Automated decision-making takes up an increasingly significant place in the administrative state. This article presents a conception of discretion that is helpful for evaluating the proper place of algorithms in public decision-making. I argue that the algorithm itself is not a site of discretion. The threat is that automated decision-making alters the relationships between traditional actors in a way that can cut down discretion and human commitment. Algorithmic decision-makers can serve to fetter the discretion that (...) the legislature and the populace expect to be exercised. We must strive to maintain discretion, moral agency, deliberative ideals, and human commitment through the system that surrounds the use of an algorithm and to develop a new expertise that can retain and exercise the expected discretion. Backing this argument are traditional legal constraints, public expectations, and administrative law principles, tied together through the organizing principle of discretion. (shrink)

Conventional accounts of liberal democracy tend to obscure a basic fact: the phenomenon of administration. The American reception of the administrative state was self-consciously imitative of Continental models of state bureaucracy, as a remedy for the ills of democratic politics, but construed as a means of saving democracy from itself, and from lawyers and legalism, in the name of efficiency. The means was discretionary power, unaccountable to the courts and to voters. Reconciling this to democracy proved a challenge, and (...) continues to be one. (shrink)

Pris en charge par des organismes spécifiques, les chômeurs sont dans l’obligation de mener des échanges réguliers avec leurs conseillers. Ces interactions articulent trois temporalités distinctes : un rythme des rendez-vous, un horaire de début et une durée. À partir de l’observation d’entretiens entre des chômeurs et leurs conseillers dans plusieurs types d’organismes d’accompagnement, nous interrogeons le pouvoir discrétionnaire que possèdent les agents administratifs en matière de temporalités, ainsi que les marges de négociation détenues par les publics. Cette perspective présente (...) le rapport des chômeurs et des conseillers comme un processus d’ajustements ou de conflits temporels. Elle montre que les temporalités administratives du chômage sont inégalement contrôlées et disputées au niveau des guichets, avec des résultats différents d’une institution à l’autre. Le pouvoir discrétionnaire des conseillers est particulièrement élevé en matière de rythmes de convocation. En revanche, les chômeurs disposent de ressources singulières pour discuter les horaires en Arbeitsagentur ou pour contester les durées à Pôle emploi. Les chômeurs en régime d’assistance, au sein des Jobcenter, apparaissent singulièrement démunis dans ces luttes temporelles. (shrink)

Chiara Cordelli’s book The Privatized State makes an important contribution to debates over the morality of public administration and widespread privatization. Cordelli argues that widespread privatization is a problem of legitimacy, as private actors impose their will unilaterally on others. Bureaucratic decision-making, by contrast, can be legitimate, within the correct institutional context and in accordance with a bureaucratic ethos. In this review, I argue that bureaucratic policymaking faces similar changes from the value of legitimacy that Cordelli raises against widespread privatization. (...) First, I argue that for a polity subject to bureaucratic policymaking to be self-ruling, bureaucracies must incorporate more democracy; but, so doing goes against the rationale of their institutional form. Second, I argue that bureaucrats and private actors acting on behalf of the state do not have starkly different levels of free purposiveness, and that it is morally desirable for bureaucrats to have more free purposiveness than Cordelli allows, and private actors less. (shrink)

The “folk” theory of democracy that typically justifies the administrative state cannot help but lead to a discourse of constraint. If agency action is only legitimate when it mechanically applies the will of the voters as transposed by Congress through statutes, then the norms guiding that action will inevitably restrain agency discretion. As a result, attempts to establish the democratic credentials of the administrative state ironically obstruct the application of collective power. But this “folk” theory of democracy (...) is bad theory. It is empirically incredible and, alarmingly, facilitates dangerous populist politics. Political theory instead suggests that a theory of democratic representation not only better explains legislative outcomes, but also deprives demagogues and deregulatory partisans of the fictions that prop up their agendas. After a brief survey of representative theory, this article will demonstrate that a model of trustee representation adequately describes administration, reinforces its democratic credentials and constitutes a space for politics in shaping the regulations that govern us all. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis of the (...) record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this case. (shrink)

Following the Roosevelt administration’s implementation of New Deal programs in the 1930s, the federal courts began to interpret the Constitution in a way that accommodated the rise of the “administrative state,” and bureaucratic policymaking continues to persist as a central feature of American government today. This essay submits, however, that the three pillars supporting the administrative state—the congressional delegation of Article I powers to the executive branch, the combination of powers within individual administrative entities, and the insulation (...) of administrators from political control—might be reconsidered by the courts in the near future. After showing that the constitutionality of the administrative state has come under recent judicial scrutiny, the essay turns to the administrative law principle of deference, and argues that a reassessment of the Chevron doctrine seems imminent. Finally, the essay examines federal courts’ heavy use of “hard look” review as a means of curtailing agency discretion during recent administrations, and concludes that this judicial practice stands in uneasy tension with republican principles. (shrink)

"ACT Administrative Appeals Tribunal Decisions." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (200), pp. 42.

"Case notes." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (199), pp. 34–35.

