This book provides a theoretical and practical exploration of the constitutional bar against cruel and unusual punishments, excessive bail, and excessive fines. It explores the history of this prohibition, the current legal doctrine, and future applications of the Eighth Amendment. With contributions from the leading academics and experts on the Eighth Amendment and the wide range of punishments and criminal justice actors it touches, this volume addresses constitutional theory, legal history, federalism, constitutional values, the applicable legal (...) doctrine, punishment theory, prison conditions, bail, fines, the death penalty, juvenile life without parole, execution methods, prosecutorial misconduct, race discrimination, and law & science. (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)

This article argues that correctional institutions violate the Eighth Amendment when they refuse to establish MAT programs and prevent doctors from exercising medical judgment to properly treat incarcerated people with OUD.

The United States Court of Appeals for the Third Circuit has followed the prevailing view in the federal courts by holding that state Medicaid funds must cover the same kinds of abortions as provided for under the 1994 Hyde Amendment. On July 25, 1995, the court held that a Pennsylvania law was preempted to the extent that it restricted Medicaid funding for abortions beyond the limits set by federal law ) by imposing additional procedures not prescribed by the Hyde (...) Amendment.Particularly, the court held that the Pennsylvania Abortion Control Acts ), whch requires victims of rape and incest to report the crime to law enforcement officials before Medicaid abortion funding is made available, exceeded the reporting requirements set by the Hyde Amendment, which provides a waiver for patients who are physically or mentally unable to comply with the reporting requirement. (shrink)

This is a critical review of Death Penalties by constitutional scholar Raoul Berger. It rebuts Berger's argument that the Eighth Amendment "no cruel and unusual punishments" clause validates capital punishment.

In response to the Eighth Amendment to the Constitution of Ireland, which states that the fetus and the mother have equal rights to life and that nearly all abortions are therefore illegal, many Irish feminists sported luggage tags that read “HEALTHCARE NOT AIRFARE.” The expression—which recently became a popular twitter hashtag for pro‐choice citizens of Ireland leading up to the historic referendum to repeal that abortion ban—refers to the fact that pregnant women from Ireland have long been forced (...) to travel to other European countries in order to legally terminate their pregnancies. In the United States, there is also a deep and challenging relationship between borders and reproductive health. However, that relationship is not understood as clearly as it appears to be in the Irish context. We urgently need to pay careful attention to the interconnections between U.S. border politics and reproductive health care access and to take concrete steps to address resultant injustices. (shrink)

Why does #RepealedThe8th matter for feminist legal studies? The answers seem obvious in one sense. Feminism has long constituted itself through the struggle for sexual and reproductive justice, and Irish feminism has contributed a significant ‘legal win’ with the landslide vote of approval for lifting abortion restrictions in the referendum on the 25th May 2018. That win comes at a global moment when populist legal engagement is doing significant damage in countries that regard themselves as world leaders, and beyond. #RepealedThe8th (...) offers Ireland, and the world, the actuality that the popular vote, and everything that contributes to it, could be something else. Repeal shows how legal tools like the vote may be made into an expression of care for reproductive lives. This expression is important in recognizing pregnant people as knowing agents who are best placed to decide, and in seeking to do justice to those who contribute to everyday reproductive life. But repeal, like the many who brought it into being, has multiple meanings. #RepealedThe8th matters because it is a moving process of socio-legal translation, which draws on a collective energy, ‘repeal energy’, to turn the travesty that was the Eighth Amendment and all it represents into a search for the rest of reproductive life. In opening up the meaning of the vote, much like feminists elsewhere have opened up the meaning of the strike, Irish feminists have turned public mourning over past mistreatment into a series of reproductive connections. This is not a strategy that can be rolled out. Figuring out #RepealedThe8th will take many tellings. Rather we need to give repeal, and repealers, room to breathe and rest. We need to feel our way through repeal’s production of legal change so that this success is not reduced to some generic transferable set of legal instructions. I begin by reflecting on repeal as a process of feminist socio-legal translation, which shows us how legal change comes about through the motivation of collective joy, the mourning of damaged and lost lives, the sharing of legal knowledge, and the claiming of the rest of reproductive life. (shrink)

There is a familiar disagreement between Justice Antonin Scalia of the US Supreme Court and Ronald Dworkin over whether the Eighth Amendment to the US Constitution could be plausibly interpreted so as to prohibit capital punishment. The dispute reflects a deep divergence in approach to statutory interpretation. I explore this divergence by paying particularly close attention to its metasemantic background. I then argue that the metasemantic orientation clearly vindicates the Dworkinian side.

In 2018, Irish citizens voted overwhelmingly to repeal the Eighth Amendment to the Constitution to allow for the introduction of a more liberal abortion law. In this article, I develop a retrospective reading of the stubborn persistence of the denial of reproductive rights to women in Ireland over the decades. I argue that the ban’s severity and longevity is rooted in deep-seated, affective attachments that formed part of processes of postcolonial nation-building and relied on shame and the construction (...) of the Irish nation as a particular, gendered place. The article develops the notion of ‘gendered displacement’ to conceptualise abortion travel in the context of the history of women’s coercive confinement, and provides an affective, feminist reading of the interlinkages between place and nationhood. It also draws on three cases—the X, Y and Z cases—to illustrate the centrality of place and women’s occupation of space to the analysis of Ireland’s abortion ban, which should be read in the wider context of the legacy of what I term the ‘affective politics of place’. (shrink)

