Sommers, Roseanna. Commonsense Consent
2020, Yale Law Journal, 2232
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Added by: Tomasz Zyglewicz, Shannon Brick, Michael GreerAbstract: Consent is a bedrock principle in democratic society and a primary means through which our law expresses its commitment to individual liberty. While there seems to be broad consensus that consent is important, little is known about what people think consent is. This article undertakes an empirical investigation of people’s ordinary intuitions about when consent has been granted. Using techniques from moral psychology and experimental philosophy, it advances the core claim that most laypeople think consent is compatible with fraud, contradicting prevailing normative theories of consent. This empirical phenomenon is observed across over two dozen scenarios spanning numerous contexts in which consent is legally salient, including sex, surgery, participation in medical research, warrantless searches by police, and contracts. Armed with this empirical finding, this Article revisits a longstanding legal puzzle about why the law refuses to treat fraudulently procured consent to sexual intercourse as rape. It exposes how prevailing explanations for this puzzle have focused too narrowly on sex. It suggests instead that the law may be influenced by the commonsense understanding of consent in all sorts of domains, including and beyond sexual consent. Meanwhile, the discovery of “commonsense consent” allows us to see that the problem is much deeper and more pervasive than previous commentators have realized. The findings expose a large—and largely unrecognized—disconnect between commonsense intuition and the dominant philosophical conception of consent. The Article thus grapples with the relationship between folk morality, normative theory, and the law.Comment (from this Blueprint): Content warning: details of rape. This article presents a series of experimental studies that have an important result for understanding a legal puzzle that has plagued many feminist theorists. Sommers argues that the dominant explanation of the puzzle has been wrongly diagnosed by feminist theorists, and that attention to folk intuitions about the nature of consent can explain the law's inconsistent treatment of consent that is procured by deception.Steinbock, Bonnie. The case for physician assisted suicide: not (yet) proven2005, Journal of Medical Ethics 31 (4):235-241.
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Added by: Clotilde Torregrossa, Contributed by: Simon FoktAbstract: The legalisation of physician assisted suicide in Oregon and physician assisted death in the Netherlands has revitalised the debate over whether and under what conditions individuals should be able to determine the time and manner of their deaths, and whether they should be able to enlist the help of physicians in doing so. Although the change in the law is both dramatic and recent, the basic arguments for and against have not really changed since the issue was debated by Glanville Williams and Yale Kamisar nearly 50 years ago. In this paper, the author argues in favour of Kamisar's consequentialist framework. Any change in law and social policy should not be based solely on individual cases, heart wrenching though these may be. Instead, we need to assess the need for PAS, and weigh this against the risks of mistake and abuseComment:Macklin, Ruth. Cloning and Public Policy2002, In Justine Burley & John Harris (eds.), A companion to genethics. Blackwell. pp. 206-215.
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Added by: Clotilde Torregrossa, Contributed by: Simon FoktAbstract: It seemed like only minutes after a team of Scottish scientists announced, in late February 1997, that they had successfully cloned a sheep, that governmental officials and private citizens throughout the world called for a ban on cloning human beings. The rush to legislate or issue executive orders was so swift, it is reasonable to wonder why the news that a mammal had been cloned ignited such a stampede to prohibit, even criminalize, attempts to clone humans. These events raise a series of separate, yet related questions. Why does the prospect of cloning human beings incite such strong reactions? What reasons have been proposed for enacting national laws or international conventions to prohibit cloning? Can these prohibitions be justified by sound ethical arguments? Before attempting to answer these questions, let us look first at the responses that called for public policy measures to ban human cloning.Comment:Adams, Laurie. Art on Trial: From Whistler to Rothko1976, New York: Walker & Co
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Added by: Clotilde Torregrossa, Contributed by: Christy Mag UidhirPublisher's Note: This book examines six modern art trials covering a wide range of legal and artistic considerations ... the first in-depth examination of the art trial from every intriguing point of view.Comment: Of particular interest is chapter 4: Traitor or forger? - Van Meegeren vs. Vermeer, dealing with issues of authenticity, forgery, and art ontologyMac, Juno, Molly Smith. Revolting Prostitutes: The Fight for Sex Workers’ Rights2018, Verso Books
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Added by: Andrea Blomqvist, Contributed by: Rosa VincePublisher's Note: Do you have to think that prostitution is good to support sex worker rights? How do sex worker rights fit with feminist and anti-capitalist politics? Is criminalising clients progressive—and can the police deliver justice? In Revolting Prostitutes, sex workers Juno Mac and Molly Smith bring a fresh perspective to questions that have long been contentious. Speaking from a growing global sex worker rights movement, and situating their argument firmly within wider questions of migration, work, feminism, and resistance to white supremacy, they make clear that anyone committed to working towards justice and freedom should be in support of the sex worker rights movement.Comment: This text is essential for any course in feminism, philosophy of sex, oppression and resistance, epistemic injustice, which discuss sex work or labour rights movements.Coombe, Rosemary J.. The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy.1993, Canadian Journal of Law and Jurisprudence 6(2): 249-285.
