This book philosophically explores changing conceptions of race and equality in Supreme Court decisions interpreting the Equal Protection Clause since the enactment of the 14th Amendment. It traces these changing conceptions alongside the gradual elimination of the social equality of racialized persons from the Supreme Court’s list of priorities.

The United States Court of Appeals for the Second Circuit recently upheld United States District Court for the Eastern District of New York Judge's denial of petitioner's application for a writ of habeas corpus. The Court held that it was not objectively unreasonable for the Appellate Division to conclude, in light of clearly established federal law as expressed by the Supreme Court of the United States, that a New York statute providing for the recommitment of specific defendants who plead not (...) responsible by reason of mental disease or defect under a mere “preponderance of the evidence” standard does not violate either due process or the equal protection clause of the Fourteenth Amendment. (shrink)

Both advocates and opponents of lesbian, gay, and bisexual rights make reference to whether and how sexual orientations are embodied, namely whether one's sexual orientation is innate, unchangeable, or a "natural fact". In particular, in the United States, discussion centers on whether LGB people are "born that way" or "choose" to be gay. In litigation about LGB rights, this discussion connects to the so-called immutability factor in the Equal Protection Clause of the Fourteenth Amendment to (...) the U.S. Constitution and in similar clauses in state constitutions. My presentation surveys the surrounding conceptual and the legal issues and focuses on how they play out in the context of recent court cases related to marriage for same-sex couples. I argue that in legal as well as political and social contexts, it is a better strategy to focus on justice, equality and fairness and to avoid biological, psychological, and other scientific issues about how sexual orientations are embodied. (shrink)

Both advocates and opponents of lesbian, gay, and bisexual rights make reference to whether and how sexual orientations are embodied, namely whether one's sexual orientation is innate, unchangeable, or a "natural fact". In particular, in the United States, discussion centers on whether LGB people are "born that way" or "choose" to be gay. In litigation about LGB rights, this discussion connects to the so-called immutability factor in the Equal Protection Clause of the Fourteenth Amendment to (...) the U.S. Constitution and in similar clauses in state constitutions. My presentation surveys the surrounding conceptual and the legal issues and focuses on how they play out in the context of recent court cases related to marriage for same-sex couples. I argue that in legal as well as political and social contexts, it is a better strategy to focus on justice, equality and fairness and to avoid biological, psychological, and other scientific issues about how sexual orientations are embodied. (shrink)

I review the recent case of Edna Folz, a 73 year-old woman who was suffering through the end stages of very advanced Alzheimer's dementia when her case was adjudicated by the Wisconsin Supreme Court. I consider this case as an example of how courts are increasingly misinterpreting the ethical and legal decision-making standards known as substituted judgment and best interests and thereby threatening individuals' treatment decision-making rights as developed by other courts over the past two decades and creating serious roadblocks (...) to health-care providers' ability to render appropriate patient care. The Wisconsin Supreme Court held that Edna's legal guardian could not authorize withdrawal of Edna's treatment, ruling that as a matter of law, if an incompetent person is not in a persistent vegetative state, it is not in his or her best interests for life-sustaining treatment to be withdrawn unless (s)he has executed an advance directive or other statement clearly indicating his or her desires. (shrink)

This chapter uncovers a less investigated aspect of the relationship between the two most important scholastic schools of the Renaissance, Thomism and Scotism: the influence of Scotist literature on distinctions as seen in some sixteenth-century Thomists. The chapter has a primary focus on Chrysostomus Javelli’s engagement in his discussion of divine attributes with the Scotist doctrine of distinctions, but also considers other Thomist sources. First, the beginnings of the highly specialised Scotist literature on distinctions are traced back to the start (...) of the fourteenth century; I show how some early followers of Duns Scotus, in particular Francis of Meyronnes and Petrus Thomae, systematised Scotus’ ontology of the various grades of being by compiling lists of subtle distinctions to be applied to various levels of reality. I give some indications as to the later reception of these models of distinctions in the Scotist school. Special attention is paid to Étienne Brulefer, since his summary of Petrus Thomae’s model of seven distinctions was Javelli’s source for the Scotist doctrine. I then investigate how Javelli worked with Brulefer’s summary, and how he sought to integrate the Scotist doctrine into his own discussion of divine attributes. Thomists traditionally allowed only a rational or mental kind of distinction among divine attributes, and between them and the divine essence. Javelli, however, endeavours to show how the Thomist position may be reconciled with the Scotist doctrine of a formal or ex natura rei distinction. He did not always endorse this conciliatory approach; I hypothesise that he changed his mind on the subject over time. Finally, I show how other Renaissance Thomists reacted to the Scotist system of distinctions; in particular, I draw attention to the Thomists Andreas Bodenstein von Karlstadt, Bartolomeo Manzoli, and Mattia Gibboni da Aquario, who all wrote treatises on Thomist distinction theory modelled on the Scotist system of distinctions. In some of this literature, lists of distinctions based on Thomist metaphysics were compiled in order to replace the Scotist system. I argue that Javelli’s approach is more conciliatory and, in fact, has some overlap with the concordist thought of Giovanni Pico della Mirandola, who himself considered Scotus and Aquinas to be in fundamental agreement as regards the distinction between divine attributes. (shrink)

