish Between Intention and (Mere) Foresight?
Authors: Gorr Michael
Published: February 2009

Philosophers have long debated whether there is a morally significant difference between acting with the intention of bringing about some state of affairs and acting with the mere awareness that that state of affairs will occur as an unintended side effect of what one is trying to achieve. This controversy is mirrored in the criminal law in a number of places, most notably with respect to the question of whether the mens rea for the crime of murder should require the intent to cause death or only the knowledge that it will occur. In this paper I propose what I believe is a satisfactory way of drawing the intended/foreseen distinction and then argue, contrary to what Duff and others have supposed, that such a distinction does not underwrite a difference in moral or legal culpability. I leave open the possibility, however, that there may be consequentialist reasons for sometimes imposing greater liability in the case of intended harms than in the case of those that are merely foreseen.
The Circumstances of Integrity
Authors: Waldron Jeremy
Published: February 2009

This article discusses the place of integrity in Ronald Dworkin's legal and political philosophy. It presents integrity as a response to certain problems that arise in any society in which more than one contestant view about justice is allowed to determine public policy and legal principle. It also analyzes the relation between integrity and justice, arguing that although integrity requires citizens and officials sometimes to uphold policies or positions they take to be unjust, Dworkin is nevertheless wrong to present them ascompetingpolitical virtues. Instead, integrity operates as a second-level concept, addressing situations that arise in a society where there is disagreement about justice (and where, therefore, there is no uncontroversial account of what justice requires to set against the requirements of integrity). The article concludes with some reflections on the role of individual convictions about justice in context of law and social action.
Are We One Self or Multiple Selves?:Implications for Law and Public Policy
Authors: Posner Richard A.
Published: February 2009

Some people hate themselves. But if I say, “I hate myself,” who is this “I” that stands apart from “myself”? And notice how in the expression “I am not myself today,” the “I” and “myself” change places. Now it is “myself” who is the authentic, the authoritative, the judgmental “I,” and it is “I” who is the self that is judged and found wanting. Some people talk to themselves; when they do, who is speaking and who is listening?
Vagueness and Legal Theory
Authors: Endicott Timothy A. O.
Published: February 2009

The use of vague language in law has important implications for legal theory. Legal philosophers have occasionally grappled with those implications, but they have not come to grips with the characteristic phenomenon of vagueness: the sorites paradox. I discuss the paradox, and claim that it poses problems for some legal theorists (David Lyons, Hans Kelsen, and, especially, Ronald Dworkin). I propose that a good account of vagueness will have three consequences for legal theory: (i) Theories that deny that vagueness in formulations of the law leads to discretion in adjudication (including Dworkin's) cannot accommodate “higher-order” vagueness, (ii) A legal theory should accept that the law is partly indeterminate when it can be stated in vague language, (iii) However, the traditional formulation of the indeterminacy claim, that a vague statement is “neither true nor false” in a borderline case, is misconceived and should be abandoned.
On Difference and Equality
Authors: Ward Cynthia V.
Published: February 2009

The concept of “difference” forms the core of contemporary attacks on “liberal legalism” and is central to proposals for replacing it. Critics charge that liberal law quashes difference because it grounds political equality and individual rights in the assumption that all persons share certain “samenesses,” such as rationality or autonomy. In the words of the philosopher Iris Marion Young, “liberal individualism denies difference by positing the self as a solid, self-sufficient unity, not defined by or in need of anything or anyone other than itself.” The claim is that this “sameness”-based vision of equality is in fact an exercise of power, reflecting a highly specific model of personhood that was constructed by and for a white male elite and ensures its continued social dominance. Liberalism's critics conclude that the achievement of social justice will be possible only when sameness-based conceptions of equality are rejected.
Rationality and Cognition
Authors: Eskridge William N.
Published: February 2009

Rational-choice theory is pervasive in legal theorizing. Most law and economics work assumes that human beings make decisions that are rational as to both their ends and means. Decisions are ends-rational if they are directed at goals that satisfy the person's utility function; decisions are means-rational if they adopt methods reasonably connected to achieving those goals. Institutionalist theory assumes that institutions are composed of actors pursuing their own rational ends by rational means and, further, that those institutions themselves can be said to have rational ends pursued by rational means. Most rational-choice theorizing in law is positive: Thinkers are using the theory as a stylized way of describing patterns of behavior or predicting expected behavior. Such theorizing can also be normative: Rationality of ends and means is an aspiration of human and institutional actors, and law can improve upon existing behavior through rules, procedures, and structures.
New Challenges to the Rationality Assumption
Authors: Kahneman Daniel
Published: February 2009

