The authors address problems with “compulsory” arbitration clauses in contracts. Specifically, they note that consumers are misguided about their rights in such cases. In addition, arbitration clauses do not allow the press to cover any proceedings that may result. The arbitration clauses in contracts are written in legalese that consumers do not understand. The authors found that even university students had difficulty understanding the information in such clauses. An example of an actual case is included.

The authors address problems with “compulsory” arbitration clauses in contracts. Specifically, they note that consumers are misguided about their rights in such cases. In addition, arbitration clauses do not allow the press to cover any proceedings that may result. The arbitration clauses in contracts are written in legalese that consumers do not understand. The authors found that even university students had difficulty understanding the information in such clauses. An example of an actual case is included.

I begin my analysis of consent by agreeing with Professor Hurd that consent functions as a “moral transformative” by altering the obligations and permissions that determine the Tightness of others' actions. I further agree with her that consent is intimately related to the capacity for autonomous action; one who cannot alter others' obligations through consent is not fully autonomous. I cannot improve on her elaboration of these points.

Many philosophers invoke the "wisdom of nature" in arguing for varying degrees of caution in the development and use of genetic enhancement technologies. Because they view natural selection as akin to a master engineer that creates functionally and morally optimal design, these authors tend to regard genetic intervention with suspicion. In Part II, we examine and ultimately reject the evolutionary assumptions that underlie the master engineer analogy (MEA). By highlighting the constraints on ordinary unassisted evolution, we show how intentional genetic (...) modification can overcome many of the natural impediments to the human good. Our contention is that genetic engineering offers a solution that is more eff icient, reliable, versatile, and morally palatable than the lumbering juggernaut of Darwinian evolution. In Part III, we evaluate a recent attempt to ground precautionary enhancement heuristics in adaptive etiology. Our problem with this approach is two-fold: first, it is based on the same "strong adaptationist" interpretation of evolution that motivates the flawed MEA, and second, the etiological concept of function on which it relies provides indirect and potentially misleading information about the likely consequences of genetic intervention. We offer instead enhancement criteria based on causal relationships in ontogeny. We conclude that rather than grounding a presumption against deliberate genetic modification, the causal structure of the living world gives us good moral reason to pursue it. (shrink)

Although molecular biology has meant different things at different times, the term is often associated with a tendency to view cellular causation as conforming to simple linear schemas in which macro-scale effects are specified by micro-scale structures. The early achievements of molecular biologists were important for the formation of such an outlook, one to which the discovery of recombinant DNA techniques, and a number of other findings, gave new life even after the complexity of genotype–phenotype
relations had become apparent. Against this (...) background we outline how a range of scientific developments and conceptual considerations can be regarded as enabling and perhaps necessitating contemporary systems approaches. We suggest that philosophical ideas have a valuable part to play in making sense of complex scientific and disciplinary issues. (shrink)

Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decision makers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. This book addresses common law reasoning when prior judicial decisions determine the law, and interpretation of texts. In both areas, the popular view that legal decision makers practise special forms of reasoning is false.

In this article I defend what Mark Greenberg has labeled the standard picture of law against the attack on it by Greenberg and Scott Hershovitz. I point out that law on the standard picture’s conception of it has moral virtues that Greenberg's own moral impact theory and Hershovitz’s similar theory lack. Moreover, it avoids a vicious circularity that bedevils Greenberg’s theory.

The concept of disease remains hotly contested. In light of problems with existing accounts, some theorists argue that the disease concept ought to be eliminated. We answer this skeptical challenge by reframing the discussion in terms of the role that the disease concept plays in the complex network of health-care institutions in which it is deployed. We argue that while prevailing accounts do not suffer from the particular defects that critics have identified, they do suffer from other deficits, and this (...) leads us to propose a new account that satisfies the desiderata for a concept of disease in human medicine. (shrink)

In his Essays on the Intellectual Powers of Man, Thomas Reid offers a barrage of objections to the view, held by David Hume, that conceivability implies possibility. In this paper, I present Reid's first two objections to the ‘maxim of conceivability’ and defend Hume from them. The first objection concerns our ability to understand impossible claims, while the second concerns thoughts about impossible claims (such as, for instance, the thought that they are impossible). Reid's objections have special force against Hume (...) because of his commitment to analyse all operations of the understanding in terms of conception. I argue that these objections fail, on the grounds that they presuppose substantive views about language which we are not warranted in attributing to Hume. Ultimately, Reid's objections help us draw out a set of intertwined issues about the language-mind relationship in Hume. (shrink)