The due process clause of the Fourteenth Amendment protects the right of terminally ill persons to hasten their inevitable death. In prohibiting physicians from prescribing lethal medications by which such patients might hasten death, Michigan's ban on “assisted suicide” unconstitutionally imposes an “undue burden” on the exercise of that right.

The people we call Europeans include many millions of European Union citizens, the Swiss, the Ukrainians, the Turks, the Norwegians, the Croatians, the Serbs, and the Albanians. Do they share memories and a common sense of history? Indeed, should Europeans share memories? Each of the European nations has accumulated a stockpile of tales and myths that allow its citizens to act in solidarity within set boundaries. What, then, does that imply for a united Europe? In what way do Europeans have (...) a "shared memory" We must display the anchor points of supra- and transnational memory as concentric circles: The first circle: the holocaust as a negative founding myth. The second circle: Soviet-communism-equally criminal? The third circle: expulsions as a pan-European Trauma? The fourth circle: the Armenian question- Unanswered? The fifth circle: the European periphery The sixth circle: Europe as a continent of Immigration. The seventh circle: Europe's success story after 1945. (shrink)

We provide welfarist evaluations of decision rules for federations of states and consider models, under which the interests of people from different states are stochastically dependent. We concentrate on two welfarist standards; they require that the expected utility for the federation be maximized or that the expected utilities for people from different states be equal. We discuss an analytic result that characterizes the decision rule with maximum expected utility, set up a class of models that display interstate dependencies and (...) run simulations for different dependency scenarios in the European Union. We find that, under positive correlations, the welfare distribution tends to be less sensitive to the choice of the decision rule, whereas it can be important under negative correlations. The results that Beisbart and Bovens (SCW 29, p. 581, 2007) have found for two types of models without interstate dependencies are relatively stable. There are exceptions, though, under which the way the welfare distribution is shaped by a decision rule is significantly affected by dependencies. (shrink)

