This article investigates factors that contributed to the successful introduction of 33 priority guidelines for Norwegian specialist health care from 2008 to 2012. The guidelines constituted an important step in changing the regulation of clinical priority setting from largely self-regulation by medical professionals to a more centralised and hierarchical form, and therefore, resistance from the medical profession was expected. My focus is on organisational factors within the project that developed the guidelines, using policy documents and project documents as the main source of data. I find that the project was characterised by a high level of autonomy in terms of how it was organised and the actors included, with significant capacity for action in terms of both structure and personnel, and a broad inclusion of affected actors. The priority guideline project was dominated by medical professionals, and its organisation did not represent a radical break with established traditions of medical professional self-regulation. Although organisational autonomy, action capacity and broad inclusion were clearly of importance, the project's compliance with historical traditions and norms of medical governance stands out as the key factor in understanding the successful establishment of the priority guidelines.

This article argues that American jurists fashioned new understandings about the capacity of states to legislate about marriage through regulating the intimate lives of enslaved and newly freed individuals. This article does so through analyzing the creation and impact of a little-studied 1809 law in New York that legalized the marriages of enslaved people—while individuals were still enslaved—as part of the state's process of gradual emancipation, which occurred from 1799 to 1827. In New York, by legalizing enslaved people's marriages, jurists privatized financial liabilities within soon-to-be freed families. The law stood at odds with national juridical understanding about marital regulation. Jurists in the early republic were uncertain about whether states could legislate about matrimony. Southern states after the Civil War then cited and replicated New York's logic in legislating to legalize the marriages of freedpeople, similarly privatizing financial claims within families. In the cases of both New York and national emancipation, jurists, in choosing privatization, foreclosed possibilities for a different or broader vision of state support for freedpeople, such as reparations. After making marital laws about slavery, both New York and Southern states created and/or tightened their marriage laws, further inscribing understandings of the marital family into American governance. This piece contributes to historiographies of slavery, the American state, and intimacy.

Is there a legitimate basis for religious exemptions from laws that prohibit gender identity discrimination on the basis of people’s beliefs? The author argues that much depends upon how gender dysphoria is understood. If it is seen as a problem requiring medical diagnosis and treatment, then arguably there is no religious basis for discrimination, except in a few situations where being a biological male or female is theologically essential to a particular role. Transgender identification, understood as a medical issue, fits within a belief system that God created two sexes of human beings, male and female. Within that belief system one can make room for an understanding that there are those who experience disorders of sex development and those who have such a profound sense of being born in the wrong body that they undertake steps toward medical transition to align their bodies, as far as possible, with the opposite sex. However, recent reinterpretations of what it means to be transgender involve an assertion that it should not be seen as a medical issue, that affirmation of a person’s self-declared gender identity, with or without having hormonal treatment or surgery, is a matter of human rights and that the law should recognize that people may have a gender that, however described, is nonbinary. These views rely on certain beliefs and positions that have a very weak basis in science. They challenge religious beliefs, which accord with mainstream scientific understanding, that human beings are intrinsically a sexually dimorphic species. People of faith need the freedom to reject beliefs that are incompatible with their worldviews. That does not mean that ill-treatment of someone on the basis of their gender identity can ever be justified; but it does support a religious exemption from a legal obligation to accept someone else’s self-declared gender identity. It is one thing to ask me to respect your beliefs about yourself. It is another to ask me to act toward you as if I share your beliefs.

One of the significant changes in the landscape of international law in recent decades has been the increase in the number of international courts and other forms of international dispute settlement. The EU has pushed for the inclusion of dispute settlement chapters in its trade and investment agreements, it has joined multilateral treaties that include dispute settlement mechanisms, and it has proposed the establishment of multilateral investment court. The Court of Justice of the European Union has shown a more guarded approach in recent years towards international dispute settlement. This article explores the potential ways to address these sources of conflict and allow the CJEU to coexist with other international courts.

