Although Justice Scalia purported to be driven by originalism and precedent, his opinions in three education cases—Grutter v. Bollinger, Parents Involved v. Seattle School District, and United States v. Virginia —tell a different tale. In these cases, his arguments are difficult to defend on originalist grounds and, surprisingly, Justice Scalia himself makes no attempt to do so. Similarly, his views are difficult to square with precedent. It is hard to escape the conclusion that, in some of (...) his most noteworthy cases related to education, Justice Scalia was as results-oriented as the justices and judges he loved to criticize. (shrink)

My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First (...) is the theory of “Constitutional Textualism”—or just plain “Textualism”—which says that the meaning of the Constitution lies entirely within the “four corners” of the document. Second is the theory of “Originalism,” which says that this meaning was fixed at the time of ratification. (Likewise, the meanings of the amendments were fixed at the time of their ratification.) -/- While Justice Scalia helped to inspire a Textualist/Originalist (and anti-substantive-due-process) movement, his Originalism has received far more attention than his Textualism. Since Judge Robert Bork first introduced Originalism to the general public during his Supreme Court nomination hearings in 1987, this theory has ignited passions on all sides and effectively re-framed the entire debate about how to interpret the Constitution. Constitutional scholars, left and right, now define themselves as either for or against Originalism. Meanwhile, Textualism has merely retreated into the background. -/- Part of the reason for this disparate treatment is that many who reject Originalism still consider themselves to be Textualists. They agree with Justice Scalia (and Judge Bork) that the text is all-important. They disagree, however, that its meaning was fixed for eternity at ratification. Instead, they maintain that either the meaning of the text or applications of this meaning to new cases can change as society changes. -/- In this Article, I bring Textualism out of Originalism’s shadow and into broad daylight. I argue that once we dig just a little deeper into the proposition that all of the meaning in the Constitution inheres in its words, we find that this theory simply cannot work. In order to interpret the nation’s foundational document, we must resort to assumptions that it does not explicitly state. (Indeed, even Textualism itself is a theory that the Constitution does not explicitly endorse.) And the notion that “extra-textual” assumptions necessarily inform our interpretations of the Constitution poses a direct and insurmountable threat to Textualism. -/- The Constitution actually requires each judge, when faced with a case concerning the right to privacy, not merely to consider the text but also to anticipate and evaluate the moral, social, and political consequences of both possible decisions before choosing between them. While this position may initially sound counterintuitive, it turns out to be a much more realistic theory of constitutional interpretation than Textualism (and Originalism). -/- I ultimately conclude that, contrary to Justice Scalia, the Constitution most certainly does protect a right to privacy. For what it’s worth, the Obergefell majority agree with me (and oppose Justice Scalia). I aim to show exactly why they are correct. (shrink)

In this chapter, I discuss the Endangered Species Act (ESA), along with explaining what the reader needs to know about species and about certain philosophical issues regarding species. I investigate how the late stalwart conservative Justice Antonin Scalia interpreted the fit between the Fish and Wildlife’s definition of harm in the Code of Federal Regulations and what the ESA implies about harm in a landmark Supreme Court case, Babbitt v. Sweet Home. Scalia argues that the FWS definition (...) of “harm” is inconsistent with the ESA. Here, I come to Scalia’s defense by responding to objections that have been made to his argument. In my response, I further fill out his argument and appeal to what I have written elsewhere about whether we harm individual nonhuman organisms or nonhuman species when we impair breeding behaviors in our various human-habitat expansion activities. This question is related to the following broader question prominent in the field of environmental ethics: whether it makes sense to say that we can harm populations or even species understood as meta-populations. (shrink)

As part of the South Carolina Law Review's symposium on the Roberts Court and Equal Protection, this essay looks at Justice Kennedy's sex discrimination jurisprudence. With the new Court, it's natural to be concerned with how the two new Justices might vote in upcoming sex discrimination cases. However, in this essay, I assume what has been the case so far from Chief Justice Roberts and Justice Alito - that they are reliable votes joining Justices Scalia and (...) Thomas on the Court's more conservative wing. The Justice most people should focus on now is Justice Kennedy, the new median Justice now that Justice O'Connor has retired. This essay seeks to analyze Justice Kennedy's sex discrimination jurisprudence and draw conclusions about his thoughts on sex and gender. First, it reviews the cases involving sex discrimination that Justice Kennedy has participated in while on the Court and shows that he has been a fairly consistent vote against sex discrimination claims. Second, it analyzes Justice Kennedy's votes and opinions in sex discrimination cases and attempt to summarize his views. Finally, the essay evaluates Justice Kennedy's conceptions of gender in his opinions and votes. The essay concludes that Justice Kennedy's new role as median Justice is troubling for sex equality jurisprudence generally and constitutional sex discrimination cases specifically, as Justice Kennedy has shown a tendency, in the many cases arising in the parent/child context, to adhere to traditional and paternalistic gender roles. (shrink)

La realtÀ penitenziaria viene di solito analizzata a partire da approcci, che privilegiano o le analisi strutturali, di tipo socio-economico, oppure vertono sui processi relativi al controllo sociale. In questo lavoro, l'autore, adotta un approccio di tipo, che trae spunto dal lavoro di Erving Goffmann, per descrivere ed analizzare il percorso di due detenuti, un uomo e una donna, all'interno del sistema penitenziario italiano.