In this paper I argue that punishment should be proportional to desert; that desert turns solely on culpability and not on results: that culpability is a function of what the actor perceives are the risks of his act to others’ interests and the reasons he perceives that might justify, excuse, or aggravate taking those risks; that because culpability is a complex function, ordinally ranking acts in terms of culpability is quite difficult; that converting the ordinal ranking into cardinal measures of (...) deserved punishment must perforce be controversial; and that deserved punishment, which is deserved suffering, must somehow deal with the fact that the actor may have already suffered undeservedly. (shrink)

Although discussions of John Rawls’ A Theory of Justice generally refer to Rawls’ two principles of justice, and although Rawls himself labels his principles “the two principles of justice”, Rawls actually sets forth three distinct principles in the following lexical order: the liberty principle, the fair equality of opportunity principle, and the difference principle. Rawls argues at some length for the priority of the liberty principle over the other two. On the other hand, Rawls offers hardly any argument at all (...) for the priority of the fair equality of opportunity principle over the difference principle. In this article I will argue that making the fair equality of opportunity principle separate from and lexically prior to the difference principle is both intuitively unattractive and inconsistent with Rawls’ method of deriving principles of justice from the choices of rational contractors in the original position. (shrink)

This is the second volume in a sub-series of specially commissioned collaborative volumes on key topics at the heart of contemporary philosophy of law that will be appearing regularly within Cambridge Studies in Philosophy and Law. A distinguished international team of legal theorists examine the issue of constitutionalism and pose such foundational questions as: why have a constitution? How do we know what the constitution of a country really is? How should a constitution be interpreted? Why should one generation feel (...) bound by the constitution of an earlier one? The volume will be of particular importance to those in philosophy, law, political science and international relations interested in what kinds of constitutions should be adopted in countries without them, and involved in debates about constitutional interpretation. (shrink)

[This paper was presented at the APA Eastern Division Conference in New York City, January 2024] -/- Can one reasonably doubt that one is voluntarily making a commitment, even when one is doing so? Given that one voluntarily makes a commitment if and only if one (personally) knows that one is doing so, the answer appears to be “No.” After all, knowing implies justifiably believing, and it seems impossible that one could (synchronically and from a single personal perspective) reasonably doubt (...) what one justifiably believes. Indeed, assuming that one reasonably doubts that P only if one has sufficient evidence to believe that not-P, traditional epistemologists may hold that such “epistemic ambivalence” entails one’s believing a contradiction, while some Bayesians should hold that it entails violating “probabilism” (the norm that credences must conform to the axioms of probability). However, I argue that in at least some cases of romantic commitment-making, such ambivalence may not only be epistemically permissible, but even required, and perhaps best dealt with pragmatically. (shrink)

In this short paper, I shall answer the title’s question first in the context of criminal law and then in the context of tort law. In that latter section, I shall also mention in passing contractual and other forms of civil liability that are strict, although they will not be my principal focus. My conclusions will be that strict liability is never proper as the basis for retributive punishment; that it is a very crude device for achieving deterrence through nonretributive (...) penalties; and that with respect to tort liability, it is best justified as a means of defining insurance categories. (shrink)

The United States has recently made significant and positive civil rights gains for LGB people, including expanded recognition of marriages between people of the same sex. Among the central tropes that have emerged in the struggle for the rights of LGB people are that they are “born that way,” that sexual orientations cannot change, and that one's sexual orientation is not affected by choice. Writer Andrew Sullivan put it this way: “[H]omosexuality is an essentially involuntary condition that can neither be (...) denied nor permanently repressed.… [S]o long as homosexual adults as citizens insist on the involuntary nature of their condition, it becomes politically impossible to deny or ignore the fact of homosexuality.… [The strategy for obtaining LGB rights is to] seek full public equality for those who, through no fault of their own, happen to be homosexual.”This idea of linking LGB rights to empirical claims about sexual orientations has become so central that casting doubt on these claims is, in many circles, tantamount to opposing LGB rights. Nonetheless, claims about innateness, immutability, and lack of choice about sexual orientation should not be the primary basis for LGB rights. (shrink)

