Strong Presumption Research Articles

A human rights approach: The right to education in the time of COVID‐19

A human rights approach: The right to education in the time of COVID‐19

To offer or request? Disclosing variants of uncertain significance in prenatal testing.

The use of genomic testing in pregnancy is increasing, giving rise to questions over how the information that is generated should be offered and returned in clinical practice. While these tests provide important information for prenatal decision‐making, they can also generate information of uncertain significance. This paper critically examines three models for approaching the disclosure of variants of uncertain significance (VUS), which can arise from forms of genomic testing such as prenatal chromosomal microarray analysis (CMA). Contrary to prevailing arguments, we argue that respect for reproductive autonomy does not justify adopting a model on which an offer to disclose VUS is a routine part of genetic counselling. Instead, we contend that a commitment both to solidarity between healthcare providers and pregnant women and to the acceptance of a novel principle of caution under normative uncertainty means that we should instead adopt a model of VUS disclosure that imposes a strong presumption against offering to disclose VUS. The upshot of this is that it should be standard practice to only offer to disclose VUS when this is requested by the woman undergoing CMA. We defend our position against claims that arise from an alleged right to such information and that a presumption against an offer will lead to inequity.

Liberal Displacement Policies Attract Forced Migrants in the Global South

Most forced migrants around the world are displaced within the Global South. We study whether and how de jure policies on forced displacement affect where forced migrants flee in the developing world. Recent evidence from the Global North suggests migrants gravitate toward liberal policy environments. However, existing analyses expect de jure policies to have little effect in the developing world, given strong presumptions that policy enforcement is poor and policy knowledge is low. Using original data on de jure displacement policies for 92 developing countries and interviews with 126 refugees and policy makers, we document a robust association between liberal de jure policies and forced migrant flows. Gravitation toward liberal environments is conditional on factors that facilitate the diffusion of policy knowledge, such as transnational ethnic kin. Policies for free movement, services, and livelihoods are especially attractive. Utility-maximizing models of migrant decision making must take de jure policy provisions into account.

Bodily Rights in Personal Ventilators?

ABSTRACTThis article asks whether personal ventilators should be redistributed to maximize lives saved in emergency condition, like the COVID‐19 pandemic. It begins by examining extant claims that items like ventilators are literally parts of their user's bodies. Arguments in favor of incorporation for ventilators fail to show that they meet valid sufficient conditions to be body parts, but arguments against incorporation also fail to show that they fail to meet clearly valid necessary conditions. Further progress on this issue awaits clarification of difficult normative, conceptual, and metaphysical questions about the possible boundaries of a person's body. Rather than relying solely on incorporation arguments, we propose an argument against reallocation from widely accepted anti‐discrimination principles. Possession of a personal ventilator is an obvious marker of disability identity; thus, reallocating ventilators from those that already possess them discriminates on the basis of a stigmatized trait – a paradigm case of presumptively wrongful discrimination. This discrimination claim, taken together with uncertainty about the bodily status of ventilators, yields a strong presumption against personal ventilator reallocation.

The virtue of compassion in compassionate conservation.

The role of ethics is becoming an increasingly important feature of biodiversity conservation dialogue and practice. Compassionate conservationists argue for a prohibition of, or at least a strong presumption against, the adoption of conservation policies that intentionally harm animals. They assert that to be compassionate is to care about animals and that it is antithetical to caring for animals to intentionally harm them. Compassionate conservationists thus criticize many existing conservation practices and policies. Two things together challenge the philosophical foundation of compassionate conservation. First, compassionate conservationists ground their theory in virtue ethics, yet virtue ethics permits exceptions to moral rules, so there cannot be an in-principle prohibition on adopting intentional harm-inducing policies and practices. But not all compassionate conservationists advocate for a prohibition on intentionally harming animals, only a strong presumption against it. This leads to the second point: compassion can motivate a person to adopt a harm-inducing conservation policy or practice when doing so is the best available option in a situation in which animals will be harmed no matter what policy or practice is adopted. Combining these insights with the empirical observation that conservationists regularly find themselves in tragic situations, we arrive at the conclusion that conservationists may regularly advocate for harm-inducing policies and practices from a position of compassion. Article Impact Statement: Compassionate conservationists should accept that the virtuously compassionate person may adopt harm-causing conservation policies.

