Factual Uncertainty Research Articles

Beyond the Principle of Proportionality: Controlling the Restriction of Rights under Factual Uncertainty

Beyond the Principle of Proportionality: Controlling the Restriction of Rights under Factual Uncertainty

Ethical machine decisions and the input-selection problem

This article is about the role of factual uncertainty for moral decision-making as it concerns the ethics of machine decision-making (i.e., decisions by AI systems, such as autonomous vehicles, autonomous robots, or decision support systems). The view that is defended here is that factual uncertainties require a normative evaluation and that ethics of machine decision faces a triple-edged problem, which concerns what a machine ought to do, given its technical constraints, what decisional uncertainty is acceptable, and what trade-offs are acceptable to decrease the decisional uncertainty.

“For I Say”: A Keeper at the Rabbinic Gates of Doubt

Abstract The rabbinic idiom “for I say” (שאני אומר) has been construed philologically as a specific type of presumption, buttressed with first-person rhetoric. From the perspective of legal analysis, I contend that “for I say” and presumption are diametrically opposed decision-rules, employed consistently in tannaitic and amoraic literature. While presumptions are exclusionary rules, circumscribing doubt, “for I say” is an inclusionary rule, validating doubt. The versatility of the “for I say” rule testifies to its preliminary nature – while the outcome is determined by a robust set of primary decision rules. “For I say” should be read as: for I can say, legitimizing doubt and calling on primary rabbinic rules for treating cases of factual uncertainty, in contestable instances.

Australian children and adolescents with gender dysphoria: Clinical presentations and challenges experienced by a multidisciplinary team and gender service

This prospective study examines the clinical characteristics of children ( n = 79; 8.42–15.92 years old; 33 biological males and 46 biological females) presenting to a newly established, multidisciplinary Gender Service in New South Wales, Australia, and the challenges faced by the clinicians providing clinical services to these patients and their families. The clinical characteristics of the children were comparable to those described by other paediatric clinics providing gender services: a slight preponderance of biological females to males (1.4: 1); high levels of distress (including dysphoria about gender), suicidal ideation (41.8%), self-harm (16.3%), and suicide attempts (10.1%); and high rates of comorbid mental health disorders: anxiety (63.3%), depression (62.0%), behavioural disorders (35.4%), and autism (13.9%). The developmental stories told by the children and their families highlighted high rates of adverse childhood experiences, with family conflict (65.8%), parental mental illness (63.3%), loss of important figures via separation (59.5%), and bullying (54.4%) being most common. A history of maltreatment was also common (39.2%). Key challenges faced by the clinicians included the following: the effects of increasingly dominant, polarized discourses on daily clinical practice; issues pertaining to patient and clinician safety (including pressures to abandon the holistic [biopsychosocial] model); the difficulties of untangling gender dysphoria from comorbid factors such as anxiety, depression, and sexual abuse; and the factual uncertainties present in the currently available literature on longitudinal outcomes. Our results suggest the need to bring into play a biopsychosocial, trauma-informed model of mental health care for children presenting with gender dysphoria. Ongoing therapeutic work needs to address unresolved trauma and loss, the maintenance of subjective well-being, and the development of the self.

All-or-Nothing, or Something – Proportional Liability in Private Law

Abstract Judges and juries often make factual decisions even if the facts are disputed and there is no clear-cut evidence available. Despite this common state of uncertainty, verdicts are thought of as having clear winners and losers––either the plaintiff wins and receives a full remedy, or the defendant wins and the plaintiff gets nothing. In private disputes, factfinders base their binary factual determinations on the preponderance of the evidence. There are, however, several doctrines that allow for partial remedy, discounted by the probability that the facts support the plaintiff’s case, given the available evidence (proportional liability). This Article offers a general theory for proportional liability in private law. It identifies three types of factual uncertainty—mutual uncertainty, unilateral uncertainty, and institutional uncertainty—and shows that legal economists should support proportional liability when the state of uncertainty is shared by the parties and the court (mutual uncertainty), and they should adopt an all-or-nothing rule whenever the information is observable but unverifiable (institutional uncertainty). In cases where one party holds private information (unilateral uncertainty), proportional liability is sometimes, but not always, superior to an all-or-nothing rule.

