Putting the War Back in Just War Theory: A Critique of Examples

Analytic just war theorists often attempt to construct ideal theories of military justice on the basis of intuitions about imaginary and sometimes outlandish examples, often taken from non-military contexts. This article argues for a sharp curtailment of this method and defends, instead, an empirically and historically informed approach to the ethical scrutiny of armed conflicts. After critically reviewing general philosophical reasons for being sceptical of the moral-theoretic value of imaginary hypotheticals, the article turns to some of the special problems that this method raises for appraisals of warfare. It examines some of the hypothetical examples employed in the construction of Jeff McMahan’s revisionist just war theory, and finds that they sometimes stipulate incompre- hensible conditions, lead to argumentative impasses of diverging yet uncertain intuitions, and distract attention away from the real problems of war as we empirically know it. In contrast, empirical and historical studies of warfare rein- force the deep connections between facts and values, and compel theorists to face uncomfortable moral ambiguities. Perhaps most importantly, the analytic method of focusing on imaginary hypothetical examples can not only be distracting, but it can also be genuinely dangerous. Hence, the article pays special attention to the way in which a seemingly innocuous fiction like the famous Ticking Time Bomb scenario can come to frame a new paradigm of inhumanity in the treatment of prisoners of war

"The whole truth?" : hypothetical questions and the (de)construction of knowledge in expert witness cross-examination

This paper examines the relation between hypotheticals and epistemic stance in jury trials, and it reveals how hypothetically framed questions (HQs) are used in cross-examination to construct "the admissible truth" (Gutheil et al. 2003) which is then turned into evidence. It looks at a selection of interactional exchanges identified in the transcripts and video recordings which document two days of expert witness cross examination in two high-profile criminal cases. In the study, two approaches to data analysis were combined: a bottom-up approach focusing on markers of HQs offering “points of entry” into discourse through a corpus-assisted analysis and a top-down approach looking at cross-examination as a complex communicative event, providing a more holis tic view of the interactional context in which HQs are used. The paper explains the role which such questions play in the positioning of opposing knowledge claims, as well as discusses the effect they create in hostile interaction with expert witnesses. As is revealed, HQs are used to elicit the witness’s assessments of alternative scenarios of past events and causal links involving the facts of the case; to elicit the witness’s assessments of general hypothetical scenarios not involving the facts of the case, or to undermine the validity of the witness’s method of analysis. In sum, the paper explains how the use of HQs aids cross-examining attorneys in deconstructing unfavourable testimony and constructing the “legal truth” which supports their narrative

National Security Pedagogy: The Role of Simulations

This article challenges the dominant pedagogical assumptions in the legal academy. It begins by briefly considering the state of the field of national security, noting the rapid expansion in employment and the breadth of related positions that have been created post-9/11. It considers, in the process, how the legal academy has, as an institutional matter, responded to the demand. Part III examines traditional legal pedagogy, grounding the discussion in studies initiated by the American Bar Association, the Carnegie Foundation, and others. It suggests that using the law-writ-large as a starting point for those interested in national security law is a mistake. Instead, it makes more sense to work backwards from the skills most essential in this area of the law. The article then proposes six pedagogical goals that serve to distinguish national security law: (1) understanding the law as applied, (2) dealing with factual chaos and uncertainty, (3) obtaining critical distance—including, inter alia, when not to give legal advice, (4) developing nontraditional written and oral communication skills, (5) exhibiting leadership, integrity, and good judgment in a high-stakes, highly-charged environment, and (6) creating continued opportunities for self-learning. Equally important to the exercise of each of these skills is the ability to integrate them in the course of performance. These goals, and the subsidiary points they cover, are neither conclusive nor exclusive. Many of them incorporate skills that all lawyers should have—such as the ability to handle pressure, knowing how to modulate the mode and content of communications depending upon the circumstances, and managing ego, personality, and subordination. To the extent that they are overlooked by mainstream legal education, however, and present in a unique manner in national security law, they underscore the importance of more careful consideration of the skills required in this particular field. Having proposed a pedagogical approach, the article turns in Part IV to the question of how effective traditional law school teaching is in helping to students reach these goals. Doctrinal and experiential courses both prove important. The problem is that in national security law, the way in which these have become manifest often falls short of accomplishing the six pedagogical aims. Gaps left in doctrinal course are not adequately covered by devices typically adopted in the experiential realm, even as clinics, externships, and moot court competitions are in many ways ill-suited to national security. The article thus proposes in Part V a new model for national security legal education, based on innovations currently underway at Georgetown Law. NSL Sim 2.0 adapts a doctrinal course to the special needs of national security. Course design is preceded by careful regulatory, statutory, and Constitutional analysis, paired with policy considerations. The course takes advantage of new and emerging technologies to immerse students in a multi-day, real-world exercise, which forces students to deal with an information-rich environment, rapidly changing facts, and abbreviated timelines. It points to a new model of legal education that advances students in the pedagogical goals identified above, while complementing, rather than supplanting, the critical intellectual discourse that underlies the value of higher legal education

An economic analysis of trading on private information by external administrators: international comparisons

This paper examines the regulation of trades in listed securities by external administrators (EAs), such as trustees in bankruptcy, liquidators, receivers, and administrators on the basis of private information. We consider the economic policy issues associated with such trades. The principal considerations counsel in favour of taking a permissive approach. These are: the difficulties of associating trades with insider information, given the EA's necessarily short expected holding period, the asymmetric application of the insider trading prohibition to sales (rather than decisions not to sell), the market incentives not to misuse private information that apply to EAs, and the unlikelihood that the EA has monopolistic access to the information in question. We consider these considerations by reference to a number of hypothetical scenarios. The paper argues that the law should regulate the subject by coupling a broad exemption for EAs with a "goiod faith" proviso, a continuous disclosure obligation, and a requirement to sell "all or nothing" of a holding of listed securities

Equality Adds Quality: On Upgrading Higher Education and Research in the Field of Law

Much has been attempted, and many pro1ects are still underway aimed at achieving equality in higher education and research. Today, the key argument to demand and support the integration of gender in academia is that equality is indeed about the quality on which academic work is supposed to be based. Although more or less national political, social and cultural contexts matter as much as academic environments, regarding higher education and research, the integration of gender into the field of law seems particularly interesting. Faculties of law enjoy a certain standing and status, are closely connected to power and politics, and are likely to feature resistance to equality efforts, both in the law itself and in the curriculum and research agenda. However, a multidimensional, intersectional gender analysis helps to reframe cases and doctrines, rulings and regulations far beyond the law that evidently affects women, which the headscarf controversies illustrate. In addition to gender competence, team diversity is a procedural device for success, and non-discrimination is a key requirement when diversity is meant to work. After all, such efforts to expose bias and educate about gender in an academic field, to insist and integrate it continuously, and to not only demand but also do it produce quality. Thus, gender equality is crucial for the achievement of the best possible results in higher education and research

The Importance of Dystopian Hypotheticals : Towards an Ethical Turn in Liberal Political Philosophy

This paper argues that liberal philosophy underestimates the importance of political ethics, which I define as the question of how individual citizens should comport themselves politically under largely normal conditions. Using three case studies from popular dystopian science fiction as ‘intuition pumps’, I contend that the behaviour of such individuals, both discretely and collectively speaking, has significant causal potency when it comes to contemporary politics. Upon this basis, I diagnose as pathological the faith that liberal philosophers place in the power of institutional arrangements to curtail human behaviour. I conclude that liberal philosophy should embrace an ‘ethical turn’, in pursuit of which I make some indicative recommendations as to what such a development might comprise