This paper focuses on the 1986 Amendments to the False Claims Act of 1863, which offers whistle-blowers financial rewards for disclosing fraud committed against the U.S. government. This law provides an opportunity to examine underlying assumptions about the morality of whistle-blowing and to consider the merits of increased reliance on whistle-blowing to protect the public interest. The law seems open to a number of moral objections, most notably that it exerts a morally corrupting influence on whistle-blowers. We answer (...) these objections and argue that the law is not objectionable on these grounds. Since there are no compelling moral objections to the law, it is appropriate and acceptable to judge the law in terms of its economic costs and benefits. We assess the most salient of these and conclude that the benefits outweigh the costs. We suggest that a mechanism similar to the Act should be considered for protecting stockholders’ interests in the private sector. We conclude by making several proposals for improving the existing legislation. (shrink)

This paper focuses on the 1986 Amendments to the False Claims Act of 1863, which offers whistle-blowers financial rewards for disclosing fraud committed against the U.S. government. This law provides an opportunity to examine underlying assumptions about the morality of whistle-blowing and to consider the merits of increased reliance on whistle-blowing to protect the public interest. The law seems open to a number of moral objections, most notably that it exerts a morally corrupting influence on whistle-blowers. We answer (...) these objections and argue that the law is not objectionable on these grounds. Since there are no compelling moral objections to the law, it is appropriate and acceptable to judge the law in terms of its economic costs and benefits. We assess the most salient of these and conclude that the benefits outweigh the costs. We suggest that a mechanism similar to the Act should be considered for protecting stockholders' interests in the private sector. We conclude by making several proposals for improving the existing legislation. (shrink)

In United States ex rel. Quirk v. Madonna Towers, Inc., the U.S. Court of Appeals for the Eighth Circuit held that the failure of a skilled nursing facility's executives to seek a legal opinion regarding a billing practice they considered valid did not meet the definition of knowingly presenting a false claim for payment to the federal government under the False Claims Act. Alleging that the facility that provided care to his aunt fraudulently submitted claims (...) to Medicare for services provided free of charge, the appellant brought this case qui tam on behalf of the federal government under the FCA.The FCA was passed by the legislature in an effort to punish and deter fraud against the federal government. It provides financial incentives for private individuals to come forward with information about fraudulent activity. (shrink)

Ever since the U.S. Attorney General named health care fraud as the government's second highest priority after violent crime, the government has cracked down on health care fraud and abuse. Some of this crackdown has been needed. The General Accounting Office estimates that as much as 10 percent of all government expenditures on health care are being siphoned out of the system because of fraud or abuse.The extreme measures taken to curb health care abuse have raised eyebrows, however. The American (...) Medical Association and the American Hospital Association both have been vocal in their disapproval, describing the current enforcement initiative as “absolutely out of control.” The associations even went so far as to file suit to enjoin the government's actions. (shrink)

Ever since the U.S. Attorney General named health care fraud as the government's second highest priority after violent crime, the government has cracked down on health care fraud and abuse. Some of this crackdown has been needed. The General Accounting Office estimates that as much as 10 percent of all government expenditures on health care are being siphoned out of the system because of fraud or abuse.The extreme measures taken to curb health care abuse have raised eyebrows, however. The American (...) Medical Association and the American Hospital Association both have been vocal in their disapproval, describing the current enforcement initiative as “absolutely out of control.” The associations even went so far as to file suit to enjoin the government's actions. (shrink)

The U.S. Court of Appeals for the Fifth Circuit ruled, in United States u. Texus Tech University, 171 F.3d 279, that the Eleventh Amendment bars a private citizen from bringing a qui tam action in federal court against a state, absent federal intervention.Intervenor Carol Foulds was a dermatology resident at the Texas Tech Health Services Center. While a resident, Foulds examined patients, made diagnoses, and prescribed treatments for patients. Foulds alleged that she and other residents performed these medical (...) services without the supervision of staff physicians. Foulds further alleged that, after residents performed these services without physician oversight, staff physicians signed charts and Medicare and Medicaid billing forms certifying that they personally performed or supervised the administration of these services. Foulds estimates approximately 500,000 false claims occurred in a span of ten years.In 1995, Foulds filed a qui tam action with the U.S. District Court for the Northern District of Texas. As regulated by the False Claims Act, 31 U.S.C. § 3729, the complaint remained under seal. (shrink)

In a survey on research misconduct, roughly 20% of the respondents admitted that they have submitted federal grant proposals that include scholars as research participants even though those scholars were not expected to contribute to the research effort. This manuscript argues that adding such false investigators is illegal, violating multiple federal statutes including the False Statements Act, the False Claims Act, and False, Fictitious, or Fraudulent Claims. Moreover, it is not only the (...) offending academics and the false investigators that face civil and criminal penalties because administrators may also be liable if they sign off on proposals and are in a position to know that false investigators might be included. Policy recommendations that should reduce the use of false investigators include changing institutional cultures, better training and oversight of the responsible conduct of research, and, most importantly, making all grant reviews double blind. (shrink)

Substantial progress in handling scientific misconduct cases has been made since the first cases were investigated by the NIH Office of Scientific Integrity in 1989. The successor Office of Research Integrity (ORI) has simultaneously reduced the backlog of cases and increased the professionalism with which they are handled. However, a spate of lawsuits against universities, particularly those brought under the federal False Claims Act, threatens to undermine the ORI by encouraging use of the courts as an alternate (...) route for resolving claims of research misconduct. Next steps should include establishing a government-wide definition of scientific misconduct, providing immunity from lawsuits for institutions that follow proper procedures in investigating charges of scientific misconduct, and participating in the development of international guidelines for maintaining scientific integrity. (shrink)