Healthcare organizations and workers are under pressure to produce increasingly complete and accurate data for multiple data-intensive endeavors. However, little research has examined the emerging occupations arising to carry out the data work necessary to produce “improved” data sets, or the specific work activities of these emerging data occupations. We describe the work of Clinical Documentation Integrity Specialists, an emerging occupation that focuses on improving clinical documentation to produce more detailed and accurate administrative datasets crucial for evolving data-intensive forms of (...) healthcare accountability, management, and research. Using ethnographic methods, we describe the core of CDIS’ work as a translation practice in which the language, interests, and concerns of clinicians and clinical documentation are translated via real-time “nudging” and ongoing education of clinicians into the language, interests, and concerns of medical coders, structured administrative datasets, and the various stakeholders of these datasets. Further, we show how the institutional context of CDIS’ work shapes the occupational virtues that guide CDIS’ translation practice, including financial reimbursement, quality measures, clinical accuracy, and protecting clinician’s time. Despite the existence of these multiple virtues, financial reimbursement is the most prominent virtue guiding CDIS’ limited attention. Thus, overall clinical documentation is “improved” in specific, partial ways. This research provides one of the first studies of the emergent data work occupations arising in the wake of digitization and big data opportunities, and shows how local data settings shape large scale data in specific ways and thus may influence outcomes of analyses based on such data. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Scientia propter quid nobis—The Epistemic Independence of Metaphysics and Theology in the Quaestio de cognitione Dei attributed to Duns Scotus by Wouter GorisClaus A. AndersenGORIS, Wouter. Scientia propter quid nobis—The Epistemic Independence of Metaphysics and Theology in the Quaestio de cognitione Dei attributed to Duns Scotus. Münster: Aschendorff, 2022. viii + 296 pp. Paper, € 49.00The central claim of Wouter Goris's new book is that the Quaestio de (...) cognitione Dei traditionally (both in one late medieval manuscript and in some modern scholarship) attributed to John Duns Scotus not only is inauthentic but in fact represents an early reaction against Scotus's teaching on the scientific nature of metaphysics. The Quaestio in particular explores Scotus's distinction between a science "in itself" and one "for us" and, going beyond Scotus's own doctrine, shows how this distinction is applicable to metaphysics.The book is divided into three parts. Part 1 offers a critical edition of the Quaestio de cognitione Dei, which has hitherto been available in a plain transcription published by C. R. S. Harris in 1927. Harris's text was based on a single manuscript from the fifteenth century (Oxford, Merton College, Ms. 90); Goris bases his edition on a manuscript from the early fourteenth century (Assisi, Biblioteca Comunale, Ms. 172), one that does not attribute the text to Scotus. Goris highlights that the text has significant parallels in the prologue of John of Reading's Scriptum on the first book of the Sentences; there is presently not sufficient evidence for claiming that Reading is the author of the De cognitione Dei, but it does seem clear that either Reading or some other Franciscan friar relying on Reading's Scriptum authored the text between 1316 and 1325. The Quaestio itself consists of two articles. Two appendices to the edition document longer passages from Reading's Scriptum.Part 2 investigates the use of the distinction between a science in itself and one for us in Duns Scotus and some of the early Scotists. Scotus's doctrine developed over time. At Oxford Scotus taught that theology in se is about the divine essence in its particularity; theology for us is about the most perfect concept of God attainable for human beings by natural means, that is, the concept "infinite being." It falls to metaphysics to prove that there is such a kind of being. At Paris Scotus rather taught that both theology in se and theology for us are about the divine essence in its [End Page 549] particularity. The implication is that a strictly demonstrative science about God is possible for human beings in this present life, a knowledge of God that is completely independent of metaphysics. Goris argues that this shift in the view of theology explains the absence of Scotus's famous "twin doctrines" of the univocal concept of being and of being as the first adequate object of the intellect from his theological epistemology of the Parisian period. Not too surprisingly, in the wake of Scotus we find several authors grappling with the relationship between theology and metaphysics. The positions investigated by Goris vary considerably. Richard of Conington distinguishes between human metaphysical knowledge of being and God's own metaphysical knowledge of being; the latter represents a more perfect knowledge of both God himself and creatures as included under the concept of being. Francis of Marchia employs a distinction between a general metaphysics (about being as being) and a special metaphysics (about divine being), but on the level of science for us the special part of metaphysics is subordinated to the general one. Nicolas Bonetus, by contrast, advocates a sharp distinction between metaphysical knowledge of being and natural theology; he structures his metaphysics as a purely ontological discipline and treats natural theology as a separate science; Goris sees this reorganization as Bonetus's most decisive contribution to the history of metaphysics.Part 3 analyzes the fundamental doctrines defended in the Quaestio de cognitione Dei and compares them with those of Scotus and John of Reading. The first article of the Quaestio introduces two important distinctions, the first of which is between metaphysics in itself and metaphysics for us; these two... (shrink)

Increases of absolute brain size during evolution reinforced stronger structuring of brain connectivity. One consequence is the hierarchical cluster structure of neural systems that combines predominantly short, but not strictly minimal, wiring with short processing pathways. Principles of “large equals well-connected” and “minimal wiring” do not completely account for observed patterns of brain connectivity. A structural model promises better predictions.

We consider a decision board with representatives who vote on proposals on behalf of their constituencies. We look for decision rules that realize utilitarian and (welfarist) egalitarian ideals. We set up a simple model and obtain roughly the following results. If the interests of people from the same constituency are uncorrelated, then a weighted rule with square root weights does best in terms of both ideals. If there are perfect correlations, then the utilitarian ideal requires proportional weights, whereas the egalitarian (...) ideal requires equal weights. We investigate correlations that are in between these extremes and provide analytic arguments to connect our results to Barberà and Jackson (J Polit Econ 114(2):317–339, 2006) and to Banzhaf voting power. (shrink)

To claim that companies should not discriminate on the basis of race, gender or religion seems almost as trivial as stating that they should not use forced labor or dump radioactive waste into the local river. Among other things, non-discrimination seems to imply that companies recognize and respect a range of religious preferences, including allowing religious clothing, e.g., by allowing Muslim women to wear headscarves. However, many companies do not believe that employees generally should be allowed to wear the kind (...) of clothes they please. In this paper, we discuss the asymmetry between the status of religious and secular clothing. We conclude that religious exemptions to dress codes can discriminate wrongfully. To solve this problem, companies should not ban religious clothing. Instead, companies should liberalize their dress codes, so that employees would be allowed to wear secular and religious types of clothing on an equal footing. (shrink)

Statistical physicists assume a probability distribution over micro-states to explain thermodynamic behavior. The question of this paper is whether these probabilities are part of a best system and can thus be interpreted as Humean chances. I consider two Boltzmannian accounts of the Second Law, viz. a globalist and a localist one. In both cases, the probabilities fail to be chances because they have rivals that are roughly equally good. I conclude with the diagnosis that well-defined micro-probabilities under-estimate the robust character (...) of explanations in statistical physics. (shrink)