In contrast to logical criteria of rationality, which can be assessed entirely by reference to the system of preferences, substantive criteria of rational choice refer to an independent evaluation of the outcomes of decisions. One of these substantive criteria is the experienced hedonic utility of outcomes. Research indicates that people are myopic in their decisions, may lack skill in predicting their future tastes, and can be led to erroneous choices by fallible memory and incorrect evaluation of past experiences. Theoretical and practical implications of these challenges to the assumption of economic rationality are discussed.
Comments on Elster
Authors: Seidman Louis Michael
Published: February 2009

Jon Elster's subtle and richly illustrated argument raises more avenues of inquiry and application than one could possibly explore in a short comment. I will therefore confine myself to addressing three interrelated questions:

First, can the distinctions among interest, passion, and reason on which his analysis depends really be maintained?

Second, what implications does his work hold for some republican and liberal theories that insist on a public sphere purged of interest and passion or that defend a private sphere providing the space necessary to indulge interest and passion?

Finally, what does his analysis tell us about the possibility of a meta-theory that would mediate among interest, passion, and reason?

With regard to the first question, Elster's own argument suggests that the boundaries among interest, passion, and reason are at least permeable. Each motive masquerades as the other or becomes transmuted into the other. Moreover, once one takes the consistency and imperfection constraints into account, the external manifestations of the different motives will often be identical. A positivist, who believes that all that matters are external manifestations that can be measured or observed, might therefore hold that the distinctions Elster analyzes are ones that are hardly worth worrying about.
Davidson's Conceptual Argument for Rational Cognition
Authors: Davis Wayne A.
Published: February 2009

According to Jules Coleman, Rational Choice (RC) Theory holds that human action is both intentional and rational. “The rationality of intentional action is evaluated along the two dimensions corresponding to the two elements of the belief-desire model.” On the belief-dimension, RC Theory assumes that people are “able to draw appropriate inferences from the information (or truths) they possess.”
Irrational Expectations
Authors: Stout Lynn A.
Published: February 2009

Rational expectations models have become a staple of economic theory and the basis for a Nobel Prize. This article argues that rational expectations analysis suffers from potentially fatal flaws that seriously undermine its value in understanding many market phenomena. Using the example of financial markets, the article illustrates how the rational expectations approach has worked to obscure, rather than to illuminate, our understanding of speculation and speculative markets. This misguidance raises problems for law and policy.
Multiple Selves and Culpability
Authors: Haji Ishtiyaque
Published: February 2009

Challenging problems for moral and legal culpability, as Jennifer Radden has impressively brought to our attention, are generated when people suffering from dissociative-identity disorder commit various transgressions. In the type of case of interest in this paper, “Self2” of a two-self multiple is unaware that “Self1” has committed a crime and has played no role in Self1's commission of the crime. This case generates, among others, the following pressing problems. Is Self2 morally to blame for Self1's deed, and is the multiple itself either morally or legally culpable for this deed? In this paper, after critically discussing some of Radden's views on these issues, I defend negative responses to both these questions by appealing to central constituents of a theory of moral responsibility.
“A Nod's as Good as a Wink”: Consent, Convention, and Reasonable Belief
Authors: Archard David
Published: February 2009

Consider the following examples of behavior by Smith:

1. Smith, seated at her restaurant table, gives an order to the waiter;

2. Smith gets into a cab and names a destination;

3. Smith agrees to Jones's suggestion that they go back to Jones's apartment for a few drinks;

4. Smith casts her vote in some election.

In each of these instances what can Smith be understood as consenting to? Is she consenting to (1) pay the bill for whatever meal she orders; (2) pay the fare for the journey to her named destination; (3) sexual intimacy with Jones; and (4) accept the authority of whatever individual or political part is elected? The fact that Smith does not actually express her consent to each of these states of affairs or outcomes need not mean that she is not giving her consent to them. The idea that individuals can give their consent in ways other than by means of a formal verbal expression of agreement is a familiar, if controversial, one.
Comparing Harms:The Lesser-Evil Defense and the Trolley Problem
Authors: Hallborg Robert
Published: February 2009