Daniel Taylor and Dawn Goodwin present a case study of the Morecambe Bay Inquiry (MBI), which examined the high rate of maternal and neonatal deaths over a period of 9 years (2004–2013), within the small maternity unit of Furness General Hospital (FGH), one of the three hospitals comprising Morecambe Bay Hospitals Trust.1 They examine this through a conceptual lens, and provide a solution involving changes in medical education. This commentary explores both these elements. First, they use the lens of ‘Normalisation (...) of Deviance’ (NoD) to explain organisational failure. However, other available lenses such as ‘Sociology of Disasters’, ‘Organisational Silence’ and ‘Comfort-seeking Behaviour’ may point to different problems and solutions. More justification for their choice of the lens of NoD would have been useful. Similarly, more justification for their focus on a cluster of five ‘serious untoward incidents’ (SUIs) occurring in 2008 would also have been useful. They suggest that before 2008, the perinatal mortality rate was low, patient satisfaction was high and recent level 2 accreditation of maternity services by the Clinical Negligence Scheme for Trusts all suggested standards of care within the obstetric department were adequate. This stream of positive signals is likely to have contributed towards a genuine belief of safe operation within the maternity unit by staff and board members. However, as they acknowledge, the first problem can be seen in 2004. According to the MBI,2 there were SUIs in the years before and after 2008, but this …. (shrink)

Self-defense and other-defense are uses of force against another person—an attacker—for the purpose of preventing the attacker from harming a victim. When such force is exercised by the victim, it is self-defense; when by a third party, other-defense. Self-defense and other-defense are preemptive uses of force because they occur before the acts they are intended to prevent occur. Thus, they operate in the realm of epistemic uncertainty. Victims and third parties can never be certain the feared acts will occur. They (...) can never be certain of what their consequences will be if the acts occur. They can never be certain what alternative exists to self-defense and other-defense for averting the feared harms. And they can never be certain what the status of the presumed attacker is—that is, whether the presumed attacker is culpable or nonculpable. Such epistemic points are addressed in this chapter. (shrink)

The hallmark of modern liberalism is its embrace of the Millian harm principle and its antipathy to legal moralism. In this article I consider whether aesthetic regulations can be justified under the harm principle as that principle has been elaborated by Joel Feinberg. I conclude that aesthetic and other regulations that most liberals regard as unproblematic are actually instances of legal moralism.

Existing and proposed provisions of the Model Penal Code refer to believing something “recklessly.” In this chapter, we examine the notion of reckless beliefs and determine what that notion cannot be and what it might be.

In the UK and USA ‘Hate crime’ has become a topic of public controversy and social mobilization around issues of violence and harassment. This has largely but not exclusively addressed racism, homophobia and gender based violence. This article has three objectives. First, to situate hate crime legislation within a broad theory of modernity;secondly to examine the politics of its emergence as a public issue; thirdly to use data from the authors' recent research in Greater Manchester to illuminate the complexity of (...) the concept of ‘hate crime’. The centrality of ‘hate crime’ to current debates derives from the importance of rights-based regulation of complex societies and the juridical management of emotional life. Hatred and violence have become problematic behaviour thrown into relief by a long term civilizing process. Hate crimes have thus acquired powerful rhetorical focus for mobilization of victim and identity politics. With reference to racist violence in Oldham and elsewhere in Greater Manchester, we argue that in its application and construction, however, ‘hate crime’ is a complex phenomenon that might dramatize rather than regulate the problems it seeks to address. (shrink)

Discusses the reasons for believing in the existence of God and ways of making God part of one's life.

Subtitled: Illinois as seen by the Farm Security Administration photographers, 1936-1943. 162 photos reflect the wide diversity of what has been called the nation's most representative state. Includes the work of Dorthea Lange, Esther Bubley, Edwin Rosskam and others. Cloth edition, $29.95. Annotation copyrighted by Book News, Inc., Portland, OR.

The psychology of ownership is rooted in self-ownership. The human brain has an evolved interoceptive sense of owning the body that supports self-ownership and the ownership of external things as extensions of the self-owning self. In this way, evolutionary neuroscience supports a Lockean liberal conception of equal natural rights rooted in natural self-ownership.

