Ontology and Reason Giving in Law

John Gardner has noted that legal positivism is more a theory of legal validity than it is a theory about law ’ s nature. 1 This is true in that one can be a legal positivist and hold a variety of different theories about law ’ s nature, but not to the extent that ‘ anything goes ’ ontologically speaking. Rather, it seems fairly diffi cult to be a legal positivist and not say that the law is a kind of social fact. That being said, however, there are a variety of ways of creating social facts so there is some room for disagreement when it comes to the nature of law within the wide umbrella of legal positivism. If our focus is legal validity, then we may not have too much reason to wade into these deeper metaphysical waters. However, I believe that legal positivism has a challenge that is not (as) present in other theories of law: the problem of explaining law ’ s normativity. I contend that one of the best hopes for meeting this challenge is to be found in getting more clarity about what it is that yields these special social facts, although I remain open to the possibility that the challenge can also be met in other ways. Let us fi rst get a bit more clarity on the challenge itself, then we will see how settling the metaphysical questions about law can help to meet the challenge, and then I can suggest how my preferred answer to the metaphysical questions meets the challenge..

Medical Complicity and the Legitimacy of Practical Authority

If medical complicity is understood as compliance with a directive to act against the professional's best medical judgment, the question arises whether it can ever be justified. This paper will trace the contours of what would legitimate a directive to act against a professional's best medical judgment (and in possible contravention of her oath) using Joseph Raz's service conception of authority. The service conception is useful for basing the legitimacy of authoritative directives on the ability of the putative authority to enable subjects to comply better with reasons that already apply to them. Hence, the service conception bases the legitimacy of practical authority on a certain kind of greater knowledge or expertise. This helps to focus the conundrum regarding complicity on the clash of expertise between the medical expert and the governing body tasked with coordinating behaviour and otherwise devising rules for the social good. The ethical dilemma presented by a hypothetically legitimate directive to act against a professional's best medical judgment also serves to highlight the moral dimension of one's duty to obey a legitimate authority

Crafting a Class: The Trade Off Between Merit Scholarships and Enrolling Lower-Income Students

[Excerpt] It is well-known that test scores are correlated with students’ socio-economic backgrounds. Hence to the extent that colleges are successful in “buying” higher test score students, one should expect that their enrollment of students from families in the lower tails of the family income distribution should decline. However, somewhat surprisingly, there have been no efforts to test if this is occurring. Our paper presents such a test. While institutional level data on the dollar amounts of merit scholarships offered by colleges and universities are not available, data are available on the number of National Merit Scholarship (henceforth NMS) winners attending an institution on scholarships that have been funded by the institution itself, rather than the National Merit Scholarship Corporation (henceforth NMSC). These institutional scholarships are awarded to high test score students only if they attend the institution. Our research strategy is to estimate if an increase in the number of recipients of these scholarships at an institution is associated with a decline in the number of students from lower and lower middle income families attending the institution, other factors held constant. We measure the number of these students by the number of Pell Grant recipients attending the institution

Law’s Artifactual Nature: How Legal Institutions Generate Normativity

I argue that law is best understood as an institutionalized abstract artifact. Using the ideas of John Searle on institutions and Amie Thomasson on artifacts, I show how the law is capable of generating new reasons for action, arguing against recent work by David Enoch who holds that legal reason-giving is ultimately a form of triggering conditional reasons

Law as Plan and Artefact

Scott Shapiro’s theory that law is a social plan is helpful in seeing law essentially as a tool of human creation and as such is sympathetic to understanding law in terms of the social functions it performs, a method I argue for elsewhere. I focus here on two problems with the theory as presented. The planning theory does not adequately explain the persistence of law beyond the utility of those who implement it. Generally, plans can cease to exist as soon as those engaged in them have no more use for them. Laws however, must usually be declared invalid or otherwise nullified for them to have no further effect. Shapiro’s use of self-certification to explain how law is differentiated from other forms of social planning is ad hoc and threatens circularity when he admits it to be a matter of degree. Both of these issues can be better solved by seeing law as an institutionalised abstract artefact, with a greater emphasis upon the nature of institutions doing much of the work done by the idea of planning

The Graduate Education Initiative: Description and Preliminary Findings

[Excerpt] In1991 the Andrew W. Mellon Foundation launched the Graduate Education Initiative (hereafter GEI) to improve the structure and organization of PhD programs in the humanities and social sciences. Such changes were seen as necessary to combat high rates of student attrition and long times-to-degree in these programs. While attrition and time-to-degree were deemed to be important in and of themselves, and of great significance to degree seekers, they were also seen more broadly as indicators of the effectiveness of graduate programs. Several characteristics of doctoral programs were earmarked as contributing to high attrition and long degree time, including: unclear expectations, a proliferation of courses, elaborate and sometimes conflicting requirements, intermittent supervision, epistemological disagreements on fundamentals and not least, inadequate funding. Projections that faculty shortages would occur in the late 1990s in the humanities made the goals of reducing student attrition and time-to-degree particularly timely if an adequate number of PhDs were to be available. This was far from the first such effort to reduce times-to degree-and rates of attrition. Earlier programs, which provided grants in aid to individual students or to graduate schools to distribute as they saw fit, had failed conspicuously. Based on data which showed that there were marked differences among departments and on a great deal of experience on the ground, the architects of the GEI determined that to improve graduate education would require departments to make changes in their PhD programs. As such, the Foundation shifted much of its support for doctoral education, which had previously gone directly to students, to block grants that would be awarded to departments within major universities

Less Evidence, Better Knowledge

In his 1827 work Rationale of Judicial Evidence, Jeremy Bentham famously argued against exclusionary rules such as hearsay, preferring a policy of “universal admissibility” unless the declarant is easily available. Bentham’s claim that all relevant evidence should be considered with appropriate instructions to fact finders has been particularly influential among judges, culminating in the “principled approach” to hearsay in Canada articulated in R. v. Khelawon. Furthermore, many scholars attack Bentham’s argument only for ignoring the realities of juror bias, admitting universal admissibility would be the best policy for an ideal jury. This article uses the theory of epistemic contextualism to justify the exclusion of otherwise relevant evidence, and even reliable hearsay, on the basis of preventing shifts in the epistemic context. Epistemic contextualism holds that the justification standards of knowledge attributions change according to the contexts in which the attributions are made. Hearsay and other kinds of information the assessment of which rely upon fact finders’ more common epistemic capabilities push the epistemic context of the trial toward one of more relaxed epistemic standards. The exclusion of hearsay helps to maintain a relatively high standards context hitched to the standard of proof for the case and to prevent shifts that threaten to try defendants with inconsistent standards

General dynamics of the physical-chemical systems in mammals

Biodynamic regulator chain models for physical chemical systems in mammal