This article addresses the fiduciary issues raised by the current practice of plan fiduciaries of not only disclaiming any fiduciary responsibility for brokerage window investments, but also abdicating any role (fiduciary or otherwise) in assessing even the general suitability of those investments for a retirement plan, and concludes that the practice is in plain and notorious violation of what ERISA requires of fiduciaries.

According to the principle that ‘ought’ implies ‘can’, it is never the case that you ought to do something you cannot do. While many accept this principle in some form, it also has its share of critics, and thus it seems desirable if an argument can be offered in its support. The aim of this paper is to examine a particular way in which the principle has been defended, namely, by appeal to considerations of fairness. In a nutshell, the idea (...) (due to David Copp) is that moral requirements we cannot comply with would be unfair, and there cannot be unfair moral requirements. I discuss several ways of spelling out the argument, and argue that all are unsatisfactory for a variety of reasons. (shrink)

In its recent opinion in Intel v. Sulyma, the U.S. Supreme Court clarified what qualifies as the “actual knowledge” required to trigger ERISA’s three-year statutory period. The Court’s opinion, however, left open whether establishing “actual knowledge” by a plaintiff in one case serves to time-bar otherwise timely suits that challenge subsequent breaches of the same character. This article argues that, under the continuing fiduciary duty analysis that the Court set forth in Tibble v. Edison, such suits should not be deemed (...) untimely. (shrink)

Under a policy first enacted in 1988 and expanded in 1996, federally funded public housing authorities (“PHAs”) and private landlords renting their properties to tenants receiving federal housing assistance have been required to include a provision in all leases under which drug-related criminal activity as well as criminal activity that in any way poses a threat to other tenants or nearby residents constitutes ground for initiating eviction proceedings. This strict liability eviction policy, which has become known as the “One-Strike Rule,” (...) was part of a broader congressional effort to combat the “reign of terror” that Congress believed drug dealers were imposing on public housing and assisted housing tenants. Like many of the crime-related policies enacted in the 1980s and 1990s, the One-Strike Rule has done little to reduce crime rates, but has been wildly successful in ensuring that the situation of poor households receiving federal assistance remains highly precarious. Calls for reform of the One-Strike Rule are almost as old as the policy itself, but given the political outlook of the current administration, the prospects for reform at the federal level are dim. While federal law and a combination of gridlock and unwillingness in the congressional and executive branches foreclose a range of possible strategies for reform, there is nonetheless room to mitigate the socially corrosive effects of the One-Strike Rule through legislative efforts at the state and local level. Courts in various jurisdictions have upheld state laws that protect vulnerable tenants despite the federal strict liability policy, and these holdings help to provide a framework for how state and local governments seeking to protect tenants can do so without their efforts necessarily falling prey to the Supremacy Clause. This article describes that framework and proposes three concrete measures that fit it. The article is structured as follows: after explaining the One-Strike Rule and the threat it poses to vulnerable tenants (Section II), the article discusses the burden the Rule imposes on tenants and the benefits it is supposed to bring to other parties, and argues that the resulting distribution of burdens and benefits is unjust (Section III). The article then lays out three concrete measures that state and local governments can enact to protect tenants who face eviction for criminal activity under the Rule without falling prey to a federal preemption challenge: requiring “good cause” for eviction, giving tenants the right to cure a breach of their lease, and providing tenants with free counsel in landlord-tenant court (Section IV). (shrink)

David Enoch recently defended the idea that there are valid inferences of the form ‘it would be good if p, therefore, p’. I argue that Enoch's proposal allows us to infer the absurd conclusion that ours is the best of all possible worlds.