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Added by: Erich Hatala MatthesAbstract: The West has created categories of property, including intellectual property, which divides peoples and things according to the same colonizing discourses of possessive individualism that historically disentitled and disenfranchised Native peoples in North America. These categories are often presented as one or both of neutral and natural, and often racialized. The commodification and removal of land from people’s social relations which inform Western valuations of cultural value and human beings living in communities represents only one particular, partial way of categorizing the world. Legal and cultural manifestations of authorship, culture, and property are contingent upon Enlightenment and Romantic notions built upon a colonial foundation. I will argue that the law rips apart what First Nations peoples view as integrally and relationally joined, but traditional Western understandings of culture, identity, and property are provoked, challenged, and undermined by the concept of Aboriginal Title in a fashion that is both necessary and long overdue.Comment: In this wide-ranging essay, Coombe situates debates about cultural appropriation in the context of colonial power dynamics. She discusses both appropriation of styles and stories as well as alienation of material cultural property. In particular, she criticizes the appeal to Western conceptions of property in these debates, and questions whether Native identity and autonomy can be appropriately protected by subsuming Native intangible cultural property claims under Western frameworks for intellectual property. This is a long and challenging essay, best used for more advanced courses. Alternative texts that capture some of the ideas here include Loretta Todd's "Notes on Appropriation" (on which Coombe draws), or, for a text that situates some of these ideas in the literature on epistemic injustice, see Erich Hatala Matthes, "Cultural Appropriation without Cultural Essentialism?".Massimi, Michela, John Peacock. The origins of the universe: laws, testability and observability in cosmology2014, in M. Massimi (ed.), Philosophy and the Sciences for Everyone. Routledge.
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Added by: Laura JimenezSummary: How did our universe form and evolve? Was there really a Big Bang, and what came before it? This chapter takes the reader through the history of contemporary cosmology and looks at how scientists arrived at the current understanding of our universe. It explores the history of astronomy, with the nebular hypothesis back in the eighteenth century, and in more recent times, Einstein's general relativity and the ensuing cosmological models. Finally, it explains the current Standard Model and early universe cosmology as well as the experimental evidence behind it.Comment: This chapter could be used as an introductory reading to philosophy of cosmology. It provides a general overview of the history of cosmology and of the philosophical problems (laws, uniqueness, observability) that stood in the way of cosmology becoming a science. It is recommendable for undergraduate courses.D. Mitchell, Sandra. Unsimple Truths: Science, Complexity and Policy2009, The University of Chicago Press Chicago and London.