Of Carbon Budgets, Factual Uncertainties and Intergenerational Equity – The German Constitutional Court’s Climate Decision

The German Federal Constitutional Court’s climate decision provides a nuanced acknowledgment of climate change’s constitutional relevance. In this article, the author critically assesses how the Court innovatively sought to capture the intergenerational equity dimension of climate mitigation through a combination of negative and positive duties stemming from constitutional law. The article demonstrates how despite progressive findings on intergenerational equity and the innovative invocation of negative duties, the operative part of the decision turned out to be rather limited. Because of remaining uncertainties about the allowable national carbon budget the Court was unable to require the legislator to enact a stricter reduction path. The author argues that the Court could have narrowed remaining uncertainties, without engaging in judicial activism, by adopting an international and constitutional minimum approach to calculating the national budget and by adjusting the burden of proof. Finally, the article highlights how the German legislator by going beyond what was required by the Court ‘trapped’ itself on an ambitious reduction path, opening opportunities for future constitutional complaints.

Recklessness and Uncertainty: Jackson Cases and Merely Apparent Asymmetry

Is normative uncertainty like factual uncertainty? Should it have the same effects on our actions? Some have thought not. Those who defend an asymmetry between normative and factual uncertainty typically do so as part of the claim that our moral beliefs in general are irrelevant to both the moral value and the moral worth of our actions (Weatherson 2014; Harman 2015). Here I use the consideration of Jackson cases to challenge this view, arguing that we can explain away the apparent asymmetries between normative and factual uncertainty by considering the particular features of the cases in greater detail. Such consideration shows that, in fact, normative and factual uncertainty are equally relevant to moral assessment.

Post-globalization and new contours of the future Modernity

This article is intended to discuss the prospects and the ways of constructing a new model of global development in a situation of factual and theoretical uncertainty indicated in social and political science by the concept of post-globalization. It aims at analyzing the critical and theoretical potential of the concept of post-globalization for understanding the direction of shifting the paradigms of conceptualization of the social future. During the last two decades, the discourse of post-globalization exists as an alternative to the triumphant promotion of globalization as a neoliberal / neoconservative ideal for the world’s future in the context of the “end of history”. The post-globalization concept highlighting the limits of the globalization project serves as a possible heuristic tool for transcending its boundaries. But constructing the positive model of the social future requires a new set of concepts – new language – rooted in the driving forces of now-happening historical reality. This research helps to specify the direction of the further inquiry.

Reputation and Accountability

The cholera outbreak in Haiti offers a useful case study of reputation as a disciplinarian of international organizations. On the one hand, UN officials and member states alike have emphasized the need to repair the organization’s damaged reputation. On the other hand, the UN secretariat declined to take certain steps that might have averted—or at least mitigated—that reputational damage in the first place. This contribution argues that the United Nations’ response to cholera in Haiti showcases some important limitations and complications of reputation as a disciplinarian. Reputation will function as a less effective disciplinarian of organizations in the context of uncertainty about the facts or about what the law requires. Notably, international organizations have some capacity to perpetuate factual uncertainty through their control over key sources of information. Reputation will also serve as a less effective disciplinarian when organizations have multiple audiences that are not evaluating the organization against the same standards.

Bioethics in the news: the values at stake.