Scientific misconduct includes the fabrication, falsification, and plagiarism (FFP) of concepts, data or ideas; some institutions in the United States have expanded this concept to include “other serious deviations (OSD) from accepted research practice.” It is the absence of this OSD clause that distinguishes scientific misconduct policies of the past from the “research misconduct” policies that should be the basis of future federal policy in this area. This paper introduces a standard for judging whether an action should be considered (...) research misconduct as distinguished from scientific misconduct: by this standard, research misconduct must involve activities unique to the practice of science and must have the potential to negatively affect the scientific record. Although the number of cases of scientific misconduct is uncertain (only the NIH and the NSF keep formal records), the costs are high in terms of the integrity of the scientific record, diversions from research to investigate allegations, ruined careers of those eventually exonerated, and erosion of public confidence in science. Existing scientific misconduct policies vary from institution to institution and from government agency to government agency; some have highly developed guidelines that include OSD, others have no guidelines at all. One result has been that the federal False Claims Act has been used to pursue allegations of scientific misconduct. As a consequence, such allegations have been adjudicated in federal courts, rather than judged by scientific peers. The federal government is now establishing a first-ever research misconduct policy that would apply to all research funded by the federal government regardless of which agency funded the research or whether the research was carried out in a government, industrial or university laboratory. Physical scientists, who up to now have only infrequently been the subject of scientific misconduct allegations, must nonetheless become active in the debate over research misconduct policies and how they are implemented since they will now be explicitly covered by this new federal wide policy. (shrink)

In 2015, the U.S. Supreme Court issued its ruling on the Patient Protection and Affordable Care Act (ACA). Among other things, it found that states may refuse to expand Medicaid to all individuals earning less than 133% of the federal poverty line. In this article, I evaluate the strongest conservative objection to the Medicaid expansion, which runs as follows: "Defenders of the ACA promised that the Medicaid expansion (and all other parts of the ACA) would be paid for with (...) compensating cuts. However, it’s arguable that that claim is false and that the government is likely to follow its well-worn pattern of charging at least some of the increased spending to the national debt. Debt is already at dangerous levels, and adding to it increases the risk of a serious fiscal crisis. We should therefore oppose the Medicaid expansion." After laying out this argument, I evaluate its central claims and draw three main conclusions. First, some people could reasonably believe the assumptions behind the fiscal objection, and thus reasonably oppose the Medicaid expansion as well. Second, despite the fact that reasonable critics could hold those assumptions, most critics do not, and so they should not reject the Medicaid expansion on these fiscal grounds. Third, supporters of the ACA and the Medicaid expansion can reasonably reject the assumptions behind the fiscal objection, and thus the objection itself. (shrink)

Apology is arguably the central act of the reparative work required after wrongdoing. Claudia Card’s (1940-2015) analysis of complicity in collectively perpetrated evils moves one to ask whether apology ought to be requested of persons culpably complicit in institutional evils. To better appreciate the benefits of and barriers to apologies offered by culpably complicit wrongdoers, this article examines doctors’ complicity in a practice that meets Card’s definition of an evil, namely, the non-medically necessary, nonconsensual “normalizing” interventions performed on babies born (...) with intersex anatomies. It argues that in this instance, the complicity of doctors is culpable on Card’s terms, and that their culpable complicity grounds rightful demands for them to apologize. (shrink)

Ellen Feder's monograph is an attempt to think about the categories of race and gender together. She explains and then employs some critical tools derived from Foucault, in order to advance her main argument: that the institution of the family is the locus of the production of gender and race, and that gender is best understood as a function of a "disciplinary" power that operates within the family, while race is the function of a "regulatory" power acting upon the family (...) from outside. Her interdisciplinary work will be of interest to feminist philosophers and theorists because it plays into a recent expansion of interest in the family, as well as to literary scholars of Foucault, to scholars of race and race theory, and to other feminist scholars in political science, sociology, anthropology, and cultural studies. (shrink)

In Filartiga v. Pena-Irala (1980), the Second Circuit Court of Appeals ruled that victims of human rights violations could sue their oppressors civilly in US courts under an eighteenth century law now called the Alien Tort Claims Act (ATCA). Controversy raged over the Filartiga decision and the proper interpretation of the ATCA for 24 years. Then in Sosa v. Alvarez-Machain (2004), the Supreme Court issued its first ATCA decision. This essay analyzes the effect of the Sosa decision on the (...) development of human rights law in US courts. I find that while the federal judiciary is responding to some of the Supreme Court’s directives, lower courts still retain a great deal of discretion in handling ATCA cases. (shrink)

Does life have meaning? What is flourishing? How do we attain the good life? Philosophers, and many others of us, have explored these questions for centuries. As Eva Feder Kittay points out, however, there is a flaw in the essential premise of these questions: they seem oblivious to the very nature of the ways in which humans live, omitting a world of co-dependency, and of the fact that we live in and through our bodies, whether they are fully abled or (...) disabled. Our dependent, vulnerable, messy, changeable, and embodied experience colors everything about our lives both on the surface and when it comes to deeper concepts, but we tend to leave aside the body for the mind when it comes to philosophical matters. Disability offers a powerful challenge to long-held philosophical views about the nature of the good life, what provides meaning in our lives, and the centrality of reason, as well as questions of justice, dignity, and personhood. These concepts need not be distant and idealized; the answers are right before us, in the way humans interact with one another, care for one another, and need one another--whether they possess full mental capacities or have cognitive limitations. We need to revise our concepts of things like dignity and personhood in light of this important correction, Kittay argues. This is the first of two books in which Kittay will grapple with just how we need to revisit core philosophical ideas in light of disabled people's experience and way of being in the world. Kittay, an award-winning philosopher who is also the mother to a multiply-disabled daughter, interweaves the personal voice with the philosophical as a critical method of philosophical investigation. Here, she addresses why cognitive disability can reorient us to what truly matters, and questions the centrality of normalcy as part of a good life. With profound sensitivity and insight, Kittay examines other difficult topics: How can we look at the ethical questions regarding prenatal testing in light of a new appreciation of the personhood of disabled people? What do new possibilities in genetic testing imply for understanding disability, the family, and bioethics? How can we reconsider the importance of care, and how does it work best? In the process of pursuing these questions, Kittay articulates an ethic of care, which is the ethical theory most useful for claiming full rights for disabled people and providing the opportunities for everyone to live joyful and fulfilling lives. She applies the lessons of care to the controversial alteration of severely cognitively disabled children known as the Ashley Treatment, whereby a child's growth is halted with extensive estrogen treatment and related bodily interventions are justified. This book both imparts lessons that advocate on behalf of those with significant disabilities, and constructs a moral theory grounded on our ability to give, receive, and share care and love. Above all, it aims to adjust social attitudes and misconceptions about life with disability. (shrink)

Contemporary industrialized societies have been confronted with the fact and consequences of women's increased participation in paid employment. Whether this increase has resulted from women's desire for equality or from changing economic circumstances, women and men have been faced with a crisis in the organization of work that concerns dependents, that is, those unable to care for themselves. This is labor that has been largely unpaid, often unrecognized, and yet is indispensable to human society.

