Two reviews of Laurence Lapert's Leo Strauss and Nietzsche.

This is a compelling if sober set of questions from America's foremost legal scholar."--Lawrence Lessig, Stanford University.

The Aretaic Turn in Constitutional Theory argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions (...) on particular issues and the fervor of their ideological passions. Part II, Institutionalism and Constitutional Interpretation, engages Cass Sunstein and Adrian Vermeule's recent essay, "Interpretation and Institutions." Sunstein and Vermeule contend that theories of constitutional interpretation are most fundamentally flawed because of their failure to take an institutional turn, but their supporting arguments lead to a related but quite distinct conclusion. Only a theory of judicial character can supply the diagnosis for the ills that Sunstein and Vermeule identify: constitutional theory must take an aretaic turn. Part III, Making the Aretaic Turn in Constitutional Theory, sketches an alternative approach to judicial review and constitutional interpretation that is rooted in contemporary virtue ethics. In Part IV, Constitutional Virtues and Vices, this sketch is given flesh and bones in the form of a theory of constitutional virtue and vice. Excellence in constitutional adjudication requires the virtues of judicial courage, judicial temperament, judicial temperance, judicial intelligence, and judicial wisdom (or phronesis). Most importantly, a virtuous constitutional interpreter must have the virtue of justice, which includes as components impartiality, lawfulness, and legal vision. Part V, The Aretaic Reconstruction of the Institutional Critique, returns to institutionalism as an approach to the theory of constitutional interpretation and argues that institutionalists cannot coherently refrain from making the aretaic turn. The article ends with speculation about the possibility of a path to the restoration of judicial virtue. (shrink)

This essay explores two ideas that have recently played an important role in discourse about the American constitutional order. The first idea has emerged from the revival of civic republicanism. The republican revival has focused our attention on the classical conception of civic virtue. Our basic social arrangements ought to nourish a citizenry with the characteristics of mind and will that promote human flourishing. The second idea, expressed in critical race theory and feminist jurisprudence, is that we have an obligation (...) as a society and as scholars to attend to excluded voices. The juxtaposition of these two themes offers an opportunity to explore the relationship between classical philosophy and the American constitutional order. Civic republicanism is a complex set of ideas that has developed over the course of two millennia; understanding the republican revival requires a recognition that there are many strands in republican thought-that republicanism is itself a contested concept. In order to untangle the strands, I will examine classical moral and political philosophy, especially the work of Aristotle and Machiavelli, in relation to the work of the architects of the republican revival, including Frank Michelman, Suzanna Sherry, Cass Sunstein, and others. (shrink)

The essays in this collection examine the moral import of emotion, motivation, judgment, perception, and group identifications, and explore how all these psychic capacities contribute to a morally good life. They examine moral exemplars and the "moral saints" debate, the morality of rescue during the Holocaust, role morality as lying between "personal" and "impersonal" perspectives, Carol Gilligan's theory of women and morality, Iris Murdoch's moral philosophy, and moral responsiveness in young children.

In recent years consciousness has become a significant area of study in the cognitive sciences. The Frontiers of Consciousness is a major interdisciplinary exploration of consciousness. The book stems from the Chichele lectures held at All Souls College in Oxford, and features contributions from a 'who's who' of authorities from both philosophy and psychology. The result is a truly interdisciplinary volume, which tackles some of the biggest and most impenetrable problems in consciousness. The book includes chapters considering the apparent explanatory (...) gap between science and consciousness, our conscious experience of emotions such as fear, and of willed actions by ourselves and others. It looks at subjective differences between two ways in which visual information guides behaviour, and scientific investigation of consciousness in non-human animals. It looks at the challenges that the mind-brain relation presents for clinical practice as well as for theories of consciousness. The book draws on leading research from philosophy, experimental psychology, functional imaging of the brain, neuropsychology, neuroscience, and clinical neurology. Distinctive in its accessibility, authority, and its depth of coverage, Frontiers of Consciousness will be a groundbreaking and influential addition to the consciousness literature. (shrink)

Neoliberalism is an approach to social policy, now globally influential, that applies market approaches to all aspects of social life, including education. Charter schools, privately operated but publicly funded, are its most prominent manifestation in the U.S. The neoliberal principles of competition, consumerism, and choice cannot serve as foundations of a sound and equitable public education system. Neoliberalism embraces socio-economic inequality overall and in doing so constricts any justice mission its adherents espouse in virtue of serving a relatively disadvantaged student (...) population, as charter schools often (by no means always) do. It constricts educational justice by (1) embracing a “human capital” approach as the primary good of education, (2) creating educational inequality through (unofficially) selecting a relatively advantaged segment of the disadvantaged demographic it serves, (3) denying the effect of poverty on educational performance, and (4) devaluing its students’ familial ethnic cultures. (shrink)