The border is an area where the rule of law has often found difficulty taking root, existing as law-free zones characterized by largely unbounded legal and administrative discretion. In his important new book, The Rule of Law in the Real World, Paul Gowder deftly combines historical examples, formal models, legal analysis, and philosophical theory to provide a novel and compelling account of the rule of law. In this paper I consider whether the account Gowder offers can provide the (...) tools needed to bring the border under the rule of law. I argue that on Gowder’s account, there are two ways in which we might try to extend the rule of law to the border.The first is to look at concrete connections that current citizens or members of the political community have with non-citizens. Just as the interests of current citizens give them strong reasons to coordinate to establish the rule of law in their own community, so may the interests of current members in connections with nonmembers give them reason to work to extend the rule of law to the border. These interests can include family ties, other forms of personal relationships, offers of employment, intellectual connections, and others. Some of these connections already serve to give greater legal protections, including protections from arbitrary decision-making, to some non-citizens, and the general trend, I argue, can and should be further strengthened The second method for extending the rule of law to the border involves appealing to certain universal norms so as to build a sense of community that stretches beyond borders. While these norms are not as robust or well established as domestic law, and therefore are unlikely to extend all of the protections of the rule of law to all people at the border, they can, I argues, be a basis for working against the worst arbitrary actions by border officials. I conclude by considering the vexed dispute about providing “amnesty” for unauthorized immigrants in the United States and other countries. I argues that Gowder’s account of the amnesty provided to supporters of the oligarchic coups in ancient Athens provides a model for thinking about when and how amnesties for unauthorized migrants can be done without offending the rule of law, thereby making them more palatable to current citizens. (Please download this paper for free from SSRN on the link provided on this page). (shrink)

In The Ethics of Food, Gregory E. Pence brings together a collection of voices who share the view that the ethics of genetically modified food is among the most pressing societal questions of our time. This comprehensive collection addresses a broad range of subjects, including the meaning of food, moral analyses of vegetarianism and starvation, the safety and environmental risks of genetically modified food, issues of global food politics and the food industry, and the relationships among food, evolution, and human (...) history. (shrink)

In American legal journals over the last decade there were hundreds of pages of articles worrying over threats to justice and freedom arising from the power to withhold benefits. Government officials have tremendous discretion to offer or withhold foreign aid, ration-books, government contracts and jobs, welfare subsidies, public housing, tariff protection, academic grants, alien resident status, paroles, or exemption from conscription or combat, from arrest or prosecution or imprisonment. Right-wing economists have worried about welfare-state emphasis on administrative (...) class='Hi'>discretion rather than the rule of law. And left-wing economists have worried about the rich man's power to intimidate the poor man by threatening to cut off his productive work. (shrink)

Public interest is intended to mean a consolidation of the prevailing ends of the legal and political order of a democratic state. This is a vague legal concept that generally carries the risks of confusion and manipulation. The undoubted difficulties involved in its determination often lead to it being credited (or discredited) as an ideological concept. Administrative doctrine holds that vague legal concepts do not widen administrative discretion and do not open up a route to arbitrariness. However, (...) neither the legislator nor the administration nor the judiciary have managed to avoid the risks of indeterminacy. Perhaps the best guarantee for achieving a reasonable validation of this concept is to establish a strong relationship between public interest and democracy. Public interest as distinguished from the metaphysical idea of natural law and the common good, must be above all a democratic value, in that its definition should be in the hands of democratically legitimated power and its implementation must involve the protection and realization of a greater number of private interests. From another perspective, the crisis that always grip the concept requires us to emphasize the need for public interest to be a matter for eachs citizen, that is, the pursuit of general interest involves the ability of every citizen to put a distance between it and their private interests. (shrink)

The obligation to provide reasons may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank. On the other side lies the concern with (...) judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” and democratic experimentalism —this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review. (shrink)

While fundamental individual rights are unquestionably taken as subjective rights, the same does not happen with fundamental social rights (health, education, work and housing – all of them guided by the idea of human dignity). If they are subjective rights, they are justiciable. The main argument in favor of this understanding is based on liberty. The main argument against is the so called formal argument. In relation to the pro argument, liberty can be juridical or factual. Juridical liberty has no (...) value without factual liberty, because the right to liberty is only put into practice if one has the factual preconditions for its exercise. The argument against is that their justiciability displaces the competence of the elaboration of public politics from Legislative and Executive to Judiciary Power, what violates the principles of separation of powers and democracy. In fact, they are subjective rights, but special ones: they are prima facie subjective rights, so that their rules present exceeding content and the determination of the definitive right is only possible in the concrete case. There is only one subjective right that is a priori considered definitive: the right to Existenzminimum. Its content is not settled, but it is quite unequivocal that the rights to simple housing, fundamental education and minimum level of medical assistance are part of it. So Existenzminimum represents what is essential to assure human dignity. It is then related to the minimum necessary for factual liberty. Against the justiciability of fundamental social rights, besides the arguments referred above, the following ones have also arisen: (a) Juridification of politics; (b) Legal permission of administrative discretion; (c) Possible reserve clause. These are the counter-arguments: (a) Legislative and Executive Powers have the original competence, but Judiciary has the exceptional one; (b) It is not enough to state economical incapability of the State. It is necessary to prove it objectively; (c) Powers have discretion, but State’s will is not allowed; (d) Public administration is under the principles of legality and of non-obviation of Judiciary jurisdiction; (e) The Existenzminimun guarantee is untouchable, prevailing over any opposite allegation. (shrink)

The administrative discretionary act differs from regulated act because while the latter refers to the simple execution of the law, the former refers to cases where there is some leeway for a further understanding and application of the rule. For example, discretionary is necessary when the law can provide two possible proceedings, none of which is mandatory. It is also necessary when legislation merely indicates its ends, without specifying the means to achieve them. When it is not dissociated from (...) the exercise of the discretion of a constituted authority, discretionary is the opposite of arbitrariness. After defining this important notion, this paper emphasizes two highlights of it, namely, that the foundation of its power lies in the law itself, and that the distinguishing feature of a discretionary act is the justification of the reasons for the decision. (shrink)

