Readers assume that commonplace properties of the real world also hold in realistic fiction. They believe, for example, that the usual physical laws continue to apply. But controversy exists in theories of fiction about whether real individuals exist in the story’s world. Does Queen Victoria exist in the world of Jane Eyre, even though Victoria is not mentioned in it? The experiments we report here find that when participants are prompted to consider the world of a fictional individual (“Consider the (...) world of Jane Eyre…”), they are willing to say that a real individual (e.g., Queen Victoria) can exist in the same world. But when participants are prompted to consider the world of a real individual, they are less willing to say that a fictional individual can exist in that world. The asymmetry occurs when we ask participants both if a real person is in the character’s world and if the person would appear there. However, the effect is subject to spatial and temporal constraints. When the person and the character share spatial and temporal settings, interchange is more likely to occur. These results shed light on the author’s implicit contract with the reader, which can license the reader to augment a fictional world with features that the author only implicates as part of the work’s background. (shrink)

At a House hearing on December 5, 2023, the presidents of three universities—Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both of them were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At many (...) private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by aggressive, threatening, or violent conduct. -/- These “demotions” augur even worse consequences, including termination, for less powerful faculty who say the “wrong” thing, in particular statements in support of Trumpism, an increasingly mainstream ideology that stitches together white supremacy, misogyny, a preference for autocracy over democracy, and several phobias—homophobia, Islamophobia, transphobia, and xenophobia. The question I address in this paper is whether these consequences are constitutional at public schools. Whose right is stronger—a public-school teacher’s First Amendment right to express pro-Trumpist sentiments or a public school’s right to maintain a fair, inclusive, and welcoming learning environment? In this article, I argue that the public school has the upper hand here, that it is indeed constitutionally permitted to prohibit political hate speech that contributes to a hostile learning environment. Still, I narrowly limit this prohibition to dehumanizing speech—that is, speech explicitly suggesting that some human beings are “lesser”, intrinsically less valuable, than other human beings. -/- One objection to this position is that public schools may not prohibit any speech, no matter how dehumanizing, because such prohibition amounts to constitutionally impermissible viewpoint discrimination. I argue, however, that viewpoint discrimination is an integral part of education and therefore constitutionally permissible. Education necessarily involves promoting some values over others. These values fall into seven categories: constitutional principles, the humanist virtues, successful character traits and behaviors, knowledge and truth, art and beauty, health (both mental and physical), and social goods (such as justice, peace, and rule of law). (shrink)

The small improvement argument has been said to establish that the standard weak preference or value relation can be incomplete. We first show that the argument is one of three possible ‘small amendment arguments’, each of which would yield the same conclusion. Generalizing the analysis thus, we subsequently present a strong and a weak version of small amendment arguments and derive the exact rationality conditions under which they reveal incompleteness. The results show that the arguments (in any of their variants) (...) need not reveal a problem for the possibility of rational choice. In fact, it can be argued that they only reveal such a problem if the underlying relation is complete rather than incomplete. (shrink)

The rise of populism and its consequences – such as democratic backsliding, the erosion of constitutional principles, and the weakening of the rule of law – are among the most pressing issues facing comparative constitutional scholars today. To address these emerging challenges, the Unconstitutional Constitutional Amendment Doctrine (UCAD) has emerged as the most promising remedy for the “third counterwave of democracy”. However, a fundamental problem with UCAD is how to apply it effectively without undermining constitutional democracy, as it is often (...) criticised and deemed illegitimate from the perspective of democratic principles. (shrink)

자국의 통상이익을 확보하려는 국가의 노력과 무역의 자유화와 확대를 위한 경제심 판관으로서 WTO의 역할은 인류복지의 극대화를 위하여 한 방향으로 나아가면서도 충 돌하고 있다. 개별국가의 성장과 복지없는 인류복지의 극대화는 껍데기에 불과하고, 자유와 비차별(non-discrimination)의 원칙에 바탕한 기회균등, 공정경쟁조건의 보장이 없는 한 국제무역은 홉즈식 "즉발적 利己主義(spontaneous disorder)"만이 횡행하게 된 다. 이를 구제하기 위하여 국가적·국제적 통상관리체제가 발전되어 왔으며, WTO가 세 계경제헌법체제로서 많은 역할을 하고 있는 것은 주지의 사실이다. 많은 WTO업적 중 최근의 버드법 문제는 그 이례성과 전략성으로 인하여 양식있는 자의 관심이 대상이 되어 왔으며, 최근 미 (...) 연방법원과 WTO분쟁해결기구는 동 법의 적립금배분조항에 관 하여 국제적·국내적으로 위헌성을 확인한 바 있다. 그러나 양대 司法機關의 결정취지는 동일한 것이 아니다. 미국 연방법원은 문제된 버드법 조항이 헌법상 보장된 표현의 자 유와 평등권을 침해하여 위헌이라는 결정을 하였고, WTO분쟁해결기구는 반덤핑협정 이나 보조금협정 등 관련협정에서 허용하고 있지 않는 내용의 무역규제조치를 하였다 는 이유로 동법의 협정위반을 선언하고 그 철폐를 권고하였다. 이에 본고는 버드법상 적립금배분제도에 관한 양대 사법기관의 결정요지를 살펴보고, 헌법국가의 이상이라는 관점에서 사법기관의 역할과 버드법에 관한 사법심사가 주는 시사점을 음미하기로 한 다. 이는 종래의 외교통상문제와 국내문제의 엄별이라는 기존관념으로부터 헌법국가이 상의 역사적 의의와 발전, 국제법과 국내법의 관계, 사법기관의 국제적 협조와 연대라 는 관점에서 보다 적극적 자세로의 인식전환과 관련을 갖는다. 사법기관은 역사적으로 시민사회의 형성ㆍ발전에 있어 기본적 가치의 수호를 통하여 국제적ㆍ국내적 차원에서 중요한 역할을 하여 왔으나,현대 국제사회에서는 외교통상 행정영역의 발전에 뒤떨어 지는경향이있고, 세계헌법주의라는 관점에서 새로운 조명이 필요하다고 본다. 결론에 서는 현재 국제사회의 현실에서 사법부를 포함하여 우리정부의 전략적ㆍ법제적 대응 방안을 간략히 적시해 보도록 한다. (shrink)