La introducción de la figura jurídica del “microtraficante” en la legislación penal chilena provoca un aumento de la violencia institucional, a nivel simbólico y material, hacia los sectores marginales de la población. ¿Cuáles tópicos, “lugares comunes”, fundamentan el cambio legislativo? Los conceptos “droga” y “drogadicto’’, entre otros, se configuran adentro del “espacio retórico prohibicionista”, cerrado entre los horizontes políticos de la criminalización y/o medicalización. Por eso el autor argumenta sobre la necesidad de abrir el “espacio retórico prohibicionista”, promoviendo una cultura (...) sociojurídica de las drogas desde la despenalización y legalización de su consumo. (shrink)

This book approaches the problems and circumstances confronting blacks in the context of black values, the black community, and the role of government. ^BContents:: The Black Community's Values as a Basis for Action; The Community as Agent of Change; and The Government's Role in Meeting New Challenges.

Frege’s claim that proper names have senses has come to seem untenable following Kripke’s argument that names are rigid designators. It is commonly thought that if names had senses, their referents would vary with circumstances of evaluation. The article defends Frege’s claim by arguing that names have word-reflexive senses. This analysis of names’ senses does not violate Kripke’s noncircularity condition, and it differs crucially from related views of Bach and Katz. That names have reflexive senses confirms Frege’s own solution to (...) his puzzle about the content of identity sentences, solves Kripke’s Pierre and Peter puzzles about belief ascription, and entails that bearerless names have meanings. Furthermore, names’ having reflexive senses explains why they designate rigidly. (shrink)

"On Sense and Reflexivity" offers the answer to a crucial question that was posed, and left without a satisfactory answer, by Gottlob Frege in "On Sense and Reference" (1892): What is the sense of a proper name? The century-long failure to answer this question has been the main motivation and support for recent nondescriptional accounts of lexical singular terms.

Singular-term semantics has been intractable. Frege took the referents of singular terms to be their semantic values. On his account, vacuous terms lacked values. Russell separated the semantics of definite descriptions from the semantics of proper names, which caused truth-values to be composed in two different ways and still left vacuous names without values. Montague gave all noun phrases sets of verb-phrase extensions for values, which created type mismatches when noun phrases were objects and still left vacuous names without values. (...) There is a single type of value for all noun phrases that dissolves the difficulties which have beset singular-term semantics. (shrink)

It is generally accepted that Mill’s classification of names as nonconnotative terms is incompatible with Frege’s thesis that names have senses. However, Milldescribed the senses of nonconnotative terms—without being aware that he was doing so. These are the senses for names that were sought in vain by Frege. When Mill’s and Frege’s doctrines are understood as complementary, they constitute a fully satisfactory theory of names.

Frege's thesis that each singular term has a sense that determines its reference and serves as its cognitive value has come to be widely doubted. Saul Kripke argued that since names are rigid designators, their referents are not determined by senses. David Kaplan has argued that the rigid designation of indexical terms entails that they also lack referent–determining senses. Kripke's argument about names and Kaplan's argument about indexical terms differ, but each contains a false premise. The referents of both names (...) and indexical terms are determined by reflexive senses. It is reflexive sense that makes these terms rigid designators. (shrink)

ABSTRACT Every social order depends on a pathway to atonement for those who breach behavioral expectations. However, observers from a variety of fields now agree that the United States has entered an age of non-apology, where the two words “I’m sorry” simply cannot be said, particularly by powerful men facing allegations of sexual misconduct. This essay draws attention to, and comments upon, this trend. We first identify the sociopolitical factors that have inaugurated the era of non-apology, namely growing political polarization. (...) We then explain the consequences of this shift in societal expectations surrounding apology. This state of affairs, which associates genuine apology with emasculation and defeat, is harmful: it foments a toxic culture that will not allow redress for survivors of sexual assault and harassment; and it provides no answers to complex questions of how society can address the guilt of those who engage in sexual misconduct. (shrink)

It is generally accepted that Mill’s classification of names as nonconnotative terms is incompatible with Frege’s thesis that names have senses. However, Milldescribed the senses of nonconnotative terms—without being aware that he was doing so. These are the senses for names that were sought in vain by Frege. When Mill’s and Frege’s doctrines are understood as complementary, they constitute a fully satisfactory theory of names.

Theoreticians of names are currently split into two camps: Fregean and Millian. Fregean theorists hold that names have referent-determining senses that account for such facts as the change of content with the substitution of co-referential names and the meaningfulness of names without bearers. Their enduring problem has been to state these senses. Millian theorists deny that names have senses and take courage from Kripke's arguments that names are rigid designators. If names had senses, it seems that their referents should vary (...) among possible worlds. However, the Millians have the enduring problem of explaining the apparent cognitive content of names. I argue that Mill's original theory, when purged of confusion, provides word-reflexive senses for names. Frege failed to notice senses of this particular sort. Moreover, it is these senses that account for names' rigid designation. When the views of Mill and Frege are understood as complementary, the problems that have faced the divided theorists of names vanish. (shrink)

In spite of advances in medicine and public health, malaria and other mosquito‐borne diseases are on the rise worldwide. Although vaccines, genetically modified mosquitoes and safer insecticides are under development, herein we examine a promising new approach to malaria control through better repellents. Current repellents, usually based on DEET, inhibit host finding by impeding insect olfaction, but have significant drawbacks. We discuss how comparative genomics, using data from the Anopheles genome project, allows the rapid identification of members of three protein (...) classes critical to insect olfaction: odorant‐binding proteins, G‐protein‐coupled receptors, and odorant‐degrading enzymes. A rational design approach similar to that used by the pharmaceutical industry for drug development can then be applied to the development of products that interfere with mosquito olfaction. Such products have the potential to provide more complete, safer and longer lasting protection than conventional repellents, preventing disease transmission by interrupting the parasite life cycle. BioEssays 25:1011–1020, 2003. © 2003 Wiley Periodicals, Inc. (shrink)