Monday, 30 September 2013

Why Congressional Regulation Should Be Embraced by the NCAA

In a letter to Mark A. Emmert, Ph.D., President of the NCAA, dated October 29, 2011, I asked the following question:
I believe that given the current circumstances of the NCAA, its sustainability is questionable, and I believe that the only hope that it has for survival is to seek regulatory approval and supervision by the Congress. Given the paradox of its genesis juxtaposed with what it has become, this is something the NCAA would cringe at, but in terms of crisis management, what other choice do you really have, if you impartially consider the factors now impinging upon your organization? I am very interested to learn if you actually appreciate the severity of the current situation, and I am fascinated by crisis management or the lack thereof in such circumstances. 
In Dr. Emmert’s letter back to me, dated November 18, 2011, he chose to ignore answering this question.

So is the NCAA on its slow decline into oblivion?

Certainly, the current onslaught of major lawsuits threatens the NCAA's very existence, and the recent settlement by EA and CLC leaves the NCAA left holding the bag it created.  At the end of the day, in regards to the broadcast rights, which is the vast bulk of the money, nobody can explain how the NCAA or its members have the right to be paid for recording or televising college athletes at play, since they do not receive releases from any of them for this.  Essentially, the networks just assume that they can contract with the NCAA and its members without ever having considered why that would be so.  Video games and t-shirts won’t sink the business model, but a redistribution of this broadcast money will sink the NCAA and the major conferences like an iceberg at sea.

As the outgoing Princeton A.D., Gary Walters, said recently, the current tension is between the NCAA and its Division 1-A members and the major conferences on one side, who make the vast majority of the men’s football and basketball revenue, and everyone else in the NCAA, who do not run for-profit football and basketball programs.  These are irreconcilable.  When the NCAA gets hit for the recording and television revenue in one of these pending lawsuits, the major conferences will pick-up and go, if they haven’t by then already left, and those conferences will then negotiate a business deal with their players rather than kill the golden goose.  As they say, that will be that.  Whether the NCAA continues to exist to serve the interests of its unprofitable members, who knows, because there’s not much benefit for the remainder of Division 1 to be allied with Division II or Division III, and vice versa.

Assuming that the money issue is resolved by paying college athletes, how does this solve all of the other problems affecting college sports, other than taking a pot of gold off the table to pay for everything else that needs to be done, from the concussion issue to the insurance issue to the student welfare issue and so on?

I previously wrote about why Congress should regulate the NCAA, but if the NCAA was smart, it would have already gotten the Department of Education on board and proposed comprehensive legislation to Congress.  The fact that it hasn't shows a complete failure in leadership in the top, not just in the executive office, but also on the executive board or whatever they call it now that actually runs the NCAA, some sixteen college and university presidents.  The time is now for the NCAA leadership to actually start thinking about controlling the NCAA’s own destiny, and this cannot be done without regulation by Congress.

Extract from my book The Philosophy Gym - "The Consciousness Conundrum"

13. The Consciousness Conundrum

Philosophy Gym category:

Warm up

More challenging

Scientists are grappling with “the problem of consciousness”: the problem of explaining how that walnut-shaped lump of grey matter between your ears is capable of producing a rich inner world of conscious experiences. Will they ever solve this mystery? Some think it’s only a matter of time. Yet there are arguments that appear to show that consciousness is something that it is in principle impossible for science to explain.

The private realm of consciousness

Take a look at something red: a ripe tomato, for example. As you look at this object, you are conscious of having a certain experience – a colour experience. As the philosopher Thomas Nagel[i](xx) explains, there’s something it is like to have this experience, something for you, the subject.
            We spend our lives immersed in a vibrant flow of such experiences: the smell of a flower, the taste of an orange, the rough sensation of wood under ones fingertips, a zinging pain, a melancholic moment. An interesting feature of this rich inner life we lead is that it seems peculiarly hidden from others. Others can observe my body and outward behaviour. But my experiences are hidden inside. Indeed, they would appear to be “hidden inside” in very strong sense. For they are not physically hidden, as, say, my brain is physically hidden inside my skull. Things that are physically hidden can in principle be revealed. Surgeons might one day be able to open up my skull and observe what physically goes on inside me when I have a colour experience. But they can never enter my mind and observe what the experience is like for me, from my point of view.

What is it like to be a bat?
            There are also conscious experiences no human being has ever enjoyed. Take bats for example. Bats manage to find their way around in the dark by using echo-location. The bat emits a sound (inaudible to humans), and the loudness of the echoes and the direction from which they come allow the bat to build up a picture of its environment.