Three different types of low cost soil amendments, namely, EDTA, elemental S and N-fertilizer, were investigated with Vetiver grass, Vetiveria zizanioides (Linn.) Nash growing under highly mixed Cd–Pb contamination conditions. A significant increase (p < 0.05) in Cd and Pb accumulation were recorded in the shoots of all EDTA and N-fertilizer assisted treatments. The accumulation of Cd in 25 mmol EDTA/kg soil and 300 mmol N/kg soil showed relatively higher translocation factor (1.72 and 2.15) and percentage metal efficacy (63.25 (...) % and 68.22 %), respectively, compared to other treatments. However, it was observed that the increased application of elemental S may inhibit the availability of Pb translocation from soil-to-root and root-to-shoot. The study suggests that viable application of 25 mmol EDTA/kg, 300 mmol N/kg and 20 mmol S/kg soil have the potential to be used for soil amendment with Vetiver grass growing under contaminated mixed Cd–Pb soil conditions. (shrink)

This article first of all attempts to assess the proposals of 2006–2007 to amend Poland’s Constitution, aimed mostly at strengthening constitutional protection of unborn human life. Parliamentary work on this proposal begins with the submission of the Deputy’s bill on amendment of the Constitution, published in the Sejm Paper No. 993 of September 5, 2006, and ends with a series of votes at the 39th sitting of the Sejm of the fifth term of office, held on April 13, 2007, on (...) which it was decided not to adopt any amendment. In the course of the legislative process, several modifi cation were offered not only to Article 38 concerning protection of life, but also to Article 30 dealing with dignity as a source of rights. Each of these proposals had drawbacks, including inter alia: the lack of a definite period of protection or entitlement to dignity, resulting in the decreased protection in relation to issues concerning euthanasia; the application of new categories granting a specific status to unborn human life; specifying the standards for protection by means of legislative acts ranking lower than a constitution, resulting in the transfer of life protection into the sphere of regulation of ordinary legislation. The most conducive for strengthening of the protection of unborn human life, even if not free of imperfections, was an amendment of Article 30 proposed by the Committee in the following wording: “The inherent and inalienable dignity, conferred on the person from the moment of conception, shall be a source of freedoms and rights of persons and citizens. It shall be inviolable; the respect and protection thereof shall be the obligation of public authorities.” From the rejection of the proposals it is diffi cult to draw conclusions that are vital for interpretation of the existing provisions. However, a conclusion that the intention of the authors of the constitution was not to strengthen the constitutional protection of life is not legitimate, mostly because of their doubts about formal correctness of the proposed amendments (when deciding to reject them), particularly the doubts about legal consequences of their adoption. -/- Streszczenie Zasadniczym celem opracowania jest próba całościowej oceny propozycji nowelizacji Konstytucji RP mającej miejsce w latach 2006-2007, zmierzającej przede wszystkim do wzmocnienia konstytucyjnej ochrony życia człowieka przed narodzeniem. Prace parlamentarne nad analizowaną nowelizacją otwiera poselski projekt ustawy o zmianie Konstytucji zawarty w druku sejmowym 993 z dnia 5 września 2006 (projekt wpłynął do Sejmu 7 września); zamyka seria głosowań na 39 posiedzeniu Sejmu V kadencji, dnia 13 kwietnia 2007 roku; głosowań, które przesądziły o niewprowadzeniu żadnych zmian. W trakcie procesu legislacyjnego proponowano szereg formuł, zmieniających nie tylko art. 38 dotyczący ochrony życia, ale także art. 30, który dotyczy godności jako źródła praw. W zasadzie wszystkie zgłoszone propozycje posiadały wady, wśród których najważniejsze to: brak domknięcia okresu ochrony lub przysługiwania godności, skutkujący obniżeniem ochrony w kwestiach związanych z eutanazją; stosowanie nowych kategorii, prowadzące do nadania specyficznego statusu człowiekowi przed narodzeniem; określanie standardu ochrony za pośrednictwem aktów o randze niższej od konstytucji, prowadzące do przesunięcia ochrony życia przed narodzeniem w sferę ustawodawstwa zwykłego. Z punktu widzenia celu, jakim było wzmocnienie konstytucyjnej ochrony życia człowieka przed narodzeniem i wzmocnienie jego pozycji prawnej, najlepsza, choć nie pozbawiona usterek, była zaproponowana przez Komisję zmiana brzmienia art. 30 prowadząca do formuły: „Źródłem wolności i praw człowieka i obywatela jest przyrodzona i niezbywalna godność człowieka, przynależna mu od chwili poczęcia. Jest ona nienaruszalna, a jej poszanowanie i ochrona jest obowiązkiem władz publicznych.”. Na podstawie odrzucenia propozycji zmian trudno wyciągać wnioski istotne dla interpretacji aktualnie obowiązujących przepisów; wniosek, że ustrojodawca nie chciał wzmocnienia konstytucyjnej ochrony życie nie jest prawomocny, przede wszystkim ze względu na – istotne w procesie podejmowania decyzji o odrzuceniu propozycji zmian – wątpliwości, co do formalnej poprawności formułowanych propozycji, w tym wątpliwości co do konsekwencji prawnych ich przyjęcia. (shrink)

Deliberative Transformative Moments (DTM) is a new concept that serves as an amendment to the DQI. With this new concept it is easier to get at the quick give-and-take of discussions of small groups of ordinary citizens. As an illustration, we apply the concept to discussions about the peace process among Colombian ex-combatants, ex-guerrillas and ex-paramilitaries. Specifically, we show how personal stories can transform a discussion from a low to a high level of deliberation and how they can have the (...) opposite effect. To increase the level of deliberation in the general population, we recommend that good illustrations of DTM’s should be part of the school programs from an early age on, so that children learn how to discuss with others who have different opinions and values. (shrink)