Against the background of the fact that speakers not seldom intend to convey imports which deviate from the linguistically expressed meanings of linguistic items, the present article addresses some consequences of this phenomenon which appear to still be neglected in textual studies. It is suggested that understanding behaviour is in some respect a primary objective of exegesis and that due attention must be attributed to the high diversity of behaviour-related criteria by which interpretations of linguistic items are to be evaluated. (...) Although we intimate in addition that individual (meaningful) sentences occurring either in oral conversations or in written documents generally exhibit a multiplicity of contents of diverse types and that the circumstance that sometimes only a content equalling the linguistic significance of a pertinent unit matters for purposes of interpretation is caused by a material coincidence of different varieties of content, the tenets advocated in the paper do not essentially depend on that view. On the other hand, the following assumptions are relevant in the present connection: (a) A number of deviances between imports conveyed by linguistic utterances and literal meanings of expressions occur due to maxims of linguistic behaviour that are quite independent of lexical and syntactic features of individual natural languages. (b) It is by no means an exceptional phenomenon that imports not derivable by grammatical rules of a particular language alone possess primary importance for interpretation and textual exegesis. In view of significant affinities between understanding of sentences and of texts it is argued that the consideration of diverse aspects of behaviour possesses relevance for textual exegesis at least in the following respects: (1) By delivering a heuristic device for discerning problems affecting adopted interpretations it encourages searches for alternatives. (2) It provides means for evaluating the degree of acceptability of particular textual exegeses and possibly rejecting them on a more rational basis than mere intuition. (3) It offers possibilities for critically assessing the validity of explicit arguments advanced in favour of or in opposition to some interpretation. (4) It furnishes a background for assessing certain disputes about translation. The dimension of linguistic behaviour also attains importance in connection with questions of exegesis which are not concerned with assessments of (propositional) contents intended to be communicated, such as the ascertainment of the function which some argument possesses in a context. For substantiating the thesis that omission of raising relevant questions concerning behaviour is not an isolated phenomenon two examples will be employed: (1) A discussion concerning the exegesis of a crucial passage of Dignāga’s Pramāṇasamuccaya and the Pramāṇasamuccayavṛtti, (2) a critical appraisal of a recent publication dealing with the interpretation of the second chapter of Nāgārjuna’s Mūlamadhyamakakārikā-s. (shrink)

To claim that companies should not discriminate on the basis of race, gender or religion seems almost as trivial as stating that they should not use forced labor or dump radioactive waste into the local river. Among other things, non-discrimination seems to imply that companies recognize and respect a range of religious preferences, including allowing religious clothing, e.g., by allowing Muslim women to wear headscarves. However, many companies do not believe that employees generally should be allowed to wear the kind (...) of clothes they please. In this paper, we discuss the asymmetry between the status of religious and secular clothing. We conclude that religious exemptions to dress codes can discriminate wrongfully. To solve this problem, companies should not ban religious clothing. Instead, companies should liberalize their dress codes, so that employees would be allowed to wear secular and religious types of clothing on an equal footing. (shrink)

This article presents an overview of the institutional architecture and the organizing principles of the German welfare state, which is widely and rightly considered to be the model case of North West European Continental welfare states. The author's ambition is to be both systematic and historical in his presentation, emphasizing the process in which different layers of the historically evolved structure serve certain functions, such as poor relief, the protection of workers at work, the protection of workers outside (...) of work, the determination of wages, and the level of employment. In the second part of the essay, the question under discussion is of what happens to this structure under the impact of German unification, European integration, economic `globalization', and lasting labor market disequilibrium. The third and final part outlines a policy proposal that aims at the strengthening of social citizenship rights which replace the `worker' as the reference unit of social protection with the `citizen'. (shrink)

The article deals with some facets of the phenomenon of the underdetermination of meaning by (linguistic) data which are particularly relevant for textual exegesis in the historico-philological disciplines. The paper attempts to demonstrate that lack of relevant information is by no means the only important reason why certain issues of interpretation cannot be definitely settled by means of traditional philological methods but that the objective nonexistence of pertinent data is equally significant. It is claimed that the phenomenon of objective under-determination (...) possesses among others two major consequences: (1) A strict separation between the exploration of the history of (Indian) philosophy and philosophical criticism is theoretically incorrect. (2) Transference of indeterminacy and vagueness to the target langue in translations of textual sources is not only legitimate but sometimes most appropriate. Presumably the relevance of the discussed issues is not strictly confined to the area of Indian philosophy. (shrink)

Healing Emotions is the record of an extraordinary series of encounters between the Dalai Lama and prominent Western psychologists, physicians, and meditation teachers that sheds new light on the mind-body connection. Edited by Pulitzer Prize nominee and best-selling author Daniel Goleman.