Echo-location allows bats to “see” using sound. Now ask yourself: What must it be like to be a bat, to experience the world as the bat does? No doubt there is something it’s like for the bat when it “sees” using echo-location, but, as Nagel points out, we can’t know what it’s like. We could discover everything there is to know about what happens in a bat’s nervous system when it “sees” using sound. But that still wouldn’t allow us to know what the experience is like for the bat. It seems the bat’s experience, like yours and mine, is essentially private.
The realm of conscious experience is responsible for what continues to be one of the most profound and intractable of mysteries, a mystery with which both philosophers and scientists are currently very much engaged. The mystery concerns how our physical bodies and our conscious minds are related. The problem, as we shall see, is that, on the one hand, it seems your conscious mind must be physical, yet, on the other hand, it seems it cannot be.

Two competing theories of consciousness

Scientists tell us that when you looked at that red object a minute or so ago, the following happened. Light of certain wavelengths was reflected off the object into your eye where it was focused onto your retina to produce an image. Your retina is covered with millions of light sensitive cells, some of which are sensitive to differences in wavelength. The light falling on to these cells caused them to emit electrical impulses which then flowed down the nerves linking your eye to the back of your brain. That caused something to happen in your brain.
            But what about your experience? According to the philosopher René Descartes (1596-1650) your conscious mind is a distinct entity capable of existing on its own, independently of anything physical. So, on Descartes’ view, after something happened in your brain, something else had to happen: your brain caused something to happen in your mind. Your mind and brain may interact. But they are not identical.


According to many contemporary scientists and philosophers, however, it’s a mistake to think of conscious experience in this way. Professor Susan Greenfield, for example, insists that “you are your brain”. Your experience isn’t something extra – something on top of what happens physically. Rather, the mental just is part of what’s going on physically.


            Certainly, scientists sometimes reveal that what might seem like two distinct things are actually one and the same thing. Take the morning star and the evening star, for example. For a long time, we thought these heavenly bodies were distinct. Then astronomers discovered that they are one and the same object seen twice over (the planet Venus).
Scientists have also established that certain properties are identical. For example, they have discovered that heat is a molecular motion, electricity is a flow of electrons and water is H2O.
So why shouldn’t it also turn out that pain just is a certain state of the brain? Admittedly, pain doesn’t seem like a brain state. But so what? After all, heat doesn’t seem like molecular motion – yet that’s just what it is.

Substances and properties

We have been looking at two competing theories about consciousness. First, there are those who believe that your conscious experiences are nothing over and above what goes on in your brain. Second, there are those who, like Descartes, deny this. But before we get to the arguments for and against these two positions, it will be useful if we distinguish two rather different versions of the second position.
On Descartes’s view, your mind and body are distinct substances: each is capable of existing independently of the other. Your conscious mind could, in principle, be detached from everything physical and exist on its own. This position is called substance dualism.
Hardly any scientists or philosophers are now prepared to accept substance dualism. But there are still plenty of philosophers (and at least some scientists) around who believe that there are two distinct and irreducible kinds of property: physical properties and mental properties. This position is called property dualism.
According to property dualism, there’s only one kind of stuff – physical stuff. But objects made out of this physical stuff can have two quite different sorts of property. On the view of the property dualist, there are both mental properties and physical properties: the mental properties of a human being are extra properties that exist in addition to all of his or her physical properties.

An argument against dualism

            Let’s now turn to one of the most popular arguments against all forms of dualism.
In effect, dualists want to introduce an extra layer of facts in addition to the physical facts. There are physical facts: the facts about physical substances and properties. But according to dualists, there are also non-physical substances and/or properties. The facts about these non-physical substances/properties are facts in addition to the physical facts.
Many scientists and philosophers consider the suggestion that there are such “additional” facts thoroughly unscientific. Why is this?
Suppose that at a dinner party I am given the choice between a glass of wine and a glass of beer.

I like both, but decide on this occasion to have wine. I reach out and select a glass of white.
Scientists tell us that such physical movements have physical causes. The movement of my arm was caused by the action of muscles in my arm, which was itself brought about by electrical activity in the efferent nerves running from my brain.


This electrical activity was in turn caused by physical activity in my brain, which was caused brought about by further preceding physical causes, including the stimulation of my nervous system by light reflected off the glasses on the tray in front of me and the sound of someone speaking to me. These physical causes in turn had physical causes, which in turn had physical causes, and so on.
Indeed, it seems that if scientists were furnished with knowledge of the laws of nature plus all the physical facts about my body and my environment as they were, say, one minute prior to my deciding to reach out and grasp that glass of wine, it would be possible in principle for them to figure out that my arm would do what it did. That movement of my arm was fixed in advance by how things stood physically.
But if this is correct – if what happens physically is fixed in advance by the preceding physical facts – then there is no possibility of any non-physical fact affecting how things turn out. The non-physical must be causally irrelevant to what goes on physically.
But if dualism is true, then my conscious mind is non-physical. But then it follows that my mind can make no difference to what goes on physically. Suppose, for example, that I had decided to pick up a glass of beer instead. Because of the physical facts, my arm would have been compelled to reach out and grasped that glass of wine anyway.


