Factual Considerations Research Articles

Doctrinal Devices, Legal Expertise and Empirical Knowledge: The Doctrinal Structures of Causation Jurisprudence

AbstractThe article offers an account of the ways in which the influx of empirical knowledge with scientific pedigree is controlled by the doctrinal structures of law, using the development of causation jurisprudence in the law of negligence (in the United Kingdom) as the focus of the analysis. It depicts the engagement with empirical knowledge as a learning process constrained by normative characteristics of the legal practice and considerations of professional competence. The doctrinal structures of causation jurisprudence are analysed in terms of a three-level engagement with the fact-norm distinction. The article argues that the discursive structures of doctrinal knowledge about law embody a pattern of rationality. And that pattern of rationality revolves around manifesting the dialectical relationship of normative and factual considerations in practical judgments. Legislative intervention in the common law must preserve that pattern of rationality.

Innovation Market Theory and Practice: An Analysis and Proposal for Reform

Encouraging and/or preserving innovation in mergers and acquisitions have been critical factors in modern antitrust analysis. These aims have been justification for the breakup of proposed research programs targeting diseases as serious as HIV/AIDS and cancer. The rationale given is always to protect competition and enhance the benefits to consumers. Lawyers and economists justify intervention in mergers based on predictions of what will or might happen many years down the road in scientific research programs. They base those predictions on various theories and assumptions of how companies behave. But an examination of the actual drivers in the researchbased pharmaceutical industry, such as the time factor of revenue destruction and the resulting continuing need for new products, along with a review of what happened in key cases after the agencies acted, reveals that those underlying assumptions may well have been unfounded. This factual consideration of how business actually behaves has been missing from the analysis. This article looks at the leading approaches to “innovation markets.” It then reviews the key cases in which the theory has been applied, and looks to see what actually happened after the case files were closed. In other words, did the intervention do any good, and/or did the lack of intervention do any harm?

Еврорегионы как фактор успешной международной интеграции в современных условиях

This article focuses on the correlation between the contemporary crisis phenomena in the Eurozone and some CIS countries with the existing Euroregions. We attempt to analyze the interdependence of the qualitative aspect of cross-border relations of European countries with their economic sustainability in the context of regional international integration. The theoretical significance of this work lies in the revealed correlation between the efficiency of cross-border Euroregions and the additional resources that can be retrieved in the framework of national economic policy during global recession. The practical component consists in clarifying the conceptual framework for the formation of successful cross-border education in today's Europe. The authors employed the historical-descriptive approach and factual consideration of the cross-border and macro-regional level of interaction between European countries. The main results are as follows. The crisis in several EU countries is associated with a complex of causes that deplete the platform for multilateral cooperation in Europe. To a lesser extent, the crisis has affected the states that are actively involved in cross-border cooperation projects. The formation of European regions is closely related to the industrial development of their regions. The Post-Soviet space requires a redistribution of overcentralized power. The abundance of Euro-regions along the perimeter of certain states may be an indicator of economy's resilience to potential shocks. The provisions set forth in the article contribute to the improvement of scientific understanding of political regionalistics and takes the current understanding of international system to the level of cross-border relations and institutions creating a system of interrelated elements of macro-regional and national building. The results can be applied in the development of a conceptual and legal framework for the construction of cross-border political formations in the Post-Soviet space, especially, within the Eurasian Economic Community, which coined the concept of «eurasiaregion».

Eduard Mark on Venona's ‘Ales’: A note

One of the most notable messages in 'Venona' is No.1822, which the NKGB's Washington station sent to Moscow on 30 March 1945. As the message describes an agent of the GRU who circumstantially resembles Alger Hiss, it has strengthened the position of those scholars who have argued that Hiss was a Soviet spy. John Lowenthal, Hiss's lawyer, urges that an alternative reading of No.1822 exonerates his client. A review of the evidence shows that factual considerations exclude Lowenthal's reading of the cable. 'Venona' also contains another cable, hitherto unnoticed, that further strengthens the case against Hiss.

