The obligation of a court to follow the law of a superior court is commonly taken to be stronger than the obligation of the higher court to respect its own precedent. The Supreme Court has recently asserted this stronger obligation in the most forceful terms. What follows is an attempt to demonstrate that this is wrong as a matter of policy and as a matter of law.

My title is taken from the frontispiece to Ogilby's translation of Aesop ; since every Renaissance poet believed the statement to be true, let me start with my own example. John Denham's only play, The Sophy, published in August 1642, is a tale about the perils of jealousy. The good prince Mirza, after a miraculous victory over the Turks, returns in glory to his father's court, but leaves it shortly thereafter. In his absense, Haly, the evil courtier, follows (...) a friend's advice to " work on [the king's] fears, till fear hath made him cruel"1 and poisons the king's mind with jealousy against his son. Mirza returns only to be brutally blinded and killed, and the emperor soon dies stricken with remorse. Now it happens that Parliament justified all its actions in the months preceding the civil war on the grounds of the "fears and jealousies" that the king had inspired. Charles was incensed by the slogan and claimed angrily that he, if anyone, had the most cause for fears and jealousies.2 Denham obviously decided that here was the all-consuming topic around which a predominantly royalist drama could be written. He followed what I believe was the standard practice - the method that Fulke Greville said Sidney used and that Congreve repeated at the end of the century when he declared of The Double Dealer that "I design'd the Moral first, and to that Moral I invented the Fable."3 He found a plot in Thomas Herbert's Travels into Diverse Parts of Asia that recorded some terrible cruelties and catastrophes caused by jealousy, and he added the point that the emperor's mind had been wrought upon by his counselor. There is no evidence that the play was ever acted, but the most casual reader would have said to himself, "Yes, history reminds us that states destroy themselves through fears and jealousies, and we should abate our own before it is too late." · 1. Sir John Denham, The Poetical Works, ed. Theodore Howard Banks, 2d ed. , p.245. The references to fear and jealousy are so ubiquitous in the play that they need not be listed here.· 2. On March 1, 1642, in the angriest of his replies to Parliament so far, Charles exclaimed, "You speake of Jealousies and Feares: Lay your hands to your hearts, and aske your selves whether I may not likewise be disturbed with Feares and Jealousies: And if so, I assure you this Message hath nothing lessened them" . Although phrases like "distempers and jealousies" had been used earlier, Clarendon on two occasions is quite specific that "fears and jealousies" were "the new words which served to justify all indispositions and to excuse all disorders" in January 1642 . Taken with other evidence, Clarendon's remarks strongly suggest that The Sophy was written after Coopers Hill, and during seven months preceding its publication in August 1642.· 3. William Congreve, The Complete Plays, ed. Herbert Davis , p. 119. And compare John Donne in Sermons, ed. Evelyn M. Simpson are George R. Potter , 9:274: "All wayes of teaching are Rule and Example: and though ordinarily the Rule be first placed, yet the Rule it selfe is made of Examples...for, Example in matter of Doctrine, is as Assimiliation in matter of Nourishment; The Example makes that that is proposed for our learning and farther instruction, like something which we knew before, as Assimilation makes that meat, which we have received and digested, like those parts which are in our bodies before."John M. Wallace, author of Destiny His Choice: The Loyalism of Andrew Marvell and articles on Milton, Dryden Denham, Traherne, and Arnold, is professor of English at the University of Chicago. (shrink)

Media, politicians, and the courts portray college campuses as divided over diversity and affirmative action. But what do students and faculty really think? This book uses a novel technique to elicit honest opinions from students and faculty and measure preferences for diversity in undergraduate admissions and faculty recruitment at seven major universities, breaking out attitudes by participants' race, ethnicity, gender, socio-economic status, and political partisanship. Scholarly excellence is a top priority everywhere, but the authors show that when students consider individual (...) candidates, they favor members of all traditionally underrepresented groups - by race, ethnicity, gender, and socio-economic background. Moreover, there is little evidence of polarization in the attitudes of different student groups. The book reveals that campus communities are less deeply divided than they are often portrayed to be; although affirmative action remains controversial in the abstract, there is broad support for prioritizing diversity in practice. (shrink)

This looseleaf treatise concisely explains what all the codes and courts require with respect to the ethical responsibilities and legal duties of the defense counsel. Abuse of subpoena process, malpractice liability, disqualification, and other issues are discussed in the work.