“The Trolley Problem” is the name Judith Jarvis Thomson has given to a difficult problem in moral philosophy and legal theory. The problem arises by considering a series of cases, all of which involve a choice of evils. Many, but not all of these cases, involve an out-of-control trolley about to run over a group of five people. In each case we are asked for our intuitive judgment as to whether it would be permissible to save the five people at risk when doing so would require the death of, or the imposition of a high risk of death on, another human being.
Rousseau in Dworkin:Judicial Rulings as Expressions of the General Will
Authors: Nordahl Richard
Published: February 2009

In the course of discussing his conception of community, Ronald Dworkin refers favorably, though in passing and rather elliptically, to Jean-Jacques Rousseau and his concept of the general will. Dworkin suggests important similarities exist between Rousseau's “general will” and Dworkin's own understanding of community and his related theory of “law as integrity.”
Fair Use, Efficiency, and Corrective Justice
Authors: Parchomovsky Gideon
Published: February 2009

The fair use doctrine is at once the most significant and the most problematic qualification of the copyright owner's right to exclusivity. An affirmative defense against copyright liability, the fair use doctrine legitimates certain unauthorized reproductions of copyrighted materials that would otherwise be regarded as copyright infringements. Notwithstanding its importance, “fair use” continues to be “the most troublesome [doctrine] in the whole law of copyright.” Throughout its long history, neither courts nor legislatures have provided a useful definition of “fair use” nor have they adumbrated its objectjves. Since the doctrine's inception over two and a half centuries ago, courts and legislatures have attempted to formulate, explicate, refine, and revamp the fair use doctrine. Generally, these efforts have proven unfruitful. At best, they have resulted in various formulations of how to approach fair use questions that offer courts and users of copyrighted works scant guidance on how fair use should be recognized. All this would not have been of grave concern had judges shared a common understanding of fair use or of the principles that should guide them in deciding fair use cases. The problem is that they do not. Rather, the case law reflects wdely divergent notions of the concept of fair use. The lack of consensus is best witnessed in the multiple reversals and divided courts that have become the hallmark of fair use litigation.
John Martin Fischer'sThe Metaphysics of Free Will: An Essay on Control
Authors: McKenna Michael S.
Published: February 2009

John Martin Fischer'sThe Metaphysics of Free Willis devoted to two major projects. First, Fischer defends the thesis that determinism is incompatible with a person's control over alternatives to the actual future. Second, Fischer defends the striking thesis that such control is not necessary for moral responsibility. This review essay examines Fischer's arguments for each thesis. Fischer's defense of the incompatibilist thesis is the most innovative to date, and I argue that his formulation restructures the free will debate. To defend his second thesis Fischer relies upon examples designed to show that an agent is responsible for an unavoidable action. I criticize Fischer's account of these examples, but I also maintain that my criticisms do not compromise his theory of responsibility. I raise several other difficulties for Fischer's theory of responsibility, and I close by offering some suggestions about how he might further defend it.
Postema on Law's Autonomy and Public Practical Reasons: A Critical Comment
Authors: Raz Joseph
Published: February 2009

Postema's article discusses, lucidly and probingly, a central jurisprudential idea, which he calls the autonomy thesis. In its general form it is shared by many writers who otherwise support divergent accounts of the nature of law. It is, according to Postema, a thesis that is meant to account for a core idea, that the law's “defining aim is to … unify public political judgment and coordinate social interaction.” In some form or another this core idea is probably supported by Postema himself. However, in this article his concern is to criticize what he takes to be the widespread belief that it is explained by the autonomy thesis. The autonomy thesis is flawed and must be rejected. In arguing to that conclusion he succumbs to one of the unattractive tendencies of contemporary legal and political philosophy, namely he does not discuss anyone's view, but a family of views. This allows one to construct one's target by selecting features from a variety of authors so that the combined picture is in fact no one's view, and all those cited as adhering to it would disagree with it.
Free Speech and Illocution
Authors: Hornsby Jennifer , Langton Rae
Published: February 2009

What one ought to mean by “speech,” in the context of discussions of free speech, is whatever it is that a correct justification of the right to free speech justifies one in protecting. What one ought to mean, it may be argued, includes illocution, in the sense of J.L. Austin. Some feminist writers, accepting that free speech includes free illocution, have been led to take the notion of silencing seriously in discussions of free speech.
Speech, Harm, and the Mind-Body Problem in First Amendment Jurisprudence
Authors: Brison Susan J.
Published: February 2009

