Federalism as balance between the federal government and the states is a deeply entrenched principle of American constitutional law. Without the idea of balance or some replacement concept, judges and constitutional scholars seem incapable of conceptualizing federalism and resolving federalist conflicts. The thesis of the Article is that federalism as balance must be reexamined to assess whether it is jurisprudentially sound. For this purpose, the Article introduces a framework for understanding balancing discourse generally. Upon examination, federalism as balance does not (...) satisfy the requirements articulated by this framework. The result is that this conception has no discernible content and therefore can play no identifiable analytic role in either conceptualizing or resolving federalist conflicts. The failure of federalism as balance to be an analytically sound element in understanding federalism is an additional reason for reexamining the political safeguards argument for enforcing federalism. Without sufficient analytic content, federalism as balance is merely a rhetorical device which legislators can use just as well or as poorly as judges. (shrink)

This article formulates a progressive conception of communitarian democracy which rests upon the distinction between deliberative and dedicated conceptions of community. Deliberative communities seek fallibilistic change through a non-Enlightenment conception of practical reason. According to this pragmatist conception of practical reason, members of deliberative communities jointly attempt to formulate political truth independently of any a priori or non-deliberative standards of the right and the good. By contrast, dedicated communities seek what they regard as the truth about reality and insist upon (...) adhering to those cultural and social givens of their society which express this truth. The distinction between deliberative and dedicated communities is relevant to the debate between liberalism and communitarianism. Rather than viewing this debate as one between those who value community and those who do not, it is better understood as a controversy over the appropriate kind of community. Typically, liberals seek deliberative communities, while communitarians seek dedicated ones. However, a person committed to deliberativism as the method of social change can also regard deliberativism as defining a certain conception of community and the conception of the persons who are its members. Consequently, in this view, almost every serious person is a communitarian, but some people are deliberative communitarians while others are dedicated communitarians. Communitarian democracy is an attempt to describe a deliberative community. Communitarian democrats seek freedom, equality, and solidarity for the purpose of devising joint solutions to social problems. In order to achieve this, communitarian democrats devise a civic discourse shorn of dedicated features, which values each citizen equally as a member of the community. This has implication for at least three conflicts in political and constitutional affairs. Since no irreducibly dedicated premises are possible in this civic discourse, dedicated arguments are impossible without translation into deliberative terms. This implies a particular conclusion to the debate about religion in the public square, namely, that dedicated religious discourse must be translated into its deliberative counterpart, if it has one, before its proponents may use it in public justification. (The article pays close attention to Michael Perry?s work concerning the role of religion in the public square.) Similarly, concerning multicultural conceptions of the right and the good, communitarian democrats can accept only those multicultural conceptions translatable into deliberative discourse. And, finally, communitarian democrats must guard against constitutional atrophy, the process by which initially deliberative structures become dedicated through lack of vigilance, criticism, and challenge. In a communitarian democracy, atrophied deliberative structures may be just as inefficient and unfair as some decidedly dedicated structures and must be similarly avoided. (shrink)

Judicial activism is in serious, though undeserved, trouble. The current impasse over its role in constitutional discourse pits two opposed positions committed to different paradigms of judicial activism against one another. One side condemns activist judges for engaging in ultra vires adjudication by reading their idiosyncratic values into the Constitution. In this view, the charge of judicial activism has significant content and should be deployed to restrain renegade judges. The other side insists that calling someone a "judicial activist" has only (...) emotive content and is used merely as an empty epithet denouncing judges with whom one disagrees. This Article redirects the controversy over judicial activism by distinguishing between two different, but interrelated, levels of constitutional discourse: the surface level and the deep level. The problem of judicial activism exists on the surface level of constitutional discourse and will remain irresolvable on that level. However, once we attend to the deep level of constitutional discourse, the role of judicial activism becomes clear. The presence of judicial activism on the surface structure of constitutional discourse reveals on the deep structure reasonable disagreement over the meaning of key constitutional provisions. The idea of "reasonable disagreement" is profitably explicated by combining what social theorist W.B. Gallie called "essentially contested concepts" with the political philosopher John Rawls' important categorization of "the burdens of judgment." These obstacles to rational consensus are endemic to a republican democracy. Consequently, reasonable disagreement over key constitutional provisions should not be regarded negatively; it is an inevitable and positive feature of any society championing liberty, equality, and pluralism. However, the inevitability and desirability of reasonable disagreement has institutional consequences for constitutional review. When reasonable disagreement is inevitable, legislatures, not courts should have the last word on constitutional meaning. (shrink)