This paper explains and criticizes the definition of corruption used by the U.S. Supreme Court in its campaign finance decisions and proposes components of a new definition to be applied by the Court. The paper also offers a preliminary assessment of the impact of the Citizens United v. FEC decision of 2010, and suggests that much of the analysis to date has been inaccurate or superficial. Further, given the Court’s expansive analysis and application of the First Amendment (...) to corporate political activities in its latest decisions, the paper also suggests alternative checks on corporate political power related to shareholder activism and corporate governance. (shrink)

This paper challenges the conventional wisdom concerning the impact of the Citizens United v. FEC decision by examining the flow of corporate money into the 2012 election. The decision, which is consistent with most prior case law and was not a radical departure, promoted the use of super PACs and 501-c committees for political money that were not widely used by corporations, and the super PACs and c-4 committees were largely ineffective in the 2012 election. They also did not produce (...) a marked advantage for the Republican Party, especially in the presidential election. The Citizens United decision did, however, lead to other legal and regulatory developments in an effort to promote greater disclosure, though those developments have not been successful. Investors have been somewhat more successful in promoting limits on corporate political spending through shareholder proposals. Some state laws and upcoming court cases maylimit other restrictions on political contributions. (shrink)

A New York court recently struck down state Office of Mental Health regulations governing research involving subjects with impaired decisionmaking capacity. The court held that neither incapacitated adults nor minors could participate in any research protocol that contained a nontherapeutic element, irrespective of possible benefits to the subject or the importance of the knowledge to be gained. Although the decision rested on a technical point of law and dealt only with psychiatric research, the court's holding has significantly (...) broader implications. (shrink)

This paper describes one way in which a precise reason model of precedent could be developed, based on the general idea that courts are constrained to reach a decision that is consistent with the assessment of the balance of reasons made in relevant earlier decisions. The account provided here has the additional advantage of showing how this reason model can be reconciled with the traditional idea that precedential constraint involves rules, as long as these rules are taken to be defeasible. (...) The account presented is firmly based on a body of work that has emerged in AI and Law. This work is discussed, and there is a particular discussion of approaches based on theory construction, and how that work relates to the model described in this paper. (shrink)

Canada has followed the pattern of Benelux nations by legislating sufferingSuffering as the pivotal eligibilityEligibilitycriterionCriterion for euthanasiaEuthanasia/assisted death without requiring terminal prognosis as is needed in most permissive jurisdictions. This chapter will explore the relationship between sufferingSuffering and Medical Assistance in Dying (MAID) and the ways in which sufferingSuffering is understood in the Supreme Court of Canada, the federal Criminal Code legislation and by health care assessors. Based on this analysis, we will argue that the resulting sufferingSufferingeligibilityEligibilitycriterionCriterion leaves the (...) law open to unintended forms of interpretation, thus instituting perhaps the most unbounded and risk-prone form of assisted death in the world. A review of the literature on sufferingSuffering, the wish to dieWish to die, and reasons for MAIDReasons for MAID requests found sufferingSuffering of severe illness to be frequently associated with unstable mental health, social, and existentialExistential variables that are often amenable to therapy or remediation. While sufferingSuffering remains a powerful motivating force to seek opportunities to relieve distress, its use as an eligibilityEligibilitycriterionCriterion for MAID has significant ambiguity in its’ characterization of ‘enduring’ and ‘irremediable’ and thus fails to protect against abuse for the vulnerable. (shrink)

