The Morality of Divestment

Divestment from companies that produce or heavily utilize fossil fuels has become one of the biggest issues in the contemporary moral debate surrounding climate change. Universities and other institutions are being asked to divest themselves of their fossil fuel–related investments. In this article I argue that, while the case for divestment is morally strong, not all of the arguments used to support divestment are equally strong. Moreover, which of these arguments is employed matters a great deal for the strength of the conclusions regarding divestment. There are two major groups of arguments: what I call positive arguments for divestment, which stem from the claim that divestment is a response to general duties to take action to prevent dangerous climate change, and what I call negative arguments, which stem from a duty not to cause harm. In this article I will briefly characterize what divestment means and to whom it applies. I will then look at negative and positive duty accounts of the duty to divest before looking at the standard objections to both. Objections have tended to cohere around the claims that divesting is inconsistent, useless and/or harmful, or should be abandoned for better options to avoid dangerous climate change.     

What Conversation? Free Speech and Defamation Law

Common rationales for free speech are offered in legal writing across many countries, even though their laws regulating speech differ markedly. This article suggests another way of thinking about speech, based on particular qualities of speech which help to explain why public speech – or at least public speech perceived as valuable for cultural, political or other purposes – is frequently thought of as a conversation. That often appears as the ideal, but a conversational conception can limit what is seen to be at stake in the control of speech. Instead of imagining public speech as open exchange that leads to agreement, here a slightly different vision is offered based more on the articulation of incommensurable world views and dissent. Implications of such an approach are considered for scholarly understanding, particularly of defamation law – an area of law commonly seen as important for the range and style of public speech.     

Alachua free‐net: Looking for the First Amendment at one outpost on the information highway*

Many communities are developing civic computer networks to provide citizens with free access to local information resources and the Internet. However, most networks restrict both commercial speech and any language deemed “objectionable.”; Whether such broad discretionary power violates the First Amendment depends on whether the networks are state actors. An examination of one such network, Alachua Free‐Net, reveals a close symbiotic relationship between the network and several local government entities. Symbiotic relationships between the state and a private party in other contexts have been held by the courts to constitute state action. Thus, Alachua Free‐Net appears to be a state actor and must conform its speech restrictions to the requirements of the First Amendment. Moreover, whether state actors or not, civic computer networks such as Alachua Free‐Net should commit themselves to providing full First Amendment freedoms to their users.     

Adventures in the Copyright Zone: The Puzzling Absence of Independent First Amendment Defenses in Contemporary Copyright Disputes

Copyright law, for most of its history, has been exempt from the requirements of the First Amendment free speech and press clauses. As copyright law has expanded in scope and duration, scholars have begun to raise questions about its First Amendment immunity. This essay examines the fundamental conflict between copyright doctrine and the First Amendment. Although courts have been quick to dismiss the application of free speech standards to copyright disputes, the proper relationship between these two areas of the law is less than clear. The essay explores the current understanding of the intersection of free speech and copyright, largely derived from the work of Professor Melville Nimmer. It analyzes the difficulties with two specific doctrines by which the Supreme Court of the United States has justified copyright's free speech immunity – the idea/expression dichotomy and the fair use doctrine – then concludes by offering a new approach to applying the First Amendment to copyright law in a more robust manner.     

论纳税人对免费公共产品的权利

免费公共产品,是纳税人可以不支付任何费用而享受的公共产品。免费公共产品的获得是免费的,其消费具有非排他性,必须通过税收和预算来提供。纳税人相互之间对免费公共产品享有免费使用权、先占使用权、平等使用权和重大利益优先权。纳税人相对于政府对免费公共产品享有免费享用、足量享用和损害赔偿权。我国相关制度比较缺乏,应当予以完善。     

中国上海 自由贸易试验区建设与政府职能转变

中国（上海）自由贸易试验区的成立,标志着我国经济体制改革进入了深水区。其成立的意义绝非在于短期刺激经济之举,而是在于推动我国政府职能转变,继而为整个行政体制改革积累宝贵经验,最终目的则是使其在全球化背景下正在构建的国际经济新秩序的竞争中立于不败之地。与此同时,自由贸易试验区建设充分说明,现代政府只有具备充分的应变能力,才能在法治国合法性的要求之下解决不断出现的新问题。     

Field Theory,Cultural Capital,and the First Amendment: Two Paradoxes in the Legitimation of News

Does law influence the legitimation of news? I examine legitimations offered during ethics debates about news stories in which private people are thrust into the media spotlight. When navigating the space between what can be published lawfully and what should be published, journalism organizations offer legitimations that vary in ways that reflect the hierarchy of legal frameworks for decision. According to field theory, the cultural capital of the juridical field is constitutive of status hierarchies in the journalism field, even though the First Amendment leaves journalism to structure itself. This structuring leads to two paradoxes. First, in the performance of negative legitimation, news organizations justify ethics violations by converting the minimum standard of lawful speech into claimsmaking about laudable speech. Second, in acts of displacing legitimation, reporters suggest that more publicity is the remedy for invading privacy, translating the valorization of speech rights over privacy rights into a puzzling norm.     