Focusing on a particular facet of entitlement theory, I criticize the view that Nozick’s version of the theory provides an adequate description of procedural justice. I agree with Nozick that justice is procedural; however, I believe his entitlement theory as it currently stands is incomplete. I show that Nozick is committed to believing that the implied content of his entitlement theory is unjust, and therefore that a certain set of market transactions ought to be judged as legally wrong according to (...) Nozick’s own political foundations. Furthermore, I demonstrate that the Non-Aggression Principle is inconsistent with what a procedurally just entitlement theory would require, and therefore diminishes the degree to which a full-fledged account of distributive justice can properly be called libertarian. Finally, I offer a principle intended as a starting point for a discussion of what constitutes just transfer, and briefly speculate as to the legal results of implementing such a principle. (shrink)

In the Foundations of Mathematics, Ramsey attempted to amend Principia Mathematica’s logicism to meet serious objections raised against it. While Ramsey’s paper is well known, some questions concerning Ramsey’s motivations to write it and its reception still remain. This paper considers these questions afresh. First, an account is provided for why Ramsey decided to work on his paper instead of simply accepting Wittgenstein’s account of mathematics as presented in the Tractatus. Secondly, evidence is given supporting that Wittgenstein was not moved (...) by Ramsey’s objection against the Tractarian account of arithmetic, and a suggestion is made to explain why Wittgenstein reconsidered Ramsey’s account in the early thirties on several occasions. Finally, a reading is formulated to understand the basis on which Wittgenstein argues against Ramsey’s definition of identity in his 1927 letter to Ramsey. (shrink)

For more than two decades, police in the United States have used facial recognition to surveil civilians. Local police departments deploy facial recognition technology to identify protestors’ faces while federal law enforcement agencies quietly amass driver’s license and social media photos to build databases containing billions of faces. Yet, despite the widespread use of facial recognition in law enforcement, there are neither federal laws governing the deployment of this technology nor regulations settings standards with respect to its development. To make (...) matters worse, the Fourth Amendment—intended to limit police power and enacted to protect against unreasonable searches—has struggled to rein in new surveillance technologies since its inception. -/- This Article examines the Supreme Court’s Fourth Amendment jurisprudence leading up to Carpenter v. United States and suggests that the Court is reinterpreting the amendment for the digital age. Still, the too-slow expansion of privacy protections raises challenging questions about racial bias, the legitimacy of police power, and ethical issues in artificial intelligence design. This Article proposes the development of an algorithmic auditing and accountability market that not only sets standards for AI development and limitations on governmental use of facial recognition but encourages collaboration between public interest technologists and regulators. Beyond the necessary changes to the technological and legal landscape, the current system of policing must also be reevaluated if hard-won civil liberties are to endure. (shrink)

Is it possible to recover lost moral ground? In the closing episodes of the TV show "Breaking Bad", it becomes clear that the protagonist, Walter White, believes that the correct answer to this question is an affirmative one. Walt believes that he can, and that he has, recovered lost moral ground. "Breaking Bad" may be said to explore two distinct and incompatible ways of attempting to recover lost moral ground. The first way is revisionist. This is to rewrite the script (...) of what, morally speaking, has occurred, so that it appears that nothing wrong was done. The second way is restorative. This is to admit to morally wrongful behavior, but to attempt to make amends for it. While we concede that it is possible to recover lost moral ground in both of these ways, we deny that Walt is able to do so in both of these ways. At best, Walt can only hope to recover lost moral ground by attempting to make amends for his past misdeeds. (shrink)

A wide range of proposals to alleviate the negative effects of intellectual property regimes is currently under discussion. This article offers a critical evaluation of six of these proposals: the Health Impact Fund, the Access to Knowledge movement, prize systems, open innovation models, compulsory licenses and South-South collaborations. An assessment on how these proposals target the human rights affected by intellectual property will be provided. The conflicting human rights that will be individually discussed are the rights: to benefit from one’s (...) own scientific work, to benefit from the advancement of science, to participate in scientific enterprises and to self-determination. (shrink)

Atwater v. Lago Vista is a stand-alone case in Fourth Amendment jurisprudence. Often basic Fourth Amendment jurisprudence builds off other case law. There is a clear buildup regarding the exclusionary rule from Weeks v. United States (1914) to Silverthorne Lumber Co. v. United States (1920) to the expansion of “the fruit of the poisonous tree” doctrine to Mapp v. Ohio (1961) incorporating U.S. Constitution the Fourth Amendment to the states. -/- Likewise, there are cases building up from the incorporation into (...) the states from United States v. Leon (1984) to Arizona v. Evans (1995), expanding Fourth Amendment case law and rights. The cavalcade of these cases somewhat plays a ballet of expanding and contracting the rights in certain circumstances. But the rights build off and limit each other in a cognizable method. -/- Atwater v. Lago Vista is not based on such a cavalcade of cases. It is a stand-alone case at best citing 1600s case law, norms, and rules from before the founding of the United States. Granted, the United States adopted much of the English jurisprudence in the founding of the United States. (shrink)

Over the years, ethylene-diamine-tetra-acetate (EDTA) has been widely used for many purposes. However, there are inadequate phytoassessment studies conducted using EDTA in Vetiver grass. Hence, this study evaluates the phytoassessment (growth performance, accumulation trends, and proficiency of metal uptake) of Vetiver grass, Vetiveria zizanioides (Linn.) Nash in both single and mixed heavy metal (Cd, Pb, Cu, and Zn)—disodium EDTA-enhanced contaminated soil. The plant growth, metal accumulation, and overall efficiency of metal uptake by different plant parts (lower root, upper root, lower (...) tiller, and upper tiller) were thoroughly examined. The relative growth performance, metal tolerance, and phytoassessment of heavy metal in roots and tillers of Vetiver grass were examined. Metals in plants were measured using the flame atomic absorption spectrometry (F-AAS) after acid digestion. The root-tiller (R/T) ratio, biological concentration factor (BCF), biological accumulation coefficient (BAC), tolerance index (TI), translocation factor (TF), and metal uptake efficacy were used to estimate the potential of metal accumulation and translocation in Vetiver grass. All accumulation of heavy metals were significantly higher (p < 0.05) in both lower and upper roots and tillers of Vetiver grass for Cd + Pb + Cu + Zn + EDTA treatments as compared with the control. The single Zn + EDTA treatment accumulated the highest overall total amount of Zn (8068 ± 407 mg/kg) while the highest accumulation for Cu (1977 ± 293 mg/kg) and Pb (1096 ± 75 mg/kg) were recorded in the mixed Cd + Pb + Cu + Zn + EDTA treatment, respectively. Generally, the overall heavy metal accumulation trends of Vetiver grass were in the order of Zn >>> Cu > Pb >> Cd for all treatments. Furthermore, both upper roots and tillers of Vetiver grass recorded high tendency of accumulation for appreciably greater amounts of all heavy metals, regardless of single and/or mixed metal treatments. Thus, Vetiver grass can be recommended as a potential phytoextractor for all types of heavy metals, whereby its tillers will act as the sink for heavy metal accumulation in the presence of EDTA for all treatments. (shrink)

