In the fictional Harry Potter universe, J.K. Rowling has fashioned a parallel world based on our own, but with the fundamental difference of a separate magical society grafted onto it. In Rowling’s fictional version, the magical population lives among the non-magical Muggle population, but we Muggles are largely unaware of them. This secrecy is by elaborate design and was brought about by centuries-long hostility toward wizards by the non-magical majority. But what if secrecy is precisely the wrong approach? What if widespread wizard-Muggle collaboration were precisely the thing needed to address the enormous and pressing problems of the day? The secrecy and exclusivity of the wizarding world, when combined with the similarities between Harry Potter-style magic and American law, make Rowling’s world a useful cautionary tale for legal education. This essay argues that law schools should reject their largely Hogwarts-style approach to the dissemination of legal knowledge in favor of increased educational paths appropriate to a liberal republican democracy invested in the rule of law. A modest but positive step in that direction is the establishment by law schools of legal master’s degree programs aimed at non-lawyer professionals. In a societal sense, these programs are a positive step in the direction of repealing the “statute of wizarding secrecy” that has long and implicitly accompanied legal education.
David Mindell notes in Our Robots, Ourselves, “For any apparently autonomous system, we can always find the wrapper of human control that makes it useful and returns meaningful data. In the words of a recent report by the Defense Science Board, ‘there are no fully autonomous systems just as there are no fully autonomous soldiers, sailors, airmen or Marines.’” Designing and using “the wrapper of human control” means making moral decisions — decisions about what ought to happen. The point is not new as the “soldiers, sailors, airmen or Marines” references shows. What is new is the rise of predictive analytics, the process of using large data sets in order to make predictions. Predictive analytics greatly exacerbates the long-standing problem about how to balance the benefits of data collection and analysis against the value of privacy, and its pervasive and its ever-increasing use of gives the tradeoff problems an urgency that can no longer be ignore. In tackling the tradeoff issues, it is not enough merely to address obviously invidious uses like a recent photo-editing app for photos of faces from a company called FaceApp. When users asked the app to increase the “hotness” of the photo, the app made skin tones lighter. We focus on widely accepted — or at least currently tolerated — uses of predictive analytics in credit rating, targeted advertising, navigation apps, search engine page ranking, and a variety of other areas. These uses yield considerable benefits, but they also impose significant costs through misclassification in the form of a large number of false positives and false negatives. Predictive analytics not only looks into your private life to construct its profiles of you, it often misrepresents who you are. How should society respond? Our working assumption is that predictive analytics has significant benefits and should not be eliminated, and moreover, that it is now utterly politically infeasible to eliminate it. Thus, we propose making tradeoffs between the benefits and the costs by constraining the use and distribution of information. The constraints would have to apply across a wide range of complex situations. Is there an existing system that makes relevant tradeoffs by constraining the distribution and use of information across a highly varied range of contexts? Indeed, there is: informational norms. Informational norms are social norms that constrain not only the collection, but also the use and distribution of information. We focus on the use and distribution constraints. Those constraints establish an appropriately selective flow of information in a wide range of cases. We contend they provide an essential “wrapper of human control” for predictive analytics. The obvious objection is that the relevant norms do not exist. Technological-driven economic, social, and political developments have far outpaced the slow evolution of norms. New norms will nonetheless evolve and existing norms will adapt to condone surveillance. Reasonable public policy requires controlling the evolution and adaption of norms to reach desirable outcomes.