It was not until the nineteenth century that Western nations came to replace mutilation, corporal punishment, and banishment as the favored method of criminal punishment with the more humane concept of imprisonment. Even then, however, a convicted inmate was viewed as nothing more than a slave of the state, entitled only to the most basic of human rights and subject to the whim and peril of his jailor's desire. The shift to imprisonment gradually was accompanied by the additional humanitarian demand (...) that prisons avail their charges of some minimum standard of human decency and necessity, which, by the early part of the twentieth century, had come to encompass the provision of medical care. The courts later came to acknowledge this as a fundamental right grounded in the Eighth Amendment's proscription against cruel and unusual punishments.Although the scope of a prisoner's constitutional right to medical care has been the subject of much debate before the courts, the majority of cases have focused only on the circumstances under which the deprivation of care will amount to a violation of the rights guaranteed by the Eighth Amendment. (shrink)

Against a backdrop of non-ideal political and legal conditions, this article examines the health capability paradigm and how its principles can help determine what aspects of health care might legitimately constitute positive health care rights—and if indeed human rights are even the best approach to equitable health care provision. This article addresses the long American preoccupation with negative rights rather than positive rights in health care. Positive health care rights are an exception to the overall moral range and general thrust (...) of U.S. legal doctrine. Some positive rights to health care have arisen from U.S. Constitutional Eighth Amendment cases and federal and state laws like Medicare, Medicaid, the State Children’s Health Insurance Program, the Emergency Medical Treatment and Active Labor Act, and the Patient Protection and Affordable Care Act. Finally, this article discusses some of the difficulties inherent in implementing a positive right to health care in the U.S. (shrink)

While jurisprudence in the United States has been cast in the general mode of the English common law, modifications over time have produced enough significant variations that American law has a distinctive quality. To illustrate: The exclusionary rule in criminal cases prohibiting the use of evidence (even from reliable witnesses) acquired through illegal search, is not followed in Britain—or, for that matter, in Canada, Germany, and Israel. The punitive-damage concept (PD) in tort law is also a jurisprudential novelty. Punitive damages (...) are imposed in addition to compensatory awards given to tort victims to warn manufacturers and sellers to be careful in their safety and marketing practices. PDs are society's warning signals: Seller beware! Because they are one of society's ways to protect itself, PDs have recently been considered as fines which, to prevent excesses, should be under the rubric of the Eighth Amendment.This essay introduces new elements into the discussion on torts by hypothesizing (1) PDs are fines which belong to the public purse; (2) that expenditures from the public purse should be given to local organizations (like orphanages and inner-city hospitals) which provide vital services for those unable to pay; and (3) that the victim (or the victim's survivor) has a right to designate what local organizations should benefit from his or her punitive-damage awards.The hypotheses require reexamination of the concepts of citizenship, community, and work, respectively.Tort law is an integral part of the American law of injuries, a body of judicial doctrine and legislation and a set of legal arrangements that also include compensation systems and safety legislation. It would have been unthinkable as recently as twenty-five years ago that the tort system would become a source of bitter contention. Today, however, it generates sharp rhetoric and dramatic proposals for change to address its contested problems, as well as strong views in favor of continuing the system essentially intact so as not to disturb its contended benefits. (shrink)

It was not until the nineteenth century that Western nations came to replace mutilation, corporal punishment, and banishment as the favored method of criminal punishment with the more humane concept of imprisonment. Even then, however, a convicted inmate was viewed as nothing more than a slave of the state, entitled only to the most basic of human rights and subject to the whim and peril of his jailor's desire. The shift to imprisonment gradually was accompanied by the additional humanitarian demand (...) that prisons avail their charges of some minimum standard of human decency and necessity, which, by the early part of the twentieth century, had come to encompass the provision of medical care. The courts later came to acknowledge this as a fundamental right grounded in the Eighth Amendment's proscription against cruel and unusual punishments.Although the scope of a prisoner's constitutional right to medical care has been the subject of much debate before the courts, the majority of cases have focused only on the circumstances under which the deprivation of care will amount to a violation of the rights guaranteed by the Eighth Amendment. (shrink)

I here revisit a debate between Antonin Scalia and Ronald Dworkin concerning the constitutionality of capital punishment. As is well known, Scalia maintained that the consistency of capital punishment with the Eighth Amendment can be established on purely textualist principles; Dworkin denied this. There are, Dworkin maintained, two readings of the Eighth Amendment available to the textualist. But only on one of these readings is the constitutionality of capital punishment secured; on the other, ‘principled’, reading it (...) is not. Moreover, breaking the stalemate in favour of the former reading cannot be decided on textualist principles alone. To resolve the issue, Scalia is forced to appeal to interpretive principles he has explicitly disavowed – principles that permit us to go beyond the text and invoke the framers’ intentions. In this paper, I argue that Dworkin has misdescribed the situation: there is in fact a plausible textualist argument that favours Scalia’s reading – one that, as per its textualist credentials, makes no reference to the framers’ intentions or expectations. (shrink)

To circumvent objections that the death penalty was “cruel and unusual punishment” and therefore a violation of the Eighth Amendment to the Constitution, advocates proposed lethal injection and the involvement of physicians to overcome the negative perceptions associated with the death penalty, and to increase public acceptability of the practice. Initiated in 1982, lethal injection is now the primary method of execution in 37 of the 38 states with the death penalty. “To be exact, this method has been (...) used to kill 788 of the 956 men and women who have been executed in the United States since 1976, when the death penalty was reinstated by the Supreme Court.” More recently, of the 191 executions performed in the United States since 2001, 189 have been by lethal injection.This “medicalization” of the death penalty has ignited a debate, by those within the medical profession and by others outside it, about the appropriateness of physicians participating in executions. (shrink)

