In this Article we explore the evolution of property law and examine the applicability of the prevailing accounts according to which property institutions oscillate between the extreme points of open access and private property. We show that the evolution of property is a much more nuanced process, shaped by the interplay of the following three dimensions: number of owners, extent of dominion and asset configuration. Accordingly, property institutions can assume a myriad of positions along the aforementioned dimensions in response to (...) the constant change in exclusion and management costs. We demonstrate our theory by discussing examples of three dimensional adjustments of real, personal and intellectual property. (shrink)

The fair use doctrine is at once the most significant and the most problematic qualification of the copyright owner's right to exclusivity. An affirmative defense against copyright liability, the fair use doctrine legitimates certain unauthorized reproductions of copyrighted materials that would otherwise be regarded as copyright infringements. Notwithstanding its importance, “fair use” continues to be “the most troublesome [doctrine] in the whole law of copyright.” Throughout its long history, neither courts nor legislatures have provided a useful definition of “fair use” (...) nor have they adumbrated its objectjves. Since the doctrine's inception over two and a half centuries ago, courts and legislatures have attempted to formulate, explicate, refine, and revamp the fair use doctrine. Generally, these efforts have proven unfruitful. At best, they have resulted in various formulations of how to approach fair use questions that offer courts and users of copyrighted works scant guidance on how fair use should be recognized. All this would not have been of grave concern had judges shared a common understanding of fair use or of the principles that should guide them in deciding fair use cases. The problem is that they do not. Rather, the case law reflects wdely divergent notions of the concept of fair use. The lack of consensus is best witnessed in the multiple reversals and divided courts that have become the hallmark of fair use litigation. (shrink)

The access-to-justice movement broadly concerns the extent to which people have the ability to resolve legally actionable problems. To the extent that individuals seek resolution through civil litigation, they can be disadvantaged by their unmet need for legal services, particularly in high-stakes cases and complicated areas of law. I propose an innovative legal intervention to this problem called “compensatory preliminary damages,” which builds from the work of Gideon Parchomovsky and Alex Stein. I argue that preliminary damages should function (...) as compensatory awards for harm to a plaintiff’s ability to access justice, rather than a contingency loan that might make indigent plaintiffs worse off than before if they lose. By awarding such damages, courts make plaintiffs whole for harm to their access to justice that is not conditional on a decision after the merits or their final recovery for the injuries alleged. As such, the award would not need to be repaid. -/- . (shrink)

The paper examines the conditions under which we are responsible for actions performed under duress, focusing on a real case in which a soldier was compelled at gunpoint to participate in the massacre of civilian prisoners. The case stands for a class of cases in which the compelled act is neither clearly justified nor clearly excused on grounds of temporary incapacity, but in which it is nonetheless plausible that the agent is not morally blameworthy. The theoretical challenge is to identify (...) the excuse in such cases and to explain its basis. The paper argues that when mortal duress excuses in cases of this sort, it does so because the compelled act, though impermissible and freely chosen, nonetheless fails to manifest ‘an insufficiently good will’. The argument depends on a potentially controversial thesis in the ethics of concern, namely, that a thoroughly decent moral agent—someone who cares enough about morality and the values that underlie it—will not always be moved to do what he knows he ought to do. (shrink)

Gideon Yaffe presents a theory of criminal responsibility according to which child criminals deserve leniency not because of their psychological, behavioural, or neural immaturity but because they are denied the vote. He argues that full shares of criminal punishment are deserved only by those who have a full share of say over the law.

Gideon Freudenthal - The Radical Enlightenment of Solomon Maimon: Judaism, Heresy, and Philosophy - Journal of the History of Philosophy 45:4 Journal of the History of Philosophy 45.4 661-663 Muse Search Journals This Journal Contents Reviewed by Gideon Freudenthal Tel-Aviv University Abraham P. Socher. The Radical Enlightenment of Solomon Maimon: Judaism, Heresy, and Philosophy. Stanford Studies in Jewish History and Culture. Palo Alto, CA: Stanford University Press, 2006. Pp. xiii + 248. Cloth $55.00. With few philosophers are life (...) and work so intimately connected as with Salomon Maimon. Born in 1753 in Lithuania and raised in an orthodox Jewish community, Maimon "pilgrimaged" at the age of twenty-five to Berlin, the capital of the Jewish Enlightenment. After some years of education in sciences and languages, Maimon produced, in less than ten years , a series of books and papers that today make up the seven volumes of his collected works. A.. (shrink)

According to Parfit, the best version of Kantian ethics takes as its central principle Kantian Contractualism: the thesis that everyone ought to follow the principles whose universal acceptance everyone could rationally will. This paper examines that thesis, identifies a class of annoying counterexamples, and suggests that when Kantian Contractualism is modified in response to these examples, the resulting principle is too complex and ad hoc to serve as the 'supreme principle of morality'.

