author. University Professor in the School of Law, Columbia University. (From July 2006, Professor of Law, New York University.) Earlier versions of this Essay were presented at the Colloquium in Legal and Social Philosophy at University College London, at a law faculty workshop at the Hebrew University of Jerusalem, and at a constitutional law conference at Harvard Law School. I am particularly grateful to Ronald Dworkin, Ruth Gavison, and Seana Shiffrin for their formal comments on those occasions and also to (...) James Allan, Aharon Barak, Richard Bellamy, Aileen Cavanagh, Arthur Chaskalson, Michael Dorf, Richard Fallon, Charles Fried, Andrew Geddis, Stephen Guest, Ian Haney-Lopez, Alon Harel, David Heyd, Sam Issacharoff, Elena Kagan, Kenneth Keith, Michael Klarman, John Manning, Andrei Marmor, Frank Michelman, Henry Monaghan, Véronique Munoz-Dardé, John Morley, Matthew Palmer, Richard Pildes, Joseph Raz, Carol Sanger, David Wiggins, and Jo Wolff for their suggestions and criticisms. Hundreds of others have argued with me about this issue over the years: This Essay is dedicated to all of them, collegially and with thanks. (shrink)

Investigates a complex structure of morality, the demands such morality places on individuals, and the behavioral consequences of the system of right and wrong.

This paper examines the efforts of contractualists to develop an alternative to aggregation to govern our duty not to harm (duty to rescue) others. I conclude that many of the moral principles articulated in the literature seem to reduce to aggregation by a different name. Those that do not are viable only as long as they are limited to a handful of oddball cases at the margins of social life. If extended to run-of-the-mill conduct that accounts for virtually all unintended (...) (in the sense of undesired) harm to others—noncriminal activities that impose some risk of harm on others—they would rule out all action. Moreover, because such conduct poses an irreducible conflict between freedom of action and freedom from expected harm, it can be regulated only by principles that accept the necessity of making precisely the sorts of interpersonal trade-offs that contractualism is foundationally committed to reject: trade-offs in which the numbers count, such that a risk of serious harm to one person can be justified by small benefits to the many. (shrink)

This paper addresses the intellectual motivation of some of those involved in the intelligent design movement. It identifies their concerns with the critique of the claim that Darwinism offers an adequate explanation of prima facie teleological features in biology, a critique of naturalism, and the concern on the part of some of these authors including Dembski, with the revival of 'Old Princeton' apologetics. It is argued that their work is interesting and is in principle intellectually legitimate. It is also suggested, (...) however, that it needs to be appraised qua 'research programme' (after the fashion of the early work of Lakatos), and that, seen in that light, what needs to be accomplished might seem daunting. (shrink)

With the passage by virtually every state legislature of healthcare proxy laws, the medical profession increasingly can expect to rely on the participation of surrogates in making decisions on behalf of incompetent patients. Several concerns about the legitimacy of proxy decision making have been discussed in the ethical and general medical literature: the lack of concordance between the views of patients and their surrogates have been documented on multiple occasions, and cases of abuse by proxies or potential conflict of interest (...) have been reported. Another dilemma that deserves discussion arises when proxies demand withdrawal of treatment that physicians and nurses regard as essential to the wellbeing of the patient. The following case highlights this dilemma. (shrink)

I have two main aims. The first is general, and more philosophical. The second is specific, and more closely related to physics. The first aim is to state my general views about laws and causation at different ”levels’. The main task is to understand how the higher levels sustain notions of law and causation that ”ride free’ of reductions to the lower level or levels. I endeavour to relate my views to those of other symposiasts. The second aim is to (...) give a framework for describing dynamics at different levels, emphasizing how the various levels’ dynamics can mesh or fail to mesh. This framework is essentially that of elementary dynamical systems theory. The main idea will be, for simplicity, to work with just two levels, dubbed ”micro’ and ”macro’, which are related by coarse-graining. I use this framework to describe, in part, the first four of Ellis’ five types of top-down causation. (shrink)

Despite the rekindling of an often bitter debate as to the meaning of Martin Heidegger’s involvement with National Socialism, little has been done to address afresh the texts themselves of the period in question and the problematic to which Heidegger conceived he was applying himself. Defying Enlightenment universalism, Heidegger asserts that meaningful human existence requires a belonging in a particular historical community whose integrity must be sustained in what he calls “Auseinandersetzung,”---confrontation. This paper attempts to show how “Auseinandersetzung,” itself Heidegger’s (...) translation of the Greek word “polemos,” underlies central concepts of Heidegger”s ontology, influencing his views on work, art, and great creators. The current controversy lends us an opportunity to reflect on the meaning of fascism and the foundation for politics in a global era. (shrink)

