Roger Brownsword

Roger Brownsword
King's College London | KCL · Centre for Technology, Ethics and Law in Society

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151
Publications
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2,370
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Publications

Publications (151)
Chapter
This comprehensive handbook delves into the intricate relationship between artificial intelligence, law, and government regulations in society and business. With a particular focus on consumer-centric issues, chapters analyze the benefits and challenges of the expanding influence of AI systems on consumers, while shedding light on the psychological...
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This article highlights a dilemma that we face when we turn to new tools that promise to improve on law’s imperfect governance. On the one hand, our discontent with law’s governance is both broad and deep, and much of it is rooted in the human nature of the legal enterprise. Yet, we remain attached to the essentially human nature of law’s governanc...
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This chapter, having sketched four conversations in which the people of Europe engage with new technologies (such as AI and machine learning), then identifies three key talking points. First, what should we make of the conspicuous European concern that applications of AI should be ‘human-centric’? The interpretation of this concept is considered as...
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This chapter considers how a bioethics body might perform if, hypothetically, it was to be insulated against any background pressure of policy, politics, and power, if it were to be instructed ‘just to do bioethics’. It is suggested that, whether this hypothetical body sought to articulate and be guided by fundamental principles or took a more proc...
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This article, prompted by Heidi Crowter’s campaign to eliminate the discriminatory aspects of current abortion law, outlines the challenges to good governance in a context of bioethical plurality. First, the nature of the plurality is sketched. Secondly, some reflections are presented on how those who have governance responsibilities might ease the...
Chapter
Where the ethical differences in a community go deep, to matters of first principle, how are the conflicts implicit in such axiological pluralism to be handled? In particular, how are the risks arising from a perceived legitimacy deficit to be managed? This chapter outlines a number of possible responses to these questions and, then, with the focus...
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This article, introducing a new extended form of the journal, offers some reflections on the changing context in which we now research law, innovation, and technology. Three major changes are highlighted: the evolving landscape of Law 3.0, potentially de-centring both rules and humans from the legal enterprise; the new ‘normal’ of life with pandemi...
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This article addresses two questions: First, how does the value of human dignity distinctively bear on a state’s responsibilities in relation to migrants; and, secondly, how serious a wrong is it when a state fails to respect the dignity of migrants? In response to these questions, a view is presented about the distinction between wrongs that viola...
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Against the backdrop of newborn genetic screening and pandemics, this article examines disputes between parents, acting as proxies for their children, and healthcare professionals. While some will support parents, others will push-back against proxy consent and the right to veto actions that are proposed by the professionals. Whereas in ordinary ti...
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Science, Technology, and Society - edited by Todd L. Pittinsky November 2019
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In the context of a technology-driven algorithmic approach to criminal justice, this paper responds to the following three questions: (1) what reasons are there for treating liberal values and human rights as guiding for punitive justice; (2) is preventive justice comparable to punitive justice (such that the guiding values of the latter should be...
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Law, liberty and technology: criminal justice in the context of smart machines - Volume 15 Special Issue - Roger Brownsword, Alon Harel
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This article describes the technological disruption of law and legal reasoning, suggests how law might be re-imagined, and then proposes four key elements in the re-invention of law. Two waves of disruption are identified. One wave impacts on the content of legal rules and the way in which we perceive the deficiency of those rules. A second wave im...
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In the original publication the title reads “The Right to Know and the Right Not to Know Revisited: Part One”. The paper consisted of both Part One and Part Two hence the title has to be corrected.
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This article argues that there are many questions that lawyers might ask, and conversations that they might have, about smart contracts; that some questions that are asked are more important than others; and that there are some questions that are not asked but which should be asked. First, it is argued that the question that preoccupies ‘coherentis...
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This article reviews the Nuffield Council on Bioethics’ report on Non‐Invasive Prenatal Testing (NIPT); and introduces two general questions provoked by the report – concerning, respectively, the nature and extent of the informational interests that are to be recognised in today's ‘information societies’ and the membership of today's ‘genetic socie...
Chapter
In the context of the global village, this paper focuses on the development of Non-Invasive Prenatal Testing (NIPT)—a test that provides clinicians and prospective parents with an easy, early and safe opportunity to obtain potentially reliable genetic and health information about the future child. In the first part, we identify various concerns rel...
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Prompted by developments in human genetics, a recurrent bioethical question concerns a person’s ‘right to know’ and ‘right not to know’ about genetic information held that is intrinsically related to or linked to them. In this paper, we will revisit the claimed rights in relation to two particular test cases. One concerns the rights of the 500,000...
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This paper asks whether, for the sake of human dignity, regulators should adopt a precautionary approach to the development of smart machines. Having identified a set of essential (or commons’) conditions for the existence of human social agents, including respect for human dignity in both foundational and non-foundational senses, consideration is...