Who was ‘Venona's’ ‘Ales’? cryptanalysis and the Hiss case

One of the most notable messages in ‘Venona’ is No.1822, which the NKGB's Washington station sent to Moscow on 30 March 1945. As the message describes an agent of the GRU who circumstantially resembles Alger Hiss, it has strengthened the position of those scholars who have argued that Hiss was a Soviet spy. John Lowenthal, Hiss's lawyer, urges that an alternative reading of No.1822 exonerates his client. A review of the evidence shows that factual considerations exclude Lowenthal's reading of the cable. ‘Venona’ also contains another cable, hitherto unnoticed, that further strengthens the case against Hiss.

Persuasion in Practical Argument Using Value-based Argumentation Frameworks

In many cases of disagreement, particularly in situations involving practical reasoning, it is impossible to demonstrate conclusively that either party is wrong. The role of argument in such cases is to persuade rather than to prove, demonstrate or refute. Following Perelman, we argue that persuasion in such cases relies on a recognition that the strength of an argument depends on the social values that it advances, and that whether the attack of one argument on another succeeds depends on the comparative strength of the values advanced by the arguments concerned. To model this we extend the standard notion of Argumentation Frameworks (AFs) to Value-based Argumentation Frameworks (VAFs). After defining VAFs we explore their properties, and show how they can provide a rational basis for the acceptance or rejection of arguments, even where this would appear to be a matter of choice in a standard AF. In particular we show that in a VAF certain arguments can be shown to be acceptable however the relative strengths of the values involved are assessed. This means that disputants can concur on the acceptance of arguments, even when they differ as to which values are more important, and hence that we can identify points for which persuasion should be possible. We illustrate the above using an example moral debate. We then show how factual considerations can be admitted to our framework and discuss the possibility of persuasion in the face of uncertainty and disagreement as to values.

Generational Imbalance and Disruptive Change

According to most scholars, what defines modernity is the prevalence of change and mobility in all aspects of life, as opposed to traditionality in which immobility of beliefs and statuses is said to be the dominant traitOne major implication of this definition is the conclusion that the occurrence of modernity involves generational conflicts on the grounds that older people are less open to innovation and change. This paradigm of modernity has led to the exclusion of elders from political life in Third World countries, especially in those countries that opted for a revolutionary course. In light of traditional views of old age and recent gerontological findings, this paper examines the validity of the assumption according to which younger leadership is best equipped to achieve modernity in developing countries. It finds out that both factual and theoretical considerations underline that integration as much as deviation defines positive change and that the failure of generational interaction results in detrimental outcomes.

A Different Death: Euthanasia and the Christian Tradition By Edward J. Larson and Darrel W. Amundsen (review)

measured tone, The Shape of the River deserves to be influential in the debate and in litigation over race conscious admissions. The authors command respect because of their professional qualifications, their extensive experience in higher education, and their record of thoughtful discourse about higher education and the needs of the nation. Although people may differ with some of the authors' conclusions, The Shape ofthe Riveradds important and much needed empirical data to the discussion ofrace consciousness in admissions. People can now state with confidence that such policies at selective colleges have led to important benefits to the black students admitted, to their fellow students, and to our society. Courts can take these societal benefits into account when assessing the constitutionality and legality of these admissions practices, and with the data this book provides, courts are not likely to conclude that there are race-neutral means of achieving the same goals. A fresher, more factual consideration of race consciousness in admissions, such as that provided by The Shape of the River, can only help all of us as courts, legislatures, and voters reach decisions on such a vitally important topic. Daniel Steiner Harvard University A Different Death: Euthanasia and the Christian Tradition. By Edward J. Larson and Darrel W. Amundsen. Downers Grove, IL: Inter-Varsity P, 1998. Pp. 256. $14.99 (paper). There are many who write about end-of-life options but few who write about the possible origin of those options available within the Christian tradition. This book traces a Christian tradition on suicide to bolster modern arguments against active euthanasia and assisted suicide. The religious discussion against suicide is then extrapolated , in later chapters, to practices that actively cause death when a person requests it and society's struggle with these issues. The Introduction shows that the authors are aware of how difficult it is to define suicide: An entirely objective and consistent definition of suicide will never be made to everyone's satisfaction. The differences are so significant between, for instance, hanging oneself after beingjilted by one's lover, burning oneself to death as a public protest against a government's policies, sacrificing one's lives to save others' lives, and being executed for refusing to renounce one's most deeply held convictions that to label them all as "suicide" and then insist that anyone who approves of any of them approves of all forms of suicide flies in the face of even the most basic logic and common sense. The intention of the authors is not to present current Christian positions about suicide or active euthanasia within the various denominations as they evolved historically , but to show unequivocally that the historical Christian tradition condemns suicide and active euthanasia. This is in sharp contrast to classical antiquity, which tolerated the wish to hasten death and, in some circumstances, permitted someone else to administer the means of death. The authors speculate that what you might think Christianity says about suicide (and by implication, what that means for the practice of active voluntary euthanasia 450 Book Reviews or physician-assisted suicide) is probably incorrect. In the opening chapter of the book an imaginary student is assigned a term paper on the Christian position on active voluntary euthanasia and discovers scholarship which suggests that Christians chose to die for their faith or welcomed death as going to God. The authors' dispute over whether these ideas are indigenous to Christian values is the basis of the next five chapters of the book. The last four chapters comprise a modern discourse on the cases and legal decisions that have shaped the practice of euthanasia and assisted suicide in end-of-life care and present the evolution of the present debate and the views of the proponents of pro-life positions. Ofinterest to physicians is a careful tracing of the evolution ofthe physician's role at the bedside of the dying person. Initially there was no mandate to treat persons whose cases could only end in failure for the physician, but by the Reformation physicians were enjoined to remain at the bedside even though no further treatment was useful. In two separate papal documents we see that, by the end of the 12th...