In this article I examine the proposition that severe cognitive disability is an impediment to moral personhood. Moral personhood, as I understand it here, is articulated in the work of Jeff McMahan as that which confers a special moral status on a person. I rehearse the metaphysical arguments about the nature of personhood that ground McMahan’s claims regarding the moral status of the “congenitally severely mentally retarded” (CSMR for short). These claims, I argue, rest on the view that (...) only intrinsic psychological capacities are relevant to moral personhood: that is, that relational properties are generally not relevant. In addition, McMahan depends on an argument that species membership is irrelevant for moral consideration and a contention that privileging species membership is equivalent to a virulent nationalism (these will be discussed below). In consequence, the CSMR are excluded from moral personhood and their deaths are less significant as their killing is less wrong than that of persons. To throw doubt on McMahan’s conclusions about the moral status and wrongness of killing the CSMR I question the exclusive use of intrinsic properties in the metaphysics of personhood, the dismissal of the moral importance of species membership, and the example of virulent nationalism as an apt analogy. I also have a lot to say about McMahan’s empirical assumptions about the CSMR. (shrink)

This chapter contains sections titled: Introduction What Is the Problem? Why Try to Change the Profession? The Challenges Epistemic Responsibility and Credibility Why the Personal Is Philosophical Is Political References.

I explore the ethics of altering the body of a child with severe cognitive disabilities in such a way that keeps the child “forever small.” The parents of Ashley, a girl of six with severe cognitive and developmental disabilities, in collaboration with her physicians and the Hospital Ethics Committee, chose to administer growth hormones that would inhibit her growth. They also decided to remove her uterus and breast buds, assuring that she would not go through the discomfort of menstruation and (...) would not grow breasts. In this way she would stay “forever small” and be able to be carried and handled by family members. They claimed that doing this would ensure that she would be able to be part of the family and of family activities and to have familial care. But the procedure has raised thorny ethical questions. I wish to explore these questions philosophically by bringing to bear my own experiences as a mother of a grown daughter with severe cognitive impairments. (shrink)

This Introduction to the collection of essays surveys the philosophical literature to date with respect to five central questions: justice, care, agency, metaphilosophical issues regarding the language and representation of cognitive disability, and personhood. These themes are discussed in relation to three specific conditions: intellectual and developmental disabilities, Alzheimer's disease, and autism, though the issues raised are relevant to a broad range of cognitive disabilities. The Introduction offers a brief historical overview of the treatment cognitive disability has received from philosophers, (...) and explains the specific challenges that cognitive disability poses to philosophy. In briefly summarizing the essays in the collection, it highlights the distinctive contributions the collection makes to ethics, political philosophy, bioethics, and the philosophy of disability. We hope that the richness of the topics explored by these essays will be a spur to further investigation. (shrink)

I argue that the claim that merely being born of two human beings in a condition that supports life is sufficient for full moral status. Not only ought we not to exclude any human being from full moral status because they lack the possession of what some have deemed to be morally relevant properties, we don’t have a full grasp of what is morally relevant unless we include the many different possible lives humans live in their diverse bodies and minds. (...) Our understanding of how we ought to treat nonhuman beings is not of lesser importance, but it necessarily depends on how we understand what is morally significant in human lives. (shrink)

Although others have focused on Catharine MacKinnon's claim that pornography subordinates and silences women, I here focus on her claim that pornography constructs women's nature and that this construction is, in some sense, false. Since it is unclear how pornography, as speech, can construct facts and how constructed facts can nevertheless be false, MacKinnon's claim requires elucidation. Appealing to speech act theory, I introduce an analysis of the erroneous verdictive and use it to make sense of MacKinnon's constructionist (...) claims. I also show that the erroneous verdictive is of more general interest. (shrink)

Although others have focused on Catharine MacKinnon's claim that pornography subordinates and silences women, I here focus on her claim that pornography constructs women's nature and that this construction is, in some sense, false. Since it is unclear how pornography, as speech, can construct facts and how constructed facts can nevertheless be false, MacKinnon's claim requires elucidation. Appealing to speech act theory, I introduce an analysis of the erroneous verdictive and use it to make sense of MacKinnon's constructionist (...) claims. I also show that the erroneous verdictive is of more general interest. (shrink)

Apology is arguably the central act of the reparative work required after wrongdoing. The analysis by Claudia Card of complicity in collectively perpetrated evils moves one to ask whether apology ought to be requested of persons culpably complicit in institutional evils. To better appreciate the benefits of and barriers to apologies offered by culpably complicit wrongdoers, this article examines doctors’ complicity in a practice that meets Card's definition of an evil, namely, the non-medically necessary, nonconsensual “normalizing” interventions performed on babies (...) born with intersex anatomies. It argues that in this instance the complicity of doctors is culpable on Card's terms, and that their culpable complicity grounds rightful demands for them to apologize. (shrink)

Every ethic, if it is not to be a feather in the wind, needs an epistemology. As we look at epistemologies from Plato's Theaetetus to Kant's First Critique to contemporary virtue epistemology, the question of knowledge is always tethered to an ethics, sometimes tightly, sometimes loosely. To live a good life and act rightly toward others, we need to know what we need to know to do this well; we need to know how to know that what we are doing (...) is what is good or right; and we need to know how we can know what is good and right. That is, if we wish to know that what we are doing is right, what principles or precepts to follow, we need to reflect on the nature and the possibility of knowledge itself.What Vrinda Dalmiya... (shrink)

