: Philosophers in the Indian and Western traditions have developed and defended a range of sophisticated accounts of self-awareness. Here, four of these accounts are examined, and the arguments for them are assessed. Theories of self-awareness developed in the two traditions under consideration fall into two broad categories: reflectionist or other-illumination theories and reflexivist or self-illumination theories. Having assessed the main arguments for these theories, it is argued here that while neither reflectionist nor reflexivist theories are adequate as traditionally formulated (...) and defended, the approaches examined here give important insights for the development of amore adequate contemporary account of self-awareness. (shrink)

I will here analyse the five factors of action given in the Bhagavad Gtā, paying specific attention to the implications of this account for the Gtā's moral and soteriological psychologies. I argue that the Gtā's account of action constitutes a decentring of agency which paves the way for liberation. Further, while the ethics and moral psychology of the Gtā are often seen as similar to Kant's, I will argue that the decentring of agency in the Gtā places the liberated person (...) beyond autonomy, and so also beyond virtue in Kant's sense. (shrink)

In this dissertation I critically engage and draw insights from classical Indian, Anglo-American, phenomenological, and cognitive scientific approaches to the topic of self-awareness. In particular, I argue that in both the Western and the Indian tradition a common and influential view of self-awareness---that self-awareness is the product of an act of introspection in which consciousness takes itself as an object---distorts our understanding of both self-awareness and consciousness as such. In contrast, I argue for the existence and primacy of pre-reflective self-awareness (...) ---a form of self-awareness that is an effect of both our embodiment and the basic structure of consciousness. In arguing for this account of self-awareness, I take up, among other things, the following: the semantics of the first-person and of indexicals in general, qualia and phenomenal consciousness; the possibility of non-conceptual self-awareness, the nature of introspection; the importance of embodiment and agency for our understanding of self-awareness, and the consequences of my account for the metaphysics of personal identity. (shrink)

When experienced in-person, engagement with art has been associated—in a growing body of evidence—with positive outcomes in wellbeing and mental health. This represents an exciting new field for psychology, curation, and health interventions, suggesting a widely-accessible, cost-effective, and non-pharmaceutical means of regulating factors such as mood or anxiety. However, can similar impacts be found with online presentations? If so, this would open up positive outcomes to an even-wider population—a trend accelerating due to the current COVID-19 pandemic. Despite its promise, this (...) question, and the underlying mechanisms of art interventions and impacts, has largely not been explored. Participants were asked to engage with one of two online exhibitions from Google Arts and Culture. With just 1–2 min exposure, both improved negative mood, state-anxiety, loneliness, and wellbeing. Stepdown analysis suggested the changes can be explained primarily via negative mood, while improvements in mood correlated with aesthetic appraisals and cognitive-emotional experience of the exhibition. However, no difference was found between exhibitions. We discuss the findings in terms of applications and targets for future research. (shrink)

This chapter offers a complete account of Aristotle’s underexplored treatment of the virtue of wittiness (eutrapelia) in Nicomachean Ethics IV.8. It addresses the following questions: (1) What, according to Aristotle, is this virtue and what is its structure? (2) How do Aristotle’s moral psychological views inform Aristotle’s account, and how might Aristotle’s discussions of other, more familiar virtues, enable us to understand wittiness better? In particular, what passions does the virtue of wittiness concern, and how might the virtue (and its (...) attendant vices) be related to the virtue of temperance (and its attendant vices)? (3) How does wittiness, as an ethical virtue, benefit its possessor? (4) How can Aristotle resolve some key tensions that his introducing a virtue of wittiness apparently generates for his ethics? In addition to exploring these questions, this chapter challenges some commonly accepted accounts of Aristotle’s views on the nature of the laughable. (shrink)

Control measures, such as “lockdowns”, have been widely used to suppress the COVID-19 pandemic. Under some conditions, they prevent illness and save lives. But they also exact an economic toll. How should we balance the impact of such policies on individual lives and livelihoods (and other dimensions of concern) to determine which is best? A widely used method of policy evaluation, benefit–cost analysis (BCA), answers these questions by converting all the effects of a policy into monetary equivalents and then summing (...) them up. A different method, social welfare analysis, proceeds by determining the effects of a policy on individual wellbeing and then applying an aggregation formula to them to evaluate the overall effects of a policy. In this chapter, we survey these methods and argue that social welfare analysis has important advantages. One crucial advantage is that it enables ethical considerations relating to the impact of policies on individual wellbeing and its distribution to be incorporated into policy assessments in a transparent way. We illustrate this with a simple numerical model for evaluating pandemic policies that vary in terms of the stringency of the controls that they impose on individual behaviour, showing how the evaluation depends on the ethical significance accorded to their impact on the wellbeing of different age and income groups. (shrink)