Pseudotumoral Auto-Immun Pancreatitis with Multiple Pancreatic Pseudo-Cysts: A Diagnosis Pitfall

Introduction: The autoimmune pancreatitis (AIP) is a chronic inflammatory disease secondary to autoimmune disorders. Its s considered as a manifestation of IgG4 related disease. Case Report: We report an exceptional case of AIP of a patient who presented with nonspecific symptoms leading to an MRI-diagnosis of a pancreatic tale tumor with strong presumption of cystadenocarcinoma rather than adenocarcinoma. Histopathological study revealed a tense lymphoplasmacytic infiltrate associated with storiform fibrosis and collagenization. Furthermore; many pseudocysts were associated lesions immunohistochemical tests revealed a diffuse staining of plasma cells by IgG and IgG4 antibodies. The diagnosis of an AIP with multiple pseudocysts mimicking a pancreatic tale tumor was made. Conclusion: These, all criterions considered together made our case, a rare entity that may be a challenging diagnosis leading sometimes, as the current case, to a massive surgery

Who Cares for Agile Work? In/Visibilized Work Practices and Their Emancipatory Potential

The future of work has become a pressing matter of concern: Researchers, business consultancies, and industrial companies are intensively studying how new work models could be best implemented to increase workplace flexibility and creativity. In particular, the agile model has become one of the “must-have” elements for re-organizing work practices, especially for technology development work. However, the implementation of agile work often comes together with strong presumptions: it is regarded as an inevitable tool that can be universally integrated into different workplaces while having the same outcome of flexibility, transparency, and flattened hierarchies everywhere. This paper challenges such essentializing assumptions by turning agile work into a “matter of care.” We argue that care work occurs in contexts other than feminized reproductive work, namely, technology development. Drawing on concepts from feminist Science and Technology Studies and ethnographic research at agile technology development workplaces in Germany and Kenya, we examine what work it takes to actually keep up with the imperative of agile work. The analysis brings the often invisibilized care practices of human and nonhuman actors to the fore that are necessary to enact and stabilize the agile promises of flexibilization, co-working, and rapid prototyping. Revealing the caring sociotechnical relationships that are vital for working agile, we discuss the emergence of power asymmetries characterized by hierarchies of skills that are differently acknowledged in the daily work of technology development. The paper ends by speculating on the emancipatory potential of a care perspective, by which we seek to inspire careful Emancipatory Technology Studies.

Costa, cancer and coronavirus: contractualism as a guide to the ethics of lockdown

Lockdown measures in response to the COVID-19 pandemic involve placing huge burdens on some members of society for the sake of benefiting other members of society. How should we decide...

Liberal Displacement Policies Attract Forced Migrants in the Global South

Most forced migrants around the world are displaced within the Global South. We study whether and how de jure policies on forced displacement affect where forced migrants flee in the developing world. Recent evidence from the Global North suggests migrants gravitate toward liberal policy environments. However, existing analyses expect de jure policies to have little effect in the developing world, given strong presumptions that policy enforcement is poor and policy knowledge is low. Using original data on de jure displacement policies for 92 developing countries, and interviews with 126 refugees and policymakers, we document a robust association between liberal de jure policies and forced migrant flows. Gravitation toward liberal environments is conditional on factors that facilitate the diffusion of policy knowledge, such as transnational ethnic kin. Policies for free movement, services, and livelihoods are especially attractive. Utility-maximizing models of migrant decisionmaking must take de jure policy provisions into account.

How acceptable is adolescent self-consent for the HPV vaccination: Findings from a qualitative study in south-west England

