Drawing on themes important in moral and political philosophy, much of the scholarship on the constitutional law of privacy in the United States distinguishes between privacy understood as a person's control over information and privacy understood as a person's ability to make autonomous decisions. For example, Katz v. United States established the framework for analyzing whether police activity constituted a “search” subject to the Fourth Amendment's requirement that the police either obtain a warrant before conducting a search or otherwise act (...) reasonably. The defendant was a professional gambler who knew enough about police techniques to use a public telephone to make his business calls. Police agents attached a listening device to the outside of the phone booth, and sought to use the recordings against the defendant. The Supreme Court agreed with the defendant that the Fourth Amendment had been violated. Justice John Marshall Harlan's influential concurring opinion asserted that a person's privacy, in the sense of control over information, depended on two factors: “that a person have exhibited an actual expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” Fourth Amendment cases like Katz involve informational control; they define the circumstances under which the government may acquire information from or about a person without first obtaining the person's agreement. In contrast, cases like Griswold v. Connecticut, which barred the state from making it a criminal offense to use contraceptives, and Roe v. Wade, which restricted the state's power to prohibit or regulate abortions, used the language of privacy rights to protect a much broader interest in autonomous decision-making. Seeing these cases and related ones through lenseees provided by moral and political philosophy, scholars have attempted to describe what a morally sound constitutional law of privacy would be, and the broadest sense, dworkinian. That is, they seek to provide an account of privacy with two characteristics: it is broadly consistent with the relevant constitutional decisions, and it is the most morally attractive account possible that satisfies the requirement of consistency with the decisions. (shrink)

In analyzing the development of the concept of civil rights since the adoption of the Fourteenth Amendment, two historical accounts seem available. According to the first account, the concept initially encompassed a relatively limited set of rights, associated with the ability of all citizens to engage in the productive activities of the economy and avail themselves of the protection of the legal system. Then the concept gradually expanded to include what had initially been thought of as political rights, such as (...) the right to vote, and then to identify the entire set of rights to equal treatment in all domains of life outside a relatively narrowly-defined private sphere. According to the second account, the concept of civil rights was fuzzy from the outset; although political actors spoke as if they had a clear understanding of distinctions among civil, political, and social rights, close examination of their language shows that the distinctions tended to collapse under slight pressure. (shrink)

With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or detracts from democracy. Contributions from some of the seminal thinkers on the development of scholarship on proportionality extend their prior work and engage in an important dialogue on the topic. Some offer substantial critiques, others (...) defend the doctrine and offer important clarifications and extensions of their prior work. Throughout, the authors engage not only with case law from around the world but also with existing scholarly treatments of the subject. Mathematical treatments are avoided, making the book accessible to readers from both 'soft' and hard' social science backgrounds. (shrink)

This brief essay describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of law is an (...) unqualified human good, and situates the CLS critique of the rule of law within more general discussion of the rule of law by Hayek and Fuller. It concludes by applying ideology-critique to the rule of law, arguing that in whatever form it takes the rule of law contributes to a culture of justification, which may indeed be an unqualified human good. (shrink)

This article uses Ernst Fraenkel’s concept of the “dual state” as the vehicle for examining the role of “lynch law” as a mode of governance of African Americans in the United States from 1865 to 1940. It begins with a largely jurisprudential inquiry placing my interpretation of Ernst Fraenkel’s distinction between the normative state and the prerogative state in dialogue with a version of American Legal Realism, in which law consists entirely of “moves” such as permissible distinctions and analogies that (...) are treated as acceptable by relevant professional communities. Seen through that lens the distinction between the normative state and the prerogative state thins out. The arbitrariness Fraenkel associates with the prerogative state infects the normative state and the prerogative state is pervaded by norms that aren’t mere simulacra of legal norms. The two kinds of state are different in degree rather than in kind—but differences in degree can matter. Part II uses the revised distinction in a preliminary examination of lynch law in the U.S. South. Lynch law was not an example of Fraenkel’s prerogative state; the norms enforced through lynch law might have been popular versions of norms drawn from the prerogative state. And yet “lynch law” was different not only in content from the rules of law formally applicable to all people in the United States but also in the lived experience of those subject to lynch law. Lynch law might not have been arbitrary in the sense that it had no knowable normative content, but, perhaps because the norms were popular rather than legislated or formal, it was substantially vaguer than the formal law and significantly less able to guide the choices made by those subject to it. (shrink)