This book explores how contemporary educational research and curriculum occlude the vital and enduring relationship between education and well-being. Beginning with the consequences of the reductive tendencies of educational research and moving through the consequences of the technical and instrumental tendencies of curriculum, this book challenges how contemporary education as a whole reduces human beings to “things” and funnels them according to predetermined knowledge forms representative of the dominant socioeconomic ideology. Through a philosophical exploration of original conceptions of education and (...) well-being, this book attempts to recover an understanding of education that embodies how we learn to uncover and relate to our own possibilities for a more meaningful life which is a life of well-being. (shrink)

The Expanse is propelled into action when James Holden does what is morally right. In our everyday world, the prospect of spending time in jail short circuits the need for moral reflection. Not so in the anarchic world of The Expanse. This chapter uses just war theory to explore the moral obligations that exist when the political order breaks down. Philosophy helps us develop a moral language for making choices and evaluating actions. Michael Walzer accounts for the compassionate behavior by (...) arguing that soldiers, through reflection, come to recognize the basic moral obligations that humans have toward one another. He discerns five philosophical principles that govern our judgments about “how to fight”—all of which suggest that, deep down, we don't really believe the old canard that “all's fair in love and war.”. (shrink)

Natural law political theory grounds the authority of law in the law's capacity to advance the common good, but questions about what this common good is and how it relates to political life remain highly contested. The influential new natural law theory of John Finnis reduces political association to the operation of government and makes it a merely instrumental good that serves to secure and facilitate individual and social goods. Political community, on this account, does not realize any further human (...) good not already experienced in smaller human communities. In A Vindication of Politics, Matthew Wright challenges this account and argues that political community itself realizes an aspect of social life intrinsic to full human flourishing. Wright develops an account of the political common good that is both inclusivist and distinctive--that is to say, it includes within its orbit the diverse goods of individuals and other associations, and it recognizes the good of the political association itself. Drawing on the work of Edmund Burke and the example of Abraham Lincoln, Wright argues that political community has its own distinctive goods, including civic friendship and political culture, embodied in its history, institutions, practices, and ideals. Individuals do not have to run for office to be engaged in the political common good. Participation in the vibrant cultural life of one's political community is an intrinsic part of the common good. (shrink)

Prioritarianism is a moral view that ranks outcomes according to the sum of a strictly increasing and strictly concave transformation of individual well-being. Prioritarianism is ‘welfarist’ (namel...

Prioritarianism is an ethical theory that gives extra weight to the well-being of the worse off. In contrast, dominant policy-evaluation methodologies, such as benefit-cost analysis, cost-effectiveness analysis, and utilitarianism, ignore or downplay issues of fair distribution. Based on a research group founded by the editors, this important book is the first to show how prioritarianism can be used to assess governmental policies and evaluate societal conditions. This book uses prioritarianism as a methodology to evaluate governmental policy across a variety of (...) policy domains: taxation, health policy, risk regulation, education, climate policy, and the COVID-19 pandemic. It is also the first to demonstrate how prioritarianism improves on GDP as an indicator of a society's progress over time. Edited by two senior figures in the field with contributions from some of the world's leading economists, this volume bridges the gap from the theory of prioritarianism to its practical application. (shrink)

This Article provides a comprehensive, critical overview of proposals to use happiness surveys for steering public policy. Happiness or “subjective well-being” surveys ask individuals to rate their present happiness, life-satisfaction, affective state, etc. A massive literature now engages in such surveys or correlates survey responses with individual attributes. And, increasingly, scholars argue for the policy relevance of happiness data: in particular, as a basis for calculating aggregates such as “gross national happiness,” or for calculating monetary equivalents for non-market goods based (...) on coefficients in a happiness equation. But is individual well-being equivalent to happiness? The happiness literature tends to blur or conflate important concepts: well-being, subjective well-being, happiness, utility, satisfaction. A preference-realization account of well-being denies the equivalence of happiness and welfare, since someone can have preferences for non-mental attributes, such as health, autonomy, goal-fulfillment, knowledge or the quality of her relationships. It is critical, therefore, to differentiate two potential policy roles for happiness surveys. First, the survey response may provide prima facie evidence of the respondent’s preference-utility: the extent to which her preferences are realized. Second, it may indicate her experience-utility: the quality of her mental states. The Article clarifies these two, very different, ideas. It then criticizes, in turn, the preference-utility and the experience-utility defenses of the policy relevance of happiness surveys. Enthusiasm about happiness is premature. (shrink)