Bioethical issues are complex, often involve factual uncertainty, and have broad and long-term potential consequences for individuals, institutions and society. Simplification is a strategy used by so-called ‘progressive’ values advocates to promote acceptance of their values. It results from excluding consideration of complexity, uncertainty and potentiality in the values disputes around bioethical issues. In order to engage effectively in public debates of bioethics issues, it is necessary to understand the current societal values zeitgeist and how it differs from a traditional societal values zeitgeist. Since words are weapons in the values battles, it is necessary to identify how they are being used in the presentation of ethical issues in the media and ethical decision making and, when that use leads to unethical decisions and situations, offer alternatives. Moreover, bioethicists must also identify the causes of biased media coverage of ethics issues, including the phenomenon of ‘post-truth’, and work to eliminate them. In particular, Catholic communicators could play a leading role in defending ethical values which further the ‘common good’ in society, including by protecting vulnerable people. As an example, the current euthanasia debate is examined in some detail.

Latency Through Uncertainty: the 1994 Matsumoto Sarin Incident as a Delayed Cultural Trauma

Cultural trauma theory has emphasised the role of social groups in narrating, and thereby attributing moral significance to, highly disruptive events. In contrast, this article draws attention to professions such as the police and the media, which act as “fact-finders” to establish the factual circumstances of events from which trauma narratives are created. The article offers a case study of the June 1994 Matsumoto Sarin Incident in Japan, a terrorist attack in which members of religious movement Aum Shinrikyō gassed residential streets using sarin. Factual uncertainties surrounding the attack, in combination with institutional failings by fact-finders that resulted in a false accusation, meant that carrier groups did not identify the event as one that brought a collectivity’s underlying values into question; in other words, cultural trauma as a discourse did not develop. It was only after Aum’s second sarin attack on the Tokyo subway in March 1995, when the true perpetrators and motives were finally uncovered, that Matsumoto belatedly became recognised as a traumatic assault on Japan’s civic values. This article suggests that a collaborative approach combining science and technology studies (STS) with collective memory studies could provide a fruitful avenue of further research.

COMPLICITY IN VIOLATIONS OF HUMAN RIGHTS AND HUMANITARIAN LAW BY INCUMBENT GOVERNMENTS THROUGH DIRECT MILITARY ASSISTANCE ON REQUEST

AbstractThis article examines whether general international law supports the claim that direct military assistance by one State to another State upon the latter's request is prohibited where the inviting State is implicated in (gross) violations of international humanitarian and/or human rights law. It approaches the question from the perspective of State responsibility, analysing the threshold requirements of Article 16 of the Articles on State Responsibility (ASR),1 which represents the customary international law standard for responsibility for aiding or assisting wrongful conduct by another State. In so doing, the article illuminates how factual uncertainties complicate the triggering of the responsibility of the intervening (assisting) State for any violations of international humanitarian and/or human rights law by the territorial (recipient) State. Thereafter, the article questions whether, in the event that the responsibility of the intervening State is triggered, it would in consequence have to withdraw its troops and/or military air power from the territorial State.

Harmful, Harmless, and Beneficial Uncertainty in Law

This article examines the impact of four types of law-related uncertainty on the utility of risk-neutral agents. We find that greater legal or factual uncertainty makes agents worse off if enforcement is targeted (which means that greater deviations from what the law demands lead to a greater probability of enforcement) or if sanctions are graduated (which means that greater deviations from what the law demands result in higher sanctions). In contrast, agents are indifferent to changes in uncertainty about detection induced by variation in enforcement resources or to changes in uncertainty about sanctions arising from legally irrelevant factors. Finally, risk-neutral agents benefit from greater legal uncertainty if they act only on preapproval by a cautious regulator. Our findings shed light on policy debates about the appropriate specificity of legal standards, the reform of corporate criminal liability, and the government’s reluctance to clarify the details of tax law and tax enforcement.

Transcranial Electrical Stimulation to Enhance Cognitive Performance of Healthy Minors: A Complex Governance Challenge.