For multiple reasons, deliberating groups often converge on falsehood rather than truth. Individual errors may be amplified rather than cured. Group members may fall victim to a bad cascade, either informational or reputational. Deliberators may emphasize shared information at the expense of uniquely held information. Finally, group polarization may lead even rational people to unjustified extremism. By contrast, prediction markets often produce accurate results, because they create strong incentives for revelation of privately held knowledge and succeed in aggregating widely dispersed (...) information. The success of prediction markets offers a set of lessons for increasing the likelihood that groups can obtain the information that their members have. (shrink)

For multiple reasons, deliberating groups often converge on falsehood rather than truth. Individual errors may be amplifi ed rather than cured. Group members may fall victim to a bad cascade, either informational or reputational. Deliberators may emphasize shared information at the expense of uniquely held information. Finally, group polarization may lead even rational people to unjustifi ed extremism. By contrast, prediction markets often produce accurate results, because they create strong incentives for revelation of privately held knowledge and succeed in aggregating (...) widely dispersed information. The success of prediction markets off ers a set of lessons for increasing the likelihood that groups can obtain the information that their members have. (shrink)

Many millions of people hold conspiracy theories; they believe that powerful people have worked together in order to withhold the truth about some important practice or some terrible event. A recent example is the belief, widespread in some parts of the world, that the attacks of 9/11 were carried out not by Al Qaeda, but by Israel or the United States. Those who subscribe to conspiracy theories may create serious risks, including risks of violence, and the existence of such theories (...) raises significant challenges for policy and law. The first challenge is to understand the mechanisms by which conspiracy theories prosper; the second challenge is to understand how such theories might be undermined. Such theories typically spread as a result of identifiable cognitive blunders, operating in conjunction with informational and reputational influences. A distinctive feature of conspiracy theories is their self-sealing quality. Conspiracy theorists are not likely to be persuaded by an attempt to dispel their theories; they may even characterize that very attempt as further proof of the conspiracy. Because those who hold conspiracy theories typically suffer from a crippled epistemology, in accordance with which it is rational to hold such theories, the best response consists in cognitive infiltration of extremist groups. Various policy dilemmas, such as the question whether it is better for government to rebut conspiracy theories or to ignore them, are explored in this light. (shrink)

Hermeneutic theory and the study of Jewish theology : toward a new model of Jewish theological language -- Jewish theology as a religious and doxastic practice -- Forms of theological language in Mekhilta of Rabbi Ishmael -- Forms of theological language in Franz Rosenzweig's The star of redemption.

Redemption in Judaism is typically thought of as an historical and eschatological category: God has redeemed Israel in the past and will do so again in the future. Although this dipolar understanding of redemption has been dominant in Judaism, forms of actualized redemption have also found expression in which Jews, either individually or communally, secure a positive redemptive status in the present. This article focuses on the peculiar fact that Franz Rosenzweig and Rabbi Joseph Soloveitchik both include an actualized component (...) within their theories of redemption. After brief consideration of Kierkegaard as a potential source for their accounts of actualized redemption, I explore how actualized redemption fits into Rosenzweig’s and Soloveitchik’s larger thought and consider their philosophical and theological motivations for conceiving of redemption as achievable. In the concluding section of the paper, I critique Rosenzweig’s and Solovetchik’s accounts of actualized redemption and suggest that Abraham Joshua Heschel’s and Eliezer Berkovits’ alternative theological anthropologies that emphasize the cultivation of holiness circumvent some of the problems I associate with actualized redemption. (shrink)

Cass Sunstein and Martha Nussbaum bring together an all-star cast of contributors to explore the legal and political issues that underlie the campaign for animal rights and the opposition to it. Addressing ethical questions about ownership, protection against unjustified suffering, and the ability of animals to make their own choices free from human control, the authors offer numerous different perspectives on animal rights and animal welfare. They show that whatever one's ultimate conclusions, the relationship between human beings and nonhuman animals (...) is being fundamentally rethought. This book offers a state-of-the-art treatment of that rethinking. (shrink)