It has been apparent for at least a decade that liberal constitutional theory is in deep trouble. Of course there are many versions of liberal constitutional theory, but they have essentially no connection to existing practices of constitutional law, considering as practices of constitutional law all the activities of our institutions of government that implicate - interpret, advance, deal with, whatever - fundamental principle. Instead, liberal constitutional theory's vision of the future is nostalgia for the past. For liberal constitutional theorists (...) the Warren Court, or Justice Brennan, basically got everything right, at least in their approach to identifying constitutional law. True, they may have faltered sometimes in implementing constitutional principles, but all that needs to be done today is to appoint justices in the mold of Warren, Brennan, or Thurgood Marshall. And here I really do mean all that needs to be done: No rethinking of what constitutional law is all about seems needed to liberal constitutional theorists. (shrink)

This chapter contains section titled: Historical Background An Overview The Indeterminacy Thesis Critical Legal Theory and Social Theory The Critique of the Public/Private Distinction Policy “Implications” The Critique of Rights Critical Feminist Theory and Critical Race Theory The Legacy References.

Recently Jeremy Waldron offered the ‘core of the case against judicial review’. Richard Fallon responded with the ‘core of an uneasy case for judicial review.’ The core case for judicial review rested on a number of important conditions, and the core case against it incorporated a number of important qualifications. The two cases are quite similar once we take the conditions and qualifications into account. At its heart Professor Fallon's case rests on the proposition that ‘[l]egislative action is more likely (...) to violate fundamental rights than legislative inaction’. I call this the libertarian presupposition in Professor Fallon's case. This article examines the libertarian presupposition, raising questions about its implication that private violations of fundamental rights are less serious or pervasive than violations of fundamental rights pursuant to legislation. It then discusses Professor Waldron's argument that an important part of the core case against judicial review is the existence of reasonable disagreement about the proper specification of fundamental rights. I argue that, while Professor Fallon provides a plausible psychological account of why the existence of such disagreement is unlikely to do much work in persuading people to accept the core case against judicial review, that psychological account offers a path toward understanding the different dispositions that lead Professors Waldron and Fallon to characterize their quite similar positions in the more dramatic ‘against-for’ manner. (shrink)

In the late twentieth century constitution-designers came to understand that, in addition to the three classic Montesquiean functions of law-making, law-applying, and law-interpreting, constitutional institutions had to perform an additional function, that of protecting the constitution itself. That function is performed by constitutional courts, but also by agencies concerned with elections and with corruption. A case study of an important anti-corruption inquiry in South Africa illustrates the proposition that institutions protecting the constitution must combine independence from other political actors with (...) some degree of accountability to them. Following the case study, the Article examines some general characteristics of these institutions, sketching some of the questions about independence and accountability that constitution-designers must consider. Among those questions are the possibility of too much independence, with the institutions having a greater impact on political outcomes than is appropriate, too much responsiveness to non-political but professional concerns such as legality and the details of accounting conventions, and of course too much accountability to the very political institutions that these agencies are designed to regulate. Throughout the Article emphasizes the role of conflicts of interest both in setting the agenda for these agencies and in posing the risk that the agencies will undermine rather than protect the constitution. (shrink)

L'état actuel des études juridiques critiques aux USA.

This volume in the prestigious series of Oxford Handbooks provides a widely accessible overview of legal scholarship at the start of the 21st century. Through 43 essays by leading legal scholars based in the USA, the UK, Australia, New Zealand, Canada and Germany, it offers original and interpretative accounts of the nature, themes and trends of research and writing about all areas of the law.

What makes the law the Law? Are the rules set by society based on immutable truths and forms of nature, or are they more like an evolving draft of guidelines for human conduct? Is the law the product of disinterested reason, or do the critical legal theorists have a point when they trace the shape of the law to the centers of power in our society? With Mark Tushnet, Andy Altman, and Jude Dougherty.

O artigo rediscute, a partir das teorias da hegemonia de Chantal Mouffe e dos diálogos institucionais de Mark Tushnet, os fenômenos da judicialização da política (o político invadindo “indevidamente” o jurídico) e do ativismo judicial (o jurídico invadindo “indevidamente” o político). Contesta a concepção usual de que o judiciário teria a “última palavra” na interpretação jurídica e defende uma maior proteção da democracia, pois é esta, não o judiciário, que, em última instância, protege os direitos. Conclui-se que, para (...) sua maior legitimidade e eficiência, deve então o Poder Judiciário receber novos influxos democráticos e estar sujeito a maior accountability. (shrink)