Much scholarly attention has recently been devoted to ways in which artificial intelligence (AI) might weaken formal political democracy, but little attention has been devoted to the effect of AI on “cultural democracy”—that is, democratic control over the forms of life, aesthetic values, and conceptions of the good that circulate in a society. This work is the first to consider in detail the dangers that AI-driven cultural recommendations pose to cultural democracy. This Article argues that AI threatens to weaken cultural (...) democracy by undermining individuals’ direct and spontaneous engagement with a diverse range of cultural materials. It further contends that United States law, in its present form, is ill equipped to address these challenges, and suggests several strategies for better regulating culture-mediating AI. Finally, it argues that while such regulations might run afoul of contemporary First Amendment doctrine, the most normatively attractive interpretation of the First Amendment not only allows but encourages such interventions. (shrink)

In its January 20th, 2010 decision in Citizens United vs. Federal Election Commission, the United States Supreme Court ruled that certain restrictions on independent expenditures by corporations for political advocacy violate the First Amendment of the Constitution, which provides that “Congress shall make no law […] abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Justice Kennedy, writing for the 5-4 majority, (...) held that “[b]y suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and view-points from reaching the public and advising voters on which person or entities are hostile to their interests” (Citizens United vs. Federal Election Commission 558 U.S. 38-9 (2010); emphasis added). Much of the language of the opinion, and some of its reasoning, as this passage illustrates, presupposes that corporations are agents capable of speech, and that it is (at least in part) in the light of this that limitations on political advocacy by corporations are prohibited by the Constitution. -/- While there are other strands in the argument, they are interwoven with the conception of the corporation as agent and speaker, with its voice and its viewpoints. The dissenters on the court objected on precisely this point (among others). Justice Stevens wrote sarcastically in his dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, that “[u]nder the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech” (558 U.S. 33 (2010)). Justice Sotomayor suggested in oral argument that the Court’s century-old practice of treating corporations as persons rests on a conceptual mistake. -/- My concern in this essay is not with the question whether the restrictions violate the Constitution. There are many issues that bear on this which will be outside the scope of my discussion. My concern is with the proper conceptual framework for understanding the agency of corporations and corporate speech, and the role that conceptions of these play in the background of the majority’s reasoning. The issue is legal, but it also has philosophical, conceptual and semantic aspects. It will be the latter aspects, and their potential to shed light on legal reasoning, that are my main focus. An adequate framework requires saying what properly speaking the corporation is, how agency is expressed through the corporation, whose agency it is, centrally whether the corporation is an agent or person in its own right, and in what sense it can be said to be capable of speech. I draw on recent work in collective action theory, particularly with respect to the semantics of collective action sentences (Ludwig 2007) and the analysis of the proxy agency in collective action (Ludwig 2014), to show (i) that corporations are neither genuine agents nor (therefore) capable of engaging in genuine speech, (ii) that consequently the First Amendment does not apply to corporations per se, and (iii) that a better understanding of the mechanisms of corporate agency casts doubt on more indirect arguments for extending the First Amendment to “corporate speech” as well. (shrink)

My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is the (...) theory of “Constitutional Textualism”—or just plain “Textualism”—which says that the meaning of the Constitution lies entirely within the “four corners” of the document. Second is the theory of “Originalism,” which says that this meaning was fixed at the time of ratification. (Likewise, the meanings of the amendments were fixed at the time of their ratification.) -/- While Justice Scalia helped to inspire a Textualist/Originalist (and anti-substantive-due-process) movement, his Originalism has received far more attention than his Textualism. Since Judge Robert Bork first introduced Originalism to the general public during his Supreme Court nomination hearings in 1987, this theory has ignited passions on all sides and effectively re-framed the entire debate about how to interpret the Constitution. Constitutional scholars, left and right, now define themselves as either for or against Originalism. Meanwhile, Textualism has merely retreated into the background. -/- Part of the reason for this disparate treatment is that many who reject Originalism still consider themselves to be Textualists. They agree with Justice Scalia (and Judge Bork) that the text is all-important. They disagree, however, that its meaning was fixed for eternity at ratification. Instead, they maintain that either the meaning of the text or applications of this meaning to new cases can change as society changes. -/- In this Article, I bring Textualism out of Originalism’s shadow and into broad daylight. I argue that once we dig just a little deeper into the proposition that all of the meaning in the Constitution inheres in its words, we find that this theory simply cannot work. In order to interpret the nation’s foundational document, we must resort to assumptions that it does not explicitly state. (Indeed, even Textualism itself is a theory that the Constitution does not explicitly endorse.) And the notion that “extra-textual” assumptions necessarily inform our interpretations of the Constitution poses a direct and insurmountable threat to Textualism. -/- The Constitution actually requires each judge, when faced with a case concerning the right to privacy, not merely to consider the text but also to anticipate and evaluate the moral, social, and political consequences of both possible decisions before choosing between them. While this position may initially sound counterintuitive, it turns out to be a much more realistic theory of constitutional interpretation than Textualism (and Originalism). -/- I ultimately conclude that, contrary to Justice Scalia, the Constitution most certainly does protect a right to privacy. For what it’s worth, the Obergefell majority agree with me (and oppose Justice Scalia). I aim to show exactly why they are correct. (shrink)

Deconstructing the “editorial analogy,” and analogical reasoning more generally, in First Amendment litigation involving powerful tech companies.