A number of philosophers, linguists and psychologists have made the dual claim that metaphor is cognitively significant and that metaphorical utterances have a meaning not reducible to literal paraphrase. Such a position requires support from an account of metaphorical meaning that can render metaphors cognitively meaningful without the reduction to literal statement. It therefore requires a theory of meaning that can integrate metaphor within its sematics, yet specify why it is not reducible to literal paraphrase. I introduce the idea of (...) a "second-order meaning", of which metaphor is but one instance, that is a function on literal-conventional, i.e., first-order meaning, and outline a linguistic framework designed to provide a representation of linguistic meaning for both. This framework is designed to represent linguistic units ranging from a single word to an entire text since I argue that the by-now familiar position that the sentence is the appropriate unit for metaphor has mislead us into asking the wrong questions about metaphorical meaning. With this apparatus, we can specify the conditions under which an utterance may transcend the constraints on first-order meaning (transgressions not always apparent on the sentential level), without thereby being "meaningless". Conversely, we can specify the conditions that may render apparently odd utterances first-order meaningful rather than metaphorical. In this way we see how metaphorical language differs both from deviant language and from specialized language such as technical language, fanciful and fantastical language (in fairy tales, science fiction, etc.). (shrink)

: Although others have focused on Catharine MacKinnon's claim that pornography subordinates and silences women, I here focus on her claim that pornography constructs women's nature and that this construction is, in some sense, false. Since it is unclear how pornography, as speech, can construct facts and how constructed facts can nevertheless be false, MacKinnon's claim requires elucidation. Appealing to speech act theory, I introduce an analysis of the erroneous verdictive and use it to make sense of MacKinnon's (...) constructionist claims. I also show that the erroneous verdictive is of more general interest. (shrink)

Although others have focused on Catharine MacKinnon's claim that pornography subordinates and silences women, I here focus on her claim that pornography constructs women's nature and that this construction is, in some sense, false. Since it is unclear how pornography, as speech, can construct facts and how constructed facts can nevertheless be false, MacKinnon's claim requires elucidation. Appealing to speech act theory, I introduce an analysis of the erroneous verdictive and use it to make sense of MacKinnon's constructionist (...) claims. I also show that the erroneous verdictive is of more general interest. (shrink)

According to hedonistic act utilitarianism, an act is morally right if and only if, and because, it produces at least as much pleasure minus pain as any alternative act available to the agent. This dissertation gives a partial defense of utilitarianism against two types of objections: action guidance objections and intuitive objections. In Chapter 1, the main themes of the dissertation are introduced. The chapter also examines questions of how to understand utilitarianism, including (a) how to best formulate the moral (...) explanatory claim of the theory, (b) how to best interpret the phrase "pleasure minus pain," and (c) how the theory is related to act consequentialism. The first part (Chapters 2 and 3) deals with action guidance objections to utilitarianism. Chapter 2 defines two kinds of action guidance: doxastic and evidential guidance. It is argued that utilitarianism is evidentially but not doxastically guiding for us. Chapter 3 evaluates various action guidance objections to utilitarianism. These are the objections that utilitarianism, because it is not doxastically guiding, is a bad moral theory, fails to be a moral theory, is an uninteresting and unimportant moral theory, and is a false moral theory. The second part (Chapters 4, 5 and 6) deals with intuitive objections to utilitarianism. Chapter 4 presents three intuitive objections: Experience Machine, Transplant, and Utility Monster. Three defenses of utilitarianism are subsequently evaluated. Chapter 5 and 6 introduces two alternative defenses of utilitarianism against intuitive objections, both of which concern the role that imagination plays in thought experimentation. In Chapter 5, it is argued that we sometimes unknowingly carry out the wrong thought experiment when we direct intuitive objections against utilitarianism. In many such cases, we elicit moral intuitions that we believe give us reason to reject utilitarianism, but that in fact do not. In Chapter 6, it is argued that using the right kind of sensory imagination when we perform thought experiments will positively affect the epistemic trustworthiness of our moral intuitions. Moreover, it is suggested that doing so renders utilitarianism more plausible. In Chapter 7, the contents of the dissertation are summarized. (shrink)

The United States Court of Appeals for the District of Columbia Circuit held that the district court did not have jurisdiction over the American Chiropractor's Association's federal question claims brought under the Medicare Act, despite affirming the ACA's prudential standing to pursue its claims. The Appeals Court reversed the lower court's decision allowing a doctor of medicine or osteopathy to perform manual manipulations of the spine on Medicare beneficiaries to correct a subluxation.The Medicare program “subsidizes medical insurance (...) for elderly and disabled persons.” An enrollee selects a physician or obtains medical services through a managed-care provider, such as a health maintenance organization. (shrink)

The United States Court of Appeals for the District of Columbia Circuit held that the district court did not have jurisdiction over the American Chiropractor's Association's federal question claims brought under the Medicare Act, despite affirming the ACA's prudential standing to pursue its claims. The Appeals Court reversed the lower court's decision allowing a doctor of medicine or osteopathy to perform manual manipulations of the spine on Medicare beneficiaries to correct a subluxation.The Medicare program “subsidizes medical insurance (...) for elderly and disabled persons.” An enrollee selects a physician or obtains medical services through a managed-care provider, such as a health maintenance organization. (shrink)

The United States Court of Appeals for the Seventh Circuit held, in Murrey v. United States ), that claims for a physician's failure to obtain a patient's informed consent are not barred by the Federal Tort Claims Act as a species of misrepresentation. The court further held that the claim was not barred by the failure to include the issue of informed consent in the administrative claim. This decision reduces the burden on plaintiffs to state every cognizable (...) claim consistent with the facts in an administrative proceeding; the failure to do so would prevent them from raising the claim in court.The patient, Thomas Murrey, a sixty-eight-year-old U.S. veteran, sought treatment at a Veteran's Administration hospital in North Chicago, Illinois. VA doctors diagnosed him with prostate cancer, and advised him to undergo surgery to remove his entire prostate. (shrink)