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)

In August 2021, a U.S. Federal District Court ruled that §1326 of the Immigration Naturalization Act (INA) which criminalizes illegal reentry violated the Equal Protection clause of the Fifth Amendment because it has disparate impact upon and discriminatory intent against Mexican and Latinx individuals. While §1326 has been unsuccessfully challenged in numerous other federal courts, US v. Carrillo-Lopez stands out in its originality of interpretation regarding the discriminatory intent of a federal statute. In this case commentary, (...) the reasoning of the case will be explicated, followed by an analysis of the unique statutory interpretation applied within the context of discriminatory intent doctrine. (shrink)

The relationship between Title IX and the Equal Protection Clause is relevant to many areas of sex discrimination law. However, most courts that have addressed cases raising both provisions as well as scholars analyzing them have not developed or understood the relationship between the two. This Article does just that and develops the theory that Title IX has broader protections from sex discrimination than the Equal Protection Clause. To reach the conclusion that Title IX (...) offers more protection, this Article proceeds in the following way. In Part II, the Article surveys court decisions and commentary that have explicitly touched on the relationship between Title IX and the Equal Protection Clause. In Part III, the Article then develops its own analysis of the relationship between Title IX and the Equal Protection Clause, using the text and history of Title IX, the jurisprudential differences between Title IX and the Equal Protection Clause, and the theoretical differences between Title IX and constitutional sex discrimination law. Finally, in Part IV, the Article looks at some of the legal issues affected by an analysis of Title IX's relationship to the Equal Protection Clause and posits solutions based on the doctrinal and theoretical conclusions reached in Part III. (shrink)

Consider the following two seemingly unrelated questions. First, why does Rousseau (1993 [1762]) believe that the formation of factions or partial associations is not conducive to the general will in Du Contrat Social, II, 3? Second, why do federal assemblies typically strive for some form of degressive proportionality, i.e. a balance between equal and proportional representation, for the countries in the federation? We will show that there is a surprising connection between these questions. We turn to our first question. (...) It is often thought that Rousseau’s opposition to factions can be interpreted in reference to the Condorcet Jury Theorem. The Condorcet Jury Theorem states that if voters are more likely to be right on some issue than not and cast their votes independently, then the chance that the majority is correct converges to one as the number of voters goes to infinity. This interpretation is tempting, but it is inconsistent with some crucial textual evidence. We turn to our second question. Consider a federation of countries with a decision-making assembly in which each country casts a block vote. On equal representation, the vote of each country has the same weight. On proportional representation, the weights of the votes are proportional to the countries’ population sizes. In between these extremes, we can let the weights increase as a function of population sizes, but smaller countries receive greater weights and larger countries receive lesser weights than proportionality would warrant. Such weightings are called degressively proportional weightings. How can degressive proportionality be justified? And does this justification provide us any guidance as to how these weights should be set? A correct understanding of Rousseau’s misgivings about the formation of factions will hold the key to these questions. (shrink)

Histones occur in equal amounts to DNA in the cell nucleus and are largely responsible for the compaction of the genome into chromatin via the formation of nucleosomes and higher‐order structures. Whereas two of the five histone types exhibit little structural variation, the remaining three occur in many variant tissue‐ or species‐specific forms. Multiple postsynthetic enzymatic modifications accompanying virtually any type of genome activity, together with the programmed appearance of many histone variants during sea urchin embryogenesis (and other differentiation (...) events in a number of organisms) make histones a challenging enigma in eukaryotic molecular biology. (shrink)

Most of the world’s constitutions contain clauses guaranteeing sex equality, and many also extend the special protection of the state to mothers. The constitutional protection of motherhood is undertheorized and neglected in global constitutional discourse, perhaps because jurisdictions like the United States view the special protection of women as contrary to gender equality. This Essay explores the feminist meanings and possibilities of constitutional motherhood clauses, by focusing on Germany, where they originated in 1919. While motherhood clauses have (...) had complex relationships with a range of feminist agendas, they solidified the notion that social reproduction was a subject for constitutional lawmaking. Addressing twenty-first century gender inequalities requires a more robust engagement of women’s disproportionate burdens in social reproduction. Having opened up a constitutional discourse around the challenges of social reproduction, motherhood clauses and gender equality guarantees can drive the search for new solutions. (shrink)