BackgroundHuman Papillomavirus (HPV) vaccination programmes have the potential to reduce the incidence of cervical cancer. The preferred age for HPV vaccination is 12–13 years for optimal benefit. The legal framework in England allows adolescents to be vaccinated without parental consent if they are assessed as competent. A ‘South West Template Pathway on Self Consent for School Aged Immunisations’ was developed to improve uptake of immunisations in south-west England. Study aimTo examine how acceptable the new procedures are to the young women, parents and carers, school staff and immunisation nurses involved. MethodsThe research was undertaken in two local authorities in south-west England during the 2017/18 and 2018/19 programme years. Semi-structured digitally recorded interviews were undertaken with 53 participants: one health service manager, three immunisation nurses, five staff at alternative education providers, three staff at mainstream schools, 19 young women and 22 parents. All recordings were transcribed verbatim and thematic analysis was undertaken, assisted by NVivo software. ResultsMost participants were not fully aware of the legal framework that enables a young person to self-consent to vaccination. There was a strong presumption that parents should make decisions affecting the health of their children. The preferred age at which the HPV vaccination is administered (12–13 years) contributed to reluctance in endorsing self-consent which was thought to have the potential to break down trust between parents and school staff, and within families. In practice, formal self-consent was rare. ConclusionUnresolved issues in relation to adolescent self-consent include public and professional perceptions of young people’s rights and abilities to take responsibility for decisions affecting their health, and concerns about the impact of self-consent on relationships both within families and between professionals and the families they serve.

Reconsidering a human right to democracy

ABSTRACT In this brief article, I will raise some challenges to each of Pablo Gilabert’s arguments for a HRD. First, I will question whether the instrumental case for affirming a HRD is as strong as Gilabert and others have suggested. I will then call into question the argument from moral risk, arguing that, for any particular country, we should not operate with a strong presumption that they should pursue further democratization as a high-priority goal. Finally, I will consider the strength of our intuitive support for a stringent human right to democracy. As Gilabert points out, there could be a genuine HRD, even if it did not always provide us with an overriding reason to call for the implementation of democracy. I will explore how much normative priority claims to respect democratic decisions have by considering what we have reason to do when democratic decisions would lead to violations of other, noncontroversial human rights.

The distinctive status of international arbitration agreements in English private international law?

Abstract This Case Note critically discusses the Court of Appeal’s recent decision in Enka v Chubb [2020] EWCA Civ 574, where it held that (i) the doctrine of forum non conveniens (FNC) can never apply where an English court is asked to determine if a London arbitration agreement should be enforced by injunction, and that (ii) the ‘separability’ of an arbitration clause from the contract containing it entailed that, absent an express choice of law for it, there was a ‘strong presumption’ that the parties implicitly chose the seat law as its proper law. In doing so, the Court abandoned its previous approach in Sulamérica v Enesa, and indirectly cast doubt on its recent suggestion in Kabab-ji v KFG that ‘implied choices’ of law arguably involved the implication of a term into the arbitration agreement on ‘business efficacy’ grounds. Further, the Court appeared not to acknowledge that, outwith the arbitration context, (i) ‘FNC waiver’ clauses and exclusive jurisdiction agreements do not categorically foreclose FNC, and that (ii) ‘implied choices’ of law should not be casually inferred nowadays. The Court’s analysis in Enka was distinctly arbitration-centric: it was minded to emphasize the non-derogability of the seat courts’ supervisory role, and the ‘separability’ of an arbitration agreement from the contractual document containing it. Enka is an intriguing example of how international arbitration doctrine, particularly as regards arbitration agreements, can materially diverge from cognate principles of private international law. Nevertheless, we question whether international arbitration agreements are truly distinctive enough to justify such differences in treatment. Our assessment is that the answer is probably ‘no’.

Reading the Findings: Location, Text, Context and Textualism As the ACA Returns to the Court