In this chapter I analyze two fundamental hallmarks of liberalism—freedom of religion and freedom of expression. No society can rightly be called “liberal” if it does not endorse those freedoms. Yet, what are those freedoms, and are they realizable? I conclude that neither freedom can be given a principled elaboration. The approach to them must be pragmatic and reflect a contingent modus vivendi rather than an accommodation demanded by principle.

This chapter contains sections titled: The Scope of Precedential Constraint The Strength of Precedential Constraint References.

In a previous article, I defended the standard picture of law (or SP), so labeled by its foremost critic, Mark Greenberg. In that article, I addressed Greenberg's root-and-branch critique of the SP and, to a much lesser extent, a related critique by Scott Hershovitz. But the Greenberg and Hershovitz frontal attacks on the SP are not its only threats. Some theorists, while not attacking the SP directly, give accounts of law that the SP cannot accommodate. Those theorists will be challenged (...) here, because if they are correct, the SP is not a tenable account of law. (shrink)

In theory, a competent patient may refuse any and all treatments, even those that sustain life. The problem with this theory, confidently and frequently asserted, is that the circumstances of real patients may so confound us with their complexity as to shake our confident assumptions to their core.For instance, it is not the case that one may always and easily know which patients are competent. Indeed, evaluation of decision-making capacity is notoriously difficult. Not only may reasonable and experienced evaluators, say (...) a judge and a psychiatrist, disagree, but also a person's capacity may change from hour to hour and may extend to some decisions yet not to others. And yet it is on this subtle art of capacity evaluation that life and death decisions often turn, especially when patients decline life-sustaining treatment.An evaluation of capacity may consider the impact of serious medical or psychiatric illness, as well as the patient's life circumstances. (shrink)

This title presents not two, but three questions. The third question, the one that lies behind and is obscured by the two more obvious ones, concerns the nature of American philosophy. What qualifies as “American” philosophy? Is it, as some have suggested, philosophy as it is practiced in any of the Americas – North, Central, or South? Or is it perhaps philosophy as it is pursued by practitioners living in North America, or even in a more restricted sense, by practitioners (...) living in the Unite... (shrink)

This handbook consists of essays on contemporary issues in criminal law and their theoretical underpinnings. Some of the essays deal with the relationship between morality and criminalization. Others deal with criminalization in the context of specific crimes such as fraud, blackmail, and revenge pornography. The contributors also address questions of responsible agency such as the effects of addiction or insanity, and some deal with punishment, its mode and severity, and the justness of the state’s imposition of it. These chapters are (...) authored by some of the most distinguished scholars in the fields of applied ethics, criminal law, and jurisprudence. (shrink)

A constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by (...) whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions. (shrink)

At first, despairing of justifying the Court's new-found rights as the products of interpreting the Constitution, many of the Court's supporters bit the bullet and proclaimed the legitimacy of "noninterpretivism." As an approach to justifying purportedly constitutional decisions, however, noninterpretivism's oxymoronic quality made it an easy target for the Court's detractors, who asserted that noninterpretivism was nothing more than rule by a federal judiciary unrestrained by any positive law.

Gideon Yaffe's Attempts is a masterfully executed philosophical investigation of what it means to attempt something. Yaffe is obviously motivated by the fact that the criminal law punishes attempted crimes, and he believes that his philosophical analysis can shed light on and be used to criticize the law's understanding of those crimes. I focus exclusively on the relevance of Yaffe's philosophical analysis of attempts to the criminal law of attempts. I assume that Yaffe's account of what it is to attempt (...) something is basically correct and ask whether the criminal law uses in the way Yaffe uses it, and whether it should use Yaffe's conception of an attempt. I conclude that a lot of criminal-law doctrine, including, very importantly, the influential Model Penal Code's treatment of attempts, is inconsistent with Yaffe's conception of attempts. Because Yaffe is principally interested in what it means to attempt something rather than in the criminal law's treatment of attempts, I believe he misanalyzes the problem of factual versus legal impossibility. And Yaffe's chapter on inherently impossible attempts concludes by positing a quite paradoxical type of criminal attempt, one that is indeed an attempt but for which the defendant should not be convicted because the evidence of its commission is insufficient. I find Yaffe's argument to this effect opaque and therefore unconvincing. (shrink)