“Sucks and stones will break my bones,” Justice Scalia pronounced from the bench in oral arguments inSchenck v. Pro-Choice Network, “but words can never hurt me. That's the First Amendment,” he added. Jay Alan Sekulow, the lawyer for the petitioners, anti-abortion protesters who had been enjoined from moving closer than fifteen feet away from those entering an abortion facility, was obviously pleased by this characterization of the right to free speech, replying, “That's certainly our position on it, and that is exactly correct …”
Are Lawyers Liars?:The Argument of Redescription
Authors: Applbaum Arthur Isak
Published: February 2009

In “Professional Detachment: The Executioner of Paris,” I concluded with the cheap and some would say libelous suggestion that lawyers might accurately be described as serial liars, because they repeatedly try to induce others to believe in the truth of propositions or in the validity of arguments that they believe to be false. Good lawyers have responded with some indignation that, in calling zealous advocacy “lying,” I have misdescribed the practice of law. I wish to explain why I believe that it is the practice of lawyering that engages in misdescription.
Rights of Exit
Authors: Green Leslie
Published: February 2009

Social groups claim authority to impose restrictions on their members that the state cannot. Churches, ethnic groups, minority nations, universities, social clubs, and families all regulate belief and behavior in ways that would be obviously unjust in the context of a state and its citizens. All religions impose doctrinal requirements; many also enforce sexist practices and customs. Some universities impose stringent speech and conduct codes on their students and faculty. Parochial schools discriminate in their hiring practices. Those who complain about such internal restrictions on the liberties of members might well be told to “love it or leave it.”
Concepts, Terms, and Fields of Enquiry
Authors: Halpin Andrew
Published: February 2009

This article considers the role of conceptual analysis in jurisprudence. In responding to the earlier article of Brian Bix, Conceptual Questions and Jurisprudence, 1 LegalTheory 465 (1995), it is agreed that the purpose of the theorist must be identified in order to evaluate the merits of the practice of conceptual analysis, but the approach taken here differs from that proposed by Bix. In particular, it is suggested that Bix is wrong to limit stipulation within conceptual analysis to a default option, and Bix's suggestion that jurisprudential analysis lacks an empirical basis is challenged. The approach developed in this article relies on a clarification of the relationships among terms, concepts, and fields of enquiry. It explores the different relationships that can exist between concepts. Seven general principles of the practice of conceptual analysis are expounded, and the proper scope of an evaluative element within conceptual analysis is considered. A final section briefly examines some of the wider implications of the approach to conceptual analysis proposed in the article.
The Possibility of Normative Jurisprudence:A Response to Brian Leiter
Authors: Madry Alan R. , Richeimer Joel F.
Published: February 2009

In a recent article Brian Leiter concluded that a useful normative theory of adjudication is impossible. A normative theory of adjudication would be a theory that, among other things, identified the moral and political norms that judges ought to follow in determining the law for any particular legal dispute. Letter's elegant and subtle argument, stripped to its bones, runs as follows: Philosophers of law regard a correct normative theory of adjudication as being dependent upon an antecedent descriptive theory. The dependence here, as Leiter describes it, is of a very strong sort and unique among philosophical theories: Any normative theory, to be acceptable, cannot depart from the actual practice of judges and lawyers. Consequently, the content of the normative side of the theory is simply to “continue to do what you've been doing,” supplemented, perhaps, by Holme's injunction to do it more selfconsciously and explicitly.
On the Value of Normative Theory: A Reply to Madry and Richeimer
Authors: Leiter Brian
Published: February 2009

I am grateful to Alan Madry and Joel Richeimer for their intelligent and stimulating critique of my article “Heidegger and the Theory of Adjudication.” It is the most interesting commentary I have seen on the paper, and I have learned much from it. It may facilitate discussion, and advance debate, to state with some clarity where exactly we agree and disagree. I leave to the footnotes discussion of certain minor points where Madry and Richeimer (hereafter “M&R”) are guilty of some critical overreaching.
Two Views of the Nature of the Theory of Law: A Partial Comparison
Authors: Raz Joseph
Published: February 2009