Volenti non fit injuria allows a negligent defendant to escape liability by showing that the claimant voluntarily and willingly accepted the risk in question. This article combines the theoretical limitations of the volenti defence with a case analysis of how its application has played out in the “real world”, and argues it is not fit for modern tort law. The defence has a controversial and chequered history, being described as a “so-called principle … of little help: indeed, it is confusing, unnecessary, and if we are not careful, it will lead us to the wrong outcome”. It is submitted that volenti is based on unjustified concepts of people agreeing to risks, leads to harmful outcomes and that the defence does not fit with current approaches to tort liability. This article therefore concludes that the harmful outcomes of the volenti defence far exceed any potential benefits provided, and the defence should therefore be abolished.

According to the “Inadequacy Thesis”, the law's refusal to extend the tort of conversion to interferences with contractual rights is evidence of systemic ossification and proof of its failure to protect the most valuable asset class in the modern economy. Whilst it is true that, like chattels, the benefit of contractual rights can be usurped by third parties, transforming such rights into objects of property is the wrong solution to the problem. This article departs from previous analyses by stressing that the analogue of acts of interference with contractual rights is not the conversion of a chattel but a “triangle dispute”. The problem raised by triangle disputes is not how to reach the primary wrongdoer, but how to allocate the loss between the innocent parties. Invoking the concept of “property” cannot solve this problem. Its efficient solution is to be found in better contracts, not more property.

The World Trade Organization is at an important institutional crossroads, buffeted by critique and with its once-heralded dispute system in doubt. Despite some achievements at the 2022 MC12 Ministerial Conference, the WTO appears in crisis, without a strong institutional mandate. In this Article, we offer a vision for its future, rooted in a particular interpretation of its past. The WTO's legal architecture is characterized by a resilient pluralism, which seeks to preserve diversity of governance models and regulatory approaches, both economic and political, in the domestic orders of member states. Despite strong pressures to impose a neoliberal vision of the state-market relationship on states, this pluralism has persevered; it offers a response to the WTO's critics and a mandate for the WTO's future.

Transparency is widely acknowledged as a core value in the governance of artificial intelligence (AI) technologies. However, scholarship on AI technologies and their regulation often casts this need for transparency in terms of requirements for the explanation of algorithmic outputs and/or decisions produced with the involvement of opaque black-box AI systems. Our article argues that this discourse has re-interpreted and reshaped transparency in fundamental ways away from its original meaning. The target of transparency – in most cases, the provider of AI software – determines and shapes what is made visible to the outside world, and there is no external check on the validity and accuracy of such mediated accounts and explanations, opening transparency up for manipulation. Through a theoretically informed and critical analysis of the transparency provisions in the European Union’s AI Act proposal, the article shows that the substitution of transparency with mediated explanations faces important technical constraints, creates opportunities and incentives for both providers and public-sector users of AI systems to adopt opaque practices, and reinforces secrecy requirements that gag accountability in practice. An approach to transparency as disclosure thus becomes necessary, even if not sufficient in and of itself, to ensure the accountable development and use of AI technologies in the European Union. Transparency needs to be reclaimed as a core concept, accountability tailored and reinforced and the necessity for secrecy re-examined and cordoned off.

This paper examines what prevents us from legally enforcing the moral imperative of protecting human rights during military operations carried out for distinctly humanitarian purposes. The answer, I argue, lies not in familiar objections to bringing the law into greater congruence with morality, but in international law's indeterminacy regarding the use of force. Preserving stability within the nascent international legal system comes at the cost of a law that eschews the protection of individual rights even in cases in which the protection of human rights is what justifies military action. The tension between state sovereignty and the protection of human rights thus not only generates well-known controversies about the lawfulness of military intervention. It also prevents us from devising laws to protect human rights during wars whose very purpose it is to stop human rights violations. Protecting human rights during humanitarian interventions may thus remain an undertaking as quixotic as it is morally urgent.

Historians of medieval society tend to emphasise the roles of either individual peasants or the village community. They also debate the importance of the market in the peasant economy. Here the focus is on partnership, defined as two or more people pursuing common objectives in a mutual co-operative relationship. Peasants sometimes held land jointly, and new land might be cleared by two or more people. Pairs of peasants regularly took on paid work. It is argued that a likely explanation for occasional flurries of litigation was a breakdown of partnerships. The multiple legal disputes suggest the range of collaborative activities undertaken by peasants, from domestic bread making to the management of pastures. Partnerships may have contributed to the resilience of peasant holdings, especially in the period 1370–1420. Local courts and communities responded with peace-making measures if former partners lapsed into extreme hostility.