What is the relationship between fear, danger, and the law? Cass Sunstein attacks the increasingly influential Precautionary Principle - the idea that regulators should take steps to protect against potential harms, even if causal chains are uncertain and even if we do not know that harms are likely to come to fruition. Focusing on such problems as global warming, terrorism, DDT, and genetic engineering, Professor Sunstein argues that the Precautionary Principle is incoherent. Risks exist on all sides of social situations, (...) and precautionary steps create dangers of their own. Diverse cultures focus on very different risks, often because social influences and peer pressures accentuate some fears and reduce others. Instead of adopting the Precautionary Principle, Professor Sunstein argues for three steps: a narrow Anti-Catastrophe Principle, designed for the most serious risks; close attention to costs and benefits; and an approach called 'libertarian paternalism', designed to respect freedom of choice while also moving people in directions that will make their lives go better. He also shows how free societies can protect liberty amidst fears about terrorism and national security. Laws of Fear represents a major statement from one of the most influential political and legal theorists writing today. (shrink)

Several philosophers argue for the ‘convergence thesis’ for positional goods: prioritarians, sufficientarians, and egalitarians may converge on favouring an equal (or not too unequal) distribution of goods that have positional aspects. I discuss some problems for this thesis when applied to two key goods for which it has been proposed: education and wealth. I show, however, that there is a variant of the thesis that avoids these problems. This version of the thesis is significant, I demonstrate, because it applies to (...) a person’s status as a citizen, which I suggest is the central concern of social or ‘relational’ egalitarianism. (shrink)

For multiple reasons, deliberating groups often converge on falsehood rather than truth. Individual errors may be amplified rather than cured. Group members may fall victim to a bad cascade, either informational or reputational. Deliberators may emphasize shared information at the expense of uniquely held information. Finally, group polarization may lead even rational people to unjustified extremism. By contrast, prediction markets often produce accurate results, because they create strong incentives for revelation of privately held knowledge and succeed in aggregating widely dispersed (...) information. The success of prediction markets offers a set of lessons for increasing the likelihood that groups can obtain the information that their members have. (shrink)

Transparency is an underpinning of workplace ethics. However, most of the existing research has focused on the relationship between leader transparency and its consequences. Drawing on social and self-regulation theory research, we examine the antecedents of followers’ transparency. Specifically, we propose that followers have higher levels of transparency when they are working with peers who have a high level of transparency. We further suggest that followers’ conscientiousness and agreeableness moderate the relationship between peer transparency and followers’ transparency. Using a time-lagged (...) design, we provide support for the proposed theoretical model. We found that follower conscientiousness substitutes the social regulation effect, while follower agreeableness enhances this social regulation effect. Theoretical and practical implications of these findings are also discussed. (shrink)

This paper examines the following distinctive republican claims: (1) goodwill and virtuous self-restraint are insufficient to realize freedom; and (2) suitable law is constitutive of freedom. In the contemporary literature, these claims are commonly defended in connection with the conception of freedom as nondomination. This account, however, is often rejected on the grounds that freedom as nondomination is moralized and impossible to realize. In response, I propose that the point of protecting people from domination is better understood not as realizing (...) freedom, but instead as giving persons a civic status as equals. Giving persons a civic status as equals, I claim, realizes an important form of social or 'relational' equality, and I distinguish this aim from giving persons a 'status as nondominated’, as some republicans require. I argue that this account vindicates alternative claims about the insufficiency of goodwill and constitutive importance of suitable law—understood in terms of equality rather than freedom—while avoiding the moralization and impossibility objections. I conclude by suggesting some further advantages of the proposed account versus the standard republican view. (shrink)

In recent years, 'nudge units' or 'behavioral insights teams' have been created in the United States, the United Kingdom, Germany, and other nations. All over the world, public officials are using the behavioral sciences to protect the environment, promote employment and economic growth, reduce poverty, and increase national security. In this book, Cass R. Sunstein, the eminent legal scholar and best-selling co-author of Nudge, breaks new ground with a deep yet highly readable investigation into the ethical issues surrounding nudges, choice (...) architecture, and mandates, addressing such issues as welfare, autonomy, self-government, dignity, manipulation, and the constraints and responsibilities of an ethical state. Complementing the ethical discussion, The Ethics of Influence: Government in the Age of Behavioral Science contains a wealth of new data on people's attitudes towards a broad range of nudges, choice architecture, and mandates. (shrink)