Police Accountability and the Media

This article explores First Amendment theory and the role of the media in generating police accountability through public understanding of police organizations. We argue that free speech theory can and should look beyond "abridgment" issues and raise questions about the civic responsibility of the press to inform the public about key governmental institutions. The media's concern with crime news, we found, vastly overshadows its coverage of the police us a complex, in-teresting, and expensive governmental agency. Reporting about police institutional patterns and policies contributes more toward fulfilling First Amendment values-not only that of "checking" police excesses, but of facilitating the goal of enlightened citizen participation in local government.
Those who won our independence believed…that public discussion is a political duty; and that this should be a fundamental principle of American government. They recognized the risks to which all human institutions are subject.     

The Constitutional State in the Political Philosophy of Johannes Althusius

The central questions of this article are: a) Based on what arguments defended Johannes Althusius the distinction between the private and public life sphere? b) What kind of relationships exist between the state on the one hand, and private and other public associations on the other hand? c) Based on what arguments may the government restrict actions of citizens and private associations? Answering these questions leads to the conclusion that Althusius should be mentioned as one of the founding fathers of the liberal constitutional state.     

Behind a veil of secrecy: animal abuse,factory farms,and Ag-Gag legislation

Abstract

For years, animal rights organizations have sought to expose animal cruelty on America’s factory farms. With the meat and dairy industry inaccessible to the public, animal advocates rely on undercover investigators who gain access to farms by becoming employees. Working from the inside, these investigators become whistleblowers when they reveal animal cruelty unrelated to the already inhumane conditions of animal husbandry. An effective strategy that has exposed animal abuse as well as conditions threatening to public health, in recent years the agriculture industry has pressured legislatures to enact laws that criminalize photography at factory farms. Dubbed ‘Ag-Gag’ laws by critics, the emergence of legislation targeting animal rights advocates raises important questions relevant to animal welfare, animal rights activism, and freedom of speech. This paper exposes the failure of government institutions to protect animals on factory farms while simultaneously silencing what is currently the only available mechanism for Americans to learn about abuse on factory farms. It also explores the Constitutional implications of Ag-Gag laws. Not only are Ag-Gag laws presumptively unconstitutional, but with their enactment – animal welfare remains unchanged, the American consumer remains uninformed, and America’s factory farms are free to abuse animals behind a legal veil of secrecy.     

BC court orders government to pay for treatment

On 9 October 2002, the British Columbia Court of Appeal upheld a ruling of a BC court that the BC government must not discriminate against a disabled and disadvantaged group when choosing what medical treatments it will fund. The Court of Appeal ordered the BC government to pay for a particular form of treatment. The case is significant in the context of HIV/AIDS because it could lend support to arguments that a government must make appropriate accommodation for the health-care needs of other disabled and marginalized groups--for example, safe injection supervision for the treatment of addiction.     

“Executing the Powers With Which it is Intrusted”: Justifications,Definitions and Limitations of Government Speech

Federal, state and local governments have realized that an effective way to counter an undesirable private message is to swallow it up within the government's own speech. So far, the Supreme Court of the United States has acquiesced, including its February 2009 opinion in Pleasant Grove City v. Summum. This article explores the roots, definition and limits of government speech through a close examination of not only Summum but two other recent Supreme Court opinions granting the government a right to communicate even when others contend that the speech conflicts with their own messages. The article concludes that the government speech doctrine needs further explanation with regard to its justification and contours. The rational basis test and political process may not be sufficient to contain government speech within desirable bounds; instead, government speech should be subjected to judicial scrutiny to ensure it remains germane and proportional.     

Democracy,social capital and school governing bodies in South Africa

Critics of school governing bodies (SGBs) – both on the left and on the right – tend to rely upon arguments that ignore significant portions of the act that created SGBs – the South African Schools Act (SASA) – the exact nature of the changes to SGBs wrought by amendments to the act and the manner in which the courts, in interpreting the act, have both reinforced the autonomy of SGBs at the same time as they have set limits on those powers. The authors’ reading takes seriously all of the provisions of SASA, its amendments and various court constructions of SASA's provisions. This close reading of the South African Constitution, SASA, SASA's amendments and the case law reveals the lineaments of a fourth level of democratic government. Even with their uneven success as a fourth tier of democratic government, SGBs reflect, in many respects, the most important interactions that citizens have with the state. The authors contend that SGBs provide a vehicle for popular political participation that is quite real, and that participation is made no less real by the strictures imposed upon them by South Africa's constitutional and regulatory order. Despite concerns about their lack of capacity, SGBs enjoy popular acceptance and participation across class and language divides. The legal status of SGBs does not merely enhance various forms of local democracy, SGBs also maintain and create effective social networks that generate new stores of social capital. The ability to provide new forms of democratic participation and to create new stores of social capital suggests that SGBs have the makings of a great, new and rather unique ‘South African’ political institution.     