In Law's Empire Prof. Ronald Dworkin has advanced a new theory of law, complex and intriguing. He calls it law as integrity. But in some ways the more radical and surprising claim he makes is that not only were previous legal philosophers mistaken about the nature of law, they were also mistaken about the nature of the philosophy of law or jurisprudence. Perhaps it is possible to summarize his main contentions on the nature of jurisprudence in three theses: First, jurisprudence is interpretive: “General theories of law… aim to interpret the main point and structure of legal practice” (LE, 90). Second, legal philosophy cannot be a semantic account of the word “law.” Legal philosophers “cannot produce useful semantic theories of law” (id.). Third, legal philosophy or jurisprudence “is the general part of adjudication, silent prologue to any decision at law” (id.).
Herbert Hart and the Semantic Sting
Authors: Endicott Timothy A. O.
Published: February 2009

Even to disagree, we need to understand each other. If I reject what you say without understanding you, we will only have the illusion of a disagreement. You will be asserting one thing and I will be denying another. Even to disagree, we need some agreement.
Hart's Concluding Scientific Postscript
Authors: Moore Michael
Published: February 2009

It has often and correctly been remarked that the Hart-Fuller debate of 1956–1969 set the agenda for Anglo-American jurisprudence in the last half of the twentieth century. The nature of law, of legal obligation, of legal authority, and of law's relation to morality were the questions that debate made central to jurisprudence as we have since practiced it.
Incorporationism, Conventionality, and the Practical Difference Thesis
Authors: Coleman Jules L.
Published: February 2009

H.L.A. Hart'sThe Concept of Lawis the most important and influential book in the legal positivist tradition. Though its importance is undisputed, there is a good deal less consensus regarding its core commitments, both methodological and substantive. With the exception of an occasional essay, Hart neither further developed nor revised his position beyond the argument of the book. The burden of shaping the prevailing understanding of his views, therefore, has fallen to others: notably, Joseph Raz among positivists, and Ronald Dworkin among positivism's critics. Dworkin, in particular, has framed, then reframed, the conventional understanding, not only of Hart's positivism, but of the terms of the debate between positivists and him. While standing on the sidelines, Hart witnessed the unfolding of not only a lively debate between positivists and Dworkin, but an equally intense one among positivists as to positivism's (and his) core claims. The most important debate has been between so-called inclusive and exclusive positivists: a debate as much about Hart's legacy as about the proper interpretation of legal positivism.
Hart's Methodological Positivism
Authors: Perry Stephen R.
Published: February 2009

To understand H.L.A. Hart's general theory of law, it is helpful to distinguish betweensubstantiveandmethodologicallegal positivism. Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law. Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather that there is no connection, necessary or otherwise, between morality and legal theory. The respective claims of substantive and methodological positivism are, at least on the surface, logically independent. Hobbes and Bentham employed normative methodologies to defend versions of substantive positivism, and in modern times Michael Moore has developed what can be regarded as a variant of methodological positivism to defend a theory of natural law.
On Hart's Way Out
Authors: Shapiro Scott J.
Published: February 2009

It is hard to think of a more banal statement one could make about the law than to say that it necessarily claims legal authority to govern conduct. What, after all, is a legal institution if not an entity that purports to have the legal power to create rules, confer rights, and impose obligations? Whether legal institutions necessarily claim themoralauthority to exercise their legal powers is another question entirely. Some legal theorists have thought that they do—others have not been so sure. But no one has ever denied (how could they?) that the law holds itself out as having thelegalauthority to tell us what we may or may not do.
Realism, Hard Positivism, and Conceptual Analysis
Authors: Leiter Brian
Published: February 2009