This essay assesses the debate over “moral reading” and “originalist” approaches to constitutional interpretation, as elaborated in James E. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalism (2015), by evaluating the recent, momentous constitutional controversy in the United Sates of America over access by same-sex couples to civil marriage. Justice Kennedy’s landmark majority opinion in Obergefell v. Hodges (2015), which held that such couples have a fundamental right to marry, employed a “moral reading” in emphasizing evolving (...) understandings of constitutional guarantees of equality, the “promise of liberty” and the institution of marriage. By contrast to the dissenters, the majority rejected a static, narrow reading of the fundamental right to marry —and marriage— and stressed the role “insight” and generational progress. Evolving understanding played a similar role in Goodridge v. Department of Public Health (2013), which provided a template for Kennedy’s rejection of a narrow originalism focused only on historical practices or original intent. Such moral readings of the Constitution have played a significant role in making the Fourteenth Amendment less of (in Justice Ginsburg’s words) an “empty cupboard” for gay men and lesbians, just as they have played a role in making it less empty in the context of sex equality. This essay demonstrates how the contrasting approaches to interpretation in the majority and dissenting opinions in DeBoer v. Snyder (reversed by Obergefell) previewed the interpretive battle between the Obergefell majority and dissents, but with the sides reversed. It then observes that, while some legal scholars offered, in amicus briefs filed in Obergefell, originalist arguments for same-sex marriage, such arguments persuaded neither other originalist scholars nor the Obergefell dissenters. (shrink)

ABSTRACT:After a brief historical introduction, three interpretations of dignity in relation to management theory and business ethics are elaborated: Dignity as a general category, Human Dignity as Inherent and Universal, and Human Dignity as Earned and Contingent. Next, two literature reviews are presented under the headings of “Dignity and Business Research” and “Dignity and Business Ethics Research.” The latter discussion identifies three subcategories of business ethics research involving human dignity: the role of dignity as a cornerstone for paradigmatic shifts, the (...) role of dignity as the ‘ultima ratio’ for the protection of human rights, and the role of dignity in organizing business practices. The article concludes with summaries of the three articles chosen for this special section. (shrink)

Across a number of countries including Venezuela, Colombia, Bolivia, Ecuador, Honduras, Costa Rica, and Nicaragua, incumbent presidents in Latin America have recently sought to amend their constitutions to eliminate or weaken presidential term limits. In some cases, these efforts to extend terms have been part of broader projects to consolidate power, weaken other state institutions, and tilt the electoral playing field in favor of incumbents. From a legal perspective, these cases are interesting because they highlight the limits of tools limiting (...) constitutional change, such as eternity clauses and the unconstitutional constitutional amendment doctrine, to constrain potentially anti-democratic or anti-liberal forms of constitutional change. Although constitutional texts in most of these cases gave courts ample ammunition to reject attempts to eliminate term limits or at least to force those changes down more demanding paths, courts did not stand in the way of most of these efforts and in some cases even used the doctrines to eliminate rather than protect term limits. The case studies highlight the extent to which the “superficial” spread of doctrines controlling constitutional change may fail to block, and indeed may promote, forms of constitutional change that threaten liberal democratic constitutionalism. It also suggests possibilities for deepening the effectiveness of transnational dialogue on these issues. (shrink)

This Article examines recent claims that the fetus be afforded the status of a person under the Fourteenth Amendment. It shows that such claims do not carry the necessary objectivity to operate reasonably in a pluralistic society. It then goes on to afford what a better view of personhood that could so operate might actually look like. Along the way, this Article takes seriously the real deep concerns many have for the sanctity of human life. By the end, (...) it attempts to find a balance for those concerns with the view of personhood offered that should engage current debates about abortion and women’s rights. (shrink)

The connection between property rights and free-speech rights has most often surfaced in conflicts between the two. In his classic formulation of the problem, journalist A. J. Liebling mocked the First Amendment's free-press clause by noting that ownership of a printing press was required in order to actually enjoy the constitutional protection. In an important case decided in 1980,Pruneyard Shopping Center v. Robins, the U.S. Supreme Court ruled that a group wishing to circulate political petitions at a (...) shopping center had a constitutional right to do so. There the Court found that such governmentally enforced access to private property did “not amount to an unconstitutional infringement of [the shopping center owners'] property rights under the Taking Clause of the Fifth Amendment….”. (shrink)

Lawrence Nelson (2018) criticizes conscientious objection (CO) to abortion statutes as far as they permit health care providers to escape criminal liability for what would otherwise be the legally wrongful taking of a pregnant woman’s life by refusing treatment (i.e. abortion). His key argument refers to the U.S. Supreme Court judgment (Roe v. Wade 1973) that does not treat the unborn as constitutional persons under the Fourteenth Amendment. Therefore, Nelson claims that within the U.S. legal system any vital (...) interests of pregnant women must always take precedence over fetuses’ interests. While agreeing with the main thesis of the article, we believe that the author’s argument neither vindicates his claim, nor explains why those who believe that fetuses are equally protectable human beings do not have the right to refuse to perform an abortion in lifethreatening emergency circumstances (AE). Therefore, the main aim of our commentary is to outline, by referring to our earlier works on conscientious objection in health care (Z_ uradzki 2016) and cultural exemptions (Ciszewski 2016), a better and universalizable argumentative path that would lead to the same conclusion. (shrink)