ABSTRACTOn 28 October 2012, Savita Halappanavar, an Indian woman living in Ireland, died in hospital while under medical care for a miscarrying pregnancy. According to her husband, her repeated requests for an abortion were ignored because of the presence of a foetal heartbeat. Ms Halappanavar’s death was a critical event in the process leading to a referendum on 25 May 2018, when the Irish electorate voted to repeal the Eighth Amendment of the Constitution, removing the constitutional ban on (...) abortion. The name Savita has become indelibly linked to the changing course of abortion politics, so it is timely to reassess the role of the media in shaping the parameters of the debate about the impact of her death on the issue. This study presents a frame analysis of Irish newspapers in the weeks following her death, mapping the political, medical, legal and socio-ethical discourses, as well as the related contemporaneous events that set the agenda for the type of debate that was to follow. It identifies four media frames: Public Tragedy, Political Opportunity, Abortion Legacy and Maternal Health. Our central argument is that the overall effect of media framing provided much face-saving for politicians in the way that the legislative issue was viewed through a conservative party-political lens, despite public outrage. (shrink)

In this paper, I argue that a constitutionalized Harm Principle could ensure that people are not jailed unless they deserve it. I do not aim to outline every possible type of bad consequence beyond harm that might be sufficiently serious to justify criminalization. Instead, I focus on criminalization that is backed up with jail terms and I argue that wrongful harm to others provides the only moral and constitutional justification for sending people to jail. Imprisonment harms the prisoner, so she (...) should not be imprisoned unless she has caused proportionate harm to others. I argue that the sufficient conditions for sending an offender to jail are: (1) that the offender's actions have (or risk) bad consequences that are sufficiently harmful to make her commensurately deserving of penal detention; and (2) that the offender culpably (that is, with a state of mind somewhere along the intentional/reckless/gross negligence continuum) chose (aimed or attempted) to bring about those bad consequences or did so with reckless indifference. The lawmaker would need to demonstrate from the ex ante perspective that proposed offenses carrying jail sentences are a proportionate and fair way of dealing with the wrongs involved. Because jail (including short sentences of a few days) involves hard treatment (seriously harmful consequences for the prisoner) harm to others would be the only bad consequence of sufficient weight to justify a jail sentence. Jailing people for wrongful behavior that has harmless consequences would be an unjust and disproportionate response. In terms of understanding imprisonment (a physical deprivation of liberty) in the United States, it is better to refer to the Eighth Amendment of the Constitution than to the Due Process Clause. The Eighth Amendment, if read morally, could be invoked to strike down laws that carry prison sentences for wrongs that do not result in harm to others. This is because harming a person by subjecting her to the hard treatment that is involved in serving a jail term would be a disproportionate response unless the wrongdoer inflicted equivalent harm on others. I argue, that the Eighth Amendment should be interpreted in a way that accords with its overall moral aim or purpose. The Amendment's overall moral aim is to ensure that the state does not inflict unjust, oppressive, or disproportional punishments on its citizens. (shrink)

While jurisprudence in the United States has been cast in the general mode of the English common law, modifications over time have produced enough significant variations that American law has a distinctive quality. To illustrate: The exclusionary rule in criminal cases prohibiting the use of evidence (even from reliable witnesses) acquired through illegal search, is not followed in Britain—or, for that matter, in Canada, Germany, and Israel. The punitive-damage concept (PD) in tort law is also a jurisprudential novelty. Punitive damages (...) are imposed in addition to compensatory awards given to tort victims to warn manufacturers and sellers to be careful in their safety and marketing practices. PDs are society's warning signals: Seller beware! Because they are one of society's ways to protect itself, PDs have recently been considered as fines which, to prevent excesses, should be under the rubric of the Eighth Amendment.This essay introduces new elements into the discussion on torts by hypothesizing (1) PDs are fines which belong to the public purse; (2) that expenditures from the public purse should be given to local organizations (like orphanages and inner-city hospitals) which provide vital services for those unable to pay; and (3) that the victim (or the victim's survivor) has a right to designate what local organizations should benefit from his or her punitive-damage awards.The hypotheses require reexamination of the concepts of citizenship, community, and work, respectively.Tort law is an integral part of the American law of injuries, a body of judicial doctrine and legislation and a set of legal arrangements that also include compensation systems and safety legislation. It would have been unthinkable as recently as twenty-five years ago that the tort system would become a source of bitter contention. Today, however, it generates sharp rhetoric and dramatic proposals for change to address its contested problems, as well as strong views in favor of continuing the system essentially intact so as not to disturb its contended benefits. (shrink)