An increasing number of healthy adolescents are consuming products that can enhance their cognitive performance in educational settings. Currently, the use of pharmaceuticals is the most widely discussed enhancement method in the literature, but new evidence suggests that other methods based on Transcranial Electrical Stimulation (tES) also have potential as cognitive enhancer. Just like pharmaceutical enhancers, the availability and education-related use of tES-devices raise a broad range of ethical, legal, and societal issues that need to be addressed by policy-makers. Few studies, however, have specifically explored these issues in relation to child wellbeing. In this narrative review with systematic search, we describe the issues for child wellbeing that could arise from the availability and education-related use of tES-based enhancers by healthy minors. We demonstrate that the issues form a complex web of uncertainties and concerns, which are mainly incited by two factors. First is the high level of factual uncertainty due to gaps in empirical evidence about the exact working mechanisms and efficacy of tES. Moreover, a lack of insight into the technique’s (long-term) effects on healthy developing brains, and uncertainties about potential cognitive trade-offs have fueled concerns about the technique’s safety and impact. The second factor that contributes to the complexity of issues is the presence of moral diversity in our society. Different opinions exist on whether a certain enhancement effect would be desirable and whether potential risks would be acceptable. These opinions depend on one’s moral perspective, and the way one interprets and weights values such as the child’s autonomy and authenticity. The challenge for proper governance resides in the design of an appropriate framework that is capable of balancing the different moral perspectives in society, while recognizing the uncertainties that still exist. We therefore argue for a responsible innovation approach, which encourages an adaptive attitude toward emerging knowledge and dynamic societal values, to deal with the identified issues regarding tES-based enhancement appropriately.

Parsing Prior Convictions: Mathis v. United States and the Means-Element Distinction

Legislatures regularly specify increased penalties for criminal defendants with certain types of prior convictions. In Mathis v. United States, the Supreme Court clarified how sentencing judges must analyze prior convictions under statutes that could be violated in multiple ways, not all of which would trigger a subsequent sentence enhancement. Sentencing judges may only impose the enhancement if the facts necessary for the enhancement were “elements” of the prior offense, not “means” — only the former are necessarily found by a convicting jury or admitted in a guilty plea. The Court divided over whether this rule would prove workable for lower-court judges to apply. This Note analyzes the lower-court decisions applying Mathis and reaches four conclusions. First, it finds that Mathis has proven workable in early applications of its approach, though it does often necessitate challenging interpretation of state criminal law. Second, it argues that the judicial burden of applying the Mathis rule can be lessened by rejecting dicta in the majority opinion that would treat this inquiry into state law as a “threshold” issue that must be resolved before examining the record documents of the defendant’s prior conviction. Third, it argues that courts should be permitted to impose prior-conviction enhancements even in the presence of some legal uncertainty about the nature of the prior conviction, so long as there is no factual uncertainty. And fourth, this Note argues that facts alleged in indictments alone are never sufficient to establish factual certainty about the nature of a prior offense.

Environmental-Economic Modeling With Semantic Insufficiency and Factual Uncertainty

Environmental-Economic Modeling With Semantic Insufficiency and Factual Uncertainty

Childhood obesity: ethical and policy issues

Childhood obesity has become a central concern in many countries and a range of policies have been implemented or proposed to address it. This co-authored book is the first to focus on the ethical and policy questions raised by childhood obesity and its prevention. Throughout the book, authors Kristin Voigt, Stuart G. Nicholls, and Garrath Williams emphasize that childhood obesity is a multi-faceted phenomenon, and just one of many issues that parents, schools and societies face. They argue that it is important to acknowledge the resulting complexities and not to think in terms “single-issue” policies. After first reviewing some of the factual uncertainties about childhood obesity, the authors explore central ethical questions. What priority should be given to preventing obesity? To what extent are parents responsible? How should we think about questions of stigma and inequality? In the second part of the book, the authors consider key policy issues, including the concept of the ‘obesogenic environment,’ debates about taxation and marketing, and the role that schools can play in obesity prevention. The authors argue that political debate is needed to decide the importance given to childhood obesity and how to divide responsibilities for action. These debates have no simple answers. Nonetheless, the authors argue that there are reasons for hope. There are a wide range of opportunities for action. Many of these options also promise wider social benefits.