In the spring of 2015, Paramount Motion Pictures released Selma, a movie based on the historical occurrences that led to the infamous day in American history known as “Bloody Sunday,” and President Lyndon Johnson’s signing of the subsequently passed Voting Rights Act of 1965 (“the Act”). Selma popularized, for a new generation, the clergy-led struggle for an egalitarian society, especially in the Jim Crown Deep South, where legislation was needed to ensure well-documented patterns of invidious discrimination in the polling place would end. This Article, written in the same vein as Selma, shows how faith and faith-based leaders worked through life-threatening and often life-ending struggles, to ensure the Fifteenth Amendment guarantee would no longer be usurped by the institution of racism, and Blacks would have the ability to elect candidates of their own choosing.With the biblically-based “suffering servant” theology detailed by the messianic writers in Isaiah 53 as an undergirding theme, this interdisciplinary Article brings together law, history, and theology to explore the Judeo-Christian concept of suffering being redemptive — a concept the Reverend Dr. Martin Luther King, Jr. made extremely popular during the Civil Rights Movement. Further, as its central thesis, this Article agues, in paraphrasing the writer of Hebrews, that faith brings to fruition things that might otherwise seem impossible, when faith is the precedent to social action. Indeed, just as prior to the faith-motivated and dissident demonstrations that resulted in Bloody Sunday, the Act seemed like an impossibility. When faith leads to social action, however, otherwise impossible results can include the election of Blacks to local, state, and federal office, with the most significant being the election and reelection of Barack Obama, the first Black president of the United States of America. In supporting the central thesis that faith-based actions led to passage of the Act, this Article is divided into five parts. Part I serves as an introduction, providing an overview of sociopolitical conditions that necessitated the Act’s enactment. Part II builds upon Part I by overviewing the evolution of the Act’s Sections 2 and 5, arguably its most important parts, while also detailing why the two sections were and remain very important. Part III explores how a theology of civil disobedience, motivated by faith and the Judeo-Christian concept of suffering being redemptive, shaped a climate for the Freedom Rides and lunch counter sit-ins of 1961, events that served as a natural preference to Bloody Sunday in 1965, a watershed sociopolitical occurrence that forced President Johnson’s Great Society Initiative to include voting rights along with education reform and poverty eradication. By setting a theological foundation of where faith and social action meet, Part III details some of the chronological events that led to the Act becoming law.The Article’s Part IV looks at the political reality of how the Supreme Court’s 2013 decision in Shelby County v. Holder undermines and essentially guts the Act’s practical reach, while somehow leaving it constitutionality intact, with Part V looking at the Act’s future and limited practical application, serving as this Article’s conclusion. Unless those in the post-modern era replicate the actions of the Movement’s faith leaders and demand that the Republican-controlled Congress act in response to the Court’s decision in Shelby County and enact a new and improved Act, its future is arguably very bleak.
I argue that a concept of law that assigns primacy to the regulative role fulfilled by legal systems is best suited for explaining law’s discrete practice areas. This regulative point of view facilitates the development of a concept of law capable of cohering with theories of discrete legal areas. The posted paper revises the article as originally published in the Cumberland Law Review.
This paper examines the issue of cultural relativism versus universal human rights from the perspective of the New Haven school of jurisprudence. It explores the historical and intellectual content of both Western and non-Western human rights and assesses their departures and commonalities. It reviews relevant modern trends in international law, human rights, legal positivism, pluralism and globalization.
In the Terri Schiavo case, different family members who want the legal authority to make decisions for Terri Schiavo have sought different treatment options - with results as opposed as life and death. Had the case not come before the courts, Michael Schiavo, Terri's husband, would have had Terri's feeding tube removed long ago; Terri's parents, Mary and Robert Schindler, if either had been named surrogate in Michael's stead, would continue feeding her indefinitely. Recognizing, as the Schiavo case highlights, that who among family members speaks for the patient can determine the course of treatment or non-treatment for a patient, it is necessary to turn renewed attention to the question of why families, whether we define them as spouses or parents, are involved in the end-of-life decisionmaking of their relatives. Are they merely a representative or even fiduciary of the patient or are they stakeholders in their own right? Do we look to family members as surrogates because they ensure a sounder process, a neutral process, for determining patient preferences and interests, or do we look to family members as surrogates because we recognize that families want to be (and perhaps should be?) involved? This paper argues that some deference to family members' own interests can be justified on the grounds of a broad notion of patient self-determination, but some degree of deference might also be justified out of respect for family members' own interests. Our law should not demand strict neutrality of these family members, but should acknowledge that their interests may have value as well. At the same time, there must be limits: the family's preferences and interests should not be allowed to overshadow those of the patient.