This Article falls into three general parts. The first part starts with an important question: is the insanity defense constitutionally required? The United States Supreme Court will finally try to answer this question next term in the case of Kahler v. Kansas. -/- I say “finally” because the Court refused to answer this question in 2012 when it denied certiorari to an appeal brought by John Joseph Delling, a severely mentally ill defendant who was sentenced to life in prison three (...) years earlier for two murders. Delling never had the opportunity to plead the insanity defense because his home state, Idaho, had abolished it in 1982. -/- By depriving Delling of the right to plead insanity, Idaho violated Delling’s Fourteenth Amendment right to due process and his Eighth Amendment right against “cruel and unusual” punishment. Naturally, the same is true for many other mentally ill and disabled defendants who have been prosecuted in Idaho and in the other three states that have abolished the insanity defense: Kansas, Montana, and Utah. -/- The second general part of this Article notes an insight that I stumbled upon in the course of researching the first part: the insanity defense and the mistake of law defense both require ignorance of the law, what I refer to as “normative ignorance.” Indeed, normative ignorance is what makes both of these defenses exculpatory in the first place. -/- Given this critical connection, there is a way for Idaho, Kansas, Montana, and Utah to resume compliance with the Constitution. Instead of reinstating the insanity defense per se, which might be politically unpopular, they should just broaden their mistake of law defense to include normative ignorance caused by cognitive incapacity that is itself caused by mental illness or disability. -/- Still, this Article is not merely directed at these four western states. It is directed at the other forty-six states as well. Because they already have an insanity defense, they need not incorporate it into their mistake of law defense. But in the third general part, I will argue that they should still expand their mistake of law defense to cover defendants who either lack a reasonable opportunity to learn the law or reasonably but mistakenly infer from widely accepted norms or ethics that their conduct is lawful. (shrink)

Terminally ill elderly and long-term disabled persons under our system of health care are eligible for Medicare and may qualify for the hospice care benefit. Despite such provisions, research shows that individuals still frequently do not receive the health care they need. But, as inadequate as end-of-life care can be for the general population, these inadequacies are exacerbated for individuals incarcerated in U.S. prisons and jails. Although inmates are guaranteed a basic level of health care under the Eighth (...) class='Hi'>Amendment and Due Process Clause, they lack the mobility or freedom to choose their health care coverage, and they are dependent on an institutional system for such care. Inside prison, security and access issues affect the care inmates receive. Further, the availability of adequate clinical resources, especially for high-cost procedures, may be problematic in some jurisdictions.In addition to the practical, institutional, and legal barriers to providing and improving general end-of-life care, efforts to improve end-of-life care for prisoners may also encounter a lack of public sympathy. (shrink)

Terminally ill elderly and long-term disabled persons under our system of health care are eligible for Medicare and may qualify for the hospice care benefit. Despite such provisions, research shows that individuals still frequently do not receive the health care they need. But, as inadequate as end-of-life care can be for the general population, these inadequacies are exacerbated for individuals incarcerated in U.S. prisons and jails. Although inmates are guaranteed a basic level of health care under the Eighth (...) class='Hi'>Amendment and Due Process Clause, they lack the mobility or freedom to choose their health care coverage, and they are dependent on an institutional system for such care. Inside prison, security and access issues affect the care inmates receive. Further, the availability of adequate clinical resources, especially for high-cost procedures, may be problematic in some jurisdictions.In addition to the practical, institutional, and legal barriers to providing and improving general end-of-life care, efforts to improve end-of-life care for prisoners may also encounter a lack of public sympathy. (shrink)

During its 2018–2019 term, the United States Supreme Court considered the constitutionality of executing a prisoner with dementia. In Madison v. Alabama, the Court ruled that, in certain circumstances, executing a prisoner with dementia violates the Eighth Amendment’s ban on cruel and unusual punishment. Vernon Madison was sentenced to death for killing a police officer in 1985. After many years on Alabama’s death row, he had a series of strokes and was diagnosed with vascular dementia. In 2016, Madison’s (...) lawyers unsuccessfully sought a stay of execution, arguing that, in light of his cognitive impairments, imposing the death penalty would violate the Constitution. After Alabama set a 2018 execution date, lawyers returned to the state court, arguing that the finding of competence should be reversed because Madison’s cognitive impairments had worsened. When the trial court refused to grant the stay of execution, Madison’s lawyers asked the Supreme Court to review the constitutionality of the state court decision. (shrink)

When the US Supreme Court decided in Graham v. Florida that the Cruel and Unusual Punishments Clause of the Eighth Amendment of the Constitution prohibits a sentence of life in prison without parole for a nonhomicide crime committed by a minor, it stated that “[t]he concept of proportionality is central to the Eighth Amendment” and that it is the “precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” These statements make (...) two claims—one legal and one philosophical. The philosophical claim is that justice requires proportionality in punishment, and the legal claim is that this principle of justice is central to the Eighth Amendment ban on cruel and unusual punishments. The aim of this chapter is to examine the concept of proportionality in punishment from multiple vantage points—practical, legal, and philosophical—and consider its enduring importance and persistent difficulties. (shrink)