:Preference-aggregation problems arise in various contexts. One such context, little explored by social choice theorists, is metaethical. ‘Ideal-advisor’ accounts, which have played a major role in metaethics, propose that moral facts are constituted by the idealized preferences of a community of advisors. Such accounts give rise to a preference-aggregation problem: namely, aggregating the advisors’ moral preferences. Do we have reason to believe that the advisors, albeit idealized, can still diverge in their rankings of a given set of alternatives? If so, (...) what are the moral facts when the advisors do diverge? These questions are investigated here using the tools of Arrovian social choice theory. (shrink)

If you do not know the correct answer, guess.Design addresses need, of various types. A designer “designs” to address, to propose a possibility, or to meet a need. A great variety of things are designed: shoes, posters, watches, houses, televisions, keyboards, movies, washing machines, toasters, belts, and cars, to mention only some.A designer, be he or she an architect, interior designer, graphic designer, product designer, or industrial designer, nearly always provides drawings, models, written descriptions, and overarching ideas in response to (...) a need, articulated, stated, by someone. The need might be one that the designer recognizes on his or her own and decides to address, or the need might come to the... (shrink)

Cost-benefit analysis is a widely used governmental evaluation tool, though academics remain skeptical. This volume gathers prominent contributors from law, economics, and philosophy for discussion of cost-benefit analysis, specifically its moral foundations, applications and limitations. This new scholarly debate includes not only economists, but also contributors from philosophy, cognitive psychology, legal studies, and public policy who can further illuminate the justification and moral implications of this method and specify alternative measures. These articles originally appeared in the Journal of Legal Studies. (...) Contributors: - Matthew D. Adler - Gary S. Becker - John Broome - Robert H. Frank - Robert W. Hahn - Lewis A. Kornhauser - Martha C. Nussbaum - Eric A. Posner - Richard A. Posner - Henry S. Richardson - Amartya Sen - Cass R. Sunstein - W. Kip Viscusi. (shrink)

The ‘Major Transitions in Evolution’ framework has emerged as the dominant paradigm for understanding the origins of life's hierarchical organization, but it has been criticized on the grounds that it lacks theoretical unity, that is, that the events included in the framework do not constitute a coherent category. I agree with this criticism, and I argue that the best response is to modify the framework so that the events it includes do comprise a coherent category, one whose members share fundamental (...) similarities. Specifically, I recommend defining major transitions as all those, and only those, events and processes that result in the emergence of a new population of evolutionary individuals. Two sorts of change will be required to achieve this. First, events and processes that do not meet this criterion, such as the origins of the genetic code and of human language, should be excluded. Second, events and processes that do meet the criterion, but which have generally been neglected, should be included. These changes would have the dual benefits of making MTEs a philosophically coherent category and of increasing the sample size on which we may infer trends and general principles that may apply to all MTEs. (shrink)

Traditionally, Aristotle is held to believe that philosophical contemplation is valuable for its own sake, but ultimately useless. In this volume, Matthew D. Walker offers a fresh, systematic account of Aristotle's views on contemplation's place in the human good. The book situates Aristotle's views against the background of his wider philosophy, and examines the complete range of available textual evidence. On this basis, Walker argues that contemplation also benefits humans as perishable living organisms by actively guiding human life activity, (...) including human self-maintenance. Aristotle's views on contemplation's place in the human good thus cohere with his broader thinking about how living organisms live well. A novel exploration of Aristotle's views on theory and practice, this volume will interest scholars and students of both ancient Greek ethics and natural philosophy. It will also appeal to those working in other disciplines including classics, ethics, and political theory. (shrink)