This article explores the forms of moral repair that the wrongdoer has to perform in an attempt to make amends for her past wrongdoing, with a focus on the issues of interpersonal moral repair; that is, what a wrongdoer can do to merit her victim‘s forgiveness and achieve reconciliation with her community. The article argues against the very general demands of atonement that amount to an obligation to stop being someone who commits wrongs—to become a moral saint—and suggests a new (...) form of atonement that is more practical and useful in our everyday life. (shrink)

Amendment of the Witmer, Butchard, and Trogdon (2005) account of intrinsic properties with the aim of neutrality between competing theories of what is fundamental.

Despite amendments to the sexual assault provisions in the Criminal Code, decisions about the availability and operation of the defence of belief in consent remain vulnerable to the influence of legally extraneous considerations. The author proposes an approach designed to limit the influence of such considerations.

Many wrongly believe that emotion plays little or no role in legal reasoning. Unfortunately, Langdell and his “scientific” case method encourage this error. A careful review of analysis in the real world, however, belies this common belief. Emotion can be cognitive, and cognition can be emotional. Additionally, modern neuroscience underscores the “co-dependence” of reason and emotion. Thus, even if law were a certain science of appellate cases (which it is not), emotion could not be torn from such “science.” -/- As (...) we reform legal education, we must recognize the role of cognitive emotion in law and legal analysis. If we fail to do this, we shortchange law schools, students, and the bar in grievous ways. We shortchange the very basics of true and best legal analysis. We shortchange at least half the universe of expression (the affective half). We shortchange the importance of watching and guarding the true interests of our clients, which interests are inextricably intertwined with affective experience. We shortchange the importance of motivation in law, life, and legal education. How can lawyers understand the motives of clients and other relevant parties without understanding the emotions that motivate them? How can lawyers hope to persuade judges, other advocates, or parties across the table in a transaction without grasping affective experience that motivates them? How can law professors fully engage students while ignoring affective experience that motivates students? Finally, we shortchange matters of life and death: emotions affect health and thus the very vigor of the bar. -/- Using insights from practice, modern neuroscience, and philosophy, I therefore explore emotion and other affective experience through a lawyer’s lens. In doing this, I reject claims that emotion and other affective experience are mere feeling (though I do not discount the importance of feeling). I also reject claims that emotion and other affective experience are necessarily irrational or beyond our control. Instead, such experience is often intentional and quite rational and controllable. After exploring law and affective experience at more “macro” levels, I consider three more specific examples of the interaction of law and emotion: (i) emotion, expression, and the first amendment, (ii) emotion in legal elements and exceptions, and (iii) emotion and lawyer mental health. To provide lawyers and legal scholars with a “one-source” overview of emotion and the law, I have also included an Appendix addressing a number of particular emotions. -/- Keywords: Emotion, Cognitive Emotion, Reason, Logos, Pathos, Legal Analysis, Legal Reasoning, Neuroscience, Philosophy, Persuasion, Rhetoric, Expression, First Amendment, Free Speech, Common Law Murder, Mental Health, NAACP v. McCrory, Anger, Contempt, Disgust, Hate, Malice. (shrink)

Note: This draft was updated on November 10, 2020. Discussing federal statutes, Justice Scalia tells us that “[t]he stark reality is that the only thing that one can say for sure was agreed to by both houses and the president (on signing the bill) is the text of the statute. The rest is legal fiction." How should we take this claim? If we take "text" to mean the printed text, that text without more is just a series of marks. If (...) instead we take "text" (as we must) to refer to something off the page such as the "meaning" of the series of marks at issue, what is that meaning and how do we know that all the legislators "agreed" on that "meaning"? In seeking answers here, we necessarily delve into semiotics (i.e., the “general theory of signs”) by noting that meaningful ink marks ("signifiers) signify a meaning beyond themselves (the "signified.") Thus, understanding how signs function is integral to lawyers' textual and linguistic analysis. Additionally, as this article demonstrates, legal analysis and rhetoric are much impoverished if lawyers ignore nonverbal signs such as icons, indices, and nonverbal symbols. In providing a broad overview of semiotics for lawyers, this article thus (1) begins with a general definition of signs and the related notion of intentionality. It then turns to, among other things, (2) the structure and concomitants of signs in more detail (including the signifier and the signified), (3) the possible correlations of the signifier and the signified that generate signs of interest to lawyers such as the index, the icon, and the symbol; (5) the expansion of legal rhetoric through use of the index, the icon, and the non-verbal as well as the verbal symbol, (6) the nature of various semiotic acts in public and private law (including assertives, commissives, directives, and verdictives); (7) the interpretation and construction of semiotic acts (including contracts as commissives and legislation as directives); (8) the role of speaker or reader meaning in the interpretation and construction of semiotic acts; (9) the semiotics of meaning, time, and the fixation of meaning debate; (10) the impact of signifier drift; (11) the distinction between sense and understanding; and (12) some brief reflections on semiotics and the First Amendment. This article also provides an Appendix of further terms and concepts useful to lawyers in their explorations of semiotics. (shrink)

The Industrial Disputes (Amendment) Bill, 2009 was introduced in the Rajya Sabha on 26th February, 2009. The bill seeks to amend a few provision of the Industrial Disputes Act, 1947. Industrial Disputes and their settlement have been provided in Industrial Disputes Act, 1947. The Act defines the relevant terms and also defines the Industrial Dispute, Industry and the mechanism of the settlement of dispute. Now we will study different dimensions in detail for managerial perspective. The study of Industrial Dispute prevention (...) involves the study of determining the types of disputes and their causes along with the settlement and prevention of disputes in Management. What is the management attitude towards labour.An exploratory study to use in this paper for industrial dispute act and its impact on industrial development for analysis of different dimensions of this topic and the research paper based on secondary data sources. Finally study gives the suggestions and conclusion about how to prevent the industrial dispute. (shrink)

Thomas Pogge’s (2006) framework of global justice can be adapted for individual agents or collective unilateral donations in the same way Peter Singer’s framework has been. I do so by amending Pogge’s institutional principles for international human rights NGOs and by adding two further principles to address challenges that arise when his framework is applied. This adapted framework enjoins donors to make principled philanthropic decisions that prioritize existing and near-term suffering, while also rectifying their part in causing this suffering. It (...) makes Pogge’s negative duty account easier to implement than his previous proposal, and provides well-off individuals with an alternative to Effective Altruism. (shrink)