The American Legal Realists, as I read them, aretacitlegal positivists: they presuppose views about the criteria of legality that have affinities with positivist accounts of law in the sense that they employ primarily pedigree tests of legal validity. Ever since Ronald Dworkin's well-known critique of H.L.A. Hart's positivism a generation ago, however, it has been hotly contested whether there is anything about positivism as a legal theory that requires that tests of legal validity be pedigree tests. So-called Soft or Inclusive versions of positivism are willing to relax the restrictions on the content of a Rule of Recognition to admit non-pedigree criteria of legal validity; Hard or Exclusive versons of positivism deny that such a move is compatible with the central commitments of positivism. Hard Positivism, of which Joseph Raz has been the leading proponent, thus competes with various Soft Positivisms, defended by, among others, Coleman, Lyons, Soper, Waluchow, and now, explicitly, Hart himself in the “Postscript.” If the Realists are positivists, as I claim, then it cannot be the case that Soft Positivism is a genuinely positivistic doctrine. But there is more at stake here than just labels. Realist arguments for the indeterminacy of law—arguments central to the whole Realist enterprise—depend crucially on their tacit Hard Positivism. If, in fact, positivism has a more relaxed view of the criteria of legality than Hard Positivism supposes, then Realist arguments depend on unsound tacit premises about legal validity. What is at stake, then, is not whether Realists should be called (tacit) “Positivists” or merely (tacit) “Hard Positivists,” but whether their underlying view of the criteria of legality is sound. It can only be so if the best arguments favor Hard Positivism.
LEARNING THE INFLATION TARGET
Authors: Nunes Ricardo
Published: February 2009

We propose a framework in which expectations have a rational and a learning component. We describe a solution method for these frameworks and provide an application to the Volcker disinflation with the New Keynesian model. Although the model with rational expectations does not seem to account for this episode, results improve when a small and empirically plausible proportion of private agents are learning. The learning component is argued to be more robust and plausible than the rule-of-thumb expectations present in the hybrid Phillips curve.
MONEY AND NOMINAL BONDS
Authors: Marchesiani Alessandro , Senesi Pietro
Published: February 2009

This paper studies an economy with ex post heterogeneity and nominal bonds in a model à la Lagos and Wright (2005). It is shown that a strictly positive interest rate is a sufficient condition for the allocation with nominal bonds to be welfare-improving. This result comes from protection against the inflation tax.
CHILD LABOR AND THE EDUCATION OF A SOCIETY
Authors: Bell Clive , Gersbach Hans
Published: February 2009

This paper analyzes policies by means of which a whole society in an initial state of illiteracy and low productivity can raise itself into a condition of continuous growth. Using an overlapping generations model in which human capital is formed through child rearing and formal education, we show that an escape from a poverty trap, in which children work full time and no human capital accumulation takes place, is possible through compulsory education or programs of taxes and transfers. If school attendance is unenforceable, temporary inequality is unavoidable if the society is to escape in finite time, but long-run inequalities are avoidable provided sufficiently heavy, but temporary, taxes can be imposed on the better off. Programs that aim simply at high attendance rates in the present can be strongly nonoptimal.
Development of a performance-rating scale for a nutrition knowledge test developed for adolescents
Authors: Whati Lindiwe , Senekal Marjanne , Steyn Nelia P , Lombard Carl , Nel Johanna
Published: February 2009

Objective

The objectives of the present study were to (i) develop and validate a norm-referenced performance-rating scale to interpret a nutrition knowledge test developed for urban adolescents and (ii) develop a prototype for other researchers to follow when developing nutrition knowledge tests.

Design

For norm development the nutrition knowledge test (questionnaire) was administered to a sample representative of the questionnaire target group, referred to as the norm group. These included 512 adolescents in grades 8 (n158), 10 (n149) and 12 (n205) at three randomly selected schools in Soweto and Johannesburg. The performance scores (in percentages) obtained by the norm group were transformed toZ-scores which were categorised into stanines using establishedZ-score cut-off points. For validation purposes the questionnaire was completed by 148 volunteers: sixty university dietetics students, nineteen non-nutrition university students and sixty-nine primary-school teachers.

Results

As required of an ideal norm group, theZ-scores formed a normal distribution (a bell-shaped curve). To facilitate interpretation of the results, theZ-score cut-off points for these categories were transformed back to performance scores (percentages) so that the performance of a testee could be interpreted directly from his/her performance in percentage. As is recommended, the nine stanine categories were reduced to five: very poor, fair/below average, good/average, very good/above average and excellent. The discriminatory validity of the norms was substantiated by showing that groups with known nutrition knowledge levels were rated appropriately and that the performance ratings of these groups differed significantly, with university dietetics students scoring 98·3 %, primary-school teachers 20·3 % and non-nutrition university students 31·6 %.

Conclusions

The norm-referenced performance-rating scale can be used with confidence to interpret the performance score achieved by a testee on the nutrition knowledge test developed for urban adolescents in South Africa. The methodology used in the study serves as a prototype for other researchers who are developing knowledge tests.
Lutein concentration in human milk during early lactation and its relationship with dietary lutein intake
Authors: Cena Hellas , Castellazzi Anna Maria , Pietri Amedeo , Roggi Carla , Turconi Giovanna
Published: February 2009

Objective

The present study aimed to estimate the lutein concentration in human milk during early lactation and its relationship with dietary lutein intake measured through the administration of a short FFQ.