This collection of case studies in public management bridges the gap between mainstream CSR - confined to the for-profit corporations - and the vast bodies of workers and organizations that make up government and its public administration. The variety and discretion of managerial endeavours in public management calls for accountability and responsibility of government beyond current legal instruments: The book argues that CSR must be brought to bear with government. In government in fact, knowledge management is not a linear (...) process, but the result of working with passion of the parts, implying discretionary behaviour and creativity which in turn imply choice and responsibility. Cases ranging from the USA to Central America, New Zealand and Europe all confirm the complex nature of public management, entailing partnership synergy for disaster recovery, the intertwined link between management and new technology and mindfulness at individual level. The cases are set in a framework by theoretical essays on bureaucratic behaviour and unknown stakeholders. Public-sector management has long drawn upon principles, tools, and techniques developed in the private sector, aiming to infuse bureaucracies with touches of efficiency and productivity. But good governance is also central to good management. This fascinating, wide-ranging volume shows how ideas from the Corporate Social Responsibility movement apply to the governance and administration of public agencies. A series of detailed and informative case studies, written by researchers and practitioners with deep knowledge of their industries and agencies, explores the challenges of managing public and government agencies in a socially responsible manner. The book offers a nuanced and balanced portrait that calls for greater public involvement and oversight in keeping public organizations on track. Highly recommended! Peter G. Klein University of Missouri Norwegian School of Economics and Mises Institute Here are six compelling case studies that reveal the relevance, even the imperative, of Corporate Social Responsibility (CSR) in the public sector. In doing so, the authors simultaneously expand the role of CSR and provide us with a refreshed concept of government and public management. The authors then lay the theoretical groundwork for their observations in ways that enrich our understanding of both CSR and the evolving roles of government in our lives. This is "must reading" for corporate officers and for public managers. Thomas R. Sexton Stony Brook University, NY College of Business and School of Professional Development. (shrink)

The administrative practices of officials who process the admission of immigrants show severe variations in the ways in which migration policy is enforced on the ground. For the author, inequality of treatment lies in the very hierarchy of tasks and services of what he dubs, following Pierre Bourdieu, the immigration "field". According to the author, the governments’ securitizing priorities favour the sort of suspicion towards foreigners that the media then reproduces, thus authorizing so-called street-level bureaucrats to act with great (...) leeway with regard to immigrants. Under pressure, governments implement what the author calls a "trompe-l’oeil policy" that explores the ambivalence between international and domestic law: while the state enforces repressive laws that apparently comply with fundamental human rights, it leaves to low-ranking civil servants enough discretion to make those rights ineffective. This point is the author’s central contention. The arbitrariness of these officials is neither contingent nor accidental: it actually constitutes a purposive "front-line policy" to enlarge the discretionary power of street-level bureaucrats in charge of regulating admissions. Unequal treatment comes in three flavours in this context. First, officials are asked to ensure that each right granted to a foreigner will not threaten the national order, which means the economic, social and political order. They are therefore in a position to judge the suitability of each application in view of their own arbitrary interpretation of what such "threats" consist of. The question of discretionary power is in this way intimately linked to the problem of equality before the law. Second, the scarcity of material and human resources allocated to services in charge of welcoming migrants starkly contrasts with the expenditure incurred to deport foreigners. Inequality also arises from how agents perceive users and the leeway they have to implement the law. Third, inequality is related to foreigners’ abilities and means to challenge discretionary power, especially through the legal tools they use or through legal intermediaries. The author thus concludes that such "front-line policy" has increasingly been used as a weapon against migrants, especially since the early 2000s, when immigration and detention policies were generalized in France. More broadly, in Europe as well as in United States, immigration reforms have made greater use of detention and focused on enforcement rather than on hosting programs and services for asylum seekers. But they have also strengthened the role of legal intermediaries. Hence the need to investigate how discretionary power is challenged as it sheds light on the power relations between states and migrants. Keywords: foreigners, discretion, sociology, participant observation, front-line policy, illegalism, jobs, insecurity, legal intermediaries. (shrink)

In “Missing the Forest for the Trees: Aduhelm, Accelerated Approvals & the Agency,” Dr. Matthew Herder argues that agency capture and politicized discretion drive delays in confirmatory trials of accelerated approval drugs amongst other concerns at US Food and Drug Administration (FDA). In highlighting this important problem and offering nuanced insight into agency workings based in part on interviews with twenty-three unnamed FDA officials and a three-drug case study, Dr. Herder suggests two innovative solutions. However, amidst broader debates balancing (...) agency expertise, data, and delegation, these proposed policy solutions would benefit from more corroborative evidence and consideration of institutional advantages within constitutional limits. (shrink)

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any relevant (...) facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)

Sociological studies of work and time have argued that academic temporalities are increasingly rationalized and rendered accountable, resulting in a divergence of planned and experienced time in academic work. Shared research facilities that provide platform technologies to large user pools are no exception to this, as its administrations seek to increase the profitability of limited instrument time. Based on an ethnographic study of three facilities at an American university, this article examines how diverging rhythms are enacted in organizational schedules and (...) instrument work and kept aligned on the laboratory floor. Drawing insights from time studies and repair sociology, I argue that although technologies of time accounting provide powerful templates for action, they become effective only through ongoing “synchronization” work. Synchronization calls attention to discrete techniques and work practices, such as the adjustment of users’ bodies, user expectations, or work processes, that technical staff draw upon to resolve slippages between organizational rhythms and the temporal realities of data collection. This analysis suggests that technicians’ local and embodied practices not only affect their own professional roles but also organizational stability and productivity in time-sensitive environments. (shrink)

Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on (...) Italian case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution. (shrink)