On first blush the Jim Crow Era may seem an odd place to locate anything meaningful about democratic, equal citizenship and the promise of the fourteenth amendment. This article argues to the contrary. The period of Jim Crow, in its negation of democratic citizenship, in fact reveals import aspects about the nature of democratic citizenship. This occurred in two ways. First, whites who implemented white supremacy implicitly understood that freedom and citizenship manifest themselves in a multiplicity of (...) spheres, which is why white supremacists sought to subordinate blacks not just politically but across all social spheres. Second, the resistance to comprehensive subordination revealed the multiplicity of the spirit of freedom and equality in actions and arguments African Americans. African Americans created spaces of democratic citizenship within the dominant culture of subordination. This article suggests that, in studying both the implementation of white supremacy and the resistance to it, we can learn more about how equal and democratic citizenship can be affirmed and implemented rather than negated, and also about the role of law as a tool for both subordination and resistance. (shrink)

A good pragmatist's constitutional theory is inseparable from the legal disputes out of which it arises. John Paul Stevens's theory, that of deciding individual cases well instead of applying constitutional principles in the abstract to cases by category, thus lends itself to being studied in its natural, factual habitat—in his own words, case by case. That's what this book does. In Chapter 1 Sickels distills Stevens's thoughts about law and appellate judging from his early writings and his opinions on the (...) federal appeals court and, from 1975 to the present, on the U.S. Supreme Court. Stevens shows a concern for facts and consequences, for balancing, for deference to other decision makers unless they have been careless, for avoidance of undue complexity in judge-made law, and for drawing the line between clarity and oversimplification in legal rules. The next three chapters describe the application of Stevens's pragmatism to areas of constitutional law to which the Court and he especially have devoted most attention in recent years: First Amendment guarantees of freedom of expression and religion, the procedural guarantees of the Bill of Rights and the Fourteenth Amendment, and the equal protection of the laws. In each area, Stevens's special contributions are described. The concluding chapter places Stevens's judging in the contexts of the ongoing debate about the legitimacy of balancing, the ways of other moderates on the Court, and the voting records of the other members of the Court as a whole. Unique to this work is a meaningful introduction to the term moderate when applied to a Supreme Court justice, a definition based on careful analysis of the interplay of general rules and specific, case-by-case context. As such it is the very essence of Stevens's own way of judging and thus enables analysis of the work of a pragmatist on his own terms rather than through the distortions of a conflicting theory of law. John Paul Stevens is recognized as a jurist of unusual ability and one adheres to no ideological camp. While it is one thing to know he is neither rigid liberal nor a conservative, this book goes beyond the "neither nor" to accomplish the more difficult goal of defining what he is. This study is intended for scholars and students of the Supreme Court, the Constitution, the courts, and the American political process. Lawyers working before the Supreme Court, informed generalists, and courtwatchers generally, whether liberal, conservative, or neutral, will find much of interest here. (shrink)

The development of international human rights norms and law is an often-contentious process. Despite significant gains from recent research on the development and implementation of human rights law, little research has focused on strategies of contestation prior to final outcome documents like resolutions, declarations, or treaties. Amendments to UN Human Rights Council resolutions are a form of contestation, particularly validity contestation that happens prior to the passage of Council resolutions. This paper examines the use of amendments by states using descriptive (...) statistics from Council proceedings from 2006 through 2018 as well as case studies on women’s rights and civil society space to illustrate how states use amendments to frame their positions. Amendments are increasingly being used by states from the Global South to contest the validity of potential human rights norms at the Council. The long-term impacts of the use of amendments are an often overlooked but important part of the Council’s ability to promote and protect rights. (shrink)

The allocation of scarce medical treatments, such as antivirals and antibody therapies for COVID-19 patients, has important legal dimensions. This Essay examines a currently debated issue: how will courts view the consideration of characteristics shielded by equal protection law, such as race, sex, age, health, and even vaccination status, in allocation? Part II explains the application of strict scrutiny to allocation criteria that consider individual race, which have been recently debated, and concludes that such criteria are unlikely to (...) succeed under present Supreme Court precedent. Part III analyzes the use of sex-based therapy allocation criteria, which are also in current use, and argues that they also face substantial legal obstacles, despite only being subject to intermediate scrutiny. Parts IV and V examine the use of age and health status in allocation. Part VI discusses how the nascent law on “vaccination status” discrimination might apply to therapy allocation. (shrink)

Congress implemented the Medicaid Act in 1965, acting pursuant to its Spending Clause authority to “provide for the…general Welfare.” Over time, the Act has been amended more than 50 times. Most recently, as part of the Patient Protection and Affordable Care Act, Congress required participating states to extend Medicaid eligibility to childless, non-disabled, and non-elderly adults with incomes below roughly 133% of the federal poverty level.Within hours of President Obama signing the ACA into law, four lawsuits were filed (...) challenging the con-stitutionality of the ACA, including a case in Florida that eventually made its way to the Supreme Court as National Federal of Independent Business v. Sebelius. As part of this case, officials from 26 states argued that Congress was improperly coercing them into participating in the Medicaid expansion. (shrink)

In this talk presented at the 2022 conference of the Catholic Bar Association, C’Zar Bernstein unpacks the meaning of the word person in the Fourteenth Amendment and, through his exegesis, identifies philosophical arguments that may be instrumental in affording legal protection to the most vulnerable members of society.