There are two distinct views on how to formulate an objective consequentialist account of the deontic status of actions, actualism and possibilism. On an actualist account, what matters to the deontic status of actions is only the value of the outcome an action would have, if performed. By contrast, a possibilist account also takes into account the value of the outcomes that an action could have. These two views come apart in their deontic verdicts when an agent is imperfect in (...) an avoidable way, viz., when agent brings about less good than she could. In this paper, I offer an argument against actualism that draws on the connection between moral obligation and practical reasons. (shrink)

Some moral theories, such as objective forms of consequentialism, seem to fail to be practically useful: they are of little to no help in trying to decide what to do. Even if we do not think this constitutes a fatal flaw in such theories, we may nonetheless agree that being practically useful does make a moral theory a better theory, or so some have suggested. In this paper, I assess whether the uncontroversial respect in which a moral theory can be (...) claimed to be better if it is practically useful can provide a ground worth taking into account for believing one theory rather than another. I argue that this is not the case. The upshot is that if there is a sound objection to theories such as objective consequentialism that is based on considerations of practical usefulness, the objection requires that it is established that the truth about what we morally ought to do cannot be epistemically inaccessible to us. The value of practical usefulness has no bearing on the issue. (shrink)

The characterization of objective, normative reasons to φ as facts (or truths) that count in favor of φ-ing is widely accepted. But are there any further conditions that considerations which count in favor of φ-ing must meet, in order to count as a reason to φ? In this brief paper, I consider and reject one such condition, recently proposed by Caspar Hare.

Many philosophers think the distinctive function of deontic evaluation is to guide action. This idea is used in arguments for a range of substantive claims. In this paper, we entirely do one completely destructive thing and partly do one not entirely constructive thing. The first thing: we argue that there is an unrecognized gap between the claim that the function of deontic evaluation is to guide action and attempts to put that claim to use. We consider and reject four arguments (...) intended to bridge this gap. The interim conclusion is thus that arguments starting with the claim that the function of deontic evaluation is to guide action have a lacuna. The second thing: we consider a different tack for making arguments of this sort work. We sketch a methodology one could accept that would do the trick. Unfortunately, as we’ll explain, although this methodology would bridge the gap in arguments that put claims about the function of deontic evaluation to work, it would do so in a way that vitiates any interest we might have in such arguments. As an aside, we’ll also point out how epistemologists, who have recently become interested in the function of epistemic evaluation, appear to already recognize this fact. The conclusion is hence a dilemma: either arguments from deontic function to substance have a lacuna or such arguments lack teeth. (shrink)

In a recent paper, Nate Sharadin and Rob van Someren Greve pull into doubt a seemingly platitudinous idea: deontic evaluation is capable of guiding action (“Capable”). After discussing several arguments for it, the authors conclude that, to the extent to which Capable can be defended, it cannot produce interesting results about the nature of the deontic. My goal is to argue that the authors’ skeptical endeavors are unconvincing. I aim to show that they rely on an implausibly broad (...) understanding of “actual guidance”. I propose an alternative understanding and show that, with it, “functionalist” arguments of the above kind can produce interesting results. If I am right, Sharadin’s and van Someren Greve’s considerations do not get off the ground. Instead, optimism seems warranted: We can learn something interesting about the nature of the deontic by assuming that actual guidance is the function of deontic evaluation. (shrink)

Some conspicuous characteristics of argumentation as we all know this phenomenon from our shared everyday experiences are in my view vital to its theoretical treatment because they should have methodological consequences for the way in which argumentation research is conducted. To start with, argumentation is in the first place a communicative act complex, which is realized by making functional verbal communicative moves.

In this Editor’s column I suggest a more modern aesthetics, in order to fill in some of the promise the current Special Issue on The Birth of the Discipline has in store for us. I base my suggestion more on Kant and Aristotle, though.