The fourth amendment to the German Medicinal Products Act (Arzneimittelgesetz) states that nontherapeutic research in incompetent populations is permissible under the condition that potential research participants expressly declare their wish to participate in scientific research in an advance research directive. This article explores the implementation of advance research directives in Germany against the background of the international legal and ethical framework for biomedical research. In particular, it addresses a practical problem that arises from the disclosure requirement for advance research directives. (...) We show that, if the disclosure standard for advance research directives is set at a token level, nontherapeutic research in incompetent populations becomes practically impossible. To resolve this issue, we suggest the disclosure standard be set at a type level. (shrink)

There has been no shortage of such conceptual analyses and no shortage of counterexamples to all of them. The counterexamples exploit, at least partly, situations in which we are presumed to have clear intuitions about what causes what, but which intuitions are not being respected by the suggested philosophical analysis. The counterexamples typically lead to a battery of sophisticated attempts to revise or amend the philosophical analysis so that it is saved from refutation. These attempts, typically, either deny the intuitions (...) on which the counterexamples are based or accommodate the problematic cases within the theory by adding further clauses to the original philosophical analysis. The result of all this is that where the original philosophical theory rested on a simple, forceful and intuitively plausible idea (e.g., that causation consists in a relation of counterfactual dependence between discrete events), the modified philosophical theory becomes very convoluted, somewhat ad hoc and implausible. (shrink)

In this paper it is argued that we should amend the traditional understanding of the view known as the guise of the good. The guise of the good is traditionally understood as the view that we only want to act in ways that we believe to be good in some way. But it is argued that a more plausible view is that we only want to act in ways that we believe we have normative reason to act in. This change (...) – from formulating the view in terms of goodness to formulating it in terms of reasons – is significant because the revised view avoids various old and new counterexamples to the traditional view, because the revised view is better motivated than the traditional view, and because the revised view is better placed to explain certain features of desire than the traditional view. The paper finishes by showing that the conclusions reached are compatible with theories such as the buck passing account of value. (shrink)

Contemporary psychologism has been amended for most of the objections by its opponents over a century ago. However, some authors still raise doubts about its ability to account for some peculiar properties of logic. In particular, it is argued that the psychological universality of patterns of inferential behavior is not sufficient to account for the normativity of logic. In this paper, I deal with the issue and offer three alternative solutions that do not rely on mere empirical universality. I will (...) use the works of Laurence Jonathan Cohen, Diego Marconi and Marcello D'Agostino, adapting them for the purpose of defending logical psychologism. I will therefore argue that, although more refined work on the subject is needed, contemporary psychologism has the key resources to retain its place in the philosophical debate on the foundations of logic. (shrink)

This chapter investigates the conflict between thought and speech that is inherent in lying. This is the conflict of saying what you think is false. The chapter shows how stubbornly saying what you think is false resists analysis. In traditional analyses of lying, saying what you think is false is analyzed in terms of saying something and believing that it is false. But standard cases of unconscious or divided belief challenge these analyses. Classic puzzles about belief from Gottlob Frege and (...) Saul Kripke show that suggested amendments involving assent instead of belief do not fare better. I argue that attempts to save these analyses by appeal to guises or Fregean modes of presentation will also run into trouble. I then consider alternative approaches to untruthfulness that focus on (a) expectations for one’s act of saying/asserting and (b) the intentions involved in one’s act of saying/asserting. Here I introduce two new kinds of case, which I call “truth serum” and “liar serum” cases. Consideration of these cases reveals structural problems with intention- and expectation-based approaches as well. Taken together, the string of cases presented suggests that saying what you think is false, or being untruthful, is no less difficult and interesting a subject for analysis than lying itself. Tackling the question of what it is to say what you think is false illuminates ways in which the study of lying is intertwined with fundamental issues in the nature of intentional action. (shrink)

This article‘s point of departure is a proto-analysis that I have suggested of entering self-deception in acquiring a belief and an associated set of jointly sufficient conditions for self-deception that I have proposed. Partly with the aim of fleshing out an important member of the proposed set of conditions, I provide a sketch of my view about how selfdeception happens. I then return to the proposed set of jointly sufficient conditions and offer a pair of amendments.

Recent discussions among lawyers, philosophers, policy researchers and athletes have focused on the potential threat to privacy posed by the World Anti-Doping Agency’s (WADA) whereabouts requirements. These requirements demand, among other things, that all elite athletes file their whereabouts information for the subsequent quarter on a quarterly basis and comprise data for one hour of each day when the athlete will be available and accessible for no advance notice testing at a specified location of their choosing. Failure to file one’s (...) whereabouts, or the non-availability for testing at said location on three occasions within any 18-month period constitutes an anti-doping rule violation that is equivalent to testing positive to a banned substance, and may lead to a suspension of the athlete for a time period of between one and two years. We critically explore the extent to which WADA’s whereabouts requirements are in tension with existing legislation on privacy, with respect to UK athletes, who are simultaneously protected by UK domestic and EU law. Both UK domestic and EU law are subject to the European Convention on Human Rights (ECHR) Article 8, which establishes a right to “respect for private and family life, home and correspondence”. We critically discuss the centrality of the whereabouts requirements in relation to WADA’s aims, and the adoption and implementation of its whereabouts rules. We conclude that as WADA’s whereabouts requirements appear to be in breach of an elite athlete’s rights under European workers’ rights, health & safety and data protection law they are also, therefore, in conflict with Article 8 of the ECHR and the UK Human Rights Act 1998. We call for specific amendments that cater for the exceptional case of elite sports labour if the WADA requirements are to be considered legitimate. (shrink)