In responding to Professor Smolin’s hypothetical about Brenda and John Smith’s reproductive options, this essay focuses on two matters. First, the essay explores one aspect of the several options facing the Smiths—that involving preimplantation genetic diagnosis. Second, and more important, this essay suggests a methodological approach to bioethical conundrums such as those raised by the Smith hypothetical. Concepts of morality flow from and reflect a society’s ideology. Understandings of the world and the way people live their everyday lives are fundamentally connected to the value people place on themselves, other people, relationships, events, and things in the world. That is to say, moral beliefs are inseparable from larger systems of meaning. From within a society such as our own that has jettisoned many of the frames within which social truths were once anchored, it is
This essay examines whether bioethics can provide normative answers and compares secular and religious methodologies. It argues that secular bioethics, rooted in modern philosophical skepticism, often lacks coherent foundations for resolving complex dilemmas, relying instead on autonomy-based principles that prove indeterminate. In contrast, religious bioethics—particularly Christian approaches—offers a comprehensive framework grounded in theological presuppositions, enabling rational engagement with questions of life, death, and procreation. Through analysis of a hypothetical involving advanced reproductive technologies, the essay illustrates the practical implications of these methodologies. It concludes that pluralistic societies require multiple bioethical frameworks, with religious perspectives offering distinctive advantages for addressing profound ethical challenges.
Catholic bioethics is pre-modern: it is based on scripture and the natural law as revealed in the work of moral theologians and the teachings of the magisterium, including papal encyclicals. It may be contrasted with a modernist, secular bioethics that finds its origins in the Enlightenment, rejects religion and metaphysics, and focuses primarily on autonomous human reason. It can also be distinguished from a post-modernist approach that rejects modernist rationalism and any attempts at constructing a coherent, overarching moral philosophy. And while secular bioethics is concerned more with procedural issues, Catholic bioethics is concerned with the principles of good moral decisionmaking rather than with the identity of who makes the decision. A 1991 statement by the Catholic Bishops of Pennsylvania asserts that religiously grounded bioethics provides unique insights on issues that secular bioethics cannot offer:
The distinction between assets and ideas lies at the core of the misunderstanding between Islam and secularism, the strongest version of which is unfolding in the United States. Muslims view Islam as knowledge-based (intellectual) property, not an idea. Secularists reduce Islam to a mere idea, reserving the notion of intellectual property for literary and artistic works, inventions, patents, films, computer programs, designs, trademarks, and trade secrets. Muslims elevate the knowledge-based assets of Islam to the highest level of protection, more than the intellectual work of any scientist, artist, or corporation. Even in the face of a rising tide of secularism throughout the world, they refuse to consign their religion to the marketplace of ideas, a place where ideas are depreciated and trashed. This clash of understanding between Islam as an idea and Islam as intellectual property breeds mutual mistrust between secularists and Muslims.
Given the theoretical inevitability of human cloning, this Article attempts to fill a current intellectual void by providing an analysis of the most significant legal implications of cloning human beings. Part II sets forth the basic science behind cloning and how cloning differs from other, non-traditional forms of procreation such as in vitro fertilization and artificial insemination. Part III discusses the most commonly feared “science fiction” abuses associated with human cloning and current laws that may prevent such abuses from occurring. Part IV discusses the possible constitutional impediments to banning human cloning, including the First Amendment, the procreational liberty interest of the Due Process Clause, and the Equal Protection Clause. Part V considers the possible governmental interest in regulating human cloning to assess whether such regulation would survive the applicable level of judicial scrutiny. The Article concludes that, contrary to popular public opinion, the current legal regime appears prepared to handle human cloning. Moreover, should Americans wish to ban the practice, they may not be able to do so consistent with the current Constitution.