Ferenc Huoranszki argues for two main claims in the ninth chapter of Freedom of the Will: A Conditional Analysis (Huoranszki 2011). First, Huoranszki tries to show that libertarian restrictivism is false because self-determination in the libertarian sense is not necessary for our responsibility, even if motives, reasons or psychological characteristics can influence us relatively strongly to choose one or the other alternative. second, Huoranszki rejects the so-called manipulation argument.1 this is an argument for the conclusion that unless physical (...) indeterminism is true, nobody can be morally responsible because our behavior is never independent enough of our environment. Therefore, according to Huoranszki, neither libertarian self-determination nor physical indeterminism is required for moral responsibility. in my view, Huoranszki’s counterarguments do not defeat libertarian restrictivism. How- ever, they can force philosophers who defend this theory to modify or refine it. i analyze Huoranszki’s arguments against libertarian self-determination in the first part of my paper. in the second part, I briefly argue for one supervenience argument inspired by a similar objection made earlier (bács 2012). According to this modified argument, Huoranszki’s theory about abilities and responsibility would entail that if physical determinism is true then we are responsible for our ordinary actions only because we are able to do miraculous acts as well. if this objection is correct, Huoranszki’s compatibilism is unsuccessful. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Joseph Margolis LITERATURE AND SPEECH ACTS The trivial truth that literature employs language has been fastened on regularly and repeatedly to spawn a remarkable variety of misconceptions. Most famously, in the context of aesthetics, it has led to the untenable thesis that all art is language,1 and to the more pointed claim that works of art somehow affirm propositions that may be linguistically rendered and straightforwardly judged true or (...) false. It has also embarrassed a good deal of theorizing about the nature of aesthetic experience and the aesthetic orientation, and has led to preposterous views about the aesthetic status of the literary arts and the exaggerated importance of words in literature. These developments are reasonably well known, partly because they form a venerable portion of the history of aesthetics, partly because the doctrines at stake take so many apparently persuasive guises—even in our own time. There are other views, however, also largely based on the example of literature, that are at once useful because they are corrective of other abuses and are in their turn prone to newer mistakes that bid fair to become fashionable. The ambivalent corrective I have in mind may be marked by the thesis that a work of art is an utterance of some sort. In effect, the thesis stresses the distortion that results from pretending to address art relevantly solely in terms of the palpable properties of some object or product—more or less on the model of examining a perceptually accessible physical object. Attention is required, on the theory, to the act or agency of the artist by which the work is "uttered," in a sense quite close to that in which a forger is said to "utter" a bad check: by this simple strategem, we are led to see that biographical, historical, intentional considerations are instructive about a work of art in an essential way and that the properties of an artwork cannot possibly be restricted to its merely sensory or sensuous features (if indeed, admitting conceptual art, a particular work has any such features at all). The proposal, therefore, is at least a heuristically useful one. Whether it ought also to be enshrined as definitional of 39 40Philosophy and Literature art is another question altogether, qualified partly by its being entirely possible to save the corrections without the thesis, partly by the debatable force of definitions themselves. A rather specialized but utterly misleading and unpromising version of the utterance theory maintains that literature as such, as well as such particularly important distinctions within literature as fiction, poetry, and metaphor, may be perspicuously defined or distinguished in terms of a speech-act model. We must be careful here. The general thesis that the phenomenon of language cannot be adequately analyzed apart from contextual considerations bearing on speakers' intentions, shared assumptions and background beliefs between speakers and hearers, and the actual histories of conversations and the like has now been abundantly confirmed by a variety of theorists—including, prominently, J. L. Austin, P. F. Strawson, H. P. Grice, John Searle, Keith Donnellan, George Lakoff, and Zeno Vendler. Still, the general concession that familiar syntactic and semantic studies of the phenomenon of language omit an entire dimension of language, as Austin so ably demonstrated, has rather little to say about the distinctions normally debated in the context of literary theory and the appreciation and criticism of literature. (This may well seem paradoxical. The argument has yet to be supplied.) But since the application of the speech-act model to literary analysis shows some tendency to attract advocates, it may be useful to draw explicit attention here to the inherent limitations and difficulties of the enterprise. Obviously, if language must be analyzed at least in part in terms of the context of performing speech acts, it will be impossible to ignore altogether the speech-act dimension of literary utterances. The question remains: what can and what cannot be illuminated by means of the speech-act model? Precisely how restricted a general speech-act model is—that is, one not restricted just to literature—can be seen at a stroke simply by noting that the meanings of sentences (i) cannot be equated with what speakers... (shrink)

The False Claims Act, 31 U.S.C. § 3729, a post-Civil War law inspired by cases of defense contracting fraud, was revitalized in 1986. Since then it has been used to sue both manufacturers and providers of pharmaceuticals. In some cases, these suits were meant to target offlabel marketing of pharmaceuticals. In 2009, the 11th Circuit rendered a decision in Hopper v. Solvay Pharmaceuticals that dramatically limits the ability of private plaintiff whistle-blowers to bring qui tam suits under the (...) FCA for such marketing. In June 2010, the Supreme Court denied certiorari, making the Circuit court decision final. The Solvay decision creates a significant barrier to certain kinds of qui tam suits, requiring the plaintiff to demonstrate the intent to market off-label, including by showing specific prescriptions that were written as a result of efforts to do so. (shrink)

meaning of a proper name is simply its referent.[1] This thesis, however, brings with it a whole host of problems. One particularly thorny difficulty is that of negative existentials, sentences of the form ‘N does not exist’ (where ‘N’ is a proper name). Intuitively, some such sentences are true, but the direct reference theory seems to imply that they must be either false or meaningless. After all, if the meaning of a name is just its referent, then a sentence (...) such as ‘Mary does not exist’ is meaningless unless there exists a person Mary who is the referent of the name ‘Mary’. But if such a person exists, then the sentence denying her existence must be false.            Now it might be suggested that negative existentials involve a rather rare and specialized use of names, for which an alternate analysis might well be appropriate. One might, for example, have independent reasons for thinking that existence is not a predicate. Even if this is right, however, the analysis of fictional discourse poses difficulties for the direct reference theory that cannot be so easily avoided. The trouble is that fictional names—‘Sherlock Holmes’ and ‘Bilbo Baggins’, for example—lack referents; fictional characters do not exist. As a result, a simple application of the direct reference view to fictional discourse is entirely untenable—this would entail that claims regarding fictional characters are not only never true, but always meaningless.            The tendency in the philosophy of language has been to treat fictional discourse as a peripheral case, posing little threat to the direct reference view. And, as such, the fact that the analysis of fiction seems to run into intractable difficulties has been downplayed, and the fact the analyses on offer tend to be ad hoc has been tolerated. Typical strategies include treating fictional names as abbreviations for definite descriptions, supposing that fictional names occur within the scope of tacit fictive operators of various sorts, or taking them to directly refer to non-existent objects.. (shrink)