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In the context of the systematic genotyping of UK Biobank’s participants and the piloting of non-invasive pre-natal testing within the screening pathway for Down syndrome, this paper considers the plausibility, basis, scope, and weight of the claim that participants and patients have a right to know as well as a right not to know the results of the...
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In this paper, we examine the claimed rights to know and not to know against a back drop of non-invasive prenatal testing. In the first part, the general plausibility of a claimed right to know and right not to know is considered; in the second, with a view to developing an improved understanding of these rights, a number of responses and counter-r...
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The development of “Big Biobanks” (population-wide biobanks that are established as a resource to be curated for access and use by the research community) is relatively new, and it is taking place at a time when the possibility of undertaking quite detailed genotyping and sequencing is assuming much greater prominence. Although there is much to deb...
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This article is a sequel to ‘In the Year 2061: From Law to Technological Management’. Its purpose is to consider whether, and if so how, the Rule of Law together with the Fullerian principles of legality might be applied to a regulatory environment that is technologically managed rather than rule-based. Four organising questions are posed, concerni...
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In recent years, there have been prominent calls for a new social contract that accords a more central role to citizens in health research. Typically, this has been understood as citizens and patients having a greater voice and role within the standard research enterprise. Beyond this, however, it is important that the renegotiated contract specifi...
Book
This introduction to human dignity explores the history of the notion from antiquity to the nineteenth century, and the way in which dignity is conceptualised in non-Western contexts. Building on this, it addresses a range of systematic conceptualisations, considers the theoretical and legal conditions for human dignity as a useful notion and analy...
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Introduction As the contributions to this handbook make clear, human dignity is a fundamental value in many legal systems. In both the northern and the southern hemispheres, in common law and civilian legal systems, we find that human dignity plays a prominent role. It is also a cornerstone concept of many regional and international conventions and...
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This paper predicts that, by 2061, (non-normative) ‘technological management’ will co-exist with legal, moral and social norms as a significant regulatory instrument. Sometimes, technological management will be adopted for reasons of crime control; at other times, it will be employed (in the design of products and places) for reasons of health and...
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This paper concerns the ideal of regulatory coherence, with particular reference to Europeanpatent law, and with the spotlight on the controversial decision of the CJEU in Oliver Brüstle v Greenpeace (interpreting Directive 98/44/EC on the Legal Protection of Biotechnological Inventions). The Brüstle decision invites the objection that it is incohe...
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Following the publication of the report of the public inquiry into the Mid-Staffordshire NHS Foundation Trust (centring on the deaths of patients at Stafford Hospital), the banner headline on the front page of The Times bluntly warned: 'NHS: No one is safe'. The Francis report, painting a shocking picture of the suffering of hundreds of patients wh...
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This article sketches how liberal principles can be coherently set alongside the stewardship responsibilities of regulators. It indicates how this bears on the legitimacy of public health interventions in general and interventions of the kind associated with New York City’s public health programme in particular. The key idea is that stewardship res...
Chapter
In a context of rapidly emerging technologies, this chapter considers the bearing of human dignity on the regulatory environment. It opens by suggesting that one of the reasons why moral communities are now debating human dignity with such intensity is because of concerns arising from the rapid development of novel biotechnologies. Next, it conside...
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This chapter assesses the adequacy of a general regulatory principle for the use of performance enhancing technologies. Drawing on the concepts of (no) harm and (free and informed) consent (which are central to the regulation of medical treatment—and, quite possibly, enhancement), the principle holds that it is permissible for competent agents (suc...
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Reflecting on the significance of the changing landscape for the regulatory enterprise, this article is in six principal parts. In Section 1.1, I outline how, in the context of both off-line and on-line activities, we should frame our regulatory questions; and then I sketch my general understanding of what is involved in putting in place the right...
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With the development of powerful new brain imaging technologies researchers have a window into the brains and, possibly, into a deeper understanding of the mental lives of their participants. Regulators will be challenged to set legitimate standards for the research, development, and application of these technologies. Alarmists will caution that, w...
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In this paper, our principal purpose is to elaborate and assess the case for introducing a regime of prospective legal immunity for a person, A, who assists with the suicide of another, B, where A acts within the terms of an appropriate covering licence (or authorisation). The attraction of such a regime is twofold: first, it promises to clarify th...
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In European societies, where there are clear political and legal commitments to respect human rights, it is axiomatic that the regulatory environment for biobanks—by which I mean public health research facilities, such as UK Biobank—should be compatible with those commitments; in particular, it is essential that the rights of participants are respe...
