The “Central Meaning” and Path Dependence: The Madison-Meiklejohn-Brennan Nexus

Justice William J. Brennan's opinion in New York Times Co. v. Sullivan is widely recognized for many reasons, including, as articulated by Professor Harry Kalven, that it put “the First Amendment right side up for the first time” by identifying its “central meaning.” That meaning is the constitutional protection of speech critical of government and its officials – speech vital in a self-governing democracy. Justice Brennan's approach was derived, in part, from the writings of James Madison, to whom the justice refers generously throughout the opinion, and Alexander Meiklejohn, to whom Justice Brennan gave credit only after the fact. This article examines the philosophical lineage from Madison to Meiklejohn to Brennan, and does so through the lens of path dependence, a perspective that advocates that history matters. A critique of path dependence emerges.     

The One-System View and Dworkin’s Anti-Archimedean Eliminativism

Many of Dworkin’s interlocutors saw his ‘one-system view’, according to which law is a branch of morality, as a radical shift. I argue that it is better seen as a different way of expressing his longstanding view that legal theory is an inherently normative endeavor. Dworkin emphasizes that fact and value are separate domains, and one cannot ground claims of one sort in the other domain. On this view, legal philosophy can only answer questions from within either domain. We cannot ask metaphysical questions about which domain law ‘properly’ belongs in; these would be archimedean, and Dworkin has long argued against archimedeanism. The one-system view, then, is best understood as an invitation to join Dworkin in asking moral questions from within the domain of value. Finally, I argue that Dworkin’s view can be understood as a version of ‘eliminativism’, a growing trend in legal philosophy.

     

The ‘Hybrid Order’: origins and usage

The hospital direction (Hybrid Order) was inserted into the Mental Health Act (MHA) in 1997 (Crime (Sentences) Act, 1997). It enables higher courts to direct hospital admission for offenders, whilst still imposing a prison sentence. The origins of the ‘Hybrid Order’ and its patterns of usage are examined. Comparisons are made with its Scottish equivalent, Section 59A of the Criminal Procedure (Scotland) Act 1995. Both the ‘Hybrid Order’ and Section 59A have been used infrequently. This may reflect the fact that they were strongly resisted on ethical grounds at their point of inception and that they force the psychiatrist into the position of ‘punisher’, rather than ‘treater’. Since the 2007 Amendment of the MHA in England and Wales which expanded the remit of the ‘Hybrid Order’ to include all legal categories of mental disorder, not solely psychopathy, its use has unsurprisingly increased – this article delineates the considerations that need to be given in its recommendation.     

Sex and Capacity: The Management of Monsters?

The first consideration by a civil court of the test of capacity to engage in sexual relations – X City Council v MB, NB and MAB – is as recent as 2005. This article places this and subsequent cases in the historical context of the way in which the law has constructed the sexuality of persons with intellectual impairment. The article argues that, beginning with a series of rape cases in the mid to late nineteenth century, which recognised the concept of consent given through the expression of animal instincts, the law has accepted and deployed a model of intellectual impairment which understands expressions of sexuality in terms of an increasingly unstable opposition between vulnerability and danger, understood as the presence or absence of instinct, and as indicating an underlying ‘monstrosity’. The article argues that the historical continuity apparent in the modern case law is unfortunate and should be rectified.     

The Brahman and the Word Principle (Śabda)

The literature of Bhartṛhari and Maṇḍana attention in contemporary times. The writings of the prominent linguistic philosopher and grammarian Bhartṛhari and of Manḍana, an encyclopedic scholar of later seventh century and most likely a senior contemporary of Śaṅkara, shape Indian philosophical thinking to a great extent. On this premise, this study of the influence of Bhartṛhari on Maṇḍana’s literature, the scope of this essay, allows us to explore the significance of Bhartṛhari’s writings, not only to comprehend the philosophy of language, but also to understand the contribution of linguistic philosophy in shaping Advaita philosophy in subsequent times. This comparison is not to question originality on the part of Maṇḍana, but rather to explore the interrelationship between linguistic philosophy and the monistic philosophy of the Upaniṣadic tradition. Besides excavating the role of Bhartṛhari writings on the texts of Maṇḍana, analysis this will reveal the interrelatedness of the Advaita school of Śaṅkara often addressed as ‘pure non-dualism’ (Kevalādvaita) and the Advaita of Bhartṛhari, identified as ‘non-dualism of the word-principle’ (Śabdādvaita).     

The US SOPA and PIPA − a European perspective

According to US House Judiciary Chairman Lamar Smith, ‘the theft of American intellectual property costs the American economy over $100 billion annually?…?and thousands of jobs’. Both houses of the US congress have been working on corresponding bills intending to give the US government and copyright holders more effective tools to curb access to so-called rogue websites that disseminate copyright-infringing content, especially those registered outside the US. Following a wake of protest, the Protect IP Act (PIPA) by the Senate and its counterpart in the House of Representatives, the Stop Online Piracy Act (SOPA), were postponed ‘until there is wider agreement on a solution’. This paper examines how the bills tried to strengthen the ability of US law enforcement and copyright holders to fight online trafficking in copyrighted intellectual property and counterfeit goods. It will also outline the recent developments and assess the implications that the bills have for freedom of speech online and cybersecurity, not only in the US but also in Europe.     