The marketing of unproven direct-to-consumer stem cell interventions is becoming widespread in Canada. There is little evidence supporting their use and they have been associated with a range of harms. Canada has been slower to act against clinics offering these interventions than other jurisdictions, including the United States. Here, we outline the regulatory and policy tools available in Canada to address this growing problem. Health Canada’s regulations governing cell therapies are complex, but recent statements make it clear that Health Canada (...) believes it has jurisdiction over many of the currently marketed stem cell interventions. Still, further regulatory clarity is needed from Health Canada, as are increased directed enforcement efforts on interventions that fall within their scope. The Competition Bureau, via the Competition Act, prohibits advertisers from making materially false or misleading promotional representations. The Competition Bureau could collaborate with the scientific community to analyze the claims of existing clinics in Canada, and impose sanctions upon those who breach the established standard. Professional regulators, including provincial colleges of physicians and surgeons, have considerable power over what products and services their members can offer. Every college of physicians in Canada requires, via policy and codes of ethics, that doctors maintain evidence-based practices. This requirement is incompatible with offering many unproven stem cell interventions. Litigation may be another tool, including the use of fraud, misrepresentation and/or negligence claims for failing to meet the required standard of care. Finally, political pressure on federal and provincial lawmakers could encourage changes to marketing, cell therapy and professional regulations that would allow a more comprehensive response. In sum, there are many existing tools that can be used to protect the public from unproven stem cell interventions. Increased bureaucratic will and grassroots efforts are needed in order to effect a positive policy response. (shrink)

Pezdek and Lam [Pezdek, K. & Lam, S. . What research paradigms have cognitive psychologists used to study “False memory,” and what are the implications of these choices? Consciousness and Cognition] claim that the majority of research into false memories has been misguided. Specifically, they charge that false memory scientists have been misusing the term “false memory,” relying on the wrong methodologies to study false memories, and misapplying false memory research to real world situations. (...) We review each of these claims and highlight the problems with them. We conclude that several types of false memory research have advanced our knowledge of autobiographical and recovered memories, and that future research will continue to make significant contributions to how we understand memory and memory errors. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:THE "JUSTIFIABLE HOMOCIDE" OF ABORTION PROVIDERS: MORAL REASON, MIMETIC THEORY, AND THE GOSPEL James Nash Our land will never be cleansed without the blood of abortionists being shed. (Shelly Shannon) The above quotation is taken, with permission, from a letter written to me by Ms. Shannon. A devout Roman Catholic, she is currently doing time at Federal prison in Kansas, sentenced to 3 1 years for shooting a (...) famous abortion provider. I have also been in touch with Paul Hill, the former Presbyterian minister, who killed the Pensacola abortion doctor, John Britton. Mr. Hill has written extensively on how his Christian faith led him to what he calls the "justifiable homicide" of Dr. Britton. The connection between this kind of religiously-justified violence and the work of René Girard is too obvious to be ignored. The violenct acts and rhetoric that polarize both sides of the abortion debate serve to illustrate our society's collapsing ability to distinguish effectively between "good" and "bad" violence (Girard 1972, 52-3). At the same time, the almost universal condemnation ofthe "religious" proponents ofjustifiable homicide confirms the Girardian claim that in cultures under gospel influence, "acts of violence that once endowed its perpetrators with religious and cultural preeminence radually begin to rob them of it" (Bailie 52-3). Finally, as we shall see, the incoherence of religiouslygrounded efforts to condemn "justifiable homicide suggests that James Nash69 contemporary Christianity is also having increasing difficulty in distinguishing "good" and "bad" violence. But before exploring these issues I want to ask another question, one that will prepare the ground for the application of Girard's theory to abortion violence. What light can moral reason shed on the problem of the "justifiable homicide" of abortion doctors? Are there clear arguments which will convince any reasonable person it is wrong to kill abortion providers in order to protect unborn human life? At first it might appear rather simple to produce such arguments —after all an overwhelming majority of Americans currently believe killing abortion workers is wrong, no matter where they stand on the morality of abortion itself. On the other hand, there is a danger that because the current moral consensus against this type of killing appears to be so strong, we may be misled into a false sense of security. After all, thirty or forty years ago there was little debate about the morality of homosexuality, pre-marital sex, or abortion itself. In fact, there are an increasing number of voices suggesting that violence against abortion providers is justified; the question has in fact divided the pro-life movement. What I will attempt to show in what follows is that the arguments offered by moral reason against shooting abortionists are surprisingly weak. While there is little danger in the foreseeable future that anywhere near a majority of people will view this form of killing as "justifiable," there are, I believe, solid grounds to fear that "moral reason" alone is no longer strong enough to provide compelling arguments against abortion violence. If ethical rationality cannot account for the moral revulsion most people feel at the shooting of abortion doctors, the ground is prepared for another way of understanding and avoiding this religiously—sanctioned violence. I am referring to René Girard's mimetic theory, and at the end of this article I hope to show how it can help us to understand both why some pro-life people have turned to violence, and how this response to abortion can be avoided. For if we come to doubt that moral reason alone can uphold the prohibition against "justifiable homicide," then perhaps we need to develop a different kind of reason, or different kinds of reasons. This will lead, finally, to reflection on some of the radical theological implications of Girard's thought, a dimension of his work which, in my judgment, is too often neglected. 70"Justifiable Homicide " Before going any further, I realize I must define what I mean by "moral reason." My use of this term is simply the common post-Kantian notion that if an action is truly immoral, one will avoid doing it not because offear, custom or human law; rather one's actions will be guided... (shrink)