This contribution aims at discussing constitutional democracy in the age of populisms, by explaining how populist movements oppose liberal-democratic constitutionalism and by presenting the thesis of a so-called ‘populist constitutionalism’, as proposed by Mark Tushnet. In the first section, a general and analytic exploration of populist phenomena will be drawn, by focusing on the so-called thesis of a ‘populist’ constitutionalism. In the second part, Tushnet’s arguments for a populist constitutionalism will be presented, through the analysis of his (...) two main contributions: Taking the Constitution Away from the Courts, in which Tushnet develops his critique of legal constitutionalism and judicial review as an undemocratic power by unelected justices, and Authoritarian Constitutionalism, a recent article in which Tushnet distinguishes between ‘authoritarian’ and ‘populist’ definitions of constitutionalism. In conclusion, such arguments will be discussed, by proposing a critical response to Tushnet’s position and presenting some risks of a majoritarian and populist constitutional democracy. (shrink)

This contribution aims at discussing constitutional democracy in the age of populisms, by explaining how populist movements oppose liberal-democratic constitutionalism and by presenting the thesis of a so-called ‘populist constitutionalism’, as proposed by Mark Tushnet. In the first section, a general and analytic exploration of populist phenomena will be drawn, by focusing on the so-called thesis of a ‘populist’ constitutionalism. In the second part, Tushnet’s arguments for a populist constitutionalism will be presented, through the analysis of his (...) two main contributions: Taking the Constitution Away from the Courts, in which Tushnet develops his critique of legal constitutionalism and judicial review as an undemocratic power by unelected justices, and Authoritarian Constitutionalism, a recent article in which Tushnet distinguishes between ‘authoritarian’ and ‘populist’ definitions of constitutionalism. In conclusion, such arguments will be discussed, by proposing a critical response to Tushnet’s position and presenting some risks of a majoritarian and populist constitutional democracy. (shrink)

Mark Jago presents an original philosophical account of meaningful thought: in particular, how it is meaningful to think about things that are impossible. We think about impossible things all the time. We can think about alchemists trying to turn base metal to gold, and about unfortunate mathematicians trying to square the circle. We may ponder whether God exists; and philosophers frequently debate whether properties, numbers, sets, moral and aesthetic qualities, and qualia exist. In many philosophical or mathematical debates, when (...) one side of the argument gets things wrong, it necessarily gets them wrong. As we consider both sides of one of these philosophical arguments, we will at some point think about something that’s impossible. Yet most philosophical accounts of meaning and content hold that we can’t meaningfully think or reason about the impossible. -/- In The Impossible, Jago argues that we often gain new information, new beliefs, and, sometimes, fresh knowledge through logic, mathematics, and philosophy. That is why logic, mathematics, and philosophy are useful. We therefore require accounts of knowledge and belief, of information and content, and of meaning which allow space for the impossible. Jago’s aim in this book is to provide such accounts. He gives a detailed analysis of the concept of hyperintensionality, whereby logically equivalent contents may be distinct, and develops a theory in terms of possible and impossible worlds. Along the way, he provides a theory of what those worlds are and how they feature in our analysis of normative epistemic concepts: knowledge, belief, information, and content. (shrink)

It is time to bring the rich resources of these traditions into the contemporary debate about the nature of self. This volume is the first of its kind.

Nondescriptivist views in many areas of philosophy have long been associated with the commitment that in contrast to other domains of discourse, there are no propositions in their particular domain. For example, the ‘no truth conditions’ theory of conditionals1 is understood as the view that conditionals don’t express propositions, noncognitivist expressivism in metaethics is understood as advocating the view that there are not really moral propositions,2 and expressivism about epistemic modals is thought of as the view that there is no (...) such thing as the proposition that Jack might be at home, over and above the proposition that Jack is at home.3 Of course, it is nearly always acknowledged that advocates of a nondescriptivist theory need not deny that there are conditional, moral, or modal propositions ‘at the end of the day’ – for if they also endorse a deflationary reading of talk about propositions, as famously advocated by Simon Blackburn, then they can employ such deflationary talk just as much as the rest of us. They just don’t appeal to propositions to do any of the work in their theories. Rather, they ‘earn the right’ to talk about propositions.4 It is the aim of this paper to upset this way of thinking about the proper attitude of nondescriptivists toward propositions, and to advocate a more constructive and in some ways more radical alternative on behalf of the nondescriptivist. I will begin by introducing and developing a set of problems that are faced by any nondescriptivist theory which tries to do without propositions. All of these problems are easily solved by any view which postulates propositions across the board, but none of them are solved by merely deflationary talk about propositions – their most promising solutions require propositions to do real theoretical work, and therefore the problems themselves remind us of and illustrate some of the important reasons why it is worth positing propositions in the first place.. (shrink)

