An Outsider\u27s View of Dassonville and Cassis de Dijon: On Interpretation and Policy

My interest in the EC law on free movement of goods is long-standing and more than casual, but much less than scholarly. So I am delighted to contribute some remarks without pretending to expertise

Congressional Testimony: Constitutional Amendments on Abortion

An excerpt from Professor Regan\u27s testimony questions the theoretical advisability of amending the Constitution to restrict or prohibit abortion

On Preferences and Promises: A Response to Harsanyi

John C. Harsanyi sketches an entire normative and metaethical theory in under twenty pages. Combining breadth and brevity, his essay is useful and interesting. It reveals the interrelations between Harsanyi\u27s positions on various issues as no longer work or series of articles could do. But by virtue of its programmatic nature, the essay creates a dilemma for a commentator, at least for one who finds many things to disagree with. If I responded to Harsanyi in the same sweeping terms in which he argues, we would end up with little more than opposing assertions. At the other extreme, I could point out what seem to me particular defects in Harsanyi\u27s arguments as they stand. But that would seem pedantic and ungenerous if my particular objections could be avoided by spelling out his arguments at greater length, as some of them surely could. (I am especially troubled by this possibility because I am persuaded that in the past I once misinterpreted an argument of Harsanyi\u27s and treated it unjustly.) Constraints of space prevent me from first spelling out Harsanyi\u27s arguments as best I can and then criticizing them. Accordingly, I shall limit myself to two topics, chosen partly because I think the observations I shall make are worth making whether or not they represent points of ineliminable disagreement between Harsanyi and myself

Gewirth on Necessary Goods: What Is the Agent Committed to Valuing?

In this chapter I shall be concerned with stage I of Gewirth\u27s argument, in which he argues that the agent must value her freedom and well-being as necessary goods. Stage I has attracted less criticism over the years than stages II and III, but even so, a good deal has been written about it. I do not claim to have found any brand new objection to Gewirth\u27s argument. The core of my objection occurred to me during my first reading of Reason and Morality, and it obviously occurred to a number of other people as well. 3 But it is clear that there is not yet universal agreement on the merits of Gewirth\u27s argument, and the argument is important enough so that it is worth trying to establish definitively whether or not it succeeds

What a Sensible Natural Lawyer and a Sensible Utilitarian Agree about and Disagree about: Comments on Finnis

Before I start, let me say two things. First of all, to the extent that John Finnis is entering a plea for more attention to what is a relatively neglected tradition (in the narrow his message a hundred percent. And you courd learning about the natural law tradition than by reading his book, Natural Law and Natural Rights. My second introductory observation is that Finnis and I agree about many more things than you might expect if you just think of him as a natural law theorist and me as a utilitarian. I am very eccentric as a utilitarian. He is, not eccentric, at least unusually advanced as a natural law theorist. actually agree about quite a lot (although of course we also disagree about some important things)

Rewriting Roe v. Wade

Roe v. Wade is one of the most controversial cases the Supreme Court has decided. The result in the case - the establishment of a constitutional right to abortion - was controversial enough. Beyond that, even people who approve of the result have been dissatisfied with the Court\u27s opinion. Others before me have attempted to explain how a better opinion could have been written. It seems to me, however, that the most promising argument in support of the result of Roe has not yet been made. This essay contains my suggestions for rewriting Roe v. Wad

A Gambling Paradox: Why an Origin-Neutral \u27Zero-Quota\u27 Is Not a Quota Under GATS Article XVI

In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was in effect a zero-quota , and that such a zero-quota violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body\u27s effects test . This article argues that the Appellate Body\u27s in effect analysis is not an effects test and is not the real problem. The real mistake is regarding a so-called zero-quota as a quota under Article XVI. That is inconsistent with the ordinary meaning of the word quota in such a context; it is at odds with the object and purpose of Article XVI; and it is likely to reduce Members\u27 willingness to make concessions

Measures with Multiple Purposes: Puzzles from EC-Seal Products

European Communities—Measures Prohibiting the Importation and Marketing of Seal Products is the first case in which the dispute system of the World Trade Organization (WTO) has wrestled with a regulation that pursued multiple conflicting, legitimate purposes. (I will explain later why Brazil—Retreaded Tyres is not such a case.) This generates puzzles about applying the definition of a “technical regulation” to complex measures; about whether an exception to a ban can be justified by a purpose different from that of the ban; and about how to apply “less restrictive alternative” analysis to measures with multiple goals. The first of these puzzles is unique to the Agreement on Technical Barriers to Trade (TBT); the second and third concern the TBT, the General Agreement on Tariffs and Trade (GATT), and probably other agreements

How to Be a Moorean

G. E. Moore’s position in the moral philosophy canon is paradoxical. On the one hand, he is widely regarded as the most influential moral philosopher of the twentieth century. On the other hand, his most characteristic doctrines are now more often ridiculed than defended or even discussed seriously. I shall discuss briefly a number of Moorean topics—the nonnaturalness of “good,” the open question argument, the relation of the right and the good, whether fundamental value is intrinsic, and the role of beauty—hoping to explain how a philosophically informed person could actually be a Moorean even today.

Against Evaluator Relativity: A Response to Sen

In a recent essay in this journal Amartya Sen introduced the notion of an evaluator-relative consequence-based morality. The basic idea can be described very simply. A consequence-based morality is a morality that instructs each agent to maximize some objective function defined over states of affairs. Such a morality is evaluator neutral if it assigns to every agent the same objective function. If different agents have different objective functions, then the morality is evaluator relative. For example, a morality would be evaluator relative if it assigned to Jones an objective function giving greater weight to the welfare of Jones\u27s children than Smith\u27s children, while it assigned to Smith an objective function giving greater weight to the welfare of Smith\u27s children than Jones\u27s. In more traditional language, a morality is consequence-based if it says that right acts are acts which have good consequences. A consequence-based morality is evaluator neutral if there is a universal good that all agents are required to promote; it is evaluator relative if different agents are assigned different goods. This brief description conceals some complications and possible sources of confusion, but it is not intended as a summary of or a replacement for Sen\u27s very illuminating general discussion of agent relativity. Sen has shown that evaluator relativity must always be accompanied by some other form of relativity, but my focus will be on evaluator relativity except where I advert specifically to another form