By scholarly consensus, extant fragments from, and testimony about, Aristotle’s lost dialogue Eudemus provide strong evidence for thinking that Aristotle at some point defended the human soul’s unqualified immortality (either in whole or in part). I reject this consensus and develop an alternative, deflationary, speculative, but textually supported proposal to explain why Aristotle might have written a dialogue featuring arguments for the soul’s unqualified immortality. Instead of defending unqualified immortality as a doctrine, I argue, the Eudemus was most likely offering (...) a dramatically engaging propaedeutic to the sort of philosophical inquiry about the soul and its prospects that Aristotle pursues more scientifically in the De anima and Parva naturalia. (shrink)

The COVID-19 crisis has forced a difficult trade-off between limiting the health impacts of the virus and maintaining economic activity. Welfare economics offers tools to conceptualize this trade-off so that policy-makers and the public can see clearly what is at stake. We review four such tools: the Value of Statistical Life (VSL); the Value of Statistical Life Years (VSLYs); Quality-Adjusted Life-Years (QALYs); and social welfare analysis, and argue that the latter are superior. We also discuss how to choose policies that (...) differentially affect people’s wellbeing. We argue in favor of evaluating policies using a Social Welfare Function (SWF), which evaluates the possible distributions of wellbeing across individuals that may result from a policy. Such a function, we argue, should regard increases in the wellbeing of the less well-off as especially valuable. We then use a model to illustrate how such a framework can help evaluate two broad policy types in response to the pandemic: eradication of the virus, and more lenient control of the spread. Our model reveals how such evaluations depend on many empirical facts but also on key value judgments about the relative importance of health and on the extent of special concern for the worse off. The purpose of this brief is not to make precise recommendations, as conditions vary widely across countries and over time, but to provide a methodology. (shrink)

Does individual desert matter for distributive justice? Is it relevant, for purposes of justice, that the pattern of distribution of justice’s “currency” (be it well-being, resources, preference-satisfaction, capabilities, or something else) is aligned in one or another way with the pattern of individual desert? -/- This paper examines the nexus between desert and distributive justice through the lens of individual claims. The concept of claims (specifically “claims across outcomes”) is a fruitful way to flesh out the content of distributive justice (...) so as to be grounded in the separateness of persons. A claim is a relation between a person and a pair of outcomes. If someone is better off in one outcome than a second, she has a claim in favor of the first. If she is equally well off in the two outcomes, she has a null claim between the two. In turn, whether one outcome is more just than a second depends upon the pattern of claims between them. -/- In prior work, I have elaborated the concept of claims across outcomes, and have used it to provide a unified defense of the Pareto and Pigou-Dalton axioms. Adding some further, plausible, axioms, we arrive at prioritarianism. -/- Here, I consider the possibility of desert-modulated claims—whereby the strength of an individual’s claim between two outcomes is determined not only by her well-being levels in the two outcomes, and her well-being difference between them, but also by her desert. This generalization of the notion of claims suggests a new axiom of justice: Priority for the More Deserving, requiring that, as between two individuals at the same well-being level, a given increment in well-being be allocated to the more deserving one. -/- If individual desert is intrapersonally fixed, this new axiom, together with a desert-modulated version of the Pigou-Dalton principle, and the Pareto axioms, yields a desert-modulated prioritarian account of distributive justice. Trouble arises, however, if an individual’s desert level can be different in different outcomes. In this case of intrapersonally variable desert, Priority for the More Deserving can conflict with the Pareto axioms (both Pareto indifference and strong Pareto). -/- This conflict, I believe, is sufficient reason to abandon the proposal to make claim strength a function of individual desert on top of well-being levels and differences. If distributive justice is truly sensitive to each individual’s separate perspective—if the justice ranking of outcomes is built up from the totality of individual rankings—we should embrace the Pareto axioms as axioms of justice and reject Priority for the More Deserving. In short: desert-modulated prioritarianism is a nonstarter. Rawls was right to sever distributive justice from desert. (shrink)

A large literature documents the correlates and causes of subjective well-being, or happiness. But few studies have investigated whether people choose happiness. Is happiness all that people want from life, or are they willing to sacrifice it for other attributes, such as income and health? Tackling this question has largely been the preserve of philosophers. In this article, we find out just how much happiness matters to ordinary citizens. Our sample consists of nearly 13,000 members of the UK and US (...) general populations. We ask them to choose between, and make judgments over, lives that are high in different types of happiness and low in income, physical health, family, career success, or education. We find that people by and large choose the life that is highest in happiness but health is by far the most important other concern, with considerable numbers of people choosing to be healthy rather than happy. We discuss some possible reasons for this preference. (shrink)

Sunstein aims to provide a nonsectarian account of moral heuristics, yet the account rests on a controversial meta-ethical view. Further, moral theorists who reject act consequentialism may deny that Sunstein's examples involve moral mistakes. But so what? Within a theory that counts consequences as a morally weighty feature of actions, the moral judgments that Sunstein points to are indeed mistaken, and the fact that governmental action at odds with these judgments will be controversial doesn't bar such action.