A novel advantage of the use of machine learning (ML) systems in medicine is their potential to continue learning from new data after implementation in clinical practice. To date, considerations of the ethical questions raised by the design and use of adaptive machine learning systems in medicine have, for the most part, been confined to discussion of the so-called “update problem,” which concerns how regulators should approach systems whose performance and parameters continue to change even after they have received regulatory (...) approval. In this paper, we draw attention to a prior ethical question: whether the continuous learning that will occur in such systems after their initial deployment should be classified, and regulated, as medical research? We argue that there is a strong prima facie case that the use of continuous learning in medical ML systems should be categorized, and regulated, as research and that individuals whose treatment involves such systems should be treated as research subjects. (shrink)

In this dissertation I defend the claim, long held by Donald Davidson, that truth is a primitive concept that cannot be correctly or informatively defined in terms of more basic concepts. To this end I articulate the history of the primitive thesis in the 20th century, working through early Moore, Russell, and Frege, and provide improved interpretations of their reasons for advancing and eventually abandoning the primitive thesis. I show the importance of slingshot-style arguments in the work of Frege, Church, (...) Davidson, and Gödel for resisting certain versions of the correspondence theory of truth. I argue that most slingshots fail to convincingly establish a collapsing conclusion, but that a Gödelian version of the slingshot is terminal to certain varieties of the correspondence theory of truth. I then provide a Davidsonian theory of truth and interpretation that is consistent with and makes use of the primitive thesis. Finally, I provide an account of predication, properties, and universals that I argue is both serviceable and consistent with Davidson’s overall program. (shrink)

A large body of research has found that people judge bad foreseen side effects to be more intentional than good ones. While the standard interpretation of this Side-Effect Effect takes it to show that the ordinary concept of intentionality is influenced by normative considerations, a competing account holds that it is the result of pragmatic pressure to express moral censure and, thus, that the SEE is an experimental artifact. Attempts to confirm this account have previously been unsuccessful, but Lindauer and (...) Southwood :181–186, 2021) present a study that appears to provide support for it, by cancelling the SEE. We are not convinced. Here, we detail three studies testing their interpretation. The results indicate that it is the purported cancellation, rather than the SEE, that is an experimental artifact. (shrink)

BackgroundAcute myocardial infarction (AMI) research is challenging as it requires enrollment of acutely ill patients. Patients are generally in a suboptimal state for providing informed consent. Patients’ understanding to verbal assents have not been previously examined in AMI research. Patients Acceptance and Comprehension to Written and Verbal Consent (PAC–VC) compared patients’ understanding and attitudes to verbal and written consents in AMI RCTs.MethodsPAC–VC recruited patients from 3 AMI trials using both verbal N = 12 and written N = 6 consents. We (...) compared patients’ understanding using two survey questionnaires. The first questionnaire used open-ended questions with multiple choice answers. The second questionnaire used a 5-point Likert scale to measure patients understanding and attitudes to the consent process. Overall answers average scores were categorized into three groups: Adequate understanding (71–100) %, Partial understanding (41–70)% and Inadequate understanding (0–40)%.ResultsResponses showed patients with verbal assent had adequate understanding to most components of informed consent, close to those of written consent. Most patients did not read written information entirely and believed that it is not important to make a final decision. Patients favoured to have written information be part of the consent but not necessarily presented during the initial consent process. Patients felt less pressured in the verbal assent arm than those of written consent.ConclusionPatients had adequate understanding to most components of verbal assent and comparable to those of written consent. Utilizing verbal assents in the acute care setting should be further assessed in larger trials. (shrink)

In December of 2017, President Trump reduced the size of Bears Ears and Grand Staircase-Escalante Monuments by 2 million acres. Conservatives rejoiced, and progressives railed. Yet neither side has clearly identified the moral facets of the situation. The crucial moral question is this: How ought public property be regulated to protect landscapes with cultural significance? We offer criteria for determining when something has cultural value and argue that the moral merits of the present case turn on whether the reduction adequately (...) addresses the cultural interests at play. (shrink)