“To develop and test:” The inventive difference between evaluation and experimentation

The National Research Council (NRC) Report on Improving Evaluation of Anticrime Programs raises a fundamental question about the mission of evaluation research. The implicit premise of the report is that the mission of evaluation is to answer questions about programs developed by others; in short, to test anti-crime programs. In contrast, the mission of experimental criminology has, historically, been to develop anti-crime programs as well as to test them. There are times when an arm’s-length relationship between program and evaluation may be appropriate. Yet, such a separation necessarily produces a courtroom-like adjudication role for evaluators, rather than the laboratory-like, participant–inventor role that has characterized the best of experimental criminology. The recent case of the Chicago police’s “evaluating” the use of sequential suspect identification methods developed by academic psychologists shows the many flaws of the “testing-only” model. This suggests that providing “effective guidance of criminal justice policy and practice,” as the NRC report defines its focus [Lipsey, M. ed (2005). http://newton.nap.edu/pdf/0309097061/pdf_image/R1.pdf] will not only require evaluation research (defined as arm’s-length testing) but the full toolbox of experimental criminology to develop and test anti-crime programs.

The European parliament and co‐decision: A rejoinder to Tsebelis and Garrett

The primary aim of this article is to analyse the question ‘How do the longest serving Swedish parliamentarians view change in the Riksdag?’ The article is in three parts: the first sets out a framework for analysing parliamentary change comprising six main ‘dimensions of change’ which are then briefly applied to the Swedish case. The second section presents an academic perspective on parliamentary change in Sweden by reference to the analytical framework set out in part one. The final section concentrates on the Riksdag veterans’ perceptions of parliamentary change.     

The Legal Education and Training Review: regulating socio-legal and liberal legal education?

The Legal Education and Training Review (LETR) which reported in June 2013 conceded that undergraduate law degrees are generally outside the remit of the review other than when there is a direct impact on the provision of legal services. On first glance therefore the review has few implications for those of us interested in delivering a liberal legal education and developing socio-legal approaches to law and legal study. However, on closer reading, the report contains a number of suggestions which, if taken up by the regulators, have significant potential to change law degrees, even if regulation remains “light touch”. This article explores those issues with a particular focus on the implications for liberal law degrees and socio-legal approaches to law teaching. In particular the article will explore issues around possible changes to foundation subjects; the creation of a framework of learning outcomes; the possible strengthening of legal writing and research in the curriculum and the opportunities offered for the introduction of more socio-legal material; and the trickle-down effect likely to be felt by providers of undergraduate law degrees of changes in regulation of legal services and as a result of student, employer and other stakeholder expectations.     

Notes and comments "High and dry?" The Public Readiness and Emergency Preparedness Act and liability protection for pharmaceutical manufacturers

In an era filled with fears of bioterrorism, Congress approved the Public Readiness and Emergency Preparedness Act (PREPA) to encourage development of vaccines and other countermeasures. By providing pharmaceutical manufacturers with protection from liability for potential side effects, Congress has attempted to motivate manufacturers to produce a national stockpile of countermeasures. As part of PREPA, the government established a compensatory system intended to provide compensation to persons injured by countermeasures used during a public health emergency. Although the Act provides for a compensation fund, it fails to allocate monies for that fund. Thus, in the absence of further congressional action, PREPA will not provide compensation to those injured by countermeasures. Failing to assure the American public of a compensation program constitutes bad public policy and risks inspiring potential vaccinees to refuse necessary drugs. Additionally, arguments as to the constitutionality of the Act exist should Congress fail to adequately fund the program, and the existence of those arguments undermines the purpose of the Act--namely to assure pharmaceutical manufacturers that they will not be sued into oblivion should they attempt to aid national pandemic protection. In addition to detailing both the Act and the statutory precedent for congressional attempts to spur biodefense, this Article addresses important issues of healthcare, tort, and constitutional law that will continue to manifest themselves in this new era of bioterrorism.     

The Realism of Universals in Plato and Nyāya

It has become commonplace in introductions to Indian philosophy to construe Plato’s discussion of forms (εἶδος/ἰδέα) and the treatment in Nyāya and Vaiśeṣika of universals (sāmānya/jāti) as addressing the same philosophical issue, albeit in somewhat different ways. While such a comparison of the similarities and differences has interest and value as an initial reconnaissance of what each says about common properties, an examination of the roles that universals play in the rest of their philosophical enquiries vitiates this commonplace. This paper draws upon the primary texts to identify the following metaphysical, epistemological, semantic and soteriological roles that universals play in the philosophy of Plato and of Nyāya and Vaiśeṣika:

Metaphysical: causal of the existence of x Metaphysical: constitutive of the identity/essence of x Epistemological: cognitively causal (i.e. of the cognition of one over many) Epistemological: epistemically causal (i.e. of knowledge of x) Semantic: necessary condition of speech and reason Epistemological: vindicatory of induction (Nyāya only) Metaphysical: explanatory of causation (Nyāya only) Soteriological: cathartic contemplation (Plato only)

These roles provide us with motivations or reasons to believe that universals exist. As we examine these motivations, we find pressures mounting against our assimilating Platonic forms and the universals of Nyāya and Vaiśeṣika in the discourse about common properties. It is especially when we appreciate the utterly different contribution that universals make in securing our highest welfare that we realize how Plato and the two sister schools are not so much talking somewhat differently about the same thing, but talking somewhat similarly about different things. This better understanding of this difference in these philosophies opens a route for our better understanding of their unique contributions in the ongoing dialogue of philosophy.     