Divvying Atlantis: Who Owns the Land Beneath Navigable Manmade Reservoirs?

I. INTRODUCTION For over a century, the federal government has been permitting dam-building on navigable rivers to create artificial reservoirs for irrigation, reclamation, and-electrical power. Congress has granted dam permits under various legislation to both utilities and federal agencies.(1) Many of these federally flooded lands, containing oil, natural gas, precious minerals, and shellfish, have growing value. In addition, these lands serve as habitat for fish, wildlife, and plants. This ripening underwater investment poses the question of who owns the artificial Atlantean domains: the utilities, the states, or the federal government? It presents an issue not yet confronted by any court. This, article advocates for state ownership of the artificial federal reservoir basins. It first reviews the origin of the issue -- why states might formulate such a claim. In Part II, this article reviews seven public policy considerations that support state ownership. Part III analyzes the legal arguments, considering first whether federal or state law applies. The article then considers the provisions of various state laws in sub-part B, and those of federal law in sub-parts C and D. II. BACKGROUND & QUESTIONS In general, each individual state owns the land beneath its rivers and lakes that are navigable at the time of statehood.(2) Describing this ownership, the U.S. Supreme Court has stated: Under English common law the English Crown held sovereign title to all lands underlying navigable waters .... When the 13 Colonies became independent ... they claimed title to the lands under navigable waters ... as the sovereign successors to the ... Crown. Because all subsequently admitted States enter the Union on an equal footing with the original. 13 States they too hold title to the land under navigable waters within their boundaries .... (3) Thus the states owned, and still own, the original riverbeds of navigable rivers.(4) But when a federal dam is built, artificially flooding adjoining dry land and creating an enlarged navigable waterway, who holds title to the newly submerged land? While the question could be argued legally several ways, people commonly assume that title remains in the dam builder who condemned it. This article argues otherwise: that ownership by the respective states is more persuasive, both legally and on the basis of public policy. In a case of first impression, the outcome will likely be shaped as much by public policy considerations as by application of the law.(5) Not all federal reservoirs were created by the same agency or even under similar statutes.(6) The principal statute, the Federal Power Act,(7) allows a licensee to obtain a permit from the Federal Power Commission, now the Federal Energy Regulatory Commission (FERC), to construct a dam on navigable waterways for generating electrical power. In many cases, however, reservoirs were authorized by special legislation.(8) To facilitate the task of building dams, all the applicable federal statutes empower each licensee to condemn or otherwise pay for the land to be flooded.(9) After reservoir completion, the licensees sell services such as electricity and irrigation water that, over time, pay for the cost of acquiring land and constructing the dam. Many dam licensees, since condemning the newly submerged lands, may have paid property taxes on the those lands, not including the original riverbeds which the licensees generally admit to be property of the respective states.(10) In all likelihood, however, few surveys have been conducted to locate or mark the banks of natural riverbeds beneath reservoirs. To what extent it would be technically possible now to identify historic riverbeds presents difficult factual considerations. Similarly, some states may have assessed taxes on dams and submerged lands on the basis of depreciated cost, while others may have used some other valuation. …