If certain versions of the correspondence theory of truth are correct, then truth can be informatively defined as correspondence to facts; facts would be truth-makers, and we could explain truth in terms of truth-bearers, correspondence, and truth-makers. I explain how slingshot arguments work generally, as collapsing arguments (regardless of their targets). Working through the slingshots of Davidson, and Gödel, I claim that Davidson’s slingshot involves dubitable premises, but that Gödel’s slingshot is terminal to certain versions of the correspondence theory, as (...) it poses a fatal dilemma between what I call fact fission and fact fusion. My claim is that it is impossible to informatively define truth in terms of correspondence to facts. (shrink)

I want to motivate an account of what it is for an object to have a property, which may as well be called a deflationary view about properties. Such a view follows from a conception of predication I ground in the work of Donald Davidson, some of which remains unpublished. I claim that if we take seriously Davidson’s account of predication, by maintaining that sentences are the primary linguistic unit, we can define properties in terms of predicates. The aim of (...) this paper is twofold. First, I argue that this account is present in Davidson’s systematic treatment of the problem of predication. Second, I claim that this account is serviceable and economical, as it can accommodate a wide scope of properties and abstract objects without appealing to entities such as truthmakers or joints in nature. (shrink)

Moral rationalism, the belief that acting contra a moral requirement is always irrational, is a strong claim; if true, seems to greatly reduce in scope the number of plausible moral theories due to what has been called the demandingness objection. One response to this consequence of moral rationalism has been to adopt moral anti-rationalism. Dale Dorsey thinks one can escape the demandingess objection with a weak form of anti-rationalism that still grants morality pride of place among normative systems. In this (...) paper I’ll argue that the demandingness objection is a formidable challenge to moral rationalism, and that Dorsey is correct in arguing that his weak anti-rationalism neatly offers a way to evade the objection. I’ll maintain, however, that weak anti-rationalism opens theories up to another powerful objection, the permissiveness objection, which ought to lead someone comfortable abandoning moral rationalism to abandon weak anti-rationalism as well, accepting moral anti-rationalism. (shrink)

Beauty pageants are ubiquitous around the world, and their importance in many cultures is indisputable. This paper empirically examines those factors that contribute to beauty pageant success in a cross-national setting. Our analysis pays particular attention to the role of market liberalism, i.e., economic freedom, in the process. The results indicate that nations with higher economic freedom scores are underrepresented among Miss Universe semifinalists after controlling for other relevant determinants.

Game theoretic explanations of the evolution of human behavior have become increasingly widespread. At their best, they allow us to abstract from misleading particulars in order to better recognize and appreciate broad patterns in the phenomena of human social life. We discuss this explanatory strategy, contrasting it with the particularist methodology of contemporary evolutionary psychology. We introduce some guidelines for the assessment of evolutionary game theoretic explanations of human behavior: such explanations should be representative, robust, and flexible. Distinguishing these features (...) sharply can help to clarify the import and accuracy of game theorists' claims about the robustness and stability of their explanatory schemes. Our central example is the work of Brian Skyrms, who offers a game theoretic account of the evolution of our sense of justice. Modeling the same Nash game as Skyrms, we show that, while Skyrms' account is robust with respect to certain kinds of variation, it fares less well in other respects. (shrink)

Recent theorizing about the cognitive underpinnings of dilemmatic moral judgment has equated slow, deliberative thinking with the utilitarian disposition and fast, automatic thinking with the deontological disposition. However, evidence for the reflective utilitarian hypothesis—the hypothesized link between utilitarian judgment and individual differences in the capacity for rational reflection has been inconsistent and difficult to interpret in light of several design flaws. In two studies aimed at addressing some of the flaws, we found robust evidence for a reflective minimalist hypothesis—high CRT (...) performers’ tendency to regard utility-optimizing acts as largely a matter of personal prerogative, permissible both to perform and to leave undone. This relationship between CRT and the “minimalist” orientation remained intact after controlling for age, sex, trait affect, social desirability, and educational attainment. No significant association was found between CRT and the strict utilitarian response pattern or CRT and the strict deontological response pattern, nor did we find any significant association between CRT and willingness to act in the utility-optimizing manner. However, we found an inverse association between empathic concern and a willingness to act in the utility-optimizing manner, but there was no comparable association between empathic concern and the deontological judgment pattern. Theoretical, methodological, and normative implications of the findings are discussed. (shrink)