Gaining information can be modelled as a narrowing of epistemic space . Intuitively, becoming informed that such-and-such is the case rules out certain scenarios or would-be possibilities. Chalmers’s account of epistemic space treats it as a space of a priori possibility and so has trouble in dealing with the information which we intuitively feel can be gained from logical inference. I propose a more inclusive notion of epistemic space, based on Priest’s notion of open worlds yet which contains only those (...) epistemic scenarios which are not obviously impossible. Whether something is obvious is not always a determinate matter and so the resulting picture is of an epistemic space with fuzzy boundaries. (shrink)

I discuss three ways of responding to the logical omniscience problems faced by traditional ‘possible worlds’ epistemic logics. Two of these responses were put forward by Hintikka and the third by Cresswell; all three have been influential in the literature on epistemic logic. I show that both of Hintikka's responses fail and present some problems for Cresswell’s. Although Cresswell's approach can be amended to avoid certain unpalatable consequences, the resulting formal framework collapses to a sentential model of knowledge, which defenders (...) of the ‘possible worlds’ approach are frequently critical of. (shrink)

We argue that the interaction of biased media coverage and widespread employment of the recognition heuristic can produce epistemic injustices. First, we explain the recognition heuristic as studied by Gerd Gigerenzer and colleagues, highlighting how some of its components are largely external to, and outside the control of, the cognitive agent. We then connect the recognition heuristic with recent work on the hypotheses of embedded, extended, and scaffolded cognition, arguing that the recognition heuristic is best understood as an instance of (...) scaffolded cognition. In section three, we consider the double-edged sword of cognitive scaffolding. On the one hand, scaffolds can reduce the internal processing demands on cognitive agents while increasing their access to information. On the other hand, the use of scaffolding leaves cognitive agents increasingly vulnerable to forming false beliefs or failing to form beliefs at all about particular topics. With respect to the recognition heuristic, agents rely on third parties (such as the media) to report not just what’s true but also what’s important or valuable. This makes cognitive agents relying on these third parties vulnerable to two erroneous influences: 1) because they don’t recognize something, it isn’t important or valuable, and 2) because they do recognize something, it is important or valuable. Call the latter the Kardashian Inference and the former the Darfur Inference. In section four, we use Fricker’s (2007) concept of epistemic injustice to characterize the nature and harm of these false inferences, with special emphasis on the Darfur Inference. In section five, we use data-mining and an empirical study to show how Gigerenzer’s population estimation task is liable to produce Darfur Inferences. We conclude with some speculative remarks on more important Darfur Inferences, and how to avoid them by scaffolding better. One primary way to accomplish this it to shift the burden of embodying the virtue of epistemic justice from the hearer or consumer of media to the media themselves. (shrink)

This book offers a systematic framework for thinking about the relationship between language and technology and an argument for interweaving thinking about technology with thinking about language. The main claim of philosophy of technology—that technologies are not mere tools and artefacts not mere things, but crucially and significantly shape what we perceive, do, and are—is re-thought in a way that accounts for the role of language in human technological experiences and practices. Engaging with work by Wittgenstein, Heidegger, McLuhan, Searle, Ihde, (...) Latour, Ricoeur, and many others, the author critically responds to, and constructs a synthesis of, three "extreme", idealtype, untenable positions: only humans speak and neither language nor technologies speak, only language speaks and neither humans nor technologies speak, and only technology speaks and neither humans nor language speak. The construction of this synthesis goes hand in hand with a narrative about subjects and objects that become entangled and constitute one another. Using Words and Things thus draws in central discussions from other subdisciplines in philosophy, such as philosophy of language, epistemology, and metaphysics, to offer an original theory of the relationship between language and technology centered on use, performance, and narrative, and taking a transcendental turn. (shrink)

In this paper, I describe some of what I take to be the more interesting features of friendship, then explore the extent to which other virtues can be reconstructed as sharing those features. I use trustworthiness as my example throughout, but I think that other virtues such as generosity & gratitude, pride & respect, and the producer’s & consumer’s sense of humor can also be analyzed with this model. The aim of the paper is not to demonstrate that all moral (...) virtues are exactly like friendship in all important respects, but rather to articulate a fruitful model in which to explore the virtues. Section 2 explores the relational nature of friendship, drawing on Aristotle’s discussion of friendship in the Nicomachean Ethics. Section 3 catalogues four motivations for taking seriously the friendship model of virtue. Section 4 applies the friendship model in depth to the virtue of trustworthiness. (shrink)