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Added by: Laura JimenezPublisher's Note: In Unsimple Truths, Sandra Mitchell argues that the long-standing scientific and philosophical deference to reductive explanations founded on simple universal laws, linear causal models, and predict-and-act strategies fails to accommodate the kinds of knowledge that many contemporary sciences are providing about the world. She advocates, instead, for a new understanding that represents the rich, variegated, interdependent fabric of many levels and kinds of explanation that are integrated with one another to ground effective prediction and action. Mitchell draws from diverse fields including psychiatry, social insect biology, and studies of climate change to defend "integrative pluralism" - a theory of scientific practices that makes sense of how many natural and social sciences represent the multi-level, multi-component, dynamic structures they study. She explains how we must, in light of the now-acknowledged complexity and contingency of biological and social systems, revise how we conceptualize the world, how we investigate the world, and how we act in the world.Comment: The first five chapters, dealing with scientific methodology and epistemology could serve for undergraduate courses in general philosophy of science. The last chapter dedicated to integrative pluralism, is more specialized and thus more suitable for postgraduate courses.Allen, Anita. 22 Atmospherics: Abortion Law and Philosophy2004, In Francis J. Mootz (ed.), On Philosophy in American Law. Cambridge University Press 184
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Added by: Simon FoktAbstract: In 1934, Karl N. Llewellyn published a lively essay trumpeting the dawn of legal realism, "On Philosophy in American Law." The charm of his defective little piece is its style and audacity. A philosopher might be seduced into reading Llewellyn’s essay by its title; but one soon learns that by "philosophy" Llewellyn only meant "atmosphere". His concerns were the "general approaches" taken by practitioners, who may not even be aware of having general approaches. Llewellyn paired an anemic concept of philosophy with a pumped-up conception of law. Llewellyn’s "law" included anything that reflects the "ways of the law guild at large" - judges, legislators, regulators, and enforcers. Llewellyn argued that the legal philosophies implicit in American legal practice had been natural law, positivism and realism, each adopted in response to felt needs of a time. We must reckon with many other implicit "philosophies" to understand the workings of the law guild, not the least of which has been racism. Others, maternalism and paternalism, my foci here, persist in American law, despite women’s progress toward equality. Both maternalism and paternalism were strikingly present in a recent decision of the U.S. Supreme Court, Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act.Comment: This article offers a good way to relate practical legal problems with philosophical issues, giving the students a very direct way to see the relevance of ethics. It can inspire discussions on paternalism and its relations with global justice. Note that the article does not define the following terms which are important to understand the material: Natural law, Positivism, Realism, Atmosphere/atmospherics, Paternalism, Maternalism. Due to its focus on legal issues, the text can be better suited as further reading, or as a core reading in classes focused on applied ethics and law (following Diversifying Syllabi).Nussbaum, Martha. Hiding from Humanity: Disgust, Shame, and the Law2004, Princeton University Press.
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Back matter: "Should laws about sex and pornography be based on social conventions about what is disgusting? Should felons be required to display bumper stickers or wear T-shirts that announce their crimes? This powerful and elegantly written book, by one of America's most influential philosophers, presents a critique of the role that shame and disgust play in our individual and social lives and, in particular, in the law. Martha Nussbaum argues that we should be wary of these emotions because they are associated in troubling ways with a desire to hide from our humanity, embodying an unrealistic and sometimes pathological wish to be invulnerable. Nussbaum argues that the thought-content of disgust embodies ""magical ideas of contamination, and impossible aspirations to purity that are just not in line with human life as we know it."" She argues that disgust should never be the basis for criminalizing an act, or play either the aggravating or the mitigating role in criminal law it currently does. She writes that we should be similarly suspicious of what she calls ""primitive shame,"" a shame ""at the very fact of human imperfection,"" and she is harshly critical of the role that such shame plays in certain punishments. Drawing on an extraordinarily rich variety of philosophical, psychological, and historical references--from Aristotle and Freud to Nazi ideas about purity--and on legal examples as diverse as the trials of Oscar Wilde and the Martha Stewart insider trading case, this is a major work of legal and moral philosophy".Comment: Particularly useful for teaching on the non-rational motivators of moral reasoning and justifications of punishment, and on how emotions can be misleading and unreliable as a guide for law and ethics.Can’t find it?Contribute the texts you think should be here and we’ll add them soon!
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