Euthanasia and assisted suicide in the post-Rodriguez era: lessons from foreign jurisdictions

Euthanasia and assisted suicide are highly controversial subjects that have drawn much attention in Canada over the last two decades. This paper outlines how the Netherlands, the United States, Australia, and Canada have approached the practices. Jurisprudence, public opinion polls, legislative developments, and the positions of medical organizations and their members are included in the analysis. A number of arguments for and against the continued prohibition of the practices in Canada are evaluated. As well, information regarding the extent to which euthanasia and assisted suicide are performed in these countries is assessed. It will be shown that Canadians currently enjoy significant control over decisions concerning end of life. The principles of autonomy and beneficence provide the foundation necessary to justify lifting the prohibition of voluntary euthanasia and assisted suicide in Canada. With regard to the development of safeguards, the way in which foreign jurisdictions have dealt with both procedures is highly instructive. A qualified system of pre-authorization, unlike those adopted elsewhere, would prevent abuses from occurring and maintaining the prohibition of non-voluntary and involuntary euthanasia. Since legislators are in the best position to deal with the issues, change in the law should be made by the government, not the judiciary. Practical legislation is feasible and a proposal of what this should entail is presented.     

Utilising AI in the legal assistance sector—Testing a role for legal information institutes

The use of artificial intelligence (AI) in law has again become of great interest to lawyers and government. Legal Information Institutes (LIIs) have played a significant role in the provision of legal information via the web. The concept of ‘free access to law’ is not static, and the evolution of its principles now requires a response from providers of free access to legal information (‘a LII response’) to this renewed prominence of AI. This should include improving and expanding free access to legal advice. This paper proposes, and proposes to test, one approach that LIIs might take in the use of AI (specifically, ‘decision support’ or ‘intelligent assistance’ (IA) technologies), an approach that leverages the very large legal information assets that some LIIs have built over the past two decades. This approach focuses on how LIIs can assist providers of free legal advice (the ‘legal assistance sector’) to serve their clients. We consider the constraints that the requirement of ‘free’ imposes (on both the legal assistance sector and on LIIs), including on what types of free legal advice systems are sustainable, and what roles LIIs may realistically play in the development of such a ‘commons of free legal advice’. We suggest guidelines for development of such systems. The AI-related services and tools that the Australasian Legal Information Institute (AustLII) is providing (the ‘DataLex’ platform), and how they could be used to achieve these goals, are outlined.     

Threat,emboldenment, or both? The effects of political power on violent hate crimes*

How do expressions of support or opposition by the U.S. federal government, influence violent hate crimes against specific racial and ethnic minorities? In this article, we test two hypotheses derived from Blalock's (1967) conceptualization of intergroup power contests. The political threat hypothesis predicts that positive government attention toward specific groups would lead to more hateful violence directed against them. The emboldenment hypothesis predicts that negative government attention toward specific groups would also lead to more hateful violence directed against them. Using combined data on U.S. government actions and federal hate crime statistics from 1992 through 2012, vector autoregression models provide support for both hypotheses, depending on the protected group involved. We conclude that during this period, African Americans were more vulnerable to hate crimes motivated by political threat, and Latinx persons were more vulnerable to hate crimes motivated by emboldenment.     

Mens Rea by the Numbers

Before the recent presidential election, a bipartisan congressional effort was made to pass a criminal justice reform bill. The bill faltered in part because of a proposed default mens rea provision: statutes silent on mens rea, that were not explicitly identified as strict liability by the legislature, would be taken to require for guilt proof of knowledge with respect to each material element. This paper focusses on a prominent line of disagreement about the default mens rea provision. Proponents argued that it would reduce the number of unjust verdicts in corporate cases. They noted that there have been convictions of corporations and corporate officers for public welfare offenses in instances in which there was good reason to believe that the defendants lacked mens rea. They touted the legislation, then, as a way of reducing the false positive rate. Opponents noted that the provision would also reduce the rate of true positives in corporate prosecutions—convictions of those possessing mens rea who could not be proven to—and opposed the legislation on those grounds. Both sides, then, accepted that the relevant question was, in part, numerical: under the provision, would the reductions in guilty verdicts of those lacking mens rea outnumber and outweigh the increases in acquittals of those possessing it? This paper critically examines this numerical approach for assessing and justifying the default mens rea provision. The paper argues that there is a small domain under which it is appropriate to reason in such numerical terms about a default mens rea provision, but that that domain is so small as to make such arguments inappropriate when it comes to sweeping legislation, such as that proposed. The paper further argues that in light of this conclusion the default mens rea provision must be examined non-numerically, through appeal to principled considerations about the necessary conditions for morally justified infliction of punishment. When such arguments are freed from numerical considerations of the kind that dominated the public discussion of the legislation, they decide the matter: the default mens rea provision deserves bipartisan support.