In my dissertation I develop a series of guidelines for responsibly and respectfully navigating varying facets of aesthetic activity involving fat communities. I argue that fat people's engagement with the aesthetic can be used to foster community, resist anti-fat bias, and move towards fat justice. Moreover, I argue that considering representations and treatment of fat people in the production of art must be done carefully in order to avoid perpetuating negative stereotypes and anti-fat bias. My project aims to improve the (...) visibility of fat people, ensuring that fat communities can determine how and when they are seen in ways that affirm their identities and experiences. My project is broken down into four chapters, each of which tackles a different dimension of aesthetic engagement and activity. In the first, I develop a framework called "responsible aesthetic agency" for creators to use when depicting fat people in their work. I intend responsible aesthetic agency to be a way for creators to meet their bare minimum ethical obligations to fat people, and as such this framework is a precursor to Jeremy Fried's aesthetic allyship. I use this framework to argue that artists must attend to the narrative webs in which a work exists when designing their new work's narrative, and that fat people must be active participants in this design and in the realization of said narratives. My second chapter addresses how individuals can use aesthetic agency to advocate for themselves and their communities. I argue that beauty labor can be used to help dismantle anti-fat bias. Using Kathleen LeBesco's framework of agency and identity, coupled with Jeannine Gailey's assessment of the unique perception of fatness as simultaneously hypervisible and hyperinvisible, I argue that participants in the "Fuck Flattering!" movement shape their identities and advocate for fat communities by forcing society to acknowledge their visibility and worth. In my third chapter, I consider representations of fatness in popular media, arguing that we can best achieve fat visibility through centering imperfect representations of fatness. I use Anne Eaton's "Taste in Bodies and Fat Oppression" as a starting point. In this paper, Eaton argues that distaste for fat bodies has an affective element of disgust that we must address to mitigate anti-fatness. Eaton argues that we must habitually engage with vivid and engaging representations that encourage us to see fat bodies as likable and attractive. I argue that while this approach has worthwhile aims, it risks leaving behind those fat bodies which we cannot bring ourselves to see as likeable or attractive. To better combat our distaste for fat bodies, I argue that we must show fat people as complexly as we show thin characters onscreen, highlighting the pluralities of ways to exist as a fat person. Lastly, in my fourth chapter I discuss how to appropriately engage with marginalized communities as a member of a dominant group or identity. I examine the co-optation of the body positivity movement, outline the ethical harms that result from said co-optation, and discuss potential avenues for moving forward with the movement given its co-optation. I argue that in order to fully address the myriad levels of goals of the original body positivity movement, none of these three alternatives is sufficient, as each misses a crucial element of the original body positivity movement or asks participants to have too narrow of an attitude towards their own body. Given the shortcomings of these movements, I argue we should move forward from the body positivity movement’s co-optation by employing a modified framework of Aubrey Gordon’s concept of fat justice, one which also makes room to recognize the importance of fat people being able to experiment with beauty and see themselves as beautiful. (shrink)

The nonconsequentialist revival in tort theory has focused almost exclusively on one issue: showing that the rules governing compensation for acts reflect corrective justice rather than welfarist norms. The literature either is silent on what makes an act wrongful in the first place or suggests criteria that seem indistinguishable from some version of cost/benefit analysis. As a result, cost/benefit analysis is currently the only game in town for determining appropriate standards of conduct for socially useful but risky acts. This is (...) no small omission, and the failure of nonconsequentialists to acknowledge it or cure it can be traced to a number of recurring problems in the nonconsequentialist tort literature. Chief among them is the tendency to conflate prohibition and compensation, and to treat imposition of risk and imposition of harm as if they were distinct forms of conduct rather than the same conduct viewed from different temporal perspectives. (shrink)

Despite the rekindling of an often bitter debate as to the meaning of Martin Heidegger’s involvement with National Socialism, little has been done to address afresh the texts themselves of the period in question and the problematic to which Heidegger conceived he was applying himself. Defying Enlightenment universalism, Heidegger asserts that meaningful human existence requires a belonging in a particular historical community whose integrity must be sustained in what he calls “Auseinandersetzung,”---confrontation. This paper attempts to show how “Auseinandersetzung,” itself Heidegger’s (...) translation of the Greek word “polemos,” underlies central concepts of Heidegger”s ontology, influencing his views on work, art, and great creators. The current controversy lends us an opportunity to reflect on the meaning of fascism and the foundation for politics in a global era. (shrink)

Bioethicists invoke a duty to rescue in a wide range of cases. Indeed, arguably, there exists an entire medical paradigm whereby vast numbers of medical encounters are treated as rescue cases. The intuitive power of the rescue paradigm is considerable, but much of this power stems from the problematic way that rescue cases are conceptualized—namely, as random, unanticipated, unavoidable, interpersonal events for which context is irrelevant and beneficence is the paramount value. In this article, I critique the basic assumptions of (...) the rescue paradigm, reframe the ethical landscape in which rescue obligations are understood, and defend the necessity and value of a wider social and institutional view. Along the way, I move back and forth between ethical theory and a concrete case where the duty to rescue has been problematically applied: the purported duty to regularly return incidental findings and individual research results in genomic and genetic research. (shrink)

Barbara H. Fried presents a powerful critique of the nonconsequentialist approaches that have been dominant in recent Anglophone moral and political thought. She argues that nonconsequentialist theories have disastrous consequences in the political domain and are inadequate at dealing with conflicts of individual interests in the moral domain.