Yeshayahu Leibowitz (1903–1994) was an Israeli philosopher and scientist. For decades, his thinking and persona were the embodiment of a Judaism in Israel. Getting to know him is getting to know a great Israeli thinker and also invites a window into the life of Israel and its problems.

This chapter explores bridge-law non-naturalism: the view that when a particular thing possesses a moral property or stands in a moral relation, this fact is metaphysically grounded in non-normative features of the thing in question together with a general moral law. Any view of this sort faces two challenges, analogous to familiar challenges in the philosophy of science: to specify the form of the explanatory laws, and to say when a fact of that form qualifies as a law. The chapter (...) explores three strategies for answering these questions, all of which maintain that a moral law is a true generalization of the form [It is normatively necessary that whatever ϕ‎s is F]. (shrink)

Einstein's theories of special and general relativity are unanimously praised by scientists for their extraordinary beauty to the extent that some consider the latter to be the most beautiful theory in physics. The grounds for these assertions are assessed here and it is concluded that the beauty of Einstein's theories can be attributed to two of their aspects. The first is that they incorporate all possible ingredients that constitute the beauty of theories: simplicity, symmetry, invariance, unification, etc. The second concerns (...) the perfect logical consistency of Einstein's theories, a crucial factor in the unanimous praise of their beauty. Theories other than Einstein's are also assessed here, namely, electromagnetism and the various quantum theories, and it is concluded that all these suffer from logical flaws. This has resulted in a lack of consensus among scientists with respect to their beauty. Consequently, the unanimous claim that Einstein's theories are of superior beauty as compared to other theories in physics is hereby substantiated. (shrink)

The article presents Frege's distinction between Sense and Reference. After a short introduction, it explains the puzzle which gave rise to the distinction; Frege's earlier solution, and his reasons for its later repudiation. The distinction, which embodies Frege's second solution, is then discussed in two phases. The first, which is restricted to proper names, sets out its most basic features. The second discusses 'empty' names; indirect speech, and the distinction for predicates and for complete sentences. Finally, two criticisms, by Russell (...) and by Kripke, are briefly set out. (shrink)

Under the “Willful Ignorance Principle,” a defendant is guilty of a crime requiring knowledge he lacks provided he is ignorant thanks to having earlier omitted inquiry. In this paper, I offer a novel justification of this principle through application of the theory that knowledge matters to culpability because of how the knowing action manifests the agent’s failure to grant sufficient weight to other people’s interests. I show that, under a simple formal model that supports this theory, omitting inquiry manifests precisely (...) the same degree of disregard of others’ interests as manifested in knowingly acting criminally. Several surprising implications of this view are described, including that when the agent’s method of inquiry has a non-zero false positive rate, his omission of inquiry does not make the same contribution to his culpability as knowledge, while it does, by contrast, when the false negative rate is non-zero. (shrink)

1. At its core, education is characterized by a preoccupation with the future. Despite the notable lack of agreement concerning the aims of education (e.g., social mobility, personal development, w...

The paper offers to substantiate a claim about the so-called Meritocratic Conception of how educational opportunities ought to be distributed. Such a conception holds an individual’s prospects for educational achievement may be a function of that individual’s talent or effort levels but should not be influenced by their social class background. The paper highlights the internal tension in the Meritocratic Conception between on the one hand a prohibition on the influence of social class on educational opportunities and on the other (...) a permission to allow unequal educational opportunities on the basis of talent and effort. This tension obtains because individuals’ talent and effort are themselves subject to influence by social class. The paper makes a positive case for an interpretation of the Meritocratic Conception that resolves this tension in favour of an egalitarian version, such that social class represents an objectionable determinant of unequal educational prospects even when its influence is mediated through the cultivation of talent and effort. This argument is further supported through an explanation that the character of social class as a systemic social source of the structure of individuals’ opportunities makes it an objectionable influence on educational opportunities. (shrink)