This fall, in California v. Texas, the Supreme Court is being asked to invalidate the entire 2,000-page Affordable Care Act again, along with the ACA's insurance-purchase mandate. This time, the law’s challengers are trying to use a false textualism to implode it. But the challengers’ textualism is not real textualism. The challengers seize on a few words in one subparagraph of the ACA’s statutory findings taken entirely out of their location and context in the law. They now argue those findings are an explicit “inseverability clause” that applies to the statute as a whole and trumps the Court’s longstanding “strong presumption” of severability — meaning that if the insurance-purchase mandate is eliminated, the whole ten-title ACA goes down with it. The challengers argue this despite the fact that those findings are specific to one subsection, of one Part, in one subtitle, of the ten-title law, and also despite the fact that the language they seize on is boilerplate language that Congress has used in scores of other statutes, not for the purpose of severability, but to justify its commerce power. They argue this even though Congress expressly tells us, in the subsection itself and also in the subsections directly above and below it, that the findings are indeed directed at establishing congressional authority under the Commerce Clause. And, they argue this even though, reading the entire subsection literally as they ostensibly would have us do, it would mean that not only the ACA goes down but also the nation’s entire pensions and employee benefits regulatory system — the 1974 ERISA statute — goes down too. And most importantly, they argue that Congress has actually spoken to the issue, even though Congress’s established drafting practices, substantiated by its drafting manuals and examples throughout the U.S. Code, make clear that when Congress actually writes an inseverability clause, it is unmistakably explicit about it and writes with specific language — Congress used none of that language in the ACA. The Court deploys a “strong presumption” of severability because striking down whole statutes is the most destructive of statutory-case remedies. Inseverability is a nuclear bomb. Congress doesn’t hide it in mouse-holes. True textualists wouldn’t go looking for it by implication. There is a burgeoning movement among legal scholars and jurists of all interpretive stripes to better understand how Congress drafts laws. Those developments, this analysis should make clear, are as relevant, if not more relevant, for textualists as for anyone else.

Government Models and the Presumption of Disclosure

In recent decades, public bodies in the UK have increasingly relied on models, of differing levels of sophistication, to assist them with decision-making. However, officials are often reluctant to disclose such models. An important question of public law that results is if and when a public authority is under a duty to disclose a model. This article argues that there has now emerged a clear line of authorities which establishes a strong common law presumption in favor of disclosure. The principles around this presumption are likely to be an increasingly contested aspect of administrative law in the coming years and a clear legal framework is required. We therefore propose a three-stage approach which is both faithful to precedent and sensitive to the tensions surrounding this issue.

Non-Traditional Trademarks: The Error Costs of Making an Exception the Rule

Over the last sixty years, courts and the USPTO have engaged in an ill-advised expansion of trademark subject matter. Where once only words or emblems attached to a product could serve as a trademark, today a product’s design or packaging itself may receive such protection. This expansion was and is a mistake. There may indeed be rare cases where a product’s design or packaging conveys brand-specific information and could receive protection without impairing competitor’s ability to offer substitutes. Such cases are the exception and not the rule, however. Extending the strong legal presumptions and property-like protection trademark law provides to a product’s design or packaging bases the legal rule on the exceptional case. Such an approach ensures protection for the exception but has thrown open the doors to the vast array of anticompetitive strike suits that constitute the bulk of trade dress litigation today. Courts and the USPTO have tried to reduce the costs of their mistake by recognizing a secondary meaning requirement for product design and by limiting protection for functional features. In doing so, they have attempted to design the legal rules to mimic the kind and degree of competition we would like to see in the marketplace. Unfortunately, once again, they do not see the whole picture. Trade dress plaintiffs have too much incentive to bring trade dress litigation. Whether the imitation of a product’s design or packaging produces material consumer confusion or merely competition, a trade dress plaintiff has an incentive to bring a trade dress lawsuit in order to capture the rents that a successful trade dress suit, and the resulting exclusivity in product design or packaging, offers. Trade dress plaintiffs will therefore over-enforce whatever rights we give them. Trade dress defendants, on the other hand, have too little incentive to defend their right to compete. If they prevail and establish their right to copy the pillow-shape of a shredded wheat biscuit, for example, such a victory means not just the prevailing defendant, but any would-be competitor, obtains the same right to copy. As a result, most of the benefit from a trade dress victory flows not to the prevailing defendant but to consumers in the form of lower prices. Because of these asymmetric stakes, trade dress rights will be over-enforced. To achieve the right level of protection in the marketplace, we must therefore under-define them. Courts and the USPTO should therefore correct their mistake and deny trade dress substantive protection under the Lanham Act, as Congress intended.

'Submission of Robert H. Lande to House Judiciary Antitrust Subcommittee Investigation of Digital Platforms.'