The opinion of Mr. Justice Francis of the English High Court which denied the parents of Charlie Gard, who had been born with an extremely rare mutation of a genetic disease, the right to take their child to the United States for a proposed experimental treatment occasioned world wide attention including that of the Pope, President Trump, and the US Congress. The case raise anew a debate as old as the foundation of Western medicine on who should decide and (...) on what standard when there is a conflict between a family and the treating physicians over a possible treatment. This paper will explore the different approaches of the British and American courts on the issue and the various proposals from that of John Rawls in his A Theory of Justice to a processed-based approach for resolving such disputes. As carefully crafted as the opinion of Mr Justice Nicholas Francis in the Gard case proved to be, it left commentators unsatisfied. A widespread criticism, captured in an article by Michael Dougherty in The National Review was for the state to ‘get out of the way of the parents trying to act in the best interests of the child’.1 Although he conceded the parents could be adding to the suffering of the child by taking Charlie to America for an experimental therapy and agreed that such a choice ‘may be the wrong decision,’ in Dougherty’s view, it should still be ‘their decision’. Dougherty’s stand was the popular response to the question of ‘Who should decide?’ It fails, however, to propose any rationale for the decision. It provided no norms, no standards and no guidelines for the parents. Their motive could equally well be indifference to the suffering of the child as concern for his well-being. Furthermore, even good, loving parents may make …. (shrink)

ArgumentIn the United States, scientific knowledge is brought before the courts by way of testimony – the testimony of scientific experts. We argue that this expertise is best understoodfirstas related to the quality of the underlying scienceand thenin terms of who delivers it. Bloodstain pattern analysis (BPA), a contemporary forensic science, serves as the vaulting point for our exploration of objectivity as a metric for the quality of a science in judicial contexts. We argue that BPA fails to meet the (...) minimal standard set by Helen Longino’s social-procedural account of objectivity (1990, 2002). In light of some pressing issues for social-procedural accounts, we offer an infrastructural account of objectivity. This account offers what amounts to a friendly amendment to Longino’s account and adds to the ways in which we might analyze social-procedural objectivity. Finally, we address an issue that is pressing in the legal context: given that scientific knowledge is delivered by individuals, not communities, at least in U.S. courts, we (may) need a way to evaluate individual scientific and epistemic agents. We suggest a means for making this evaluation that is derived from our infrastructural account of objectivity. (shrink)

Hospital ethics committees have become widespread over the last 25 years, stimulated by the Quinlan decision of the New Jersey Supreme Court, the report of a President's Commission, and most recently by the Joint Commission on Accreditation of Health Care Organizations, which now man dates that each hospital seeking accreditation have a functioning process for the consideration of ethical issues in patient care. Laws and regulations in several states require that hospitals establish ethics committees, and some states stipulate that (...) certain types of cases and disputes be taken to such committees. At least one state grants legal immunity to those who implement recommendations of an ethics committee. (shrink)

Over 40 years of research have shown that traumatic brain injury affects brain volume. However, technical and practical limitations made it difficult to detect brain volume abnormalities in patients suffering from chronic effects of mild or moderate traumatic brain injury. This situation improved in 2006 with the FDA clearance of NeuroQuant®, a commercially available, computer-automated software program for measuring MRI brain volume in human subjects. More recent strides were made with the introduction of NeuroGage®, commercially available software that is based (...) on NeuroQuant® and extends its utility in several ways. Studies using these and similar methods have found that most patients with chronic mild or moderate traumatic brain injury have brain volume abnormalities, and several of these studies found—surprisingly—more abnormal enlargement than atrophy. More generally, 102 peer-reviewed studies have supported the reliability and validity of NeuroQuant® and NeuroGage®. Furthermore, this updated version of a previous review addresses whether NeuroQuant® and NeuroGage® meet the Daubert standard for admissibility in court. It concludes that NeuroQuant® and NeuroGage® meet the Daubert standard based on their reliability, validity, and objectivity. Due to the improvements in technology over the years, these brain volumetric techniques are practical and readily available for clinical or forensic use, and thus they are important tools for detecting signs of brain injury. (shrink)