Aristotle’s views on the choiceworthiness of friends might seem both internally inconsistent and objectionably instrumentalizing. On the one hand, Aristotle maintains that perfect friends or virtue friends are choiceworthy and lovable for their own sake, and not merely for the sake of further ends. On the other hand, in Nicomachean Ethics IX.9, Aristotle appears somehow to account for the choiceworthiness of such friends by reference to their utility as sources of a virtuous agent’s robust self-awareness. I examine Aristotle’s views on (...) the utility and choiceworthiness of friends, and offer a novel reading of Nicomachean Ethics IX.9. On this reading, Aristotle accepts a version of instrumental conditionalism about final value, that is, the thesis that goods (including friends) can be choiceworthy for their own sake (i.e., possess final or end value) at least partly on account of their instrumental properties. In articulating what sort of instrumental conditionalism it is reasonable to attribute to Aristotle, I argue that Aristotle appeals to the utility of perfect friends as part of a broadly material causal account of why such friends are choiceworthy for their own sake. On this reading, perfect friends are not choiceworthy for the sake of their utility in eliciting self-awareness; rather, their choiceworthiness for their own sake is (at least partly) realized in, or constituted by, their conduciveness to the virtuous agent’s self-awareness. This reading, I argue, frees Aristotle from the charge of inconsistency: Aristotle can appeal to the conduciveness of perfect friends to the virtuous agent’s self-awareness as a way of explaining why such friends are choiceworthy for their own sake. (shrink)

Complex life cycles are common in the eukaryotic world, and they complicate the question of how to define individuality. Using a bottom-up, gene-centric approach, I consider the concept of fitness in the context of complex life cycles. I analyze the fitness effects of an allele on different biological units within a complex life history and how these effects drive evolutionary change within populations. Based on these effects, I attempt to construct a concept of fitness that accurately predicts evolutionary change in (...) the context of complex life cycles. (shrink)

Decision theory seems to offer a very attractive normative framework for individual and social choice under uncertainty. The decisionmaker should think of her choice situation, at any given moment, in terms of a set of possible outcomes, that is, specifications of the possible consequences of choice, described in light of the decisionmaker's goals; a set of possible actions; and a "state set" consisting of possible prior "states of the world." It is this framework for choice which provides the foundation for (...) expected utility theory, as demonstrated in the work of Leonard Savage. Problems arise, however, when the decisionmaker is boundedly rational: when the mental process of thinking about outcomes, actions, and states is itself expensive and time consuming. In the case of the unboundedly rational decisionmaker, decision theory enjoins her to employ maximally specific outcomes; to consider all possible actions; and to use a set of mutually exclusive and collective exhaustive states, each of which is sufficiently finely specified so that each action, together with each state, yields one and only one maximally specific outcome. In the case of the boundedly rational decisionmaker, this procedure is either infeasible or, if feasible, irrational. This paper presents the problem of bounded rationality. It surveys possible solutions, none of which are found to be attractive. And it concludes by discussing the difficulties that the problem of bounded rationality poses for the welfarist program for legal scholarship presented by Louis Kaplow and Steven Shavell in their book, Fairness versus Welfare. (shrink)

