Heidi Li Feldman

Critics of Institutional Review Board (IRB) practices often base their charges on the claim that IRB review began with and is premised upon a "medical model" of research, and hence a "medical model" of risk. Based on this claim, they charge that IRB review, especially in the institutional Reviw boardsocial and behavioral sciences, has experienced "mission creep". This paper argues that this line of critique is fundamentally misguided. While it remains unclear what critics mean by "medical model", the point of contemporary human research subjects regulation remains the same across all domains of research. That point is to protect the autonomy of human subjects, primarily through the use of informed consent. In fields as different as biomedical self-experimentation and ethnography there is the danger of losing sight of subjects' autonomy. Critiques of the so-called medical model are sometimes libertarian and sometimes utilitarian in spirit. Either way, such critiques have not yet demonstrated that these philosophical schools of thought have the resources to guard against the potential risk of harm that lexically prioritizing the autonomy of human subjects does. Precisely because IRB review recognizes that human subjects research occurs in different fields using different research methods, IRB review requires researchers to explain their particular methods, the particular risks of harm created by these methods, and the implementation of procedures by which subjects may autonomously consent to precisely those risks

This paper concerns two topics which, I hope to show, are vitally connected. One is the distinctive importance of appellate adjudication in the legal system of United States. The other is the workings of entangled concepts in the law. That appellate adjudication is important in some sense may seem obvious to everybody (to a few it will seem obvious that appellate adjudication is unimportant). My point will be that via appellate adjudication courts engineer entangled legal concepts, and it is this aspect of appellate adjudication that is both crucial and unique to it, at least in the U.S. legal system. Entangled concepts intertwine description and evaluation; entangled legal concepts facilitate and constrain legal reasoning and legal judgments, in ways that distinguish legal adjudication from pure politics or the implementation of public policy. In the paper itself, I demonstrate more fully what it is for a legal concept to be an entangled one and how entanglement supplies guidance in adjudication. I also broach how entanglement in legal concepts and engineered entanglement have significance for legal pedagogy; appellate adjudication; the respective roles of the judiciary, the legislature, and administrative agencies; the erosion of the distinction between so-called public law and so-called private law; and our understanding of the fact/value distinction. Understanding more specifically the nature of the entanglement at work in appellate adjudication requires much closer scrutiny of appellate opinions than we usually give. I examine carefully the background to MacPherson v. Buick and Justice Benjamin Cardozo’s particular re-engineering of ‘negligence’ and ‘duty,’ entangled concepts belonging to the same legal taxonomy. Via this scrutiny, I demonstrate the flaws in the engineering of some concepts in the buildup to MacPherson, and how these flaws led to those concepts’ collapse and ultimately to Cardozo’s re-engineering of ‘negligence’ and ‘duty.’ I also explain why careful understanding of the engineering of entangled legal concepts can make us appreciate that even the most successful of such concepts have within in them the grounds for their own obsolescence. To show that conceptual engineering of entangled concepts occurs outside the context of state common law, I also examine how the U.S. Supreme Court has engineered ‘commerce’, itself an entangled concept. The recent decision regarding the individual mandate in the Affordable Care Act makes this example particularly timely. This secondary example also clarifies the nature of entanglement and engineering it. This article concerns appellate adjudication in any area of law. I maintain that whether we are dealing with private law or public law, common law or statutory law or Constitutional law, the defining feature of appellate adjudication is its continuous engineering and reengineering of entangled legal concepts. The merger of fact and value in these concepts explains both the fertility of appellate adjudication and the constraints judges work with when they work with legal concepts that entangle fact and value.

Given that law is made by and for people, the relatively little attention lawyers, judges, and legal scholars have paid to human psychology is surprising. Too often, legal writers have either presupposed or borrowed impoverished conceptions of human nature, erecting legal theories for people presumptively possessed of the requisite nature, regardless of the psychology of the actual persons who make and live under the law. Even when they do attend to human nature, legal scholars tend to ignore the centrality of emotions, dispositions, fantasies, and wishes to human psychology. The articles in this Symposium are united by their authors' resistance to unrealistic or incomplete theories of human nature. Whether they rely on developed social science or more speculative theories of the mind, or a combination of the two, each author portrays human actors in complex psychological terms and discusses the implications for law, legal theory, moral theory, or some combination of these. After reading the collection of articles presented here, the reader will, I hope, see how scholars, lawyers, judges, and policymakers can work toward law that comprehends and accepts the complexity of human psychology.