Scaled Punishments

This article challenges the principle that punishment is only justified after a defendant has been found guilty beyond a reasonable doubt. It proposes instead a system of scaled punishments in which a defendant’s sentence would be proportioned to the jury’s reported confidence level in the defendant’s guilt. The criminal justice system already implements a series of implicit scaled punishments in the form of plea bargains. This article defends the counterintuitive conclusion that a system of explicit scaled punishments would better satisfy the aims of retribution, incapacitation, and deterrence that we take to legitimate punishment. A system of scaled punishments would smooth out the moral discontinuity that our binary verdict structure creates. It would more precisely align the collateral consequences of criminal adjudications with the risk each criminal defendant poses. It would better distribute the costs of legal error. Paradoxically, a system of scaled punishments would likely reduce net incarceration in the United States. Factual uncertainty is pervasive in criminal law, and a system of scaled punishments would respond to uncertainty more rationally.

A Compromise Approach to Compromise Verdicts

Although one of the legal system’s most salient attributes is its insistence that a civil jury choose the story of one party over that of another, scholars have thus far paid almost no attention to the possibility of replacing the preponderance-of-the-evidence rule with an alternative that is not “winner-take-all.” This Article focuses on the issue of uncertainty about what the defendant did or whether the plaintiff was injured, offering an alternative to the extremes of all-or-nothing and compromise verdicts. It considers the possibility that, while sometimes an all-or-nothing verdict is appropriate, at other times a compromise verdict would be better. It also proposes a compromise approach in the form of a system of mixed verdicts, distinguishing between cases in which the trier of fact has a relatively high degree of confidence in its liability determination and those in which there is much less certainty. As I will show, arguments for all-or-nothing verdicts are most powerful when the trier’s estimate of the probability of liability is either quite low or quite high, and arguments for compromise verdicts are strongest for cases in which the balance of evidence is relatively even. In Part I of this Article, I consider a variety of general arguments about compromise verdicts, arguments that seek to discern the best verdict structure for all cases without asking how verdict structure will advance various aims of law. In Part II, I consider several such aims directly, including deterrence, efficient breach, restitution, retribution, and equality. The impact of compromise verdicts and a system of mixed verdicts on litigation costs is examined in Part III, which focuses on incentives to file and settle lawsuits. Part IV switches from an examination of factual uncertainty to a preliminary assessment of legal uncertainty. Though the prospect of compromise solutions to legal uncertainty introduces some additional issues, a system of mixed verdicts may be a promising way to accommodate a diversity of normative approaches to legal decision making. In Part V, I briefly consider some implementation issues and conclude.

A semantic model for causation in criminal law and the need of logico-legal criteria for the attribution of causation

Causation as an element of a criminal offence is different from the probative difficulties. The empirical laws that are relevant to the proof of causation, as a pure matter of fact, are not discussed here, but only causality as a category of our understanding and a general law of the intelligible world. This general law of causality is equally valid for all result crimes (e.g. homicide, bodily harm, deception offences and criminal damage). According to the European continental theory of conditions, any 'conditio sine qua non' is by itself a cause. Causation is established by the formula of 'conditio' (similar to the so-called 'but for' test in the common law), which corresponds to a counterfactual reasoning. However, that formula is not able to resolve adequately those cases of causal overdetermination where the result occurred by means of actions of multiple, independently intervening agents. A semantic model of the world evolution, based upon ramified temporal logic, may assist the comprehension of causal connections between human actions and the relevant results. At the end of the day, this model allows us to understand that even in situations where no kind of factual uncertainty is present, doubts upon the attribution of causation to specific agents remain. We shall conclude that the attribution of causation is not a natural problem, but a logico-legal one, that has to be dealt with by way of logico-legal criteria. Nevertheless, attribution of causation must be clearly distinguished from objective imputation of proscribed harm. Language: en