Moral Deadlock

Very often moral disagreements can be resolved by appealing to (nonmoral) factual considerations because in these cases the parties to the dispute agree as to which factual considerations are relevant. They agree, that is, with respect to their basic moral standards. Hence, when their disagreement about the non-moral facts is resolved, so is their moral disagreement. But sometimes moral disagreement persists in spite of agreement on factual considerations. When this happens, and when neither party is guilty of illogical thinking, we have a case of moral deadlock

Anti-Witchcraft Cults in Asante: An Essay in the Social History of an African People

There is a considerable literature dealing with the phemenon of twentieth-century anti-witchcraft cults among the Akan peoples of Ghana, and notably the Asante. This literature is written from the disciplinary perspective of social anthropology and it may be divided into two interpretative views of the matter. The first espouses the theory that such cults are ‘new’--creations of the twentieth century--in that they represent a reflexive response to the social disorientation assumed to have been engendered by colonial overrule. The second questions the causative link between the twentieth century and increased anomie, and suggests the location of such cults in a time perspective reaching back into the distant--but undefined--pre-colonial past. For a social historian interested in the problem of witchcraft and its suppression this literature presents a resistant difficulty. It concerns itself with the material appurtenances and the impressionistic ‘psychohistory’ of cult practices, but it is almost entirely bereft of historical data and it indulges in generalizations erected upon the flimsiest of factual considerations. McLeod, who has ably reviewed this literature, has commented upon this deficiency with regret, but--at least so far--has done little to rectify it.In this paper I am concerned with the discrete history--social, economic and political--of three important anti-witchcraft cults that flourished in Asante between the late 1870s adn the late 1920s; in chronological order these were,domankama(‘The Creator’),aberewa(‘The Old Woman’) andhwe me so(‘Watch Over Me’). In discussing these cults as historical phenomena I seek to explicate or otherwise to dissolve some of the generalizations evident in the existing literature. I seek too to say something concerning the construction of a valid Asante (and African) social history, the relationship between social history and social anthropology in the African context, and the significance for the historian of Africa of socio-cultural phenomena such as witchcraft.

The Ethics Advisory Board & the Right to Know

mission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, both of which took place last spring. The scope of the ethical adviser's role is not well defined in the mandates of these commissions, and the matter takes on some complexity in practice. Ethical issues that appear to come within the mandates are public policy issues as well, involving mixed questions of fact and value; and the normative aspects are not always uppermost. In those cases involving broader practical or factual considerations, the advisory groups may wonder whether they are trespassing in the domains of technical experts or other policy makers.

Vessel Traffic Management Systems: Some Considerations

When planning the replacement of an existing shore-based radar advice chain, which may have admirably served the port area under consideration for the past fifteen or twenty years, a number of basic elements have to be reviewed. The review and the ensuing process of analysis should be steps towards the adoption of a basic philosophy for the eventual development of a replacement system; this is necessary to judge requirements in relation to the many possible solutions, ranging from a simple shore-based radar advice service to sophisticated vessel traffic management systems. Elements for consideration include:(i) The area to be served, present and future.(ii) The traffic pattern, present and future.(iii) The technology available or under development.(iv) The other operational and administrative services available to shipping.(v) The quality of manning and manning scales.(vi) The economics of the shipping industry.(vii) The cost of the new system.(viii) The distribution of this cost over shipping and the community in general.(ix) Legal aspects.Besides these factual considerations and their analysis we should develop a philosophy regarding the aims of the system, which could be an improvement in port operation efficiency, in traffic safety, or in vessel turn-around time. The realization of these aims will probably result in economic benefits both for the port and for shipping and these will have to be weighed when investigating the distribution of system cost over shipping and the community in general.

“Getting the meaning” in interpretation

This article is in the nature of a “last word” on the subject from a man who has exemplified in his writings a vigorous, intelligent, classical approach to oral interpretation. In it are discussed the factual, emotional, contextual, and attitudinal considerations that are a part of “getting the meaning.” The article suggests that many contemporary treatments of the subject are not thorough enough in analyzing these factors.