In this paper I aim to offer one novel perspective on the effects of physical and social isolation on an individual in the period of COVID-19 pandemic. Namely, we can distinguish two standard approaches to studying such effects: psychological, which strives to identify emergence and effects of new external stressors on an individual, and legal and ethical, which evaluates justification and correctness of certain public strategies designed to combat the pandemic that jeopardize human rights, such as the right to freedom (...) of movement. The novel perspective, offered in this paper, should not replace any of these approaches, instead it will provide some amendments to them by putting in place a new theoretical framework. The focus of the paper will be on justifying two major assumptions of this novel approach – the assumption that individuals as cognitive systems and selves sometimes extend into the environment, and the assumption that this environment can be social, i.e. that individuals sometimes extend on cognitive resources of other people. If these assumptions can be well founded, some psychological effects of isolation could be reconceptualized as instances of the internal transformations of an individual who loses some of her parts. Also, adopting the view that individuals are socially extended cognitive systems would lead to recognizing novel legal and ethical issues with respect to forced social isolation – endangerment of personal rights pertaining to personal integrity and identity. (shrink)

Some theorists—including Elizabeth Anderson, Gerald Gaus, and Amartya Sen—endorse versions of 'public reason' as the appropriate way to justify political decisions while rejecting 'ideal theory'. This chapter proposes that these ideas are not easily separated. The idea of public reason expresses a form of mutual 'civic' respect for citizens. Public reason justifications for political proposals are addressed to citizens who would find acceptable those justifications, and consequently would comply freely with those proposals should they become law. Hence public reasoning involves (...) 'local ideal theorizing': the justification of political proposals includes their consideration and evaluation under conditions of compliance with them by the citizens to whom those justifications are addressed. Local ideal theorizing, moreover, can lead to 'full ideal theorizing', wherein citizens outline and evaluate an amended version of their society’s 'basic structure'. This argument is illustrated by some recent empirical work on inequality within the United States. (shrink)

Who should decide who gets to say what on online social media platforms like Facebook, Twitter, and YouTube? American legal scholars have often thought that the private owners of these platforms should decide, in part because such an arrangement is thought to serve valuable free speech interests. This standard view has come under pressure with the enactment of statutes like Texas House Bill 20, which forbids certain platforms from “censoring” user content based on viewpoint. Such efforts to regulate the speech (...) policies of online platforms have been challenged for undermining the editorial speech rights of these platforms and allowing the proliferation of hate speech. This Article develops a democratic theory of free speech, according to which one of the most important reasons for protecting robust free speech rights is that free speech can contribute not only to democratic elections but to a democratic culture more generally. To achieve robust cultural democracy, a community’s speech environment must enable people not only to rationally persuade one another about matters of public importance and convey mutual respect to one another as political equals but also allow people to influence each other in a less articulate and rational manner—to “democratically vibe” with one another. This theory yields a qualified normative defense of government regulation of the speech policies of large social media platforms that can help to realize cultural democracy, suggesting that First Amendment doctrine should focus to a greater extent on protecting the speech rights of platform users, rather than platform owners. Although far from a ringing endorsement of H.B. 20 or S.B. 7072, this Article suggests that First Amendment law should be friendlier to state regulation of platform speech than many critics have thought. (shrink)

Vetter (2015) develops a localised theory of modality, based on potentialities of actual objects. Two factors play a key role in its appeal: its commitment to Hardcore Actualism, and to Naturalism. Vetter’s commitment to Naturalism is in part manifested in her adoption of Aristotelian universals. In this paper, we argue that a puzzle concerning the identity of unmanifested potentialities cannot be solved with an Aristotelian conception of properties. After introducing the puzzle, we examine Vetter’s attempt at amending the Aristotelian conception (...) in a way that avoids the puzzle, and conclude that this amended version is no longer to be considered naturalistic. Potentiality theory cannot be both actualist and naturalist. We then argue that, if naturalism is to be abandoned by the actualist, there are good reasons to adopt a Platonist conception of universals, for they offer a number of theoretical advantages and allow us to avoid some of the problems facing Vetter’s theory. (shrink)

Skyrms, building on the work of Dretske, has recently developed a novel information-theoretic account of propositional content in simple signalling systems. Information-theoretic accounts of content traditionally struggle to accommodate the possibility of misrepresentation, and I show that Skyrms’s account is no exception. I proceed to argue, however, that a modified version of Skyrms’s account can overcome this problem. On my proposed account, the propositional content of a signal is determined not by the information that it actually carries, but by the (...) information that it would carry at the nearest separating equilibrium of the underlying evolutionary dynamics. I show that this amended account yields reasonable ascriptions of false propositional content in a well-known formal model of the evolution of communication , and close with a discussion of the serious but perhaps not insuperable difficulties we face in applying the account to examples of signalling in the real world. (shrink)

This paper examines the evolution of Husserl’s philosophy of nonintuitive intentions. The analysis has two stages. First, I expose a mistake in Husserl’s account of non-intuitive acts from his 1901 Logical Investigations. I demonstrate that Husserl employs the term “signitive” too broadly, as he concludes that all non-intuitive acts are signitive. He states that not only meaning acts, but also the contiguity intentions of perception are signitive acts. Second, I show how Husserl, in his 1913/14 Revisions to the Sixth Logical (...) Investigation, amends his 1901 theory of non-intuitive acts, which he now calls “empty” intentions. He there accurately distinguishes empty meaning acts from the empty intentions of perception. In the conclusion, I reveal how Husserl’s alterations to his theory of non-intuitive intentions can inform our understanding of a larger shift in his philosophy. (shrink)

Marxism has long been subject to criticism from the theorists of Political Ecology, and in recent years, as the concerns of Green thinkers have become harder to ignore, Marxists have begun to respond to this challenge, defending and sometimes amending Marxist theory in response to Green criticisms. This paper addresses one issue within this debate: the controversy over Marx’s commitment to the growth, or development, of the productive forces. My aim is to dispute the contention of Marx’s Green critics, that (...) his concept of the development of the productive forces leads inevitably to the exacerbation of ecological problems, and, more speculatively, to suggest some advantages of using this concept to investigate ecological problems. (shrink)

Recent legal opinions and scholarly works invoke the political philosophy of John Locke, and his claim that there is a natural right of self-defense, to support the view that the 2nd Amendment’s right to bear arms is so fundamental that no state may disarm the people. I challenge this use of Locke. For Locke, we have a right of self-defense in a state of nature. But once we join society we no longer may take whatever measures that seem reasonable to (...) us to defend ourselves: we are bound to the law duly enacted according to the original Constitution to which we consented. For Locke, how best to avoid dissolution of government and preserve individual liberty is for the people to judge collectively, unconstrained by natural proscriptions on gun regulations, limited only by the demands that government not be arbitrary and that it serve the public good. (shrink)