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This article is a contribution to the occasional series dealing with major books that have influenced the authors. Previous contributors include Stewart Macaulay, John Griffith, William Twining, Carol Harlow, Geoffrey Bindman, Harry Arthurs, André‐Jean Arnaud, Alan Hunt, Michael Adler, Lawrence O. Gostin, and John P. Heinz
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This paper argues that, in a context of 'extreme uncertainty' (where it is believed that it is possible that an emerging technology might cause harm to humans, damage to the environment, or some form of moral violation; but where the likelihood of such harm can be expressed only as lying in the range. Stem cell research, cloning, GMOs ... How do re...
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According to Geoffrey Robertson, the significance of the Nuremberg judgment was that it created. a free-standing and universal jurisdiction to prosecute those who direct or assist a crime so heinous that it is ‘against humanity’ because the very fact that a fellow human being could conceive and commit it demeans every member of the human race, wher...
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This article considers whether the State may legitimately restrict access to embryo-screening technologies where all relevant parties consent to the use of such procedures. It is argued that, consent notwithstanding, in a culture committed to respect for human rights, the State may legitimately claim a precautionary (or stewardship) jurisdiction. W...
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The goal of improving public health involves the use of different tools, with the law being one way to influence the activities of institutions and individuals. Of the regulatory mechanisms afforded by law to achieve this end, criminal law remains a perennial mechanism to delimit the scope of individual and group conduct. Utilising criminal law may...
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Approximately 6000 men die every year from ruptured abdominal aortic aneurysm in England and Wales. Randomised clinical trials and a large pilot study have shown that ultrasound screening of men aged 65 years can prevent about half of these deaths. However, there is a significant perioperative morbidity and mortality from interventions to re...
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This paper argues that the concept of human dignity, as currently contested, offers no clear guidance to lawmakers. Within the "bioethical triangle", human dignity has a quite different significance depending upon whether one is a utilitarian, a human rights theorist, or a dignitarian. Having rejected the possibility of an easy accommodation betwee...
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The purpose of this TILT Working Paper is to elaborate the idea of regulatory cosmopolitanism and to defend its coherence against three particular sceptical challenges.In the context of global governance, regulatory cosmopolitanism expresses two requirements: first, that regulators should always act in accordance with fundamental or universal value...
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This paper focuses on those parts of the regulatory environment that are designed to encourage scientific and technological innovation. Patent law is the obvious example; but tax law can also signal encouragement for particular activities. The key question is whether regulators will, or should, withhold tax incentives where there are some, but not...
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A review of Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law by Roger Brownsword
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In the second half of the twentieth century, the doctrines of the classical law of contract, together with the underlying philosophy of freedom of contract, were found wanting in a mass consumer marketplace. In the early years of the twenty-first century, there are new challenges for contract law as business contractors form networks, as networks o...
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The development of powerful new brain imaging technologies is likely to present a range of opportunities in many spheres of social life – for example, in the criminal justice system, in employment and in business contexts, and so on ( Greely, 2006 ). Regulators are challenged to create the right kind of environment for the application of these tech...
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This paper reviews the question of whether “nanoethics” should be treated as a special essay in ethics, quite different to bioethics, cyberethics, or neuroethics. Whilst some believe that a fundamental rethinking of our ethics is needed, others conclude that ethics as applied to nanoproducts or to nanomedicine will prove to be largely a case of bus...
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This paper considers whether there is a universal right to identity and, if so, whether it might engage with the various identity concerns and crises that are provoked by a range of emerging technologies. Applying a Gewirthian approach, it is argued, first, that a defensible coherentist account of universal rights can be made out. Such rights deman...
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With the prospect of an improved understanding of human genetics (as well as an accelerating application of that understanding), it is important that regulators should strike the right balance between support for the health care community (broadly conceived) and respect for the wider community's guiding values. Under conditions of ethical pluralism...
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Is there any reason to object to technologies of human enhancement—for example, to technologies that are designed to enhance intelligence, strength, height or sight, and the like? While dignitarians (such as Michael Sandel) argue against the quest for human perfection, utilitarians (such as John Harris) argue that human enhancement, properly concei...
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Introducing the inaugural issue of the journal, the general editors identify a range of topics and issues, at the interface of regulation and emerging technologies, for debate. These include: the nature of the regulatory environment in which emerging technologies are developed and applied; the challenges of legitimacy, effectiveness, connection, an...
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In November 2007, the Nuffield Council on Bioethics published the report Public Health: Ethical Issues. While the report has been welcomed by a wide range of stakeholders, there has also been some criticism. First, it has been suggested that it is not clear why, in developing its ‘stewardship model’, the Council felt the need to go beyond the liber...
Chapter
This chapter describes two human rights challenges generated by new technologies. The first is that the presence of three sometimes conflicting ethics (utilitarianism, dignitarianism, and human rights) makes it difficult for regulators to set agreed limits to the development and exploitation of modern biotechnology. It also means that there is no g...
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After a honeymoon period in environmental law, the so-called “precautionary principle” has received sustained criticism. This paper does not try to rescue the precautionary principle as such. However, it is argued, using Pascal’s Wager, that there are conditions under which precautionary reasoning is valid, which provides a general principle for th...