The Birth of American Law: An Italian Philosopher and the American Revolution tells the forgotten, untold story of the origins of U.S. law. Before the Revolutionary War, a 26-year-old Italian thinker, Cesare Beccaria, published On Crimes and Punishments, a runaway bestseller that shaped the Declaration of Independence, the U.S. Constitution, and early American laws. America's Founding Fathers, including early U.S. Presidents, avidly read Beccaria's book--a product of the Italian Enlightenment that argued against tyranny and the death penalty. Beccaria's book shaped (...) American views on everything from free speech to republicanism, to "Life, Liberty and the pursuit of Happiness," to gun ownership and the founders' understanding of "cruel and unusual punishments," the famous phrase in the U.S. Constitution's Eighth Amendment. In opposing torture and infamy, Beccaria inspired America's founders to jettison England's Bloody Code, heavily reliant on executions and corporal punishments, and to adopt the penitentiary system. The cast of characters in The Birth of American Law includes the usual suspects--George Washington, Thomas Jefferson, John Adams and James Madison. But it also includes the now little-remembered Count Luigi Castiglioni, a botanist from Milan who--decades before Alexis de Tocqueville's Democracy in America--toured all thirteen original American states before the 1787 Constitutional Convention in Philadelphia. Also figuring in this dramatic story of the American Revolution: Madison's Princeton classmate William Bradford, an early U.S. Attorney General and Beccaria devotee; John Dickinson, the "Penman of the Revolution" who wrote of Beccaria's "genius" and "masterly hand"; James Wilson and Dr. Benjamin Rush, signers of the Declaration of Independence and fellow Beccaria admirers; and Philip Mazzei, Jefferson's Italian-American neighbor at Monticello and yet another Beccaria enthusiast. In documenting Beccaria's game-changing influence, The Birth of American Law sheds important new light on the Constitution, the Bill of Rights, and the creation of American law. This book is part of the Legal History Series, edited by H. Jefferson Powell, Duke University School of Law. The Birth of American Law was awarded the 2015 Scribes Book Award and the First Prize in the 2015 AAIS Book Award competition (in the 18th/19th century category). It was also named INDIEFAB's 2014 Gold Winner for History! (shrink)

Drawing upon Martha Fineman’s vulnerability theory, the paper argues that the legal claims of homeless appellants before and during the COVID-19 pandemic illustrate our universal vulnerability which stems from the essential, life-sustaining activities flowing from the ontological status of the human body. By recognizing that housing availability has constitutional significance because it provides for life-sustaining activities such as sleeping, eating and lying down, I argue that the legal rationale reviewed in the paper underscores the empirical, ontological reality of the body (...) as the basis for a jurisprudence of universal vulnerability. By tracing the constitutional basis of this jurisprudence from Right to Travel to Eighth Amendment grounds during COVID-19, the paper outlines a distinct legal paradigm for understanding vulnerability in its universal, constant and essential form – one of the central premises of vulnerability theory. (shrink)

The prohibition on “cruel and unusual” punishments, found in the Eighth Amendment to the U.S. Constitution, has long puzzled scholars. If punishments are cruel, why is that not sufficient to prohibit them? What does “unusual” add? Scholars have also disagreed on how to understand “cruel.” Should “cruel” refer only to those things that the authors of the Constitution believed were cruel, or does it extend to those things that are actually cruel? This chapter gives an overview of these (...) debates and describes the United States Supreme Court’s jurisprudence in the area. A concluding part takes a look at the possibility that some contemporary forms of punishment (e.g., imprisonment) are cruel and unusual, and even that punishment itself might be cruel and unusual. (shrink)

In July 2000, the Seminole Nation of Oklahoma passed a resolution that would effectively expel a significant portion of its tribal members. The resolution amended the Nation's constitution by changing its membership criteria. Previously, potential members needed to show descent from an enrollee of the 1906 Dawes Rolls, the official American Indian tribal rolls established by the Dawes Commission to facilitate the allotment of reservation land. The amended constitution requires possession of one-eighth Seminole Indian blood, a requirement that a (...) significant portion of the tribe's membership cannot fulfill. The members of the Nation who fail to meet this new membership criterion all have one thing in common: they are black.Descendents of former slaves who came to live among the Seminole Indians of Florida in the seventeenth and eighteenth centuries, the black Seminoles have been officially recognized by the U.S. government as members of the Seminole Nation of Oklahoma since 1866. (shrink)

In July 2000, the Seminole Nation of Oklahoma passed a resolution that would effectively expel a significant portion of its tribal members. The resolution amended the Nation's constitution by changing its membership criteria. Previously, potential members needed to show descent from an enrollee of the 1906 Dawes Rolls, the official American Indian tribal rolls established by the Dawes Commission to facilitate the allotment of reservation land. The amended constitution requires possession of one-eighth Seminole Indian blood, a requirement that a (...) significant portion of the tribe's membership cannot fulfill. The members of the Nation who fail to meet this new membership criterion all have one thing in common: they are black.Descendents of former slaves who came to live among the Seminole Indians of Florida in the seventeenth and eighteenth centuries, the black Seminoles have been officially recognized by the U.S. government as members of the Seminole Nation of Oklahoma since 1866. (shrink)

Mitchell Franklin completed fifty years of scholarship in law and philosophy, having written more than seventy-five major articles since 1932. In spite of his international prominence as a legal scholar, there has not yet been an in-depth study of his work. The difficulty of such an enterprise is due in part to his highly original approach to Roman law, the French Encyclopedist influences on American thought, and Marxist themes in law. In his work on the U.S. Constitution, Franklin has left (...) a corpus of writings dealing with the first, titth, eighth, ninth and fourteenth amendments, the sections of the Constitution dealing with judicial review, impeachment, the guarantee clause, and the historical influences on the framers of the Constitution. (shrink)

Readers assume that commonplace properties of the real world also hold in realistic fiction. They believe, for example, that the usual physical laws continue to apply. But controversy exists in theories of fiction about whether real individuals exist in the story’s world. Does Queen Victoria exist in the world of Jane Eyre, even though Victoria is not mentioned in it? The experiments we report here find that when participants are prompted to consider the world of a fictional individual (“Consider the (...) world of Jane Eyre…”), they are willing to say that a real individual (e.g., Queen Victoria) can exist in the same world. But when participants are prompted to consider the world of a real individual, they are less willing to say that a fictional individual can exist in that world. The asymmetry occurs when we ask participants both if a real person is in the character’s world and if the person would appear there. However, the effect is subject to spatial and temporal constraints. When the person and the character share spatial and temporal settings, interchange is more likely to occur. These results shed light on the author’s implicit contract with the reader, which can license the reader to augment a fictional world with features that the author only implicates as part of the work’s background. (shrink)