Focusing on the U.S. military as a gendered and raced institution and using 33 in-depth interviews with U.S. servicewomen, this study identifies tactics and consequences of workplace harassment that occur through administrative channels, a phenomenon I label bureaucratic harassment. I identify bureaucratic harassment as a force by which some servicemen harass, intimidate, and control individual, as well as groups of, servicewomen through bureaucratic channels. Examples include issuing minor infractions with the intention of delaying or stopping promotions, threatening to withhold (...) military benefits for reporting sexual abuse/harassment, and revoking servicewomen’s qualifications in order to remove them from positions or units. The manipulation of administrative rules and regulations is made possible by the interplay between a gendered and raced organizational climate and bureaucratic features such as discretion, hierarchy, and the blending of work and personal life. I show that bureaucratic harassment has both raced and gendered implications. Ultimately, harassment that is enacted through bureaucratic means is often overlooked but carries distinct consequences for the professional careers and workplace experiences of the victims. (shrink)

The Fatwā-house, which was within the body of Meshihat in the Ottoman Empire, gave answers to the questions posed to it by focusing on the Hanafi sect and the preferred fatwās of this sect for centuries. These questions and answers were also duly recorded. In this study, based on The Record for the Legal Responses of the Supreme Fatwā Office, which is registered at records numbered 378 in the Meshihat Archive of the Istanbul Mufti, one of the records containing the (...) answers given by the institution. It is an attempt to create an imagination about the scope and sphere of influence of the fatwā activity in the last period of the Ottoman Empire. Accordingly, in the last thirteen years of the state, Fatwā-house has been the addressee of questions from individuals, state and private institution directors, societies, ministries and the Grand Vizier. While some of these questions came from the provinces within the Ottoman borders or from the countries that had an administrative ties with the Ottoman Empire, some of them were submitted to the Fatwā-house by the Muslims of other states from the lost lands or simply because the caliphate center was the official fatwā organ. At the records, there is also a record of the questions coming from muslims who are Ottoman citizens but residing in other countries. Looking at the subjects, it was determined that most of the questions were asked about foundations. In addition, the permissibility of obtaining interest by bank facility or depositing money in the bank, the establishment of modern schools and whether the ways to create resources for these schools are permissible, whether teaching in Latin letters is possible, the provision of life insurance, the importance of cleanliness in the fight against cholera, the fight against innovations (bidʻas) in mosques. It is seen that questions on different issues, from issues such as whether the wife of the lost (mafqud) can be separated by the judge or not; to the issues of whether the fulfillment of judgment can be regarded as the end of the judgment or not. As it is mentioned in some fatwā records at the record book, it is obligatory to decide on fatwā and its fulfillment in the Ottoman Empire with the most authentic and preferred view of the Hanafi sect. The last two fatwā questions mentioned above are handled as examples of giving up the act with the will of the head of state, with the preferred fatwâs discussed in this article. It is only possible with the will of the head of state to make a decision with an opinion other than preferred fatwâ or an other opinion out of the sect. According to the first example, some of those of the citizens of other states outside the Ottoman Empire came to the Ottoman lands for reasons like trade etc. and married to Muslim women there and then left them suffering. This was also true for the wives of men who went to wars and did not return. Although the drawbacks of the Hanafi sect's preferred view, that one should wait until the age of ninety, one hundred, one hundred and twenty, or until the death of their peers, were resolved by appointing a regent from other sects, continuity could not be ensured in this practice either, finding people has not always been possible. For this reason, in the time of Shaykh al-Islam Hayri Efendi, a statement of change was prepared and submitted to the will of the sultan. In the issue of whether the signature of the head of state can be counted as the end of the judgment, another subject in which the will of the head of state is applied, the stages of abandoning the preferred view can be followed much more clearly. In the case of the dismissal of the judge or the expiration of the term of office before the execution of the judgment, especially in the distant provinces of the state, in the case of the judge's dismissal or the expiration of his term, according to the preferred view of the sect, which was based on juristic discretion, the closure of the cases took many years. It is seen that the judgment reached by analogy was submitted to the will of the sultan, with an article added to the script regarding the prepared procedure of reasoning, although there is no preferred view since it is the most suitable opinion for the interests of the people and the necessities of the century due to the increase in complaints. Effective from the time it was approved by the head of state, the execution of the sentence is no longer a requirement for the trial to be completed. The changes in the provisions of these matters also show that, although it was important for the Ottoman State to comply with the preferred view of the Hanafi sect - as in the previous Shaykh al-Islams' fatwās in the form of ma'ruzat - it was considered more necessary to look after the interests of the Muslims and different opinions were enacted and put into practice. (shrink)

The term “off-label drug use” refers to drugs that have not yet acquired “approved” status or drugs that have acquired “approved” status but are used with a different dosage, route, or administration method other than that for which the drug has been approved. In New Zealand, the Medicines Act 1981 specifically allows for off-label drug use. However, this authority is limited by the Health and Disability Commissioner Regulations 1996 and the common law, which require that off-label drug use is of (...) an acceptable standard, that the patient should be fully informed, and that the patient should give informed consent. Off-label drug use is an important issue because the current law provides medical practitioners very wide discretionary power, without providing clarification for what is required of the practitioner in exercising his or her discretion in prescribing off-label. This paper discusses possible solutions to this issue, for example, establishing protocol for off-label use, an electronic database of off-label use, and the amendment of legal provisions. (shrink)

