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Balancing Clashing Scholars’ Academic Freedoms
Get PDFThe paper analyzes the scope of scholars’ academic freedom and maintains that it is composed of two pillars. First, inclusion, which is subject to capacity, equality, and the provision of a pro-educational academic environment. Second, academic expression, which refers to teaching and research, freedom of opinion, political participation outside academia and freedom to receive academic materials. Scholars’ academic freedom is limited by professional standards and is subject to the respect of the rights of fellow scholars.
The paper argues that scholars’ academic freedom is not confined to a scholar-state relation but is also relevant to scholar-scholar relations. Hence, scholars’ academic freedom can be breached by peers, for instance, by firing them on the basis of gender. The paper proposes three tests for balancing clashing scholars’ academic freedoms. First, the closer in nature the activity is to academia, the greater its weight (the relevance test). Second, “seclusion v. exclusion” test. According to this test, a “seclusive” exercise of academic freedom, namely one that does not interfere with peers’ rights, should override an “exclusionary” exercise of academic freedom, namely one that interferes with peers’ rights. Third, within academia, activities promoting pluralistic notions should override contrary endeavors (the virtue test).
Finally, the paper applies its conclusions to a test case—the Campaign against Israeli academia, also known as the academic boycott of Israel. It concludes that teaching and research activities, performed in a seclusive manner that does not advance discriminatory notions should take priority over non-academic political activities
How COVID-19 Put the Spotlight on the EMTALA
Get PDFThere was a time when those that were unable to afford medical care risked being denied treatment in emergency situations. Before Congress passed Emergency Medical Treatment & Labor Act (EMTALA), patients were being transferred to different hospitals, without being screened, because they did not have insurance and could not afford the treatment. Hospitals are no longer allowed to transport patients without properly screening and stabilizing them. Patients can bring a suit against a hospital if they believe the hospital violated EMTALA, however, in certain circuits the patient will need to prove that hospital had an “improper motive” for failing to properly screen them. When the Coronavirus pandemic took over the world, hospitals requested temporary waivers so that they can transport patients to off-campus testing sites. Hospitals were allowed to set up stations, away from the hospital, to treat patients with COVID. After reviewing both sides, this Note argues that patients should not have to prove such a huge burden like the motive of the hospital. Although, EMTALA was created so that patients are not turned away due to their financial situations, a lot of work still needs to be done to ensure that all patients are treated equally regardless of their race and socioeconomic status
Does Democracy Justify Zoning?
Get PDFOne common argument for restrictive zoning is that zoning is more democratic than allowing landowners to build what they please. This article critiques that claim, suggesting that free markets are equally democratic because they allow for self-rule. Moreover, zoning is less democratic than other forms of government decisionmaking, because zoning hearings are often sparsely attended, and commenters at public meetings are unrepresentative of the public as a whole
A Philosophy of Contract Law for Artificial Intelligence: Shared Intentionality
Get PDFThis is a chapter for the forthcoming book, Contracting and Contract Law in the Age of Artificial Intelligence, edited by Martin Ebers, Cristina Poncibò, and Mimi Zou, to be published by Hart Publishing. The aim of this chapter is to offer a general theory of contract law to account for the inclusion of artificial intelligence in contract practices. Artificial intelligence brings out that what makes contract law a distinctive form of legal obligation is shared intentionality. I refer to this insight as the shared intentionality thesis. Shared intentionality is the psychological capacity of one agent to share and pursue a joint goal with another agent. It is an attribute of human thought empowering human planning and the ability to share agency with others. Shared intentionality leads to a focus on objective intent to enter contractual relations in Anglo-American contract law as the primary concept in understanding what is distinctive about contractual obligation. The doctrine of objective intent in contract law operates as a Turing test for determining whether a contract has been formed. The chapter explains that it does not matter which “mind” is thought to produce this intent – human or artificial. The issue is attribution of the right sort of mental states by one contract party to another. Daniel Dennett’s notion of the intentional stance, as well as philosophical work on mindreading, can assist in developing this argument. The chapter focuses on understanding how folk psychology can lead humans to the sort of recognition that is needed to engage with increasing levels of artificial intelligence in contracting. What gives artificial intelligence intent is not some internal workings of its programming but us – the ascription of intentionality to artificial intelligence by humans. But the intentional stance on its own does not offer an adequate explanation of a special kind of intent that is needed for contract formation. It does not inform us about the sort of “we” intentionality or the ability to engage in future directed intentions as elements of stable plans of action in the form of contracts. Shared intentionality, a concept developed by philosopher Michael Bratman, evolutionary anthropologist Michael Tomasello and others, is the core of contractual obligation. It does not matter whether this shared intentionality is the result of human or artificial agency. Of course, artificial intelligence on its own does not yet have the sort of agency required for shared intentionality but it likely will in the non-too-distant future
Nomos and Nation: On Nation in an Age of “Populism”
Get PDFRobert Cover’s Nomos and Narrative points to the need to recognize a second, novel dimension for understanding rights. His concept of nomos, applied to competing notions of nation in pluralistic societies, suggests that the current dimension for understanding rights, which conceives of them fundamentally as protections for the individual against the state, is too narrow. Rather a second dimension, understanding rights of individuals against the nation, and aimed at ensuring individuals’ ability to participate in the development of an idea of nation, is necessary to avoid “a total crushing of the jurisgenerative character” of nomoi by the state, or by ascendent national groups. This need is underscored by the rise of populist nationalist movements that seek to capture the state to impose on their fellow citizens a particular vision of the nation. Such groups, like the segregationist Bob Jones University that Nomos and Narrative addressed, pose a problem for rights regimes by underscoring the limits of a state neutrality in the face of illiberal visions of the nation. This second dimension of rights builds on and ultimately revives the revolutionary elements of Cover’s seminal article – a fitting tribute to his brilliance
Rights and Duties in Jewish Law
Get PDFIn this Article, we argue that rights play a central role in Jewish law. In Section I, we reconstruct Robert Cover’s thesis distinguishing the West’s jurisprudence of rights from Judaism’s jurisprudence of obligation. In Section II, we present Rabbi Lichtenstein’s theory that rights play no central role in Jewish law. We show that the theories of Rabbi Lichtenstein and Robert Cover have given rise to the idea that there are no rights in Jewish law, only obligations. In Section III we develop two types of arguments in support of our position that rights are central to Jewish law. Our first argument appeals to Hohfeld’s analysis that rights are correlative of duties. Our second argument contends that certain mitzvot are best understood as protecting individuals’ rights. In Section IV we discuss two ideas that underlie the “no rights in Jewish law camp.” The first idea is that the category of mitzvah is best interpreted as obligation. The second idea is that an obligation to obey God’s law implies a law comprised of obligations. We argue that both of these ideas are misguided
“I Was Just a Kid”: Addressing the Collateral Consequences of a Juvenile Record on Employment
Get PDFThere is a common myth that juvenile records are confidential, when in fact only nine states fully prohibit public access to juvenile records. Landlords, employers, and educators in a majority of states may ask questions about a juvenile’s record. Studies have shown that employers are less likely to hire an applicant who has a juvenile delinquency, and that many employers may not be able to differentiate between a juvenile and adult record. This Note reviews the intersectional flaws of the New York juvenile justice system and the New York labor laws. Specifically, it evaluates policies New York has implemented with the intention of alleviating discriminatory hiring practices, such as New York Criminal Procedure Law 160.59 and of Ban the Box policies in areas of New York