The WWW is increasingly used as a tool and platform for survey research. Several principles have been developed to deal with the new challenges posed to researchers conducting online surveys. In this paper, we discuss some of the challenges we encountered in all phases of our Web based survey conducted in 2004/2005 among nearly 10,000 respondents in six European countries. We argue how and to what extent we applied the principles and methodologies of online surveys to meet the challenges, ranging (...) from composing sampling frames, questionnaire construction, addressing potential respondents, questionnaire distribution, response rate improvement, to data cleaning and data processing. When relevant, we discuss the differences between the six countries involved. It is concluded that many if not most of the problems encountered in online surveys are solved when taking into account the principles that guide the conduct of conventional surveys. (shrink)

From 1991 to 1994 the Dutch Health Insurance Council financed research on Extracorporeal Membrane Oxygenation (ECMO). This is a technique for providing cardiopulmonary bypass to patients with pulmonary and/or cardiac failure. Most often, these patients are premature neonates. During ECMO, blood is drained from the right atrium, pumped along a membrane where gas exchange takes place, and then redirected to the aorta. To prevent blood clotting, heparin is added. However, with the heparin added, the risk of hemorrhage is considerably increased. (...) Therefore, both the chance of surviving and the chance of severe disability are higher with ECMO than with conventional treatment (i.e., ventilator support). (shrink)

From 1991 to 1994 the Dutch Health Insurance Council financed research on Extracorporeal Membrane Oxygenation . This is a technique for providing cardiopulmonary bypass to patients with pulmonary and/or cardiac failure. Most often, these patients are premature neonates. During ECMO, blood is drained from the right atrium, pumped along a membrane where gas exchange takes place, and then redirected to the aorta. To prevent blood clotting, heparin is added. However, with the heparin added, the risk of hemorrhage is considerably increased. (...) Therefore, both the chance of surviving and the chance of severe disability are higher with ECMO than with conventional treatment. (shrink)

Introduction: Uncertainty is omnipresent in cancer care, including the ambiguity of diagnostic tests, efficacy and side effects of treatments, and/or patients' long-term prognosis. During second opinion consultations, uncertainty may be particularly tangible: doubts and uncertainty may drive patients to seek more information and request a second opinion, whereas the second opinion in turn may also affect patients' level of uncertainty. Providers are tasked to clearly discuss all of these uncertainties with patients who may feel overwhelmed by it. The aim of (...) this study was to explore how oncologists communicate about uncertainty during second opinion consultations in medical oncology.Methods: We performed a secondary qualitative analysis of audio-recorded consultations collected in a prospective study among cancer patients who sought a second opinion in medical oncology. We purposively selected 12 audio-recorded second opinion consultations. Any communication about uncertainty by the oncologist was double coded by two researchers and an inductive analytic approach was chosen to allow for novel insights to arise.Results: Seven approaches in which oncologists conveyed or addressed uncertainty were identified: specifying the degree of uncertainty, explaining reasons of uncertainty, providing personalized estimates of uncertainty to patients, downplaying or magnifying uncertainty, reducing or counterbalancing uncertainty, and providing support to facilitate patients in coping with uncertainty. Moreover, oncologists varied in their choice of words/language to convey uncertainty.Discussion: This study identified various approaches of how oncologists communicated uncertain issues during second opinion consultations. These different approaches could affect patients' perception of uncertainty, emotions provoked by it, and possibly even patients' behavior. For example, by minimizing uncertainty, oncologists may consciously steer patients toward specific medical decisions). Future research is needed to examine how these different ways of communicating about uncertainty affect patients. This could also facilitate a discussion about the desirability of certain communication strategies. Eventually, practical and evidence-based guidance needs to be developed for clinicians to optimally inform patients about uncertain issues and support patients in dealing with these. (shrink)

This article examines how people with type 2 diabetes perceive autonomous decision making and which moral capacities they consider important in diabetes nurses' support of autonomous decision making. Fifteen older adults with type 2 diabetes were interviewed in a nurse-led unit. First, the data were analysed using the grounded theory method. The participants described a variety of decision-making processes in the nurse and family care-giver context. Later, descriptions of the decision-making processes were analysed using hermeneutic text interpretation. We suggest first- (...) and second-order moral capacities that nurses specializing in diabetes need to promote the autonomous decision making of their patients. We recommend nurses to engage in ongoing, interactive reflective practice to further develop these moral capacities. (shrink)

