Argument teachers and scholars have frequently invoked external justification-impressing one's viewpoint upon another-as the primary social function of argument. Pluralism and fundamental disagreement in contemporary democratic societies raise questions regarding the status of argument, including the functions argument should serve. In this essay, I suggest alternatives of agenda expansion, responsibility attribution, and identity formation as important functions of argument in diverse societies. Thesealternative functions are especially important under conditions of social inequality, since they allow less powerful individuals and groups to (...) confront more powerful actors in situations where decision making is not open to all. (shrink)
The Great Recession of 2008 underscored the precarity of housing for many people living in the United States, as well as the unequal conditions that structure housing policy and practices. Victimized by predatory lending practices, many families lost their homes as a speculative housing bubble burst. Facing tremendous uncertainty, these families joined tens of thousands of others across the country who struggle with housing for a variety of reasons—leaving an abusive partner, struggling with medical and other unforeseen expenses, coping with (...) addiction and/or mental illness, and more. Indeed, as Melanie Loehwing explains in her important new book, “housed” and “unhoused” represent not fixed categories or stable life... (shrink)
The question of who is covered by labour law is highly contested and often debated. This article addresses several problems related to the coverage question, and employs some novel concepts as an aid to better understand and analyse these problems. It begins by explaining the different aspects of labour law coverage and how all the branches of government are involved in setting it. It is then argued that we are currently facing a major coverage crisis in labour law. The concepts (...) of universalism and selectivity, long used in the welfare state literature to describe possible methods for the delivery of benefits in terms of their coverage, are introduced and adapted to the labour law context. The article then proceeds to make several arguments by using this new framework. Firstly, a descriptive-historical argument: during the 20th century there was a development from selectivity to universalism in labour law, and then back to selectivity of a different kind . Secondly, a normative argument: a balance must be struck between universalism and selectivity. Several proposals are offered to assist in achieving a better balance compared to the current situation in many countries. Finally, a critical argument: some proposals to ‘expand’ labour law beyond the confines of the employment relationship are considered, showing the dangers of extreme universalism. (shrink)
Israeli courts were recently faced with the question whether an employer is allowed to voice objections to unionization during an organizing drive. Since the legislation fails to provide an answer to this question, it was up to the courts to come up with a solution. The National Labor Court in Histadrut v. Pelephone held that employers have no say and must refrain from any communications whatsoever with the workers regarding the decision whether or not to join the union. The Supreme (...) Court later affirmed this decision. This Article explores this legal question and examines whether this decision was justified, and whether it should be adopted in other countries as well. It first discusses the justifications for the conflicting freedoms in this scenario — the workers’ freedom of association and the employer’s freedom of speech — to appreciate their relative strength in the circumstances. It then examines whether it is possible to achieve a certain balance. To this end, the Article critically reviews the legal mechanisms adopted by other legal jurisdictions in this regard, shedding light on their effectiveness and the difficulties of organizing in practice in each jurisdiction. The main argument advanced in this Article is that the solution has to be purposive — to advance the goals of labor law, specifically freedom of association — and that the purposive analysis must be contextual. A rule prohibiting the employer from voicing opinions is surely an infringement of freedom of speech, and strong reasons are needed to justify it. Whether strong enough reasons exist depends on several contextual factors. Essentially, the question is whether it is possible, given the current context, to secure real freedom of association without such a rule. By context we mean two main things: first, the real-life current experience concerning the struggles of organizing; and second, the existence of alternative legal mechanisms that might address this problem. (shrink)
This comment questions the relevance of the Stag Hunt model, employed by Alan Hyde in his contribution to this volume, to the context of international labor standards. Despite Hyde's insistence to the contrary, it is argued that in some cases child labor could create a comparative advantage to developing countries. This shows the difficulty with Hyde's reliance solely on market failures to justify international labor standards. The exclusion of other justifications results in an extremely diluted international labor law.