During multiple testing, researchers often adjust their alpha level to control the familywise error rate for a statistical inference about a joint union alternative hypothesis (e.g., “H1,1 or H1,2”). However, in some cases, they do not make this inference. Instead, they make separate inferences about each of the individual hypotheses that comprise the joint hypothesis (e.g., H1,1 and H1,2). For example, a researcher might use a Bonferroni correction to adjust their alpha level from the conventional level of 0.050 to 0.025 (...) when testing H1,1 and H1,2, find a significant result for H1,1 (p < 0.025) and not for H1,2 (p > .0.025), and so claim support for H1,1 and not for H1,2. However, these separate individual inferences do not require an alpha adjustment. Only a statistical inference about the union alternative hypothesis “H1,1 or H1,2” requires an alpha adjustment because it is based on “at least one” significant result among the two tests, and so it refers to the familywise error rate. Hence, an inconsistent correction occurs when a researcher corrects their alpha level during multiple testing but does not make an inference about a union alternative hypothesis. In the present article, I discuss this inconsistent correction problem, including its reduction in statistical power for tests of individual hypotheses and its potential causes vis-à-vis error rate confusions and the alpha adjustment ritual. I also provide three illustrations of inconsistent corrections from recent psychology studies. I conclude that inconsistent corrections represent a symptom of statisticism, and I call for a more nuanced inference-based approach to multiple testing corrections. (shrink)

Bringing together the latest scientific advances and some of the most enduring subtle philosophical puzzles and problems, this book collects original historical and contemporary sources to explore the wide range of issues surrounding the nature of life. Selections ranging from Aristotle and Descartes to Sagan and Dawkins are organised around four broad themes covering classical discussions of life, the origins and extent of natural life, contemporary artificial life creations and the definition and meaning of 'life' in its most general form. (...) Each section is preceded by an extensive introduction connecting the various ideas discussed in individual chapters and providing helpful background material for understanding them. With its interdisciplinary perspective, this fascinating collection is essential reading for scientists and philosophers interested in astrobiology, synthetic biology and the philosophy of life. (shrink)

From his earliest work on personal identity to his last on the value of truthfulness, the ideas and arguments of Bernard Williams - in the metaphysics of personhood, in the history of philosophy, but especially in ethics and moral psychology - have proved sometimes controversial, often influential, and always worth studying. This book provides a comprehensive account of Williams's many significant contributions to contemporary philosophy. Topics include personal identity, various critiques of moral theory, practical reasoning and moral motivation, truth and (...) objectivity, and the relevance of ancient Greece to modern life. It not only positions Williams among these important philosophical topics, but also with regard to the views of other philosophers, including prominent forerunners such as Hume and Nietzsche and contemporary thinkers such as, Nagel, McDowell, MacIntyre and Taylor. The fragmentary nature of Williams's work is addressed and recurring themes and connections within his work are brought to light. (shrink)

Debates over health care have focused for so long on economics that the proper goals for medicine seem to be taken for granted; yet problems in health care stem as much from a lack of agreement about the goals and priorities of medicine as from the way systems function. This book asks basic questions about the purposes and ends of medicine and shows that the answers have practical implications for future health care delivery, medical research, and the education of medical (...) students. The Hastings Center coordinated teams of physicians, nurses, public health experts, philosophers, theologians, politicians, health care administrators, social workers, and lawyers in fourteen countries to explore these issues. In this volume, they articulate four basic goals of medicine — prevention of disease, relief of suffering, care of the ill, and avoidance of premature death — and examine them in light of the cultural, political, and economic pressures under which medicine functions. In reporting these findings, the contributors touch on a wide range of diverse issues such as genetic technology, Chinese medicine, care of the elderly, and prevention and public health. The Goals of Medicine clearly demonstrates the importance of clarifying the purposes of medicine before attempting to change the economic and organizational systems. It warns that without such examination, any reform efforts may be fruitless. (shrink)

Particularists in ethics emphasize that the normative is holistic, and invite us to infer with them that it therefore defies generalization. This has been supposed to present an obstacle to traditional moral theorizing, to have striking implications for moral epistemology and moral deliberation, and to rule out reductive theories of the normative, making it a bold and important thesis across the areas of normative theory, moral epistemology, moral psychology, and normative metaphysics. Though particularists emphasize the importance of the holism of (...) the normative, however, it is not something that they have been able to explain. In this paper I’ll show how to use a small number of simple and, I’ll argue, independently compelling assumptions in order to both predict and explain the holistic features of the normative with respect to the non-normative. The basic idea of the paper is simple. It is that normative claims are holistic because they are general, rather than because they defy generalization. (shrink)