Indeed, if dualism is true, you could take my mind away altogether and my body would still carry on in exactly the same way.
But this is absurd, surely? My mind can and does affect how my body behaves. But as it is only the physical facts that affect how things turn out physically, the only way in which the facts about what happens in my mind can have a physical effect is if they are themselves physical facts. But then it follows that dualism (both substance and property) is false.


Many scientists and philosophers are convinced by this and other arguments that the facts about what goes on in the conscious mind must ultimately be physical facts. However, the issue is far from settled. There are also powerful arguments that appear to show that these scientists and philosophers are mistaken. One of the best known arguments is presented by the philosopher Frank Jackson. Jackson’s argument runs as follows.

Mary and the black and white room

            A girl called “Mary” is born. Before she has any visual experiences, Mary is placed in a black and white room by scientists who wish to study her. The scientists arrange that Mary never has a colour experience (they hide Mary’s pink hands from her by using white gloves, and so on). Mary experiences only black, white and shades of grey.


Mary grows up in her black and white environment. She develops a fascination with science. Indeed Mary eventually becomes the world’s greatest brain expert. She finds out everything there is to know about what goes on inside a human brain when the human experiences the colour red. She discovers all the physical facts about the brains of colour perceivers: how their neurones are firing, how the brain chemistry is balanced, and so on.
            Then, one day, one of the scientists studying her brings a ripe tomato into her black and white world.
Mary is stunned. She now has an experience that she’s never had before. She finds out what it is like to have a colour experience. Mary discovers a new fact: the fact that the experience of red is like this (I’m looking at that red object again). But Mary previously knew all the physical facts. So the fact that the experience is like this is not a physical fact. Facts about the qualitative character of our conscious experiences – about what it is like to have them – are not physical facts.

The explanatory gap

Jackson seems to have shown that there are more facts than just the physical facts. But there’s a further conclusion you might wish to draw. Jackson’s story also appears to show that not everything can be explained or understood by science. We can’t explain or understand why red things look like thisby appealing only to the physical facts about us. We come up against what contemporary philosophers call an explanatory gap at this point.
Contrast the case of heat. Identifying heat with vigorous molecular motion allows us to deduce the various properties of heat. Discovering what’s going on at the molecular level allows us to understand why objects that are heated char and blacken, why they tend to make nearby objects hot, and so on.
But a full understanding of the goings-on in the human brain will not allow one to understand why pain feels the way it does or explain why ripe tomatoes produce this sort of visual experience. Mary knows everything there is to know about what goes on in the brains of colour perceivers, but this knowledge does not allow her to understand what an experience of red is actually like. Indeed, none of the physical facts she discovers go any way towards explaining why such physiological states should be accompanied by conscious states at all.

The analogy with life

Jackson’s argument appears to show both that
(1) There are more facts than the physical facts,
(2) It is in principle impossible for the physical sciences to account for consciousness.

But many scientists are dismissive of such conclusions. They often suggest the current situation with respect to consciousness is similar to the situation 200 years ago with respect to life.  Life at that time constituted a great mystery. We simply had no idea how mere physical matter could be organized in such a way as to produce an animate, living thing. Many thought that something extra – a mysterious and supernatural “life force” –had to be added to a physical object in order to imbue it with life.
Today, of course, the explanation of life is mostly within our grasp. Darwin’s theory of natural selection, advances in genetics, and so on have allowed us to explain many of the properties of life. Even where a scientific explanation of some particular feature of life currently eludes us, we can at least now see how such an explanation might in principle be constructed just by appealing to physical facts.
Many scientists argue that, similarly, just because a scientific explanation of consciousness noweludes us doesn’t mean that no such explanation is possible. There’s no need to suppose that consciousness must be something mysterious and supernatural that exists in addition to what we find within the natural, physical world. These are early days in the scientific investigation of consciousness. Our current inability to imagine how consciousness might be explained by appealing only to physical facts may simply be due to our lack of an adequate theory, just as in the case of life.

Conclusion: a mystery

We have been grappling with mystery of how to accommodate consciousness within the physical universe. Many scientists believe that consciousness must ultimately be reducible to and explicable in terms of the physical. Indeed, given that the conscious mind is able causally to affect what goes on physically, it seems it must itself be physical.
But there are powerful objections to this belief. Jackson’s story about Mary and the black and white room seems to show that it is in principle impossible for the facts about the character of our conscious experience to be reduced to and explained in terms of physical facts. It seems there must be more facts than just the physical.
Many scientists reject all forms of dualism out of hand. But unless they can show what is wrong with Jackson’s argument (and, indeed, the other very convincing looking-arguments that are around), their dismissive attitude towards dualism looks hasty. Blindly to reject such arguments looks more like prejudice than a rationally held position.
Of course, it may be that there’s something wrong with Jackson’s argument (see the text box below). But the onus is on those who reject all forms of dualism to show precisely what is wrong with it. And of course, showing what’s wrong with such arguments is the job not of empirical science, but of logic and the philosophy.
So