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In the context of a rapidly developing Information Society, the Data Protection Directive1 seems both well-intentioned and timely: it reflects a rights-based approach to privacy and to the fair, accurate, transparent and proportionate processing of personal data.2 Yet, in England, as in the United States, EU data protection law has few friends3, –...
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This chapter is divided into four parts. The first part considers the view of ethics presented in the Nuffield Council on Bioethics' report, 'Critical Care Decisions in Fetal and Neonatal Medicine: Ethical Issues'. According to this view, bioethics has a dual function. On the one hand, it is a critical discipline that 'investigates the underlying r...
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Introduction The process of globalisation encourages an international commitment to the principle of free trade (in the sense of facilitating market access in relation to both goods and services) coupled with respect for human rights and human dignity. According to some, the international community is doing rather better at globalising free trade t...
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This paper, guided by the UNESCO Universal Declaration on Bioethics and Human Rights, assumes that regulators should aim to support the development of nanomedicine while, at the same time, putting in place whatever limits or safeguards are indicated by ethical considerations. Relative to this regulatory objective, it is argued that, notwithstanding...
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Rights, Regulation and the Technological Revolution confronts a central question facing modern government - how can regulators respond to both the challenges and opportunities presented by a technologically-driven society without sacrificing legitimacy for effectiveness, or weakening the essential conditions of a stable, aspirant moral community? A...
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Rights, Regulation, and the Technological Revolution confronts a central question facing modern government: how can regulators respond to both the challenges and opportunities presented by a technologically driven society without sacrificing legitimacy for effectiveness, or weakening the essential conditions of a stable, aspirant moral community? T...
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Rights, Regulation, and the Technological Revolution confronts a central question facing modern government: how can regulators respond to both the challenges and opportunities presented by a technologically driven society without sacrificing legitimacy for effectiveness, or weakening the essential conditions of a stable, aspirant moral community? T...
Chapter
There is nothing like predicting the future and the future might turn out to be nothing like we predict. Even so, it is a fair assumption that, as the twenty-first century unfolds, we will know a great deal more about ourselves but, equally, others will know a great deal more about us. To put to a broader use the evocative terms of contrast employe...
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It is axiomatic that the first responsibility of researchers, whether they are working in the developed or the developing world, is to (strive to) do no harm to those who participate in their studies or trials. However, on neither side of the Atlantic is there any such settled view with regard to the responsibility of researchers to attend to the a...
Book
In a community that takes rights seriously, consent features pervasively in both moral and legal discourse as a justifying reason: stated simply, where there is consent, there can be no complaint. However, without a clear appreciation of the nature of a consent-based justification, its integrity, both in principle and in practice, is liable to be c...
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Currently, consent is not required for the taking of DNA samples for the National DNA Database®, which is used for forensic purposes, whereas it is for public health genetic databases, such as UK Biobank. The key question that this paper addresses is whether the whole population should be compelled to participate in one genetic database used for a...
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This paper presents a sketch of the way in which an ideal-typical community of rights, Gewirthia, responds to the so-called “internal problem of authority.” Notwithstanding the deep moral consensus in Gewirthia, where citizens are fully committed to the Principle of Generic Consistency (requiring that agents respect one another’s freedom and basic...
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Smart regulators know that traditional command and control interventions, however tempting to politicians, are not always an effective or efficient form of response; they know that the criminal law tends to do better at defining crime into existence rather than defining it out; they know that private law remedies are of limited impact; and they kno...
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‘English law, having committed itself to a rather technical and schematic doctrine of contract, in application takes a practical approach, often at the cost of forcing the facts to fit uneasily into the marked slots of offer, acceptance and consideration. Although the context of these remarks was the necessity to analyse the complex of relations be...
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The immediate problem of Plato’s prisoners in the cave, it will be recalled, was understanding what was going on in the cave (for they could see only the shadows on the wall). In our contention, the situation of those who try to operate consistently within the constraints imposed by the traditional exposition of contract (sometimes pejoratively ref...
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This paper has two starting points, one theoretical the other practical. The theoretical starting point is Ronald Dworkin's rights thesis; the practical starting point is the controversial case of Bushell v Secretary of State for the Environment . Our concern is to examine the relationship between the rights thesis and public law disputes such as B...
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Given that the modern law of contract is geared to the protection of reasonable expectation, is this approach capable of extension to contracting in electronic environments, particularly to mass consumer contracting via the Internet? The position taken in this paper is that the gearing of the modern law is largely appropriate. Applying such a moder...
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This article is a follow-up on the paper entitled “Code, Control, and Choice: Why East is East and West is West”, published in Legal Studies in 2005. The current article was first presented at the School of Law, University of Edinburgh, in February 2006.

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