The present essay examines the conflicting ontological assumptions that one can find behind the word dao in the texts of the Laozi and Zhuangzi and argues that the relative indifference to these texts toward whether or not dao has an ontic reality should not be considered a flaw of early Daoism. Rather, the historical process by which the term dao collects various possible ontological implications can be thought of as a philosophical stance in its own right. That is, if the (...) terms which one is obliged to use in discussing the immaterial necessarily hide, at least as much as they explain, the nature of Being, then it is a reasonable response to decline to ground one’s ethics in an ontology, and that while the resulting philosophy may not qualify as a fully-adumbrated system, this does not diminish its potential usefulness. (shrink)

One of the most important philosophical topics in the early twentieth century and a topic that was seminal in the emergence of analytic philosophy was the relationship between Kantian philosophy and modern geometry. This paper discusses how this question was tackled by the Neo-Kantian trained philosopher Ernst Cassirer. Surprisingly, Cassirer does not affirm the theses that contemporary philosophers often associate with Kantian philosophy of mathematics. He does not defend the necessary truth of Euclidean geometry but instead develops a kind of (...) logicism modeled on Richard Dedekind's foundations of arithmetic. Further, because he shared with other Neo-Kantians an appreciation of the developmental and historical nature of mathematics, Cassirer developed a philosophical account of the unity and methodology of mathematics over time. With its impressive attention to the detail of contemporary mathematics and its exploration of philosophical questions to which other philosophers paid scant attention, Cassirer's philosophy of mathematics surely deserves a place among the classic works of twentieth century philosophy of mathematics. Though focused on Cassirer's philosophy of geometry, this paper also addresses both Cassirer's general philosophical orientation and his reading of Kant. (shrink)

I critically discuss some of the main arguments of Modal Logic as Metaphysics, present a different way of thinking about the issues raised by those arguments, and briefly discuss some broader issues about the role of higher-order logic in metaphysics.

This volume presents a survey of critical appropriations of Heidegger’s thought for the 21st century. It includes all the most well-known and respected Heidegger scholars working today and offers a wide range of perspectives in engaging and accessible essays, altogether representing the most comprehensive overview of Heidegger Studies available.

Despite a significant amount of literature debating the efficiency of high-risk pools in health insurance, dramatically less has been written about their normative implications. The present article takes the route less traveled by setting aside the question of efficiency to argue that the use of high-risk pools creates some serious normative concerns. The article explores these concerns by dividing them on two fronts. First, as regards the social-recognitional status of those who are forced into the high-risk pool. Second, as regards (...) a general concern of distributive justice, namely fairness in access to resources. The author argues that regardless of the veracity of arguments which laud the efficiency of high-risk pools, their use in health insurance is unjust because of the herein explained implications for social recognition and distributive justice. (shrink)

The concept of minimal risk has been used to regulate and limit participation by adolescents in clinical trials. It can be understood as setting an absolute standard of what risks are considered minimal or it can be interpreted as relative to the actual risks faced by members of the host community for the trial. While commentators have almost universally opposed a relative interpretation of the environmental risks faced by potential adolescent trial participants, we argue that the ethical concerns against the (...) relative standard may not be as convincing as these commentators believe. Our aim is to present the case for a relative standard of environmental risk in order to open a debate on this subject. We conclude by discussing how a relative standard of environmental risk could be defended in the specific case of an HIV vaccine trial among adolescents in South Africa. (shrink)

Deacon’s approach to resolving mechanism/semiotic duality exemplifies an innovative methodology for imposing greater rigor on abductive assumptions in biosemiotics and beyond. His approach specifies interpretive agents and their responsive effort as the categories of phenomena to be explained. Implicit in his approach are five standards for imposing greater rigor on abduction or categorization, here named and described by the author.

Epistemologists have posed the following puzzle, known as the proof paradox: Why is it intuitively problematic for juries to convict on the basis of statistical evidence and yet intuitively unproblematic for juries to convict on the basis of far less reliable, non-statistical evidence? To answer this question, theorists have explained the exclusion of statistical evidence by arguing that legal proof requires certain epistemic features. In this paper, I make two contributions to the debate. First, I establish the Criminal Verdict Asymmetry, (...) a previously-unarticulated asymmetry between the epistemic norms of guilty and not guilty verdicts. I argue that the prosecution and defense’s different epistemic burdens influence whether statistical evidence can generate the type of verdict each side pursues. Second, I point out a mistake in how theorists have understood the role of statistical evidence in criminal trials. Though epistemologists have primarily focused on whether statistical evidence can generate specific epistemic features required for convictions, I consider whether statistical evidence can demonstrate a lack of such features. I find that there are epistemic advantages to allowing the defense to introduce statistical evidence which can reveal the prosecution’s failure to prove the defendant’s guilt. (shrink)