Originally published in 1983. The nineteenth century was a time of great economic, social and political change. As Europe modernized, previously ignorant and apathetic elements in the population began to demand political freedoms. There was pressure also for a freer press, for the rights of assembly and association. The apprehension of the existing elites manifested itself in an intensification of often brutal form of political repression. The first part of this book summarizes on a pan-European basis, the major techniques of (...) repression such as the denial of popular franchise and press censorship. This is followed by a chronological survey of these techniques from 1815 – 1914 in each European country. The book analyzes the long and short-term importance of these events for European historical development in the 19 th and 20 th centuries. (shrink)

The fact that Gilbert Ryle and J.L. Austin seem to disagree about the ordinary use of words such as ‘voluntary’, ‘involuntary’, ‘voluntarily’, and ‘involuntarily’ has been taken to cast doubt on the methods of ordinary language philosophy. As Benson Mates puts the worry, ‘if agreement about usage cannot be reached within so restricted a sample as the class of Oxford Professors of Philosophy, what are the prospects when the sample is enlarged?’ (Mates, Inquiry 1:161–171, 1958, p. 165). In this chapter, (...) we evaluate Mates’s criticism alongside Ryle’s and Austin’s specific claims about the ordinary use of these words, assessing these claims against actual examples of ordinary use drawn from the British National Corpus (BNC). Our evaluation consists in applying a combination of methods: first aggregating judgments about a large set of samples drawn from the corpus, and then using a clustering algorithm to uncover connections between different types of use. In applying these methods, we show where and to what extent Ryle’s and Austin’s accounts of the use of the target terms are accurate as well as where they miss important aspects of ordinary use, and we demonstrate the usefulness of this new combination of methods. At the heart of our approach is a commitment to the idea that systematically looking at actual uses of expressions is an essential component of any approach to ordinary language philosophy. (shrink)

The fact that Gilbert Ryle and J.L. Austin seem to disagree about the ordinary use of words such as ‘voluntary’, ‘involuntary’, ‘voluntarily’, and ‘involuntarily’ has been taken to cast doubt on the methods of ordinary language philosophy. As Benson Mates puts the worry, ‘if agreement about usage cannot be reached within so restricted a sample as the class of Oxford Professors of Philosophy, what are the prospects when the sample is enlarged?’ (Mates 1958, p. 165). In this chapter, we evaluate (...) Mates’s criticism alongside Ryle’s and Austin’s specific claims about the ordinary use of these words, assessing these claims against actual examples of ordinary use drawn from the British National Corpus (BNC). Our evaluation consists in applying a combination of methods: first aggregating judgments about a large set of samples drawn from the corpus, and then using a clustering algorithm to uncover connections between different types of use. In applying these methods, we show where and to what extent Ryle’s and Austin’s accounts of the use of the target terms are accurate as well as where they miss important aspects of ordinary use, and we demonstrate the usefulness of this new combination of methods. At the heart of our approach is a commitment to the idea that systematically looking at actual uses of expressions is an essential component of any approach to ordinary language philosophy. (shrink)

For more than sixty years, surgeons have used bioethical strategies to promote patient self‐determination, many of these now collectively described as “informed consent.” Yet the core framework—understanding, risks, benefits, and alternatives—fails to support patients in deliberation about treatment. We find that surgeons translate this framework into an overly complicated technical explanation of disease and treatment and an overly simplified narrative that surgery will “fix” the problem. They omit critical information about the goals and downsides of surgery and present untenable options (...) as a matter of patient choice. We propose a novel framework called “better conversations.” Herein, surgeons provide context about clinical norms, establish the goals of surgery, and comprehensively delineate the downsides of surgery to generate a deliberative space for patients to consider whether surgery is right for them. This paradigm shift meets the standards for informed consent, supports deliberation, and allows patients to anticipate and prepare for the experience of treatment. (shrink)

Drawing on a landscape analysis of existing data-sharing initiatives, in-depth interviews with expert stakeholders, and public deliberations with community advisory panels across the U.S., we describe features of the evolving medical information commons. We identify participant-centricity and trustworthiness as the most important features of an MIC and discuss the implications for those seeking to create a sustainable, useful, and widely available collection of linked resources for research and other purposes.