Although over twenty years have passed since the Hart-Devlin exchange, the controversy over society's right to punish homosexuals remains alive, as is shown by recent concern over the spread of AIDS and the recent announcement of the Supreme Court that “majority sentiments about the morality of homosexuality” constitute an adequate justification for sodomy statutes under the due process clause of the fourteenth amendment. Lord Devlin's moral justification for punishing homosexual conduct seems to follow a similar line of (...) reasoning. The one argument to which his critics have paid the most attention begins with the assertion that society consists of a seamless web of ideas and values, the content of which is determined by whether the ordinary, reasonable person is disgusted by a particular type of conduct. Among the types of conduct that disgust the ordinary person, he continues, is homosexual conduct. Therefore, Devlin concludes, society may punish homosexual conduct, even if it is consensual. (shrink)

:A norm of equal treatment is cited regularly in the American jurisprudence of property “takings” under the Fifth and Fourteenth Amendments to the Constitution, as a benchmark of fair treatment of owners. According to an increasingly prevalent version of this equality norm, courts should look to parity of treatment among property owners in investigating whether particular regulations “take” property. This essay argues, however, that such an equality norm is misplaced, and that courts should judge fairness by the criterion (...) of expectation—including reasonable expectations of regulation.A norm of equality becomes problematic in the face of the economic theory of the evolution of property. This theory posits that as resources become more congested, their uses carry increasing common pool costs or “externalities”—a scenario that should predictably result in more stringent resource management—up to and including the establishment of regulatory regimes as well as property rights themselves. This evolutionary pattern, however, places earlier and later resource users in different positions vis-à-vis both common pool externalities and regulatory responses, and their different temporal positions fragment the meaning of equal treatment and destabilize it as a jurisprudential norm. This essay argues that while equal treatment may be a benchmark for special or invidious cases, like those relating to civil rights, the great bulk of takings cases involve regulatory responses to congesting resources, where a norm of equal treatment breaks down. Thus, in seeking fair treatment, takings jurisprudence should downplay equality and instead look to the understanding of property as a basis of expectations—but those expectations should include the anticipation of reasonable regulatory responses to resource congestion. (shrink)

The Eighth Amendment to the United States Constitution provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” Although treasured as a statement of fundamental rights, the Amendment’s terms and relations are not uniformly read. This is amply illustrated by the various positions on the Amendment’s correct meaning expressed in the various majority, plurality, and dissenting opinions issued by the United States Supreme Court. This is not to suggest that (...) a more or less uniform interpretation fails to obtain with all of the phrases of the Amendment. The clauses covering excessive bail and excessive fines do enjoy some level of agreed meaning among the Court’s members. This, however, does not pertain to the Cruel and Unusual Clause. An apparent majority of the Court holds that the extent of application of an otherwise acceptable punitive sanction may nevertheless constitute cruel and unusual punishment. A minority of the Court denies this. This essay will critically examine the two major positions concerning the questioned Clause. Additionally, it will offer an argument which especially favors one of the noted positions. (shrink)

The search for a quantum theory of the gravitational field is one of the great open problems in theoretical physics. This book presents a self-contained discussion of the concepts, methods and applications that can be expected in such a theory. The two main approaches to its construction - the direct quantisation of Einstein's general theory of relativity and string theory - are covered. Whereas the first attempts to construct a viable theory for the gravitational field alone, string theory assumes that (...) a quantum theory of gravity will be achieved only through a unification of all the interactions. However, both employ the general method of quantisation of constrained systems, which is described together with illustrative examples relevant for quantum gravity. There is a detailed presentation of the main approaches employed in quantum general relativity: path-integral quantisation, the background-field method and canonical quantum gravity in the metric, connection and loop formulations. The discussion of string theory centres around its quantum-gravitational aspects and the comparison with quantum general relativity. Physical applications discussed at length include the quantisation of black holes, quantum cosmology, the indications of a discrete structure of spacetime, and the origin of irreversibility. This book will be of interest to researchers and students working in relativity and gravitation, cosmology, quantum field theory and related topics. It will also be of interest to mathematicians and philosophers of science. (shrink)