The mismatch between goals and means is a major cause of crisis in labour law. The regulations that we use - the legal instruments and techniques - are no longer in sync with the goals they are supposed to advance. This mismatch leads to a problem of coverage, where many workers who need the protection of labour law are not covered by it, as well as a problem of obsoleteness, as labour laws are not sufficiently updated in light of dramatic (...) changes in the labour market. Adopting a purposive approach to interpretation and legislative reform, this volume addresses this crisis of mismatch. It first articulates the goals of labour law, both general and specific, through an in-depth normative discussion and a consideration of critiques. The book then proceeds to reconsider our means, asking what we need to change or improve in the laws themselves in order to better advance the goals. Some of the proposed solutions are at the level of judicial interpretation, others at the legislative level. The book offers several examples for the way a purposive analysis should be performed in concrete cases. It also recommends institutional structures that are suited to ongoing adaptation of the law to ensure that our goals are advanced even when circumstances frequently change. Finally, in response to the crisis of enforcement in this field, which frustrates the achievement of labour law's goals, several proposals to improve compliance and enforcement are considered. (shrink)
Non-waivability is considered a basic principle of labour law. In most cases, it is needed to protect employees against coerced waivers. But what if an employee genuinely wants to waive some labour right, for example in return for a higher salary? This article explains why non-waivability is generally justified even against the wishes of employees, for reasons of paternalism, harm to others and second-order justifications. At the same time, in some cases, there is room for intermediate solutions, which can be (...) used to better respect the autonomy of employees and achieve additional benefits without undermining the goals of labour laws. The article employs this analysis to examine two concrete issues by way of example: waiving of ‘employee’ status and the individual opt-out from maximum weekly hours. In the latter context, while I critique the current law, I argue that some form of conditional waiver could be acceptable. (shrink)
An outsider to argument theory, should she look through the rich outpouring of our recent work, might be amused to find us theorists not following our own prescriptions. We propound our ideas, but we don't always interact with each other--we don't argue. The essays by William Rehg and Robert Asen make promising start on rectifying this difficulty. I want to discuss them, first, to show how they acknowledge in exemplary fashion a pair of challenges I think we should all (...) be addressing; and next to consider their specific responses. (shrink)
Twenty years ago, even ten years ago, one might have begun an essay about the intersection of pragmatism and rhetoric by lamenting the dearth of scholarship on the subject. Today, no such lamentations are needed. The past decade has seen an explosion of interest in the way pragmatism and rhetoric can profitably inform each other. Offering everything from formulations of pragmatist rhetorical theory (Mailloux 1998; Schollmeier 2002; Danisch 2007; Crick 2010) to explorations of pragmatist methodology in the study of rhetorical (...) texts (Stroud 2009a; Stroud 2010) to analyses of what individual pragmatists have contributed to the history of rhetoric (Asen and Brouwer 2003; Asen 2003; Finnegan 2003; Greene 2003; Stob .. (shrink)
This paper is a commentary on the articles by William Rehg and Robert Asen in this issue of Informal Logic. It compares the subject matter of the two papers, offers an interpretation of and commentary on each paper separately, then discusses their overlapping problematic: the importance of public sphere argumentation.
The book presents the first comprehensive survey of limits of the intentional control of action from an interdisciplinary perspective. It brings together leading scholars from philosophy, psychology, and the law to elucidate this theoretically and practically important topic from a variety of theoretical and disciplinary approaches. It provides reflections on conceptual foundations as well as a wealth of empirical data and will be a valuable resource for students and researchers alike. Among the authors: Clancy Blair, Todd S. Braver, Michael W. (...) Cole, Anika Fäsche, Maayan Davidov, Peter Gollwitzer, Kai Robin Grzyb, Tobias Heikamp, Gabriele Oettingen, Rachel McKinnon, Nachschon Meiran, Hans Christian Röhl, Michael Schmitz, John R. Searle, Gottfried Seebaß, Gisela Trommsdorff, Felix Thiede, J. Lukas Thürmer, Frank Wieber. (shrink)