Hospital ethics committees have become widespread over the last 25 years, stimulated by the Quinlan decision of the New Jersey Supreme Court, the report of a President's Commission, and most recently by the Joint Commission on Accreditation of Health Care Organizations , which now man dates that each hospital seeking accreditation have a functioning process for the consideration of ethical issues in patient care. Laws and regulations in several states require that hospitals establish ethics committees, and some states stipulate (...) that certain types of cases and disputes be taken to such committees. At least one state grants legal immunity to those who implement recommendations of an ethics committee. (shrink)

In December 2013, the Nonhuman Rights Project (NhRP) filed a petition for a common law writ of habeas corpus in the New York State Supreme Court on behalf of Tommy, a chimpanzee living alone in a cage in a shed in rural New York (Barlow, 2017). Under animal welfare laws, Tommy’s owners, the Laverys, were doing nothing illegal by keeping him in those conditions. Nonetheless, the NhRP argued that given the cognitive, social, and emotional capacities of chimpanzees, Tommy’s confinement (...) constituted a profound wrong that demanded remedy by the courts. Soon thereafter, the NhRP filed habeas corpus petitions on behalf of Kiko, another chimpanzee housed alone in Niagara Falls, and Hercules and Leo, two chimpanzees held in research facilities at Stony Brook University. Thus began the legal struggle to move these chimpanzees from captivity to a sanctuary, an effort that has led the NhRP to argue in multiple courts before multiple judges. The central point of contention has been whether Tommy, Kiko, Hercules, and Leo have legal rights. To date, no judge has been willing to issue a writ of habeas corpus on their behalf. Such a ruling would mean that these chimpanzees have rights that confinement might violate. Instead, the judges have argued that chimpanzees cannot be bearers of legal rights because they are not, and cannot be persons. In this book we argue that chimpanzees are persons because they are autonomous. (shrink)

This paper examines and critiques the ethical issues in postmortem sperm retrieval and the use of postmortem sperm to create new life. The article was occasioned by the recent request of the parents of a West Point cadet who died in a skiing accident at the Academy to retrieve and use his sperm to honor his memory and perpetuate the family name. The request occasioned national media attention. A trial court judge in New York in a two-page order authorized (...) both the retrieval and use of the postmortem sperm. (shrink)

We submit this brief in support of the Nonhuman Rights Project’s efforts to secure habeas corpus relief for the elephant named Happy. We reject arbitrary distinctions that deny adequate protections to other animals who share with protected humans relevantly similar vulnerabilities to harms and relevantly similar interests in avoiding such harms. We strongly urge this Court, in keeping with the best philosophical standards of rational judgment and ethical standards of justice, to recognize that, as a nonhuman person, Happy should (...) be released from her current confinement and transferred to an appropriate elephant sanctuary, pursuant to habeas corpus. (shrink)

In this brief, we argue that there is a diversity of ways in which humans (Homo sapiens) are ‘persons’ and there are no non-arbitrary conceptions of ‘personhood’ that can include all humans and exclude all nonhuman animals. To do so we describe and assess the four most prominent conceptions of ‘personhood’ that can be found in the rulings concerning Kiko and Tommy, with particular focus on the most recent decision, Nonhuman Rights Project, Inc v Lavery.

We submit this brief in support of the Nonhuman Rights Project’s efforts to secure habeas corpus relief for the elephant named Happy. The Supreme Court, Bronx County, declined to grant habeas corpus relief and order Happy’s transfer to an elephant sanctuary, relying, in part, on previous decisions that denied habeas relief for the NhRP’s chimpanzee clients, Kiko and Tommy. Those decisions use incompatible conceptions of ‘person’ which, when properly understood, are either philosophically inadequate or, in fact, compatible with Happy’s (...) personhood. (shrink)

The role and precise significance of Intelligible Matter in the philosophy of Plotinus has been neglected or dismissed with many questions unanswered. In view of the fact that, unless this role can be properly understood, the whole doctrine of the procession of the Second Hypostasis must remain mysterious, this paper is intended to shed light on two important aspects of that Hypostasis: the nature of Intelligible Matter itself and the relation of that Matter to the Forms.