Design

A cross-sectional study in which an FFQ was administered twice: on day 3 (T0) and day 30 (T1) postpartum; meanwhile two breast milk samples were collected. Maternal plasma samples were obtained at T0. The comparison of dietary lutein intakes and likewise lutein concentrations in breast milk at T0 and T1 were analysed with Student’sttest. Pearson’s correlation coefficient was used to determine the association between dietary lutein intake and lutein concentration in milk and plasma, respectively, as well as the correlation between breast milk and plasma lutein concentrations at T0.

Setting

Pavia, northern Italy.

Subjects

Twenty-one pregnant women, age range 24–42 years, were recruited during their last trimester on a voluntary basis.

Results

Both breast milk and plasma lutein concentrations were significantly correlated with dietary lutein intake (r= 0·86,P= 0·0001 andr= 0·94,P= 0·0001, respectively). There was a clear significant correlation between milk and plasma lutein concentrations (r= 0·87,P= 0·0001). Mature milk lutein concentration, although significantly reduced at T1 (P< 0·01), maintained a fairly high correlation with dietary lutein intake (r= 0·82,P= 0·0001).

Conclusions

Even though milk lutein concentration decreased during early lactation, it remained significantly correlated with daily lutein intake. Therefore, while awaiting further research, dietary recommendations advising intake of fresh fruit and vegetables rich in lutein, throughout the whole duration of pregnancy and lactation, are extremely useful.
Habitual high phosphorus intakes and foods with phosphate additives negatively affect serum parathyroid hormone concentration: a cross-sectional study on healthy premenopausal women
Authors: Kemi Virpi E , Rita Hannu J , Kärkkäinen Merja UM , Viljakainen Heli T , Laaksonen Marika M , Outila Terhi A , Lamberg-Allardt Christel JE
Published: February 2009

Objective

Foods can contain natural phosphorus (NP) and phosphate-containing food additives (AP). The main objective of the present study was to investigate whether NP and AP of habitual diets differ in their effects on markers of Ca metabolism. We also investigated the impact of total habitual dietary P intake on markers of Ca metabolism.

Design

Cross-sectional study. Fasting blood samples were collected and participants kept a 4 d food record, from which dietary intake of total P and the consumption of NP (milk and cheese, excluding processed cheese) and AP (processed cheese) sources were calculated. Participants were divided into groups according to their NP- and AP-containing food consumption and into quartiles according to their total P intake.

Setting

Southern Finland.

Subjects

One hundred and forty-seven healthy premenopausal women aged 31–43 years.

Results

Relative to the lowest total dietary P quartile, mean serum parathyroid hormone (S-PTH) concentration was higher (P= 0·048, analysis of covariance (ANCOVA)) and the mean serum ionized Ca concentration lower (P= 0·016, ANCOVA) in the highest P intake quartile. Mean S-PTH concentrations were higher among participants who consumed processed cheese (P= 0·027, ANCOVA) and less milk and other cheese than processed cheese (P= 0·030, ANCOVA).

Conclusions

High total habitual dietary P intake affected S-PTH unfavourably. Furthermore, phosphate additives may have more harmful effects on bone than other P sources, as indicated by higher mean S-PTH concentration among participants who consumed AP-containing foods. Because of the high dietary P intake and current upward trend in consumption of processed foods in Western countries, these findings may have important public health implications.
Explicit incorporation of equity considerations into economic evaluation of public health interventions
Authors: COOKSON RICHARD , DRUMMOND MIKE , WEATHERLY HELEN
Published: February 2009