In this volume, Alessandro Capone and Antonino Bucca’s essay makes a case, based upon the theory of pragmemes and socio-pragmatics, for taking Donald Trump’s statement to Comey, “I hope you will let Flynn go,” as an attempt of the President to get the then Federal Bureau of Investigation Director Comey to illegitimately drop the Russian probe, therefore being an illegal act of obstruction of justice. Their argument rests upon the claim that in this specific case, deniers of obstruction of (...) justice claims, when faced with Trump’s statements, must adopt a false theory of language in order to justify their conclusions. In his response, Richard Warner argues that though much of Capone and Bucca’s claims are convincing, and that much of the analysis of language in their article is accurate, even accepting their pragmeme and socio-pragmatic driven analysis, the content of Trump’s statement to Comey is not unequivocal enough to warrant certainty as to the obstruction claim. In this chapter one conclusion will be that Capone, Bucca and Warner all offer very important arguments useful in the accurate interpretation of Trump’s statement, and for interpretation in law generally. This conclusion will be supported and made more explicit by reading the essays in relation to Karl Llewellyn’s own constitutional theory, a theory that sees the constitution as an institution just partially, even minimally, based upon a purportedly “literal” reading of text. A further conclusion will be that theories of language, implicit or explicit, do indeed inevitably influence the analysis of statements like Trump’s at a very deep and profound level. Yet, thought this is all correct, I will argue that Trump’s statement, in context, cannot be read with such specificity so, in itself, it is sufficient evidence of obstruction of justice. (shrink)

The marketing of unproven direct-to-consumer stem cell interventions is becoming widespread in Canada. There is little evidence supporting their use and they have been associated with a range of harms. Canada has been slower to act against clinics offering these interventions than other jurisdictions, including the United States. Here, we outline the regulatory and policy tools available in Canada to address this growing problem. Health Canada’s regulations governing cell therapies are complex, but recent statements make it clear that Health Canada (...) believes it has jurisdiction over many of the currently marketed stem cell interventions. Still, further regulatory clarity is needed from Health Canada, as are increased directed enforcement efforts on interventions that fall within their scope. The Competition Bureau, via the Competition Act, prohibits advertisers from making materially false or misleading promotional representations. The Competition Bureau could collaborate with the scientific community to analyze the claims of existing clinics in Canada, and impose sanctions upon those who breach the established standard. Professional regulators, including provincial colleges of physicians and surgeons, have considerable power over what products and services their members can offer. Every college of physicians in Canada requires, via policy and codes of ethics, that doctors maintain evidence-based practices. This requirement is incompatible with offering many unproven stem cell interventions. Litigation may be another tool, including the use of fraud, misrepresentation and/or negligence claims for failing to meet the required standard of care. Finally, political pressure on federal and provincial lawmakers could encourage changes to marketing, cell therapy and professional regulations that would allow a more comprehensive response. In sum, there are many existing tools that can be used to protect the public from unproven stem cell interventions. Increased bureaucratic will and grassroots efforts are needed in order to effect a positive policy response. (shrink)

No one denies the importance of applying knowledge to actions. But claiming identity (unity) of knowledge and action is quite another thing. There seem to be two problems with the claim: (1) the identity claim implies that the sole cause for one to fail to act on what one judges to be right is ignorance, but it is obviously false that the sole cause of failure in moral actions is ignorance. (2) The identity statement implies non-separation of knowledge and (...) action. But knowledge does not necessarily lead to action. However, the identity of knowledge and action is what a famous Ming Confucian scholar, W ang Yang-ming, proposed and the concept became the central doctrine of his teaching. Though there are several major interpretations of Wang’s doctrine in contemporary literature, it is not clear to me how they deal with the above mentioned difficulties. In this article, I will discuss these interpretations of the doctrine and propose a new interpretation. My purpose is to give an interpretation of Wang’s doctrine that has the capacity of dealing with these challenges to the doctrine and also captures the essence of his teaching. (shrink)

"The desert opens up beyond the proliferation of big box chains, car dealerships, fast food joints, and the bland sprawl along California State Highway 62. Out there, where signs of familiar habitation seem to fade from view, a change occurs in the landscape: small, dusty, mostly abandoned cabins dot the arid flatland. The majority of the existing cabins, historically found throughout the larger region known as the Morongo Basin, lie east of Twentynine Palms in outlying Wonder Valley. The curious presence (...) of these structures signifies that you are entering one of the few remaining clusters of "jackrabbit" homesteads in the American West. The mostly derelict structures-many vacant, some inhabited-are the physical reminder of former occupants who were the last to form the U.S. government's Small Tract Act of 1938." "One of the many land acts designed to dispose of "useless" federal lands from the public domain, the Small Tract Act authorized citizens to lease up to five acres of desert for recreational purposes or for use as a home or business. When the applicant made the required improvements to his or her claim by constructing a small dwelling within the three-year lease, they could file for a patent-the federal government's form of a deed. This mid-century homestead movement reflects the quintessential American desire to claim territory and own a piece of land even when the property in question was deemed "worthless" from an economic and governmental perspective."--Jacket. (shrink)

In the Ethics, Spinoza famously rejects freedom of the will. He also offers an error theory for why many believe, falsely, that the will is free. Standard accounts of his arguments for these claims focus on their efficacy against incompatibilist views of free will. For Spinoza, the will cannot be free since it is determined by an infinite chain of external causes. And the pervasive belief in free will arises from a structural limitation of our self-knowledge: because we are (...) aware of our actions but unaware of their causes, we suppose that we alone must be responsible for them. Yet I argue that the standard accounts miss a further element of Spinoza’s arguments that also targets compatibilist views on which free will is consistent with a specific kind of determination—namely, self-determination in accordance with our value judgments. For Spinoza, we are misled not only in supposing that our actions lack external determination but also in thinking that they are determined by our representations of value. In fact, our actions are determined by our appetites, which are blind to our value judgments. And the pervasive belief that our actions are determined by such judgments arises from the projection of value onto the objects we seek. As he denies us free will, then, Spinoza also denies us a capacity central to agency—the capacity to determine our actions in accordance with our ideas of the good. This makes his arguments against free will more consequential, and more radical, than commonly assumed. (shrink)