When covering traumatic events, novice journalists frequently face situations they are rarely prepared to resolve. This paper highlights ethical dilemmas faced by journalists who participated in a focus group exploring the news media's trauma coverage. Major themes included professional obligations versus ethical responsibilities, journalists' perceived status and roles, permissible harms, and inexperience. Instructional classroom simulations based on experiential learning theory can bridge the gap between the theory of ethical trauma reporting and realities journalists face when covering events that are often (...) chaotic and unpredictable by their very nature. A simulation outline that can be used by journalism instructors is provided. (shrink)

A decade or so ago, graphic depictions of female circumcision came to define the heart of a campaign presumably aimed at sensitizing the world about the tragic consequences of the practice. At the height of the campaign, it was easy to assume that the prospect for meaningful change was dim. Evolving knowledge about the practice illuminates the bottom-line of issues and demonstrates the centrality of empowerment as an elimination strategy. Interrogating an acclaimed initiative that has successfully helped bring about the (...) abandonment of female circumccision in several places, this article analyzes the definitive role of attending to the full belly for anti-circumcision purposes. (shrink)

An ethic for wrongdoers -- Repaying moral debts : self-punishment and restitution -- Changing one's heart, changing the past : repentance and moral transformation -- Reforming relationships : the reconciliation theory of atonement -- Forgiveness, self-forgiveness, and redemption -- Making amends for crime : an evaluation of restorative justice -- Collective atonement : making amends to the Magdalen penitents.

In lieu of an abstract, here is a brief excerpt of the content:Eighth Conference of the European Network of Buddhist-Christian StudiesSt. Ottilien, Germany, 11–15 June 2009John D’Arcy MayWith a higher proportion of Buddhist participants from Europe, Asia, and the United States than ever before, the European Network of Buddhist-Christian Studies at its 2009 conference in the Benedictine Archabbey of St. Ottilien near Munich addressed the question of authority, both spiritual and temporal, in the two traditions. There seems to have (...) been little comparative study of this topic, and there were many surprises as the speakers were confronted with aspects they had not been aware of in their own traditions and in those of others.The conference began with intercultural music that drew on Christian and Buddhist themes. After this, Brother Josef Götz spoke about the Benedictine Archabbey of St. Ottilien, stressing its longstanding and enriching participation in intermonastic dialogue. Elizabeth Harris, the incoming president of the network, then introduced the theme. She pointed to contemporary literature in English that represented the crisis in authority in the West and stressed that this was compounded by the awareness that some of those with power to enforce authority in the world did not possess legitimacy. She then raised a series of questions connected with the different forms of authority to be discussed at the conference—from the balance between external and internal authority to the struggle with institutional authority for equality between men and women. She hoped for three outcomes from the conference: that participants would be able to explore what their own tradition said about authority; that they would give wisdom to each other on the theme, Buddhist to Christian and Christian to Buddhist; and that all would reflect on how they represented themselves to the wider society, both to those searching for religious authority and those rejecting all authority.Following up this theme of a contemporary crisis of authority, Rita Gross said that Buddhists, in the spirit of the teaching on impermanence (P. anicca), need to take seriously the historicity of their different traditions in order to develop a nonsectarian history of Buddhism that acknowledges the authenticity of the foundational Buddhism [End Page 189] of the first four hundred years. The Kālāmasutta (AN.I.188 –193), one of the discourses in the Pāli canon, which was cited again and again in the course of the discussion, urges the Buddhist to assess the trustworthiness of teachers and their teaching, but criteria such as “what the wise would accept” or whether a text is accepted by the saṅgha (community) raise the problem of determining what constitutes wisdom and the authenticity of a text, as noted by Shenpen Hookham and Zhiru Shi. Rita Gross remarked on the irony that many Western Buddhists, despite their rationalistic education, abandon critical discernment and prefer myths to history. This is regrettable, as Western Buddhists have their own contributions to make to the further development of Buddhism.Kajsa Ahlstrand, referring to the World Values Survey, pointed to changing attitudes toward obedience, disobedience, and rebellion. Disobedience is now seen as praiseworthy, whereas obedience could be harmful to one’s mental health. Obedience in this “new key” emphasizes rights over duties. One can thus identify varieties of Christianity that are “hard” or “soft,” “strong” or “mild,” in various combinations, which she illustrated using different cheeses (thereby causing some puzzlement among the Asian participants!). We were left with the question whether there is an unchanging essence of eternal truth in either tradition, which is beyond historical change and sociological conditioning, and the realization that both obedience and disobedience can go terribly wrong. As Rita Gross concluded, it is our attachment that is the problem, not the things we are attached to.Spiritual authority is central to both Buddhism and Christianity, but it can take very different forms. Shenpen Hookham maintained that for Buddhists spiritual authority resides in enlightened people, whether monastic or lay, and is the result of realization rather than learning. The visible monastic saṅgha merely “represents” the ariyasaṅgha (noble community) of the truly enlightened (though this was later contested). The authority to teach derives directly from the teacher’s spiritual attainments or his or her status as the... (shrink)