With respect to questions of fact, people use heuristics – mental short-cuts, or rules of thumb, that generally work well, but that also lead to systematic errors. People use moral heuristics too – moral short-cuts, or rules of thumb, that lead to mistaken and even absurd moral judgments. These judgments are highly relevant not only to morality, but to law and politics as well. Examples are given from a number of domains, including risk regulation, punishment, reproduction and sexuality, and the (...) act/omission distinction. In all of these contexts, rapid, intuitive judgments make a great deal of sense, but sometimes produce moral mistakes that are replicated in law and policy. One implication is that moral assessments ought not to be made by appealing to intuitions about exotic cases and problems; those intuitions are particularly unlikely to be reliable. Another implication is that some deeply held moral judgments are unsound if they are products of moral heuristics. The idea of error-prone heuristics is especially controversial in the moral domain, where agreement on the correct answer may be hard to elicit; but in many contexts, heuristics are at work and they do real damage. Moral framing effects, including those in the context of obligations to future generations, are also discussed. (shrink)

In recent years, a distinction between two concepts of equality has been much discussed: 'distributive’ equality involves people having equal amounts of a good such as welfare or resources, and ‘social’ or ‘relational’ equality involves the absence of social hierarchy and the presence of equal social relations. This contrast is commonly thought to have important implications for our understanding of the relationship between equality and justice. But the nature and significance of the distinction is far from clear. I examine several (...) accounts of this issue and argue none are entirely satisfactory. In turn, I offer an alternative proposal. Relational equality, on my account, involves a concern with each person having an equal 'civic status'. I characterize this concern and show it has distinctive and normatively significant positional and temporal aspects. (shrink)

In this paper, I argue that Hume accepts two claims. The first is that it is not possible for a human agent, having adopted an end, to remain committed to it, have it in view, and be indifferent to what he or she acknowledges as the proper means of realizing it, where indifference is the absence of a favoring attitude.1 The second is that, other things being equal, an agent who fails through weak resolve to take the acknowledged means to (...) an acknowledged end violates a norm of practical agency akin to Kant’s hypothetical imperative understood as a command to take the means—that is, to do what has the prospect of realizing the ends one happens to have adopted. I begin with the first claim because some.. (shrink)

In recent years many people have suggested that rights come from traditions. More particularly, many people interested in American constitutional law have said that constitutional rights should be developed with close reference to American traditions. In this essay, I mean to challenge these claims. I argue that the enterprise of defining rights, including constitutional rights, should not be founded on an inquiry into tradition. Traditions should be assessed, not replicated. I also try to unpack some of the complexities in the (...) idea that rights should be based on traditions. The topic is highly relevant to the debate over “communitarianism.” Manycommunitarians appear to be traditionalists, at least implicitly; they are concerned to defend social practices against abstract, acontextual claims about what is to be done, or about “rights.” It is important to ask why and when communitarians believethat a community's practices deserve insulation from rights–based claims. Often the best or most interesting answer has a Burkean dimension. It involves the extent to which a community—perhaps a local community resisting national efforts, perhaps a nation resisting international goals—owes its practices to long traditions that, precisely because of their longevity, might seem to make special sense. Ideas of this sort might be thought to have special strength when we think about rights in general or about constitutional rights in particular. (shrink)

Examines the theories of Socrates, Kant, Dewey, Piaget, and others to explore the implications of Socrates' question "what is a virtuous man, and what is a virtuous school and society which educates virtuous men.".

Default rules, taken as such, do not intrude on autonomy, even if they influence people without persuading them. If default rules give people certain rights automatically (such as the right to free...

John Rawls’s thesis that a certain package of basic liberties should be given lexical priority is of great interest for legal and political philosophy, but it has received relatively little defense from Rawls or his supporters. In this paper, I examine three arguments for the thesis: the first is based on the two ‘moral powers’; the second, on the social bases of self-respect; and the third, on a Kantian notion of autonomy. I argue none of these accounts successfully establishes 1) (...) the distinct claim of lexical priority, 2) for the complete package of basic liberties, on the basis of reasons that are appropriately public. In turn, I propose an alternative argument, in support of those two claims, based on the social or ‘relational’ conception of equality. (shrink)

Introduction: Fundamental Ontology as a "Fundamental Ethics" In his "Letter on Humanism" Martin Heidegger claims that the fundamental ontology he works out ...

I propose that primary conscious awareness arises from synchronized activity in dendrites of neurons in dorsal thalamic nuclei, mediated particularly by inhibitory interactions with thalamic reticular neurons. In support, I offer four evidential pillars: consciousness is restricted to the results of cortical computations; thalamus is the common locus of action of brain injury in vegetative state and of general anesthetics; the anatomy and physiology of the thalamus imply a central role in consciousness; neural synchronization is a neural correlate of consciousness.