The role and precise significance of Intelligible Matter in the philosophy of Plotinus has been neglected or dismissed with many questions unanswered. In view of the fact that, unless this role can be properly understood, the whole doctrine of the procession of the Second Hypostasis must remain mysterious, this paper is intended to shed light on two important aspects of that Hypostasis: the nature of Intelligible Matter itself and the relation of that Matter to the Forms.

Firms’ real estate choices significantly affect their sustainability, due to real estate’s impact on the natural environment. This paper investigates the ecological responsiveness of firms in specific industries by analyzing the decisions these firms make in occupying office space. We analyze the decisions of more than 11,000 tenants to choose office space in green buildings or in, otherwise comparable, conventional buildings nearby. Controlling for building quality and location, we find that corporations in the oil and banking industries, as well as (...) non-profit organizations, are among the most prominent green tenants. Furthermore, measures of an industry’s human capital intensity are positively related to the propensity to lease green office space. These empirical findings confirm the theoretical framework on economic advantage and institutional pressure as important determinants for the ecological responsiveness of firms. (shrink)

The role and precise significance of Intelligible Matter in the philosophy of Plotinus has been neglected or dismissed with many questions unanswered. In view of the fact that, unless this role can be properly understood, the whole doctrine of the procession of the Second Hypostasis must remain mysterious, this paper is intended to shed light on two important aspects of that Hypostasis: the nature of Intelligible Matter itself and the relation of that Matter to the Forms.

Mao has responded to the challenge of adapting Marxism to traditional Chinese thought through his two creative developments of Marxism: the ideological definition of class and the concept of permanent revolution, based on intra-personal class-struggle.

Mao has responded to the challenge of adapting Marxism to traditional Chinese thought through his two 'creative developments' of Marxism: the ideological definition of class and the concept of permanent revolution, based on intra-personal class-struggle.

The purpose of the article is to examine the development of skepticism in indian philosophical thought. A number of important vedic passages are analyzed in order to show that although the authors were concerned with questions about the origins and guarantees of knowledge claims, There was no developed philosophical skepticism in the vedic age. The skepticism of purandara is examined to illustrate the carvaka position. Jayarasi bhatta's thorough-Going skepticism is examined to show that complete skepticism is self-Contradictory--It involves claiming to (...) know that the criteria for valid knowledge "cannot" be met. It is suggested that recognition of the skeptic's inconsistency in holding that it is "known" that no knowledge is possible may have been one of the reasons why skepticism failed to take hold in india, Despite great emphasis on epistemological issues. (shrink)

The often turbulent but nevertheless short history of psychology as a science reveals a strange and often strained relationship with its parent, philosophy. Martin Heidegger played a prominent role in the developing dialogue between philosophy and psychology in this country. As such, he was identified as a principal contributor to the philosophy of existentialism. And Ludwig Binswanger was seen as being the bridge between existential philosophy and psychotherapy. Heidegger's method of inquiry, meticulously thought through and developed, has become an eloquent (...) expression of man's never-ending search for knowledge and the clarification of what "is." This method, along with the scope of his questioning, has generated the development of a phenomenological foundation for medicine and psychology. In this paper, the author attempts to demonstrate Heidegger's work as remarkably poignant for the human condition. He shows how Binswanger, seeing and sensing these new insights, nevertheless remained captive to traditional expressions of thought. And, he shows how Medard Boss, having access to Heidegger himself in dialogue, has expressed the need for a new type of thinking in a frenetic world which tenaciously holds onto and refines one world-relationship to the neglect of others as the only avenue to truth. 2012 APA, all rights reserved). (shrink)