How should we make interpersonal comparisons of well-being levels and differences? One branch of welfare economics eschews such comparisons, which are seen as impossible or unknowable; normative evaluation is based upon criteria such as Pareto or Kaldor-Hicks efficiency that require no interpersonal comparability. A different branch of welfare economics, for example optimal tax theory, uses “social welfare functions” to compare social states and governmental policies. Interpersonally comparable utility numbers provide the input for SWFs. But this scholarly tradition has never adequately (...) explained the basis for these numbers. John Harsanyi, in his work on so-called “extended preferences,” advanced a fruitful idea. While an ordinary preference is a ranking of outcomes, an “extended preference” is a ranking of individual histories. To say that individual k has an extended preference for history over means something like the following: k prefers to have the attributes of individual i in outcome x, as opposed to having the attributes of individual j in outcome y. Harsanyi’s proposal was to endow individuals with “extended preferences”; to represent such preferences using “extended” utility functions; and to employ such functions, in turn, as the basis for interpersonal comparisons of well-being levels and differences. Harsanyi’s analysis, however, had various gaps and flaws. In this Article, I both diagnose these difficulties, and show how they can be remedied - yielding a viable account of interpersonal comparisons, one sufficient for the needs of the SWF approach. (shrink)

The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just (...) Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist’s official- or judge-centered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position “deep popular constitutionalism.” Indeed, it turns out that Dworkin’s account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists -- is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group’s norms, yet socially inappropriate relative to another’s. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a “shared cooperative activity” (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that “law” functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory – in particular, for popular constitutionalism. (shrink)

Can constitutional rights be both personal and rule-dependent? Can it be true of constitutional adjudication (1) that a constitutional litigant must assert rights, and yet also (2) that the viability of a constitutional challenge depends (or sometimes depends) on whether a particular type of legal rule, for example, a discriminatory or poorly tailored rule, is in force?

Prior to recent decades, the United States Supreme Court often invoked the political question doctrine to avoid deciding controversial questions of individual rights. 1 By the 1970s and 1980s, standing limits traced to Article IIIs arsenal of threshold decision making, 3 in the last decade the Court has turned with increasing frequency to the distinction between facial and as-applied challenges to perform the gatekeeping function. However, although there is a considerable body of scholarship concerning the conventional justiciability doctrines, scholars have (...) only recently begun to address the range of questions implicated by the Courtand they have generally focused on narrow doctrinal questions about the proper treatment of discrete rights such as abortion, free exercise of religion, and freedom of speech. The papers in this issue of LegalTheory and the next view these issues in a broader jurisprudential context. (shrink)

This chapter contains sections titled: What I s Regulation? How Should We Morally Evaluate Regulation? Welfarism; the Pareto Principle; Kaldor‐Hicks Efficiency versus Social Welfare Functions The Two Fundamental Theorems of Welfare Economics and the Market Failure Framework Externalities Public Goods and Monopoly Power The Coase Theorem Information and Paternalism as Rationales for Regulation Regulatory Forms and Regulatory Choice Criteria References.

This chapter is an essay in a volume that examines constitutional law in the United States through the lens of H.L.A. Hart's "rule of recognition" model of a legal system. My chapter focuses on a feature of constitutional practice that has been rarely examined: how jurists and scholars argue about interpretive methods. Although a vast body of scholarship provides arguments for or against various interpretive methods -- such as textualism, originalism, "living constitutionalism," structure-and-relationship reasoning, representation reinforcement, minimalism, and so forth (...) -- very little scholarship shifts to the meta-level and asks: What are the considerations that jurists and scholars bring to bear in arguing that one or another interpretive method is legally favored? And can we "make sense" of this body of argument? Is there a model of legal discourse that both accurately describes how U.S. jurists and scholars actually argue about interpretive methods, and that vindicates this discourse (in the sense of seeing these actors as making valid arguments)? I find that Hart's rule-of-recognition model fails to describe or vindicate how U.S. jurists and scholars argue about interpretive methods. The problem, in a nutshell, is that Hart sees legal argument as asserting or presupposing the social fact of contemporary official acceptance of a rule of recognition. By contrast, jurists and scholars typically point to social facts other than contemporary official acceptance in arguing for the legal status of an interpretive method -- for example, the fact that the method is supported by Framers' intent, or by U.S. culture and tradition, or by precedent. Further, jurists and scholars very often argue that some interpretive method is legally favored even though the method is controversial. On Hart's model, such a claim is problematic -- because, on his model, the content of the rule of recognition is not controversial, but rather a matter of consensus among officials. The upshot may just be that Hart's model is a failure. However, another possibility is to adopt an "error theory" of U.S. constitutional discourse. It may perhaps be the case that U.S. jurists and scholars often make claims for the favorable legal status of some interpretive method that are inconsistent with the best understanding of the nature of law. (shrink)