This commentary provides a legal analysis of the extent to which changes proposed by scholars to promote care for substance use disorder or other under-treated illnesses through risk adjustment could be implemented administratively, without legislation, in federal risk adjustment systems: Medicare's privatized component, Medicare's pharmaceutical component, and the individual and small group market. As the article explains, federal laws governing risk adjustment provide broad discretion to regulators and can reasonably be interpreted to permit full and final implementation through the (...) administrative process of almost all of the changes that scholars have proposed. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Response to Masafumi Ogawa, “Music Teacher Education in Japan: Structure, Problems, and Perspectives”Christina HornbachMasafumi Ogawa cares deeply about improving music teacher education and has grave concerns about Japan's current music education and teacher training system. He notes reduced instructional time, cuts in teaching positions, and classroom [End Page 201] management issues resulting in the devaluing of music education by administrators, students, and the general public. He proposes that one (...) solution to these problems involves changing curriculum requirements for music education and student teaching.Ogawa notes that in the Japanese teacher preparation system, performance requirements significantly outnumber music education class requirements, something he regards as a weakness in the system. According to his data, a similar survey of the American university system revealed that music education classes receive high priority in course requirements. Though the data sample was rather small in this instance (five major state universities) and may not truly reflect course requirements for the majority of music education majors nationwide, in my experience most of the undergraduate coursework does divide fairly equally between music education methods courses, history/theory, and performance requirements. Though the National Association of Schools of Music does have guidelines for professional and teaching competencies, the actual percentages for course requirements (basic musicianship and methods courses, 50%; general studies, 30% to 35%; professional education and student teaching, 15% to 20%) provide each individual school with discretion and leeway.1 Although the American music education system may be stronger in certain areas than the Japanese system, as Ogawa presents it, it is by no means perfect. Thus, the American system needs examination too, not necessarily for the quantity of courses, but rather to determine course content and quality. Due to time limitations, I will focus on only one aspect, but one that is of the utmost importance: classroom management.It can be argued that undergraduate music education majors in America just as in Japan need more time to discuss and experience the "real" world before they teach. Though some programs incorporate pre-student teaching practica into elementary and secondary methods courses, more instructional time should be devoted to discussing classroom management and behavior issues. Classroom management is usually touched upon briefly in methods courses, and perhaps even in philosophy or psychology classes, but not to the depth it should be. There are a myriad stressful conditions that may be associated with teacher attrition and burnout, including budgets, salaries, lack of administrative and parental support, and classroom discipline, to name a few.2 However, one of the leading causes of stress is student attitudes and behavior.3Some educators believe that teaching is a natural ability and a person either possesses the innate qualities to succeed or does not; others believe that anyone can be taught to teach. Perhaps it is a little bit of both. Bright, young teachers who have a drive to teach and care about the future of their students will be more successful if armed with classroom management skills and experience in a variety of teaching contexts; for instance, urban and rural. Without guidance and increased knowledge, most young teachers emulate mentors; they teach how they [End Page 202] were taught. Depending on the personality and/or skills of the novice teacher, these techniques may or may not work when he/she is faced with teaching in an unfamiliar context. Regardless, young educators need to be taught how to teach, not just what to teach.It is necessary for a course or courses to be added to college and university music education curricula that address classroom management, emotional concerns of students, and the teaching of special student populations. At best, these topics are covered in a cursory manner in methods courses, and a cooperating teacher may model and discuss classroom management during student teaching. Providing instructional strategies for dealing with emotionally volatile adolescents and discussing available resources, responsibilities, and rights of teachers are important for new teachers' professional growth. Music educators should have the skills to recognize and deal with inappropriate classroom behaviors in a manner that focuses the student and the class back on learning.Managing anger and resistance in the classroom can be a daunting task if one is... (shrink)

Through expanded access protocols, the Food and Drug Administration (FDA) allows patients with serious or immediately life-threatening diseases access to experimental drugs outside the clinical trial setting when no satisfactory alternative treatment is available. While the FDA has established a mechanism for providing patients with unapproved drug access, the regulations do not require the pharmaceutical company to provide the drug. The drug company’s permission to use its experimental drug is a necessary prerequisite to using the FDA’s expanded access mechanism. Increasingly, (...) drug companies are coming under scrutiny regarding the programs governing that decision-making power. Historically, disclosing whether a company has an expanded access program, and whether or how it would respond to an expanded access request, has been left to discretion of the drug companies themselves. Few manufacturers publish adequate expanded access protocols. As a result, patients were provided with little insight into how companies evaluate expanded access requests and are naturally skeptical as to the ethical integrity of the process. The recently passed 21st Century Cures Act changes that practice by requiring drug companies to have, and make publically available, their expanded access procedures including criteria for evaluating and responding to patient requests. In this article, we contend that complying with the new transparency provisions will require drug companies to respond to several unresolved expanded access issues. Namely, how to reconcile a patient’s desire to access lifesaving experimental therapies alongside the company and society’s interest in the efficient development of new drugs. Even more challenging, how can companies devise practices for evaluating and processing expanded access requests that also fairly and equitably acknowledge those concerns? In addressing these questions, this article explores the legal, regulatory, business, and societal influences that have shaped expanded access policies and practices. From there, we provide companies a framework that balances appropriately the desires of individuals and gaining the requisite approvals ensure access not just for one person but for society. (shrink)

The payment of human subjects is an area where Institutional Review Boards have wide discretion. Although the “Common Rule” requires the provision of full information to human research participants to secure valid consent, the Rule is silent on the issue of payment. Still, some federal agencies offer guidance on the matter. For example, the National Science Foundation cautions that high payments for risky research “may induce a needy participant to take a risk that they normally would prefer not to (...) take.” For research under its purview, the Food and Drug Administration guidance provides that “[a]dvertisements may state that subjects will be paid, but should not emphasize the payment or the amount to be paid, by such means as larger or bold type.” One might read the FDA guidance to permit the advertisement for human subjects to state the specific amount of payment, as long as it is not emphasized. (shrink)

