Online research in philosophy

This is a review essay of Gardner, John. 2007, Offences and Defences: Selected Essays in the Philosophy of Criminal Law, Oxford: Oxford University Press, 288 pp.

Draft, not yet submitted for publication. Posted 12 February 2008.

The purpose of this article is to argue in favor of a private employer’s right to discriminate amongst job applicants on any basis he chooses, and this certainly includes unlawful characteristics such as race, sex, national origin, sexual preference, religion, etc. John Locke and many after him have argued that people have natural rights to life, liberty, and property or the pursuit of happiness. In this view, law should be confined to protecting these rights and be limited to prohibiting other people from transgressing those rights. The law should not hinder an employer’s ability to discriminate, any more than it should compel people to marry against their wishes. These laws generally emerge from a moral perspective that people think should be imposed on everyone else. But those who don’t welcome those morals are in effect being coerced to abide by them against their will; this is unethical. Finally, it will be argued that the free market has mechanisms by which discrimination will, be rendered powerless to harm its victims.

Nearly all attempts to include Aquinas among the class of divine command theorists have focused on two kinds of texts: those exhibiting Aquinas’s treatment of the apparent immoralities of the patriarchs (e.g., Abraham’s intention to kill Isaac), and those pertaining to Aquinas’s discussion of the divine will. In the present paper, I lay out a third approach unrelated to these two. I argue that Aquinas’s explicit endorsement of one ethical proposition as self-evident throughout his writings is sufficient justification to include Aquinas among the class of divine command theorists. I examine Aquinas’s persistent contention that the proposition “the commands of God are to be obeyed” is a self-evident or per se nota proposition of ethical reasoning, and I then trace Aquinas’s appeals to it in the Sentences commentary, De Veritate, and Quodlibet 3. I conclude with a discussion of passages where Aquinas argues that the experience of moral necessity or obligation requires reference to divine commands.

Placebo treatments, like sugar pills and saline injections, are effective in treating pain and perhaps a host of other conditions. To use placebos most effectively, however, doctors must mislead patients into believing that they are receiving active medications. While placebo deception is surprisingly common, its legality has rarely been tested. In November 2006, the American Medical Association (AMA) adopted a new ethics provision categorically prohibiting doctors from using placebos deceptively. In so doing, the AMA shifted the legal landscape, making it almost certain that courts will decide that placebo deception violates informed consent requirements. I argue that the AMA's new policy is overbroad, insensitive to patient preferences, and likely to have unforeseen consequences. While deception is often exploitative, placebo deception can genuinely benefit patients. Absent stronger evidence to justify a ban than we currently have, deceptive placebos should be treated as scarce medical resources--used sparingly but not categorically prohibited.

Non-precedential judicial opinions issued by the federal appellate courts have generated significant controversy. Given that the federal appellate courts are unlikely to abandon the practice of issuing non-precedential opinions on their own, what other options exist for prohibiting the practice? This article discusses the constitutionality of a procedural rule or statute prohibiting the federal appellate courts from prospectively designating selected opinions as non-precedential. It explains how the rules governing non-precedential opinions allow federal appellate courts to "opt out" of their own rules of precedent. It then examines the rulemaking process, showing how the Federal Rules of Appellate Procedure are promulgated pursuant to delegated legislative authority and can, therefore, regulate only matters that Congress could regulate by statute. With those premises in mind, the article then explores the constitutional limits of Congress's ability to regulate the courts' use of precedent. It shows that a federal statute or procedural rule prohibiting prospective designation of selected opinions as non-precedential would be constitutional using both formalist and functionalist reasoning. As long as the statute or rule did not specify the weight federal appellate courts must accord to their own opinions, it would not encroach impermissibly on the courts' Article III judicial power.

On March 21 a suit was filed in Federal District Court in Hawaii asking for a temporary restraining order prohibiting the European Center for Nuclear Research (CERN) in Geneva from turning on the world’s largest particle accelerator, the Large Hadron Collider (LHC), this summer. The suit contends that the collider could produce a tiny black hole or an exotic object called a “strangelet,” either of which might swallow up Earth and perhaps more.