The widely held assumption about what motivated On Denoting is irreconcilable with Russell's position shortly beforehand; but discarding it leaves one with a carefully worked out solution whose problem is missing. The real motivation is to be found in a notoriously obscure passage in OD, in which Russell exposes a decisive (though easily overlooked) flaw in his former theory of denoting; a flaw which also cripples Frege's theory of sense and reference. A comprehensive account of this passage is the chief (...) concern of the present paper. Recognizing the critical role of this argument of Russell's leads to a more credible account of his argumentation in that essay. It also suggests that the fundamental standpoint underlyingThe Principles of Mathematics remains intact. In this light, the appropriation of OD to the philosophy of language may be misguided. (shrink)

We develop an approach to automatically identify the most probable multiword constructions used in children’s utterances, given syntactically annotated utterances from the Brown corpus of CHILDES. The found constructions cover many interesting linguistic phenomena from the language acquisition literature and show a progression from very concrete toward abstract constructions. We show quantitatively that for all children of the Brown corpus grammatical abstraction, defined as the relative number of variable slots in the productive units of their grammar, increases globally with age.

Manifest Activity presents and critically examines the model of human power, the will, our capacities for purposeful conduct, and the place of our agency in the natural world of one of the most important and traditionally under-appreciated philosophers of the 18th century: Thomas Reid. For Reid, contrary to the view of many of his predecessors, it is simply manifest that we are active with respect to our behaviours; it is manifest, he thinks, that our actions are not merely remote products (...) of forces that lie outside of our control. Reid holds, instead, that actions are all and only those events that spring from active power and he produces insightful and imaginative arguments for the claim that only a creature with a mind is capable of having active power. He believes that only human beings, and creatures 'above us', are capable of directing events towards ends, of endowing them with purpose or direction, the distinctive feature of action. However, he also holds that all events, and not merely human actions, are products of active power, power possessed either by human beings or by God. This collection of theses leads Reid to the view that human behaviour and the progress of nature are both essentially teleological. Patterns in nature are the products of laws of which God is the author; patterns in human conduct are the products of character and the laws that individuals set for themselves. Manifest Activity examines Reid's arguments for this view and the view's implications for the nature of character, motivation and the special kind of causation involved in the production of human behavior. (shrink)

In the present paper I shall deal with Adam Smith's application of the analytic-synthetic method, which he considered to be the scientific method par excellence. I shall concentrate on some shortcomings in Smith's arguments and endeavour to explain them as resulting from a particular interpretation of the aforesaid method. The peculiarity of Smith's interpretation was that he omitted the analysis and that he thought the synthesis reflects the composition of an object out of pre-existing elements which are endowed with ‘essential (...) qualities’. I shall then try to show that this methodological concept presupposed the view that society is a compound of independent individuals, i.e. an aggregate of Robinson Crusoes. Finally I shall discuss possible political reasons for this view. On the systematic level, I shall argue that political and scientific partisanship do not necessarily stand in contradiction to objective knowledge, and on the historical level, I shall plead for a ‘Social History of Ideas’.1. (shrink)

The ArgumentIn this paper I argue first that Marx's Critique of Political Economy employs “critique” in the Kantian meaning of the term—i.e., determining the domain of legitimate application of the categories involved and maintaining that outside these borders understanding is led into error and entangled in metaphysics.According to Marx, his predecessors in political economy transgressed these boundaries of application, and therefore conceived of all different modes of production as being essentially similar to commodity production, and thus implied that commodity production (...) and the bourgeois form of life corresponding to it are “natural” not historical and transitory. In Marx's conception there are no super-historical economic categories or laws.I argue moreover that Marx's methodology of reconstructing the “development” of socioeconomic entities and categories from their “germ” or “cell” also serves his critical intention. Whereas social theorists of the time referred with organic metaphors to human collectives, Marx referred with such metaphors to economic entities only. The difference is crucial, since the first carries deterministic consequences for the development of society while the latter does not: Social form and historical development in Marx are contingent and not necessary, historical and not natural, transitory and not eternal.I also stress that Marx's procedure of critique is internal. He uses only such assumptions, observations, and arguments as could in principle also be used by the scholars criticized. Nevertheless the outcome of the critique is not merely a new theory but an entirely different one — i.e., a historical conception of the discipline of political economy and of its laws. (shrink)