The House Judiciary Antitrust Subcommittee asked me to submit suggestions concerning the adequacy of existing antitrust laws, enforcement policies, and enforcement levels insofar as they impact the state of competition in the digital marketplace. My submission recommends the following nine reforms: 1. A textualist analysis of the Sherman Act shows that Section 2 actually is a no-fault monopolization statute. At a minimum Congress should enact a strong presumption that every firm with a 67% market share has violated Section 2. This would move the Sherman Act an important step in the right direction, the direction Congress intended in 1890. My submission contains this textualist analysis, a summary of the economics involved, and an analysis of its implications. 2. Congress should enact Conglomerate merger legislation. The antimerger laws successfully blocked only 3 of the 78 largest finalized mergers (defined as cases where the smaller firm was valued at more than $10 billion) that occurred between 2015 and 2019. The antitrust laws would permit the first trillion-dollar corporation, Apple, to merge with the third largest, Exxon/Mobil. In fact, today every U.S. corporation could merge until just ten were left—so long as each owned no more than 10% of every relevant market. My submission proposes model conglomerate merger legislation that would prevent this. 3. Congress should legislatively resurrect the Supreme Court’s Philadelphia National Bank anti-merger presumption. 4. Congress should forbid common stock ownership of competing firms above specified de minimus limits. 5. Congress should should allow indirect purchaser consumers to sue for damages under the federal antitrust laws. 6. Congress should award automatic prejudgment interest to successful victims of antitrust violations. 7. The U.S. Sentencing Commission should double its presumption that cartels raise prices by 10%. 8. The Department of Justice, in its consent orders, should forbid convicted price fixers from returning to the same industry after prison. 9. Congress should enact antitrust whistleblower legislation.

Government Models, Decision-Making, and the Public Law Presumption of Disclosure

In recent decades, public bodies in the UK have increasingly relied on models, with differing levels of sophistication, to assist them with decision-making. However, officials are often reluctant to disclose such models. An important question of public law that results is if and when a public authority is under a duty to disclose a model. This article argues that there has now emerged a clear line of authorities in England and Wales which establishes a strong presumption in favour of disclosing decision-making models. These principles are likely to be an increasingly contested aspect of administrative law in the coming years.

Just what’s wrong with losing citizenship? Examining revocation of citizenship from a non-domination perspective

ABSTRACTNormative theorists have not established firm grounds on which to reject states’ powers to revoke citizenship. State sovereignty over membership or democratic self-determination may seem to justify such powers. Liberal arguments of contract or conditionality of citizenship may also seem to allow revocation on many of the grounds increasingly invoked. I argue that a republican non-domination perspective, aiming to minimise domination – subjection to arbitrary interference – provides a strong presumption against states’ powers to revoke citizenship of those subject to their authority, even where this does not render them stateless. Here the fundamental rationale of citizenship status is secure protection from domination. Losing citizenship removes a person’s security against many kinds of state interference, exposes them to an increased risk of private domination by other agents, and constitutes an exercise of arbitrary power, imposing a new and unequal status of alien, and reducing the security of citizenship itself.

Constitutional Judges as Agents for Development

Abstract This Article explores how constitutional judges can become agents for development and how they may wish to go about performing this role. Due to the high politico-economic stakes involved and the inevitability of trade-offs between competing interests, judicial review of developmental questions is liable to expose judges to negative fall-outs. At the same time, it is fairly common for Asian constitutions to expressly set out the parameters or objectives for economic development that the State is expected to realize, while simultaneously recognizing a suite of (socio-)economic rights, thereby providing textual ammunition to query the validity of a government’s chosen implementation in court. Against this reality, the Article suggests a range of coping mechanisms that can mitigate risks to judicial legitimacy. At its broadest, the decentralized model of judicial review offers judges opportunities to side-step controversial constitutional questions that are unavailable to the same extent, or at all, to distinct constitutional courts. When deciding on the merits of developmental claims, courts should combine a strong presumption of constitutionality as far as the substance of the law is concerned with robust scrutiny of compliance with procedural guarantees. Additionally, courts should be better equipped with knowledge about the methodologies used by and insights from other social sciences to enable them to better evaluate extra-legal evidence submitted. This will also make it possible to better anticipate the likely economic consequences of particular judicial findings, possibly with a view to tailoring their remedies accordingly.

Deal with the real, not the notional patient, and don’t ignore important uncertainties

There is a strong presumption in favour of the maintenance of life. Given sufficient evidence, it can be rebutted. But the epistemic uncertainties about the best interests of patients in...