Logical propositions and debate resolutions

The argument that “it is unethical to argue both sides of a debate resolution”; is unsound insofar as the argument assumes that factual and logical considerations are relevant to resolutions and that convictions are relevant to argument.

Incomplete Block Rank Analysis: Some Taste Test Results

Bradley, Terry and co-workers (2, 3, 9) have put forward a solution of the problem of incomplete block rank analysis, and have applied it to the design and analysis of sensory difference tests of flavor and palatability. In its simplest form of paired comparisons in balanced incomplete blocks of 2, their method rests upon two basic assumptions. The first of these is that all rankings are statistically independent. The second is that if aliquots of m test samples are appraised by each of n subjects, there exist n sets of non-negative real numbers 7r1i, 7ir2i * ' ' wrni (j = 1, 2, *.. n) termed ratings and each satisfying the defining condition Ei7rii = 1, such that for all pairs of samples h and i, the probability of the jth subject ranking i above h in a single paired comparison is specified by rij/(7h + in). Appropriateness of this conceptual model in any specific instance is a question of fact. Technological interpretation of subjective test results also involves another factual consideration, namely the extent of inherent differences in the -xii characteristic of individual subjects j. Three series of experimental results bearing upon these points are reported below.

Free skin grafting

Our interpretation of fundamental factors involved in free skin grafting have been presented with the aim of extending the usefulness of this simple operative procedure. These fundamental factors involve theoretic and factual considerations of epithelial and secondary tissues. The epithelial and cardiac tissues we believe are the most important fundamental tissues in the body; the epithelial tissues keep us wet animals, the cardiac tissues circulate this wetness. Barring specific disease, these tissues will survive at the expense of all other tissues in order to serve the body and work for body needs until the last remote chance of repair is gone. We make use of the vital characteristics of the type of epithelium we are dealing with, the epidermis (ectodermal epithelium), in determining the time to operate, our operative procedure and postoperative care. The time to perform a free skin graft operation is when the patient can withstand a simple operation; we are not concerned with the ability of the epidermis to survive. It will survive if applied to a suitable base properly and at the expense of the body if need be. Establishing a minimum of body economy as to blood count, hemoglobin, etc., leads to needless delay in free skin grafting. Loss of vital fluid incident to this delay causes degenerative processes in vital organs. The plane of body efficiency is lowered and the patient reverts to the picture of starvation. We classify granulation tissue in the category of free skin grafting as useful, useless and pernicious. It is useful in the first stages of its appearance when the collagenous tissue base is minimal; useless at a later date because a better base can be obtained if the granulation and collagenous tissues are removed; pernicious still later because the healthy appearance of the firm, flat granulations belie the thick layer of strangling collagenous tissue beneath. The reason why the granulations are firm and flat is because the collagenous tissue is at a late stage of maturity, the bed is strong and firm and the capillaries are partly occluded by organizing immature scar. The epidermis has no direct blood supply. It lives on overflowing springs of tissue fluid. This fluid filters through a delicate white fibrous tissue feltwork of the dermis to the epidermis. Our operative procedure is designed to provide optimum conditions for the body to reconstruct from secondary tissue something similar to this fine feltwork which has been lost. For this reason the firm, heavy blanket of secondary tissue found lying on the major supply of necessary nutrition is removed. This allows the body to reconstruct something of secondary tissue, more in keeping with the missing, delicate veil of primary tissue. We believe that success in free skin grafting depends upon the internal fixation of the graft to the host by a physiologic glue, the clot. We do not believe that it depends upon the external pressure of bandages in an attempt to achieve the same result. General, special, local and refrigeration anesthesia are used. As to thermal anesthesia, we follow the method suggested to Dr. Eastman Sheehan and ourselves by Dr. Frederick Allen, i. e., to apply ice bags continuously for two hours prior to operation over the donor site and the area to be skin grafted. We have not been able to sterilize granulating areas surgically by any means other than by their total destruction with a corrosive agent. Since we do not use granulation tissue for skin grafting, its loss is of no moment. Donor sites are unbandaged except for a single layer of gauze which is placed over the wound. Postoperative care, except for general supportive measures, is confined to means of protecting the grafts. A variety of methods may be used.