Gender and sexual orientation in women： The double discrimination

Nowadays, sexual orientation is a cause of discrimination with its own autonomy in laws of European Union. The Treaty of Amsterdam, which came into force on May 1, 1999, marks a significant milestone for homosexual, bisexual, and transsexual persons. In this process, the rich experience of the European Union in combating discrimination due to gender in the workplace is very important. The great opportunity created by article 13 of the Treaty of Amsterdam was the extension of protection to a much wider range of discrimination, including sexual orientation. On the other hand, if we consider the situation of lesbian, bisexual and transsexual women in the workplace, it may be very difficult to ascertain if the discrimination is due to their gender or their sexual orientation. In fact, cases of double discrimination are very common. For example, The Commission＇s 1991 Code of Practices on Sexual Harassment states that lesbian women are disproportionately at risk of sexual harassment. This is revealing the potential overlaps between gender and sexual orientation, with a great difficulty to adapt anti-discrimination protections to deal with these situations.     

Executive impunity and parallel justice? The United Kingdom debate on secret inquests and inquiries

At the beginning of 2008, the United Kingdom Government rolled into the Counter-Terrorism Bill some controversial proposals to reform coronial inquest processes, namely clauses that would provide for "secret inquests". The provisions were heavily criticised both inside and outside Parliament, and took a rocky passage through both the House of Commons and the House of Lords before eventually being abandoned by the government. In 2009 the government again tried to introduce "secret inquests" with the Coroners and Justice Bill, instead ultimately succeeding in establishing what critics have termed a "parallel" system of justice through provisions around "secret inquiries". This move has been seen as subverting the principles of transparency and open justice in the investigation of contentious deaths. This article examines the government's efforts to introduce "secret inquests" and thereafter "secret inquiries" in the context of the United Kingdom's coronial law and purpose, human rights obligations and the ongoing issues around sensitive intelligence, and examines the clash of laws that gave rise to the controversial proposals.     

The clash of rights： Sexual violence and ethnic prejudices

The global spread of the recent financial crisis reveals the crisis of the social model at the base of Western societies. This can be seen from the increased social inequality and poverty, linked to increasing rates of unemployment levels within the so-called advanced capitalistic society. These societies, particularly the European ones, are interested at the same time in the migration and acquire the status of multicultural society. The mixture of the two phenomena, the economic and social crisis on the one hand, the increasing of migration flows on the other, led to deep divisions in that societies, whose consequences are felt by the most vulnerable groups： migrants and women. The associations complain of the increased exploitation of migrant labour, which creates resentment in the population, the unions complain the most violent fallout of the crisis of the labour market on women than men. In the Italian context occur that the two forms of discrimination have been dramatically intertwined： the public was captured by a sequence of shocking rapes of women by neo-communitarian citizens. The panic induced by the media has prevented a proper reflection on what was happening, crediting a model of criminalization of foreigners and increasing perception of insecurity in women. The scenario problematic from a legal standpoint, to which this article addresses, is a dangerous polarization between the protection of freedom of women and the respect for the social dignity of migrants. In relation to this scenario highly critical, in which is erroneously included women as a minority in conflict with another minority-migrants, the article aims to identify in a comparative way the best tools to prevent the ethnicization of gender violence.     

The effects of psychiatric and “biological” labels on lay sentencing and punishment decisions

Objectives

This research, using focal concerns perspective on sentencing, examines how and why psychiatric labels, and having diagnoses biologically “labeled,” affect sentencing beliefs. Dimensions of public stigma toward psychiatric illnesses are hypothesized to mediate sentencing views.

Methods

This is a 2?×?2 partially-crossed, between-subjects multifactorial experiment with a lay sample (n=?1213), presenting mediation analyses.

Results

Four psychiatric labels (Attention Deficit Hyperactivity Disorder, behavioral-variant Frontotemporal Dementia, High Functioning Autism, Borderline Intellectual Disability) led to significant beneficial effects on sentencing (less prison/rehabilitation support) as mediated by decreased stigmatization regarding lack of treatability, social acceptance, and personal responsibility. One biological “label” (Pedophilic Disorder) was mediated by decreased stigmatization (dangerousness), resulting in less prison support.

Conclusions

Data support effects of psychiatric labeling on sentencing under focal concerns. As no psychiatric labels resulted in increased discriminatory sentencing and, instead, led to decreased discriminatory sentencing behavior, psychiatric labeling may reduce punitiveness and bolster non-punitive sentencing beliefs. Biological labeling, aside from Pedophilic Disorder, may not affect sentencing.