Health equity is one of the main avowed objectives of public health policy across the world. Yet economic evaluations in public health (like those in health care more generally) continue to focus on maximizing health gain. Health equity considerations are rarely mentioned. Health economists rely on the quasi-egalitarian value judgment that ‘a QALY is a QALY’ – that is QALYs are equally weighted and the same health outcome is worth the same no matter how it is achieved or to whom it accrues. This value judgment is questionable in many important circumstances in public health. For example, policy-makers may place rather little value on health outcomes achieved by infringing individual liberties or by discriminating on the basis of age, sex, or race. Furthermore, there is evidence that a majority of the general public wish to give greater weight to health gains accruing to children, the severely ill, and, to a lesser extent, the socio-economically disadvantaged. This paper outlines four approaches to explicit incorporation of equity considerations into economic evaluation in public health: (i) review of background information on equity, (ii) health inequality impact assessment, (iii) analysis of the opportunity cost of equity, and (iv) equity weighting of health outcomes. The first three approaches can readily be applied using standard methods of health technology assessment, where suitable data are available; whereas approaches for generating equity weights remain experimental. The potential benefits of considering equity are likely to be largest in cases involving: (a) interventions that target disadvantaged individuals or communities and are also relatively cost-ineffective and (b) interventions to encourage lifestyle change, which may be relatively ineffective among ‘hard-to-reach’ disadvantaged groups and hence may require re-design to avoid increasing health inequalities.
Palaeozoic orogeneses around the Siberian craton: Structure and evolution of the Patom belt and foredeep
Authors: de Boisgrollier T. , Petit C. , Fournier M. , Leturmy P. , Ringenbach J.‐C. , San'kov V. A. , Anisimova S. A. , Kovalenko S. N.
Published: February 2009

This paper sheds light on the evolution of the Patom belt. This mountain range draws an arc along the southeastern edge of the Siberian craton. It is supposed to be of Caledonian age and to result from the accretion of microcontinents against the craton, but up to now, its detailed stratigraphic and tectonic history was unclear. A field study allows us to clarify it. The sedimentary record is marked by a slow evolution with stable periods of more than 250 Ma. The observed sedimentary succession confirms the existence of a passive margin setting in the late Riphean (900 Ma), followed during the Vendian (650–600 Ma) by the obduction of the Baikal‐Muya ophiolites belt and a foredeep inversion. After that, a Late Cambrian extension occurred, which is first described in this paper. The second collision stage occurred after 385 Ma, in the Late Devonian–Early Carboniferous. Sedimentary and tectonic data are interpreted in the light of the geodynamic evolution of Siberia, which is dominated by continental collages against the Siberian craton. Field data reveal a homogeneous direction of compression from the inner areas to the foreland. Whereas the inner range displays metamorphosed units deformed in the ductile domain, deformation is weaker in the foreland, which developed above the cratonic crust. We relate this high deformation gradient to the presence of the stiff craton which impeded strain propagation. The irregular shape of the craton as well as preexistent basement topography can explain the different tectonic styles observed along the belt.
Photometric changes on Saturn's Titan: Evidence for active cryovolcanism
Authors: Nelson Robert M. , Kamp Lucas W. , Lopes Rosaly M. C. , Matson Dennis L. , Kirk Randolph L. , Hapke Bruce W. , Wall Stephen D. , Boryta Mark D. , Leader Frank E. , Smythe William D. , Mitchell Karl L. , Baines Kevin H. , Jaumann Ralf , Sotin Christophe , Clark Roger N. , Cruikshank Dale P. , Drossart Pierre , Lunine Jonathan I. , Combes Michel , Bellucci Giancarlo , Bibring Jean‐Pierre , Capaccioni Fabrizio , Cerroni Pricilla , Coradini Angioletta , Formisano Vittorio , Filacchione Gianrico , Langevin Yves , McCord Thomas B. , Mennella Vito , Nicholson Phillip D. , Sicardy Bruno , Irwin Patrick G. J. , Pearl John C.
Published: February 2009

We report infrared spectrophotometric variability on the surface of Saturn's moon Titan detected in images returned by the Visual and Infrared Mapping Spectrometer (VIMS) onboard the Cassini Saturn Orbiter. The changes were observed at 7°S, 138°W and occurred between October 27, 2005 and January 15, 2006. After that date the surface was unchanged until the most recent observation, March 18, 2006. We previously reported spectrophotometric variability at another location (26°S, 78°W). Cassini Synthetic Aperture RADAR (SAR) images find that the surface morphology at both locations is consistent with surface flows possibly resulting from cryovolcanic activity (Wall et al., companion paper, this issue). The VIMS‐reported time variability and SAR morphology results suggest that Titan currently exhibits intermittent surface changes consistent with present ongoing surface processes. We suggest that these processes involve material from Titan's interior being extruded or effused and deposited on the surface, as might be expected from cryovolcanism.