It is an indubitable fact that our thoughts are always about something or some state of affairs in the world. Again, it is true that we use language to express some of our thoughts, and that in such a use of language which philosophers call a speech act, language also comes to be about something or some state of affairs in the world. E.g., when someone asserts that Peter is married to Mary, the sentence, 'Peter is married to Mary', comes (...) to be about the state of affairs of Peter's being married to Mary. This property of being about something which characterizes our thoughts and speech acts is called "intentionality" by philosophers. ;In Intentionality, John Searle claims that the Intentionality of language and the Intentionality of speech acts performed by using language is derived from the intrinsic Intentionality of mental states which accompany the speech act. In the dissertation I propose to examine this claim of Searle's. ;Searle's view regarding the Intentionality of speech acts is incomplete and wrong. Searle does not show how the Intentionality of referring and predicating in a speech act is to be derived from mental reference and mental predication in the corresponding mental state. In this sense his theory is incomplete. Further, his theory is false. Taking the case of belief, I propose to show that it cannot be the source of the Intentionality of the corresponding assertion. Either a belief is a disposition and does not have any Intentionality or it is a mental act of accepting a proposition in which case the Intentionality of the belief and the Intentionality of the assertion have the same linguistic nature and the former cannot be the source of the latter. We are faced with a dilemma which shows that Searle's view cannot be correct. In the dissertation it will be argued that the Intentionality of a speech act is as intrinsic to it as the Intentionality of a mental phenomenon is to the mental phenomenon. The nature of speech act referring and predicating, mental referring and predicating, linguistic concepts and linguistic acts using those concepts will be discussed. (shrink)

Binding arbitration is generally less available in tort suits than in contract suits because most tort plaintiffs do not have a pre-dispute contract with the defendant, and are unlikely to consent to arbitration after the occurrence of an unforeseen injury. But the Federal Arbitration Act applies to all “contract[s] evincing a transaction involving commerce,” including contracts for healthcare and medical services. Given the broad trend towards arbitration in nearly every other business-to-consumer industry, coupled with some rollbacks in tort reform (...) measures that have traditionally favored medical professionals in the judicial system, it is very possible that we may witness in the near future more medical contracts containing arbitration provisions. As a consequence, all manner of tort claims might be hashed out in the sequestered universe of arbitration. (shrink)

This article examines how the authorization of scientific discourses in the US Endangered Species Act of 1973 has influenced the ways people make claims about culturally significant animals. In it, I focus on struggles over the management of two endangered fish species among a federally recognized Native American tribe, state resource managers, and other actors. I discuss how the requirements of the ESA, namely that decisions regarding the protection of endangered species must be made based “solely on the basis (...) of the best scientific…data available,” have pushed people to reframe their cultural claims about the environment as scientific claims in order to gain legal authority. I argue that these animals span the social worlds of indigenous hunters and fishers, regulators, and ecological scientists. As such, they offer the opportunity to interrogate the relationships among ways of knowing the environment. I suggest that strict divisions among “types” of knowledge as well as hard-and-fast bonds between groups and “their” knowledge become problematic. Instead, people assemble eclectic articulations of knowledge to make the most authoritative claim possible in a given context, contradicting the assumption that certain people know the world only, or primarily, in a particular way. (shrink)

This paper examines the drive for consensus from the perspective of the good government framework for federal advisory commissions in the United States. Specifically, the paper examines the Federal Advisory Committee Act (FACA) – the statute, its regulations, and case law. It shows that the FACA was intended to be an antidote to abuses in consensus‐making processes, including the failure to fully include competing views on commissions. The index of suspicion in the FACA scheme rises when a group (...) work product – including a consensus report – is to be the basis of recommendations to federal officials. Once FACA's requirements regarding committee composition are satisfied, the index of suspicion drops and FACA is indifferent to consensus‐making; but the conditions for informed, meaningful participation apply to members who dissent from, as well as those who participate in, consensus. In negotiated rulemaking, the push for consensus and closure creates unacceptable tension with the good government goals of openness and accountability. Proponents of consensus‐only bioethics commissions can learn from FACA‐related legislative, agency, and judicial insights that consensus‐seeking is not always desired by government officials; is rarely cost free; and that diversity and dissent enhance openness, accountability, and fairness. The burden of proof is therefore on proponents of a consensus‐only standard for bioethics commissions to demonstrate that a drive for consensus furthers sound decision‐making by government officials more than it sets back openness and accountability to a diverse public. (shrink)

This paper examines the drive for consensus from the perspective of the good government framework for federal advisory commissions in the United States. Specifically, the paper examines the Federal Advisory Committee Act (FACA) – the statute, its regulations, and case law. It shows that the FACA was intended to be an antidote to abuses in consensus‐making processes, including the failure to fully include competing views on commissions. The index of suspicion in the FACA scheme rises when a group (...) work product – including a consensus report – is to be the basis of recommendations to federal officials. Once FACA's requirements regarding committee composition are satisfied, the index of suspicion drops and FACA is indifferent to consensus‐making; but the conditions for informed, meaningful participation apply to members who dissent from, as well as those who participate in, consensus. In negotiated rulemaking, the push for consensus and closure creates unacceptable tension with the good government goals of openness and accountability. Proponents of consensus‐only bioethics commissions can learn from FACA‐related legislative, agency, and judicial insights that consensus‐seeking is not always desired by government officials; is rarely cost free; and that diversity and dissent enhance openness, accountability, and fairness. The burden of proof is therefore on proponents of a consensus‐only standard for bioethics commissions to demonstrate that a drive for consensus furthers sound decision‐making by government officials more than it sets back openness and accountability to a diverse public. (shrink)