In the late-eighteenth and early-nineteenth centuries, Europe developed a deep interest in both natural resources and agroecosystems. Experts began to explore the rural hinterland and shores of the Mediterranean. These travellers described completely new settings, agroecosystems, and cultures through the lens of their own backgrounds. This article analyses the development of Mediterranean rural societies as an object of study of Western agricultural science. It describes the reports of travellers to rural lands in Spain, Italy and Lebanon, comparing their observations and representations, evaluating if there are common patterns in their reports and what features are still found in rural practices today.

The power afforded to the administrative state is heavily reliant on public trust and the perception of evidence-based agency decision-making. Organizational reputation is key to preserving regulatory power. However, recent investigations reveal that existing scientific integrity policies may not be sufficient to preserve the credibility of many federal agencies. In fact, a significant number of career scientists across various entities – including the FDA – have observed unreported incidents of political interference. While political influence exerted by the executive branch to set policy goals and determine agency priorities can be beneficial, political pressures must not undermine public trust in scientific agencies. Recently, public perception regarding the FDA’s COVID-19 response threatened to weaken the agency’s longstanding reputation as the gold standard of review. The COVID-19 pandemic publicized vulnerabilities that exist across agencies, as well as those that are unique to the FDA. The FDA’s evolution as an increasingly public health-focused agency that must function in the landscape of politicized science exposes the agency to a greater risk of political interference. After all, the FDA’s involvement in public health requires increased participation in non-ideal, value-based decision-making. Throughout its history, the FDA has managed to maintain its reputation through its firm responses to scandal. The COVID-19 pandemic provides a platform for the FDA to – once again – look introspectively and institute safeguards addressing vulnerabilities that plagued the agency’s pandemic response. This Article examines the FDA’s early COVID-19 response to propose reforms that promote meaningful transparency, public accountability, and scientific integrity.

Health justice is both a community-led movement for power building and transformational change and a community-oriented framework for health law scholarship. Health justice is distinguished by a distinctively social ethic of care that reframes the relationship between health care, public health, and the social determinants of health, and names subordination as the root cause of health inequities.

Diet is the number one risk factor for deaths in the United States. Members of marginalized and impoverished communities particularly struggle to afford nutritious food. Poor diets result in health disparities along socio-economic, age, racial, ethnic, indigenous, rural, and urban lines. Despite the ever-growing social and financial burden of diet-related chronic diseases, the U.S. has failed to invest in health care-related dietary policy. This Article proposes produce prescriptions as a national dietary preventive medicine program through Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP).

Recently, nonprofits, governments, and health care providers have designed innovative produce prescription programs to combat diet-related chronic diseases. In these programs, clinical providers can prescribe subsidized fruit and vegetables to patients. Produce prescriptions empower patients by making dietary change affordable and by motivating patients to improve their health. Numerous studies, pilot projects, and local programs demonstrate that produce prescriptions can improve health care outcomes for individuals from diverse communities. Most at-risk members of our society receive health coverage through Medicare, Medicaid, or CHIP. This Article analyzes how to scale up produce prescriptions within these programs using law and policy.

Although the federal government and several state governments have recognized that structural discrimination limits less privileged groups’ ability to be healthy, the measures adopted to eliminate health disparities do not address structural discrimination. Historical and modern-day structural discrimination in employment has limited racial and ethnic minority individuals’ economic conditions by segregating them to low wage jobs that lack benefits, which has been associated with health disparities. Health justice provides a community-driven approach to transform the government’s efforts to eliminate health disparities, by acknowledging the problem of structural discrimination; empowering less privileged groups to create and implement structural change; and providing support to redress harm.

The “temporary golden age” of international courts is likely over. States seeking to provide oversight mechanisms and individual remedies at the international level are likely to opt for less intrusive and more flexible alternatives to adjudication. This Article analyzes the phenomenon of international complaint mechanisms through a detailed case study of the Ombudsperson to the ISIL and Al-Qaida sanctions regime. The analysis reveals an in-built tension between principle and pragmatism: the Ombudsperson's institutional design falls short of the requirements that are essential for adjudication, but it nevertheless proves to be a surprisingly effective remedy for persons wrongfully listed. The Article makes the case for the establishment of such bodies, despite some of their inherent shortcomings.