Amending and Defending Critical Contextual Empiricism: Lessons from Medical Research In Science as Social Knowledge (1990) and The Fate of Knowledge (2002), Helen Longino develops a social epistemological theory known as Critical Contextual Empiricism (CCE). While Longino’s work has been generally well-received, there have been a number of criticisms of CCE raised in the philosophical literature in recent years. In this paper I outline the key elements of Longino’s theory and propose several modifications to the four norms offered by the (...) account. The revisions I propose are shaped by a number of developments in the medical context in recent years. The modified norms, which determined whether a particular community produces objective knowledge, are thus: 1. Avenues for Criticism – there must be recognized avenues for criticism, and these avenues must be publicly accessible and require transparent disclosure of all relevant information (including competing interests) from those who present their ideas. It must also be a community requirement that all members present their ideas for critical scrutiny if they wish them to be recognized as knowledge. 2. Responsiveness to Criticism – the community must be responsive to criticism. 3. Shared Public Standards – there must be some shared standards that determine community membership. Outsiders to a particular community are welcome to engage in critical debates as long as they share at least one of the community standards with the target community. 4. Cultivation of Diverse Perspectives – communities must cultivate diverse perspectives, that is, the perspectives of those who express strong dissent. The version of CCE I defend gives the principle of diversity a more central role than the original and provides greater specification of two of the other norms in light of challenges faced by medical researchers in recent years. The medical context provides us with a number of cautionary tales in which knowledge production that appears to meet the original four norms has been seriously compromised by particular social interests. The proposed modifications attempt to address these ‘loopholes’ in a way that is not ad hoc. I argue that the modifications I suggest are in line with the underlying assumptions and goals of CCE. The modified version of CCE also offers resources for defending CCE against the criticisms leveled against it by Miriam Solomon & Alan Richardson, Alvin Goldman and Philip Kitcher as well as one general concern arising out of a recent work by David Michaels. I provide responses to these criticisms in the final section of the paper. Throughout the paper I connect the theoretical work done in social epistemology to the real practice of knowledge-production as is occurs in the medical context. In light of the variety of social pressures influencing contemporary scientific research, and the role of science in shaping public policy, I argue that a rigorous social epistemology such as CCE is indispensable for understanding and assessing contemporary scientific practice. (shrink)

Conflict is an integral, and potentially disruptive, element in the lives of humans and other group-living animals. But conflicts are often settled, sometimes within minutes after the altercation has ended. The goal of this paper is to understand why primates, including humans, make amends. Primatologists have gathered an impressive body of evidence which demonstrates that monkeys and apes use a variety of behavioral mechanisms to resolve conflicts. Peaceful post-conflict interactions in nonhuman primates, sometimes labeled "reconciliation," have clear and immediate effects (...) upon former adversaries, relieving uncertainty about whether aggression will continue, reducing stress, increasing tolerance, and reducing anxiety about whether aggressors will resume aggression toward former victims. However, the long-term effects of these interactions are less clearly established, leaving room to debate the adaptive function of conflict resolution strategies among primates. It is possible that reconciliatory behavior enhances the quality of valued, long-term social relationships or that reconciliatory interactions are signals that the conflict has ended and the actor’s intentions are now benign. Both of these hypotheses may help us to understand how and why monkeys, apes, and humans make amends. (shrink)

If the fundamental law, or constitution, of a nation cannot be changed by legal means, then it cannot adapt to changing circumstances; as the disparity with circumstances widens, the risk of revolution increases. But if it can be changed too easily, then the fundamental principles and institutions it establishes are at risk of being swept away by a majority momentarily enraptured with a new idea. An amendment clause permits fundamental change, courting the latter risk, but it makes that change (...) difficult, courting the former. It aspires to capture the inconsistent virtues of stability and flexibility, protecting what the enacting generation thinks wise, but permitting future generations to think otherwise. (shrink)

We estimate that 208,000 deep brain stimulation (DBS) devices have been implanted to address neurological and neuropsychiatric disorders worldwide. DBS Think Tank presenters pooled data and determined that DBS expanded in its scope and has been applied to multiple brain disorders in an effort to modulate neural circuitry. The DBS Think Tank was founded in 2012 providing a space where clinicians, engineers, researchers from industry and academia discuss current and emerging DBS technologies and logistical and ethical issues facing the field. (...) The emphasis is on cutting edge research and collaboration aimed to advance the DBS field. The Eighth Annual DBS Think Tank was held virtually on September 1 and 2, 2020 (Zoom Video Communications) due to restrictions related to the COVID-19 pandemic. The meeting focused on advances in: (1) optogenetics as a tool for comprehending neurobiology of diseases and on optogenetically-inspired DBS, (2) cutting edge of emerging DBS technologies, (3) ethical issues affecting DBS research and access to care, (4) neuromodulatory approaches for depression, (5) advancing novel hardware, software and imaging methodologies, (6) use of neurophysiological signals in adaptive neurostimulation, and (7) use of more advanced technologies to improve DBS clinical outcomes. There were 178 attendees who participated in a DBS Think Tank survey, which revealed the expansion of DBS into several indications such as obesity, post-traumatic stress disorder, addiction and Alzheimer’s disease. This proceedings summarizes the advances discussed at the Eighth Annual DBS Think Tank. (shrink)