This dissertation addresses two questions important to ethics as well as to law and political philosophy: What, if any, features are distinctive to concepts that seem to blend description and evaluation ? Is it possible for judgments that apply these concepts to be objective? ;I draw upon a detailed study of the development and application of one representative straddle concept, 'negligence', and its subsidiary straddle concepts, 'reasonable person under like circumstances' and 'unreasonable risk'; and upon a selective examination of recent philosophical writings about concepts that blend description and evaluation, specifically focusing on Bernard Williams' discussion of "thick concepts", David Wiggins' discussion of "anthropocentric concepts", and John McDowell's discussions of both these categories. I conclude that legal concepts such as 'negligence', thick concepts, and anthropocentric concepts should all be treated as subcategories of the more general category of straddle concepts, and I supply a detailed delineation of the traits specific to straddle concepts. ;I develop a conception of objectivity suitable for straddle judgments through an examination of several different conceptions of objectivity, each of which instantiates a concept of objectivity according to which an objective judgment possesses interpersonal validity in virtue of the reasons in its favor. I canvass conceptions of objectivity in scientific judgments and conceptions of objectivity in normative judgments advanced by John Rawls and by Jurgen Habermas. I argue that although we can glean some specifications for objectivity in straddle judgments from these conceptions, straddle judgments differ sufficiently from other kinds to merit a unique conception of objectivity. ;After developing such a conception, I demonstrate its critical power by using it to evaluate the objectivity of legal straddle judgments of 'negligence' and 'speech'. I also demonstrate how this conception illuminates previous scholarly debate over objectivity in law. Finally, I discuss the relative importance of objectivity in some non-legal contexts in which straddle concepts are common. While objectivity in straddle judgments may be inaccessible in these contexts, this need not necessarily trouble us.

Donald Trump has brought new attention to the mendacity of politicians. Both major national newspapers have reported tallies of Trump's false and misleading claims. On November 14, 2017, The Washington Post reported that in the 298 days that President Trump has been president, he had made 1,628 false or misleading claims, telling them at a rate of nine per day in the thirty-five days prior to November 14. Trump, the Post reported, has made fifty false or misleading claims “that he as repeated three or more times.” The Post also catalogued scores of “flip-flops” from Trump. In general, from 2016 into 2017, journalistic political fact-checking has surged in frequency and scope. Newspapers and magazines regularly run articles, columns, and features on Trump's record-breaking lying. Though the frequency and blatancy with which Trump lies is exceptional, he is not the only elected political leader active today whose mendacity has been documented. Catalogues exist for Speaker of the House Paul Ryan, Vice President Mike Pence, Senate Majority Leader Mitch McConnell, Senate Minority Leader Chuck Schumer, and Senate Minority Leader Nancy Pelosi. Trump cabinet members and White House spokespeople have also come under scrutiny for their untruthfulness. Clearly, not all mendacity is of equal concern. Some mendacity is not even troubling at all. Small white lies told to protect another's feelings about a trivial matter are at one end of the scale, while serial deception to defraud investors out of their life savings or to sustain two families, each kept secret from the other, are at another. Similarly, political hype or bluster may not be troublesome, whereas lying about criminal activity or scientific fact seems clearly so. Most political mendacity falls into a middle ground. Understanding when and how middle-ground mendacity is dangerously harmful is crucial. Decrying all mendacity is overkill, yet narrowing the field is difficult. Press tallies and online databases vary in what they count as lies. Entries run the gamut of fibs to whoppers, fudges to half-truths or falsehoods. Yet even calibrated catalogues of mendacious statements from politicians do not identify when and how mendacity from politicians should alarm us. Fact-checkers spot mendacity and sometimes put it on a scale of deceptiveness, but this is not the same as identifying harmful mendacity. With mendacity in politics receiving so much attention, it is important to figure out which mendacity is dangerous and why. Lawyers, I will demonstrate, have a particular expertise in parsing mendacity. They can and should put that expertise to use in identifying the political mendacity that is particularly problematic for the health of representative democracy.