“Testimonial” and the Formalistic Definition: The Case for an “Accusatorial” Fix

The definition that the Supreme Court ultimately gives to the concept of testimonial statements will obviously be of critical importance in determining whether the new Confrontation Clause analysis adopted by Crawford affects only a few core statements or applies to a broader group of accusatorial statements knowingly made to government officials and perhaps private individuals at arm\u27s length from the speaker. I contend that the broader definition is more consistent with the anti-inquisitorial roots of the Confrontation Clause when that provision is applied in the modern world. If my sense of the proper scope of the clause is roughly correct, then the testimonial statement concept must be reoriented from its potentially formalistic definition to one that includes such accusatorial statements. Employing accusatorial statement language as part of the inquiry is one obvious and important step in this transformation. I argue that a movement in the direction of accusatorial terminology and coverage needs to begin as soon as possible so that lower courts can demonstrate that convergence is feasible and to reduce the costs of general jail release. I contend that the accusatory concept is consistent with the core concerns of the Confrontation Clause and will help advocates and courts to reach sensible results that are consistent with history, the language of the clause, and its function in a modern and complicated world

“Fine Distinctions” in the Contemporary Law of Insider Trading

William Cary’s opinion for the SEC in In re Cady, Roberts & Co. built the foundation on which the modern law of insider trading rests. This paper—a contribution to Columbia Law School’s recent celebration of Cary’s Cady Roberts opinion, explores some of these—particularly the emergence of a doctrine of “reckless” insider trading. Historically, the crucial question is this: how or why did the insider trading prohibition survive the retrenchment that happened to so many other elements of Rule 10b-5? It argues that the Supreme Court embraced the continuing existence of the “abstain or disclose” rule, and tolerated constructive fraud notwithstanding its new-found commitment to federalism—which I call the (fictional) “Cary-Powell compromise”—because it accepted the central premise on which the expressive function of insider trading regulation is based: manifestations of greed and lack of self-restraint among the privileged, especially fiduciaries or those closely related to fiduciaries, threaten to undermine the official identity of the public markets as open and fair. But enough time may have passed that we may have lost sight of the compromise associated with this fiction and started acting as if insider trading really is the worst kind of deceit. The result is pressure on doctrine to expand, using anything plausible in the 10b-5 toolkit. The aim is to tie this concern more clearly to the uneasy deceptiveness of insider trading, first using somewhat familiar examples such as the debate over whether possession or use is required for liability and the supposed overreach of Rule 10b5-2. Each of these settings brings us back to the centrality of intent, reminding us that the Cary-Powell compromise has in mind a form of purposefulness that is closely tied to greed and opportunism, making insider trading a sui generis form of securities fraud. That takes us to the most jarring recent development in insider trading law, the emergence (particularly in SEC v. Obus) of recklessness as an alternative basis for liability

Cunt touch this: a conversation on intimate design and embarrassment

This position paper presents a conversation between players and the designers of the unique mobile game experience Cunt Touch This. Revisiting their personal experiences with playing the game, the player-authors read the game as a system that takes advantage of social embarrassment as a key element from which the pleasure of the game is derived. Contrasting this view, the designer-authors comment on the original intention, production context and purpose of Cunt Touch This. The goal of this confrontation is to explore embarrassment as a feeling oscillating between the emotional and the political dimensions of play. The unusual discussion format of the paper allows us to invite potentially challenging questions: When, where and why does embarrassment come about? What function does it have in play? Is it just part of the fun, or ideologically charged? Drawing together our differing perspectives as players and designers we contribute a candid reflection on the wider issues of embarrassment as it relates to design

I'll Bet You Think This Blame Is About You

There seems to be widespread agreement that to be responsible for something is to be deserving of certain consequences on account of that thing. Call this the “merited-consequences” conception of responsibility. I think there is something off, or askew, in this conception, though I find it hard to articulate just what it is. The phenomena the merited-consequences conception is trying to capture could be better captured, I think, by noting the characteristic way in which certain minds can rightly matter to other such minds—the way in which certain minds can carry a certain kind of importance, made manifest in certain sorts of responses. Mattering, not meriting, seems to me central. However, since I cannot yet better articulate an alternative, I continue in the merit-consequences framework. I focus on a particular class of consequences: those that are non-voluntary, in a sense explained. The non-voluntariness of these reactions has two important upshots. First, questions about their justification will be complex. Second, they are not well thought of as consequences voluntarily imposed upon the wrongdoer by the responder. By focusing on merited consequences and overlooking non-voluntariness, we risk misunderstanding the significance of moral criticism and of certain reactions to moral failure

Testimony and illusion

This paper considers a form of scepticism according to which sentences, along with other linguistic entities such as verbs and phonemes, etc., are never realized. If, whenever a conversational participant produces some noise or other, they and all other participants assume that a specific sentence has been realized (or, more colloquially, spoken), communication will be fluent whether or not the shared assumption is correct. That communication takes place is therefore, one might think, no ground for assuming that sentences are realized during a typical conversation. I reject both this 'folie-à-deux' view and the arguments for it due to Georges Rey. I do so by drawing on Gilbert Harman's no-false-lemmas principle. Since testimony is a form of knowledge and, according to the principle, knowledge cannot depend essentially on false assumptions, testimony is incompatible with the claim that sentence realization is but an illusion. Much of the paper is given over to defending this appeal to the no-false-lemmas principle. After all, a more attractive option might seem to be to infer instead that the principle is itself falsified by the folie-à-deux view

Nonseparability of Shared Intentionality

According to recent studies in developmental psychology and neuroscience, symbolic language is essentially intersubjective. Empathetically relating to others renders possible the acquisition of linguistic constructs. Intersubjectivity develops in early ontogenetic life when interactions between mother and infant mutually shape their relatedness. Empirical findings suggest that the shared attention and intention involved in those interactions is sustained as it becomes internalized and embodied. Symbolic language is derivative and emerges from shared intentionality. In this paper, we present a formalization of shared intentionality based upon a quantum approach. From a phenomenological viewpoint, we investigate the nonseparable, dynamic and sustainable nature of social cognition and evaluate the appropriateness of quantum interaction for modelling intersubjectivity

Collaborative Behaviour Modelling of Virtual Agents using Communication in a Mixed Human-Agent Teamwork

International audience—The coordination is an essential ingredient for the mixed human-agent teamwork. It requires team members to share knowledge to establish common grounding and mutual awareness among them. In this paper, we proposed a collaborative conversational belief-desire-intention (C 2 BDI) behavioural agent architecture that allows to enhance the knowledge sharing using natural language communication between team members. We defined collaborative conversation protocols that provide proactive behaviour to agents for the coordination between team members. Furthermore, to endow the communication capabilities to C 2 BDI agent, we described the information state based approach for the natural language processing of the utterances. We have applied the proposed architecture to a real scenario in a collaborative virtual environment for training. Our solution enables the user to coordinate with other team members