SIR, --- Your inaugural address is probably as honest, sensible, and consistent a one as that of any president within the last fifty years, or, perhaps, as any since the foundation of the government. If, therefore, it is false, absurd, self-contradictory, and ridiculous, it is not (as I think) because you are personally less honest, sensible, or consistent than your predecessors, but because the government itself --- according to your own description of it, and according to the practical administration of (...) it for nearly a hundred years --- is an utterly and palpably false, absurd, and criminal one. Such praises as you bestow upon it are, therefore, necessarily false, absurd, and ridiculous. Thus you describe it as "a government pledged to do equal and exact justice to all men." Did you stop to think what that means? Evidently you did not; for nearly, or quite, all the rest of your address is in direct contradiction to it. Let me then remind you that justice is an immutable, natural principle; and not anything that can be made, unmade, or altered by any human power. It is also a subject of science, and is to be learned, like mathematics, or any other science. It does not derive its authority from the commands, will, pleasure, or discretion of any possible combination of men, whether calling themselves a government, or by any other name. It is also, at all times, and in all places, the supreme law. And being everywhere and always the supreme law, it is necessarily everywhere and always the only law. Lawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them, --- that is, all the laws of their own making, --- have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men's duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. And nobody is bound to take the least notice [*4] of them, unless it be to trample them under foot, as usurpations.. (shrink)

This book presents a critique of dominant governance theories grounded in an understanding of existence as a static, discrete, mechanistic process, while also identifying the failures of theories that assume dynamic alternatives of either a radically collectivist or individualist nature. Relationships between ontology and governance practices are established, drawing upon a wide range of social, political, and administrative theory. Employing the ideal-type method and dialectical analysis to establish meanings, the authors develop a typology of four dominant approaches to governance. (...) The authors then provide a systematic analysis of each governance approach, thoroughly unpacking and critiquing each one and exploring the relationships and movements among them that engender reform and revolution as well as retrenchment and obfuscation of power dynamics. After demonstrating that each governance approach has fatal flaws within a diverse global context, the authors propose an alternative they call Integrative Governance. As a synthesis of the ideal-types, Integrative Governance is neither individualist nor collectivist, while still maintaining the dynamic character required to accommodate responsiveness to cultural contexts. (shrink)

During the period of competitive capitalism legal theory understands by law only the general rule and not every command of the sovereign. To say that the law is general is to give not only a description of its formal structure but also to indicate that it has a minimum of material content in that it guarantees a minimum of freedom. General law alone makes possible the independence of judges. It provides regulations for human spheres of freedom (personal, political, economic, and (...) social) and for human institutions. The main institution of modern society, private property in the means of production, is surrounded by supplementary liberties, namely, freedom of contract and of trade which serve to protect it and to implement its operation. In the period of competitive capitalism the legal system is considered to be a closed system of general norms which are to be applied by the judge ; the interpretation of law is therefore dogmatic.Legal theory and legal practice undergo decisive changes in the stage of monopoly capitalism. The German republic, based upon a series of social contracts, attempted to realize the principle of pluralism, that is to say, a parity between workers and employers, between Reich and federal states, between church and state. The very nature of this pluralistic structure, however, strengthened the power of the bureaucracy and thereby weakened the rule of law. Although the theory of the generality of law had disappeared from German constitutional theory during the Bismarckian period, it was restored in the Weimar Republic. This period is also characterized by the victory of the school of free discretion which demands that the judge is freed from the fetters of positive law and shifts the center of gravity of the legal system to those legal standards of conduct which grant to the judge considerable free discretion. These legal standards of conduct are stressed since they are an excellent means for furthering monopolistic interests to which rational law merely constitutes an obstacle. The administrative act which, as the command of the sovereign, directly protects monopolistic situations, became the new supplementary institution of property. The legal theory of monopoly capitalism is the institutionalism which National Socialism calls „thinking according to concrete orders and structures.“ Institutionalism hypostatizes the concept of institution and divorces it from the property owner. The reason for this change is that the concept of the legal person facilitates the discovery of the fact that only a few people exercise economic power. At the same time law becomes an arcanum dominationis, that is to say, a mere command of the Leader. If we understand by law a system of norms distinguished from the will or command of the sovereign, then we must deny a specific legal character to the legal system of the authoritarian state.Pendant la période du capitalisme de concurrence, la théorie du droit réserve le nom de loi à la seule loi universelle et non pas à tout commandement du souverain. La généralité ne caractérise pas seulement la structure formelle de la loi, elle implique aussi un certain contenu, en ce sens qu'elle garantit un minimum de liberté. Car seule la loi générale rend possible la véritable indépendance du juge. La loi générale règle les sphères de la liberté (personnelle, politique, économique et sociale) et les institutions humaines. L'institution fondamentale de la société bourgeoise, la propriété privée dés instruments de production, est entourée de libertés connexes, à savoir celles du contrat et de l'activité économique, nécessaires à la protection et à l'exercice de la propriété. Dans le capitalisme de concurrence, le système juridique est un système fermé, sans lacunes, de normes générales que le juge n'a qu’à appliquer. Aussi, la jurisprudence est, elle aussi, dogmatique.Dans le capitalisme de monopole, théorie et pratique juridiques subissent une transformation décisive. La république allemande qui reposait sur une multiplicité de contrats sociaux, avait tenté de réaliser le principe du pluralisme, c'est-à-dire de mettre sur le même plan travailleurs et entrepreneurs, Reich et pays, État et Église. Mais précisément cette construction pluraliste accrut la puissance de la bureaucratie et affaiblit ainsi l'autorité de la loi. L'idée de l'universalité de la loi, disparue pendant la période bismarckienne de la théorie allemande de l'État, fut restaurée durant la République de Weimar. En même temps, l'école du droit libre triomphe, école qui veut libérer le juge des chaînes de la loi positive et qui met l'accent sur les formules générales qui laissent une large place à la libre appréciation du juge. Ces formules sont maintenant au centre de la théorie aussi bien que de la pratique, parce qu'elles sont pour les intérêts de monopole un excellent instrument, tandis que le droit rationnel constitue pour ceux-ci un obstacle. Désormais c'est l'acte d'administration par lequel la souveraineté de l'État protège directement les situations de monopole, qui devient l'annexe institutionnel de la propriété privée. La théorie juridique du capitalisme de monopole est l'institutionalisme qui, dans le national-socialisme, prend le nom de „pensée concrète de l'ordre et de l'organisation“. L'institutionalisme donne une valeur absolue au concept de l'institution et le détache du propriétaire. Car le concept juridique de la personne permet de découvrir qu'un petit nombre d'individus exercent une énorme puissance économique. En même temps l'autorité devient mystère, pur et simple commandement du chef.Si l'on entend par droit un système* de normes, qui se distingue de la volonté du souverain, il faut refuser au droit de l'État autoritaire le caractère spécifiquement juridique. (shrink)