Among the various motivations that may lead to the idea that truth is relative in some non-conventional sense, one is that the idea helps explain how there can be ‘‘ faultless disagreements’’, that is, situations in which a person A judges that p, a person B judges that not-p, but neither A nor B is at fault. The line of argument goes as follows. It seems that there are faultless disagreements. For example, A and B may disagree on culinary matters (...) without either A or B being at fault. But standard semantics has no room for such a case, so there is something wrong with standard semantics. The best way to amend it is to add a new parameter that is relevant to the truth or falsity of what A and B judge, presumably, something related to personal taste. The aim of the paper is to show that this line of argument is flawed. It is true that standard semantics has no room for faultless disagreements. But there is nothing wrong with this, for it should not be assumed that such disagreements exist. (shrink)

According to the canonical formulation of the modal account of luck [e.g. Pritchard (2005)], an event is lucky just when that event occurs in the actual world but not in a wide class of the nearest possible worlds where the relevant conditions for that event are the same as in the actual world. This paper argues, with reference to a novel variety of counterexample, that it is a mistake to focus, when assessing a given event for luckiness, on events distributed (...) over just the nearest possible worlds. More specifically, our objection to the canonical formulation of the modal account of luck reveals that whether an event is lucky depends crucially on events distributed over all possible worlds–viz., across the modal universe. It is shown that an amended modal account of luck which respects this point has the additional virtue of avoiding a notable kind of counterexample to modal accounts of luck proposed by Lackey (2008). (shrink)

My aim in this chapter is to extend the Realist account of the foundations of linguistics offered by Postal, Katz and others. I first argue against the idea that naive Platonism can capture the necessary requirements on what I call a ‘mixed realist’ view of linguistics, which takes aspects of Platonism, Nominalism and Mentalism into consideration. I then advocate three desiderata for an appropriate ‘mixed realist’ account of linguistic ontology and foundations, namely (1) linguistic creativity and infinity, (2) linguistics as (...) a theory of types (and not tokens) and (3) independence but structural respect between language and the linguistic competence thereof. My own brand of mixed realism, what I call ante rem realism, is defended along the lines of an ante rem or non-eliminative structuralism, the likes of which has been offered for mathematics by Resnik (1997) and Shapiro (1997). In other words, grammars describe a mind-independent (but not necessarily unconnected) linguistic reality in terms of linguistic patterns or structures also known as natural languages. I further amend this picture to allow for the possibility of a naturalistic account of language acquisition and evolution by arguing against a particular view of the type-token distinction. (shrink)

A central tenet of Heil's ontological conception is a no-levels account of reality, according to which there is just one class of basic properties and relations, while all higher-level entities are configurations of these base-level entities. I argue that if this picture is not to collapse into an eliminativist picture of the world – which, I contend, should be avoided –, Heil's ontological framework has to be supplemented by an independent theory of which configurations of basic entities should count as (...) complex entities. However, such an amendment represents a substantial ontological enhancement, so that the ensuing ontological picture is not as parsimonious as Heil claims it to be. (shrink)

This open access book revises Kant’s ethical thought in one of its most notorious respects: its exclusion of animals from moral consideration. The book gives readers in animal ethics an accessible introduction to Kant’s views on our duties to others, and his view that we have only ‘indirect’ duties regarding animals. It then investigates how one would have to depart from Kant in order to recognise that animals matter morally for their own sake. Particular attention is paid to Kant’s ‘Formula (...) of Humanity,' the role of autonomy and the moral law, as well as Kant’s notions of practical reason and animal instinct. The result is a deliberately amended version of Kantianism which nevertheless remains faithful to central aspects of Kant’s thought. The book’s final part illustrates the framework’s use in applied contexts, addressing the issues of using animals as mere means, the ethics of veganism and vegetarianism, and environmental protection. Nico Dario Müller shows how, when furnished with duties to animals, Kant's moral philosophy can be a powerful resource for animal ethicists. (shrink)

According to standard assumptions in semantics, ordinary users of a language have implicit beliefs about the truth-conditions of sentences in that language, and they often agree on those beliefs. For example, it is assumed that if Anna and John are both competent users of English and the former utters ‘grass is green’ in conversation with the latter, they will both believe that that sentence is true if and only if grass is green. These assumptions play an important role in an (...) intuitively compelling picture of communication, according to which successful communication through literal assertoric utterances is normally effected thanks to our shared beliefs about the truth-conditions of the sentences uttered in the course of the conversation. Against these standard assumptions, this paper argues that the participants in a conversation rarely have the same beliefs about the truth-conditions of the sentences involved in a linguistic interaction. More precisely, it argues for Variance, the thesis that nearly every utterance is such that there is no proposition which more than one language user believes to be that utterance’s truth-conditional content. If Variance is true, we must reject the standard picture of communication. Towards the end of the paper I identify three ways in which ordinary conversations can be communication-like despite the truth of Variance and argue that the most natural amendments to the standard picture fail to explain them. (shrink)

When medical assistance in dying (MAiD) was legalized in Canada in June 2016, the question of allowing decisionally capable persons to make advance requests in anticipation of later incapacity was reserved for further consideration during the mandatory parliamentary review originally scheduled to begin in June 2020 (but since delayed by COVID-19). In its current form the legislation does not permit such requests, since it stipulates that at the time at which the procedure is to be administered the patient must give (...) “express consent” to receiving it. Since express consent presupposes decisional capacity, this requirement rules out administering MAiD to a patient who has lost capacity. Amendments to the legislation passed by Parliament in March 2021 open the door slightly by allowing advance requests by patients after they have been approved for MAiD, if they fear losing capacity before the procedure can be administered. But this provision would apply only to patients whose natural death was deemed to be “reasonably foreseeable”, and would continue to exclude (a) requests made after diagnosis of a “grievous and irremediable medical condition” but in advance of approval for MAiD, and (b) requests made before such a diagnosis. My aim in this paper is twofold: to explore the ethical and legal issues concerning advance requests for MAiD, and to argue for expanding provision for such requests to include both of these further scenarios. (shrink)