ABSTRACTNovelty held a special attraction for book buyers in the sixteenth and seventeenth centuries, but new texts carried more risk for the publisher than titles already proven to be good sellers. Canny bookseller-publishers therefore adopted a publishing strategy that would benefit from the commercial safety of proven sellers while simultaneously exploiting the cachet of the ‘new’. They could maximise the sales potential of a book by reprinting an already market-tested text but repackaging it with new and improved ingredients, often provided (...) by the text's original author. Such enlargements were never left unpublicised on the title page which, as the primary means of marketing texts in the early modern book trade, had to function both as a dust-jacket-style advertisement intended for bookstall browsers, and as a discrete advertisement posted remote from the physical volume. Given the safe bet of reprints and the marketability of new material, the promotional nature of title pages therefore necessitated revised, augmented, or otherwise enlarged editions to be produced by the author and bookseller to attract attention and sales. (shrink)

1. Rescher 1964 — henceforth HR — proposes a way of reasoning from a set of hypotheses which may include both some of our beliefs and also hypotheses contradicting those beliefs. The aim of this paper is to point out what I take to be a fault in Rescher’s proposal, and to suggest a modification of it, using a nonclassical logic, which avoids that fault. The paper neither attacks nor defends the broader aspects of Rescher’s proposal, but merely assumes that (...) it is at least prima facie worthwhile and therefore worthy of amendment; consequently, I shall try to tinker as little as possible. In particular, the use of a nonclassical logic which I propose does not replace any use by HR of classical logic — in those places where Rescher is classical, I shall be classical, too. (Instead, the amendment introduces a nonclassical logic at a point where HR uses no logic at all.). (shrink)

The recently passed Privacy Legislation Amendment (Enforcement and Other Measures) Act 2022 (Cth) introduced important changes to the Australian Privacy Act 1988 (Cth) which increase penalties for serious and repeated interferences with privacy and strengthen the investigative and enforcement powers of the Information Commissioner. The amendments were made subsequent to a number of high profile data breaches and represent the first set of changes to the Privacy Act following the review of the Act commenced by the Attorney-General in October (...) 2020. The submissions made to the review emphasized the need for more effective enforcement mechanisms to increase individuals’ control over their personal information and as a form of deterrence. This article reviews the recent amendments to the Privacy Act and explains their effect. It comments upon the relevance of the amendments for health and medical data and other data collected in the context of healthcare, and refers to the Attorney-General’s Department’s review of the Privacy Act regarding other proposals relating to enforcement which have not as yet been put into effect in legislation. (shrink)

This article assesses the origins and spread of the Second Amendment sanctuary movement in which localities pass ordinances or resolutions that declare their jurisdiction's view that proposed or enacted state gun safety laws are unconstitutional and therefore, local officials will not implement or enforce them. While it is important to assess Second Amendment sanctuaries from a legal perspective, it is equally as important to understand them in the context of a broader protest movement against any efforts to strengthen (...) gun laws. As the gun violence prevention movement has gained strength across the United States, particularly at the state level, gun rights enthusiasts have turned to Second Amendment sanctuaries in order to create a counter narrative to the increasing political power of gun safety. By passing these ordinances or resolutions, local officials legitimize and fuel Second Amendment absolutism which poses real risks to public safety and democracy. (shrink)

I begin by evaluating four theories: mereological essentialism, the occasional identity thesis, four-dimensionalism and the constitution view. I compare the solutions these theories offer to puzzles of material constitution with particular attention being paid to their treatment of Leibniz’s Law, the ontological status of objects and the distinction between objects and their matter. If a lump of clay constitutes a statue, the lump of clay and the statue are metaphysically distinct such that they are distinct kinds, but numerically one thing—the (...) statue as constituted by the lump of clay. I defend this view against criticism that it collapses into identity or substance dualism, exploding reality with unnecessary objects. I amend constitution to better account for cases of composite objects and to better solve puzzle cases involving change in parts over time. Finally, I go on to apply constitution to an unorthodox puzzle for theories of objects—the problem of the individuation of events. Events are things that happen. If we grant that events are in the same or similar ontological category to objects, there is a strong analogy between the problem of material constitution and the problem of events. In signing the US Constitution you may also do your bit to ratify it. However, the signing and the ratifying have different properties. I suggest that the signing and the ratifying are distinct in kind, but are not two separate events. I develop a constitution relation—a contingent, irreflexive, asymmetric and transitive relation—for events. This relation has the potential to be applied to the mind-body problem. (shrink)

It is universally recognized that the Hymn to Ares stands apart from all the other poems in the Homeric collection, and that it was composed centuries later than any of those that can be assigned to a particular period with any degree of confidence. Many older scholars classed it or even printed it with the Orphic Hymns, which are transmitted together with the Homeric Hymns as well as with the hymns of Callimachus and Proclus. But the similarity with the Orphic (...) Hymns is only superficial. It merely consists in the stylistic feature of accumulated epithets, a common characteristic of late hymns. There are three reasons for not lumping the Hymn to Ares with the very homogeneous Orphic series. First, the Orphic Hymns are courteous invocations of different gods to come to a ceremony described as τєλєτή or τєλєτταί, while the Hymn to Ares is an intensely personal prayer for the poet's own soul. Secondly, the Orphic collection already contains a hymn to Ares , and duplications are avoided. Thirdly, in the Homeric hymn Ares is addressed as a planetary god. In the Orphic hymn to Ares, this aspect is totally absent, and the same is true of the hymns to Hermes, Aphrodite, Zeus, and Kronos. (shrink)

In the eighth century, prophets began to appear whose words were addressed to the nation as a whole, because the mission of these prophets was to set the life of the people of God in the light of the future God was preparing for them.