From 2009 to 2013 the workplace innovation project “My Enterprise 2.0” was carried out in the region of Utrecht in the Netherlands in order to strengthen the workplace innovation capability of small and medium-sized enterprises. Participating enterprises completed a questionnaire regarding the “workplace innovativeness” of their company. A workplace innovation intervention was then implemented by some of the companies, while other companies chose not to take part. At the end of the project, a second questionnaire indicated that those companies that (...) implemented interventions had a significantly higher score with regard to overall workplace innovativeness. The companies without such interventions reported a small decrease. While the companies in the region had higher workplace innovativeness scores relative to a national reference group both before and after the project, the increase in the “workplace innovativeness” of the regional SMEs that experienced interventions suggests that the project proved beneficial to their continued “workplace innovativeness.” Moreover, these companies also reported positive effects on company performance, achieving company goals and improving labor productivity. (shrink)

In this book two of the leading figures in argumentation theory present a view of argumentation as a means of resolving differences of opinion by testing the acceptability of the disputed positions. Their model of a 'critical discussion' serves as a theoretical tool for analysing, evaluating and producing argumentative discourse. They develop a method for the reconstruction of argumentative discourse that takes into account all aspects that are relevant to a critical assessment. They also propose a practical code of behaviour (...) for discussants who want to resolve their differences in a reasonable way. This is a major contribution to the study of argumentation and will be of particular value to professionals and graduate students in speech communication, informal logic, rhetoric, critical thinking, linguistics, and philosophy. (shrink)

This article aims tt providing some conceptual tools for dealing adequately with relevance in argumentative discourse. For this purpose, argumentative relevance is defined as a functional interactional relation between certain elements in the discourse. In addition to the distinction between interpretive and evaluative relevance that can be traced in the literature, analytic relevance is introduced as an intermediary concept. In order to classify the various problems of relevance arising in interpreting, analyzing and evaluating argumentative discourse, a taxonomy is proposed in (...) which the concept of relevance is differentiated along three co-ordinate dimensions: object, domain and aspect. With the help of this taxonomy, it can be shown that the problems of evaluative relevance with which the standard approach to fallacies cannot satisfactory deal can be more systematically approached within a pragma-dialectical framework. This is demonstrated for the argumentum and hominem, which is erroneously treated as a homogenous type of relevance fallacy in logico-centric analyses, so that cases where this is not justified must be treated as ad hoc exceptions. (shrink)

A philosophical analysis of the future of art must explicate art’s nature, as well as discuss the historical nature of art practice. Only so can one explain those contemporary developments in art which have led many people to doubt whether art even has a future. Arguably, art practice as we know it started with the installing of the modern system of the fine arts. I explain the pragmatics of art so understood, and suggest that we can define art, internally. We (...) need not resort to a nominalist approach that claims that something is a work of art if some representative of the art world says it is. Instead of such empty proceduralism, I explain how all art’s focal objects, persons and activities are mutually adjusted and can only be understood in light of the whole. Within that whole of art practice, the contemporary samples of art’s alleged failure can be assessed. Now the modern system treats the arts as aesthetic, and prescribes that to judge a work one has to experience it for oneself. Why this should be so, I explain in terms of the perceivability of the artist in the work. Next, art develops as a whole rather than in a piecemeal manner. Particular contemporary works may alienate the audience from art practice, yet once they are recognisably in a procedure which has clear artistic potency they can be incorporated fruitfully in the modern system as explained. In all, the future of art is the future of the modern system, unless the system as a whole goes. We see this happen with the Taliban, but do not ourselves seem to be vulnerable to such onslaught. Yet, our culture may be in the process of eliminating the human mind from the objective reality, and if nothing stops us, art too will come to an end. Luckily, by then we will not be such as to lament that demise. (shrink)