What if Wittgenstein and Popper were right after all? What is psychoanalysis is not “scientific,” not scientific by any contemporary definition—including Adolf Grünbaum’s—but what if it works all the same?1 What if psychoanalysis is all right in practice, but the theory isn’t scientific? Indeed, what if “science” is defined ideologically rather than philosophically? If we so redefine “science,” it is not to dismiss psychoanalysis but to understand its origin and impact, to follow the ideological dialectic between the history of psychiatry, (...) its developing as a medical “science,” and the evolving self-definition of psychoanalysis which parallels this history. We know that Freud divided psychoanalysis into three quite discrete areas—first, a theory, a “scientific structure”; second, a method of inquiry, a means of exploring and ordering information; and last, but certainly not least, a mode of treatment. Let us, for the moment, follow the actual course of history, at least the course of a history which can be described by sorting out the interrelationship between psychoanalysis and psychiatry, and assume that we can heuristically view the mode of treatment as relatively independent of the other two aspects of psychoanalysis. What if the very claims for a “scientific” basis for psychoanalytic treatment and by extension the role of the psychoanalyst as promulgated by Freud and his early followers were rooted in an ideologically charged historical interpretation of the positivistic nature of science and the definition of the social role of the scientist? This may seem an odd premise to begin an essay on the mutual influence of psychoanalysis and psychiatry, but it is not stranger than the actual historical practice. Psychoanalysis originated not in the psychiatric clinic but in the laboratories of neurology in Vienna and Paris.2 Its point of origin was not nineteenth-century psychiatry but rather nineteenth-century neurology. That origin points to a major difference between the traditional practice of nineteenth-century psychiatry and modern clinical psychiatry in our post-positivistic age. Psychiatry in nineteenth-century Europe, in Vienna as well as in Paris, was an adjunct to the world of the asylum. Indeed, the second great battle which nineteenth-century psychiatry waged was the creation of the “alienist” as a new medical specialty. The alienist was the medical doctor in administrative charge of the asylum, rather than a medical adjunct to the lay asylum director as had earlier, in the age of “moral treatment,” been the practice. Sander L. Gilman is professor of human studies in the departments of German literature and Near Eastern studies, Cornell University, and professor of psychiatry at the Cornell Medical College. He is the author of numerous books on intellectual and literary history. His most recent study is Jewish Self-Hatred . Forthcoming is his study Oscar Wilde’s London and the English edition of his Conversations with Nietzsche. His previous contribution to Critical Inquiry is “Black Bodies, White Bodies: Toward an Iconography of Female Sexuality in Late Nineteenth-Century Art, Medicine, and Literature”. (shrink)

The article analyzes the system of legal regulation of the higher education in Lithuania with the purpose to determine the boundaries of exercising the discretionary powers of the executive institutions in the field of higher education. The article is made of two parts. Discretionary powers of the executive institutions in legislative field are discussed in the first part. The power of legislative discretion is described as a right to set the legal regulation by way of a subject who is (...) granted such discretionary power. Problems may arise in cases when the law granting such discretionary powers is too abstract or declarative. The main criteria in determining the boundaries of exercise of discretionary powers are the provisions of Constitution and laws, and constitutional law principles. The system of delegation of legislative powers in the field of regulation of the higher education in Lithuania is analyzed in the second part of the article. The permanent changes in administrative legal regulation of higher education and studies determined by a vast amount of subjects issuing post-legislative legal acts in this field, as well as rather tedious legal regulation which, in turn, calls for frequent changes in legal acts, raises doubts regarding a possibility to implement main principles of the studies, such as freedom of creation and scientific research or academic freedom and autonomy. (shrink)

France’s agreements on the joint management of migration flows figure centrally within studies of bilateral migration agreements. With their origins in friendship and navigation treaties of the late 19th century, the AJMs are successors to the postcolonial, circular mobility conventions of the 1960s, and are uniquely positioned for periodizing the evolution of bilaterally negotiated labor mobilities. Nonetheless, due to the European Union’s reluctance to embrace mass regularization and the EU Member States’ legislative powers over labor markets, they have time and (...) again scotched France’s ambition to leverage preferential labor market entries in exchange for more cooperation over irregular migration. Through documents and statistical data analysis, this Article studies the case of Senegal’s negotiation of additional pathways to France for its lower-skilled workers. At the center is France’s administrative court of appeals, which has confirmed the broad margin of discretion over Art. 42 in the AJM between France and Senegal. This jurisprudence has decoupled the automatic linkage between a job listed under duress in France under the Annex to the AJM and the entitlement to exceptional admission. We argue that France’s courts have removed a privilege of Senegalese workers, which has re-politicized France’s migration diplomacy with Senegal. At the same time, retention of the prefectorial discretionary power has levelled the playing field among West and North African countries that have concluded similar bilateral agreements with France. This Article adds to the research on bilateral migration agreements by proposing a multilevel legal analysis, which studies AJMs in the context of France’s common law, EU labor and return directives, and the multilateral of WTO/gats liberalization. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Rethinking "Intersectionality":Michelle Obama, Presumed Subjects, and Constitutive PrivilegeErin C. TarverIn February 2008, Michelle Obama famously said to a gathering of supporters, "For the first time in my adult life, I am really proud of my country." (Associated Press 2008). Her comment was swiftly seized upon by journalists and members of rival political campaigns, who used it to portray Mrs. Obama as "angry" and unpatriotic. In the weeks that followed, (...) Mrs. Obama's undergraduate sociology thesis on black students at Princeton was cited as further evidence of her supposed racial resentment and lack of patriotism, and there were widespread rumors that an audiotape existed of her using the word whitey.1 Around the same time, Fox News ran a headline referring to Mrs. Obama as "Obama's Baby Mama" (Koppleman 2008). Subsequently, there was a concerted effort on the part of Mr. Obama's campaign to "soften" her image through appearances on the shows The View and Paula's Party, and a speech at the Democratic National Convention that highlighted her motherhood and adoration of her husband, and avoided mention of her own career or political work. Despite such efforts, and perhaps in tension with the Obama family's general popularity following Mr. Obama's election, Mrs. Obama was later characterized by a cable news pundit as being reminiscent of "Stokely Carmichael in a designer dress" (The O'Reilly Factor 2009) and thus as a potential political liability for the Obama administration.While some feminists decried the "momification" (Traister 2008) of Michelle Obama as an act of appeasement by an administration that would [End Page 150] capitulate to the oppressive expectations of a public unwilling to find expressions of independent thought or professional ambitions appropriately First Lady-like, other critics noted that Mrs. Obama was being reviled more for daring to suggest that the United States' racial history was far from being strictly historical, opening her to the charge of being an angry Negro—while, ironically, being accused of "playing the race card." Others have pointed out that specific formulations such as "baby mama" are illustrative of the fact that such representations of Mrs. Obama are not easily classifiable as either sexist or racist, but instead draw on both sorts of tropes, as have such familiar representations of black women as promiscuous, or as militant, emasculating mammies.In this article, I consider methodologies for theorizing the function of such oppressions in the public discourses surrounding Michelle Obama, and suggest that a consideration of their manifestations in this context illustrates the need for more complex theoretical tools that can problematize the constitutive effects of such discourse for a multiplicity of subjects. Through parallel analyses of Beauvoir's The Second Sex and Fanon's Black Skin White Masks, I foreground the theoretical pitfall the consideration of sex- or race-based oppressions tends to occasion: the tacit presumption of some ostensibly "neutral" subject whose constitution is inadequately addressed. I suggest, with theorists of intersectionality, that this problem will not be solved merely by the addition of alternative explanatory frameworks (e.g., adding racism to sexism as a discrete phenomenon), since doing so is neither adequately representative of the experience of oppressions nor sufficient to the task of undermining the normative/perverse dichotomy or presumption of generic subjectivity that sustains them. However, I also argue that the work of intersectionality theorists should be taken farther than it has frequently been in the past (which, though given lip service by much of the feminist community, has not always been taken to imply the need for a major methodological shift), extending its insights to offer a critique of foundational subjectivity. Concomitantly, I argue that a failure by feminist philosophers to offer this critique could unintentionally result in the reinscription of the normativity of particular sorts of subjects—which is precisely what theorists of intersectionality have been concerned to call into question. I suggest that an analysis of the discourse surrounding Michelle Obama demonstrates that insofar as the intersectionality paradigm is understood merely to require the interrogation of overlapping oppressions on a given subject or subjects, and thus as leaving uninterrogated the constitutively privileging and subjectivizing effects of oppressive discourse, uses of intersectionality will reiterate... (shrink)

In their article, ‘Responsibility, Second Opinions, and Peer-Disagreement—Ethical and Epistemological Challenges of Using AI in Clinical Diagnostic Contexts,’ Kempt and Nagel argue for a ‘rule of disagreement’ for the integration of diagnostic AI in healthcare contexts. The type of AI in question is a ‘decision support system’, the purpose of which is to augment human judgement and decision-making in the clinical context by automating or supplementing parts of the cognitive labor. Under the authors’ proposal, artificial decision support systems which produce (...) automated diagnoses should serve chiefly as confirmatory tools; so long as the physician and AI agree, the matter is settled, and the physician’s initial judgement is considered epistemically justified. If, however, the AI-DSS and physician disagree, then a second physician’s opinion is called on to resolve the dispute. While the cognitive labour of the decision is shared between the physicians and AI, the final decision remains at the discretion of the first physician, and with it the moral and legal culpability. The putative benefits of this approach are twofold: healthcare administration can improve diagnostic performance by introducing AI-DSS without the unintended byproduct of a responsibility gap, and assuming the physician and AI disagree less than the general rate of requested second opinions, and the AI’s diagnostic accuracy supersedes or at least …. (shrink)

This article analyzes business and union strategies in the reform of job security regulations. It argues that unions are the main political actors pushing for their expansion of regulations, but given employers’ opposition, unions are able to enforce better protection only in exceptional periods. Once the first restrictions are in place, employers use their power advantages at the workplace level to circumvent regulations, which unions combat by reducing the level of discretion awarded to employers in interpreting regulations. In recent (...) decades, job security regulations have come under increasing pressure. Unions have reacted to this new situation by consenting to the continuous deregulation of temporary employment, while they fight any attempt at deregulating job security in open-ended contracts in order to protect their members’ interests and their institutional involvement in the administration of dismissals. The theoretical argument is supported by empirical evidence from four Western European countries since the postwar period. (shrink)

All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute's elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and (...) mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; and about the proper ambit of the criminal law. Each of these disputes may hinge on deeper disagreements about the identity of the wrong a statute aims to punish, and these deeper disagreements can be surprisingly hard to resolve, fueled as they are by the complex inner structure of our penal laws and the discretionary mechanisms of their administration. (shrink)