As part of the preparations to establish a population-based biobank in a large Israeli health organization, we aimed to investigate through focus groups the knowledge, perceptions and attitudes of insured Israelis, toward biobanking, and then, after input from focus groups’ participants, to empirically assess the impact of a revised recruitment process on recruitment rates. 1) Six Focus group discussions were conducted with individuals who had routine blood laboratory tests taken in the last 2 years. 2) After addressing the issues raised (...) in the focus groups and revising the recruitment process, individuals undergoing routine blood tests in phlebotomy clinics were invited to participate in the future biobank. Six Focus group discussions were conducted with individuals who had routine blood laboratory tests taken in the last 2 years. After addressing the issues raised in the focus groups and revising the recruitment process, individuals undergoing routine blood tests in phlebotomy clinics were invited to participate in the future biobank. At the outset of the focus groups there was an overall positive response to the prospect of a population-based biobank. Concerns revolved around infringement on privacy, fears of the “big brother”, and anxiety about inequality. Reaction to the language of the informed consent document revolved around concerns over ability to maintain anonymity, to withdraw consent, involvement of commercial entities, and the general tenor of the informed consent, which was perceived as legalistic and unilateral. In general, the longer participants were exposed to discussion about the biobank, the less likely they were to consent to sign in. Overall, only 20% of the 60 participants stated they would agree to sign in by the end of the 2 hour group session. The feedback obtained from the focus groups was used in the second stage of the study. A team of recruiters received extensive training to enable fruitful discussion and a detailed explanation to questions and concerns raised during the recruitment process. During the second stage of the study, after revising the consent form and training recruiters, a 53% consent rate was observed among 10,262 participants, more than 4 fold higher than estimated at the focus group stage. The qualitative focus group research helped identify important perceptions and concerns, which were subsequently addressed in the revised consent form and in the discussion the recruiters had with potential biobank donors. (shrink)

Jews and Islamic Law in Early 20th-Century Yemen. By Mark S. Wagner. Indiana Series in Sephardi and Mizrahi Studies. Bloomington, IN: Indiana University Press, 2015. Pp. xi + 208. $75 ; $29.

Gideon Yaffe presents a ground-breaking work which demonstrates the importance of philosophy of action for the law. Many people are serving sentences not for completing crimes, but for trying to. Yaffe's clear account of what it is to try to do something promises to resolve the difficulties courts face in the adjudication of attempted crimes.

Manipulation by another person often undermines freedom. To explain this, a distinction is drawn between two forms of manipulation: indoctrination is defined as causing another person to respond to reasons in a pattern that serves the manipulator’s ends; coercion as supplying another person with reasons that, given the pattern in which he responds to reasons, lead him to act in ways that serve the manipulator’s ends. It is argued that both forms of manipulation undermine freedom because manipulators track the compliance (...) of their victims, while neutral causal mechanisms do not. Manipulators see to it that their victims comply even in the face of forces that threaten to derail them from the manipulator’s desired course. It is suggested that this has an impact on freedom because part of what we desire in wanting to be free is the availability of forms of life very different from those we actually enjoy. (shrink)

Region R Question: How many objects — entities, things — are contained in R? Ignore the empty space. Our question might better be put, 'How many material objects does R contain?' Let's stipulate that A, B and C are metaphysical atoms: absolutely simple entities with no parts whatsoever besides themselves. So you don't have to worry about counting a particle's top half and bottom half as different objects. Perhaps they are 'point-particles', with no length, width or breadth. Perhaps they are (...) extended in space without possessing spatial parts (if that is possible). Never mind. We stipulate that A, B and C are perfectly simple. We also stipulate that they are connected as follows. A and B are stuck together in such a way that when a force is applied to one of them, they move together 'as a unit'. Moreover, the two of them together exhibit behavior that neither would exhibit on its own — Perhaps they emit a certain sound, or glow in the dark — whereas C is.. (shrink)

Zarathustra initially describes churches as the stale caves of world-denying priests. However, following his encounter with the eternal return of the same, Zarathustra overcomes this resentful atheism. The pure sky that Zarathustra desires above all else, a sky emptied of the gods, is not visible again through the holes in ruined church roofs, but really thanks to these holes. The pure sky is an image of the world liberated from the teleological time of theistic providence, indeed even from the divine (...) necessity that pantheism attributes to the world. Yet for all that it is god-less, the pure sky is acknowledged to be a gift of the same metaphysical-Christian history of God that it only seems to negate: the sky’s pure eye peers through holes in church roofs. Zarathustra, though an “old atheist,” can now love “even churches.” I call this Zarathustra’s affirmative atheism. I also link affirmative atheism to the conception of eternal recurrence as a self-abolishing anti-teaching. In the eternal return, Zarathustra’s atheism is finally indistinguishable from a history of churches and therefore negates itself. But although it is not a new teaching, affirmative atheism points to something novel. This is an atheism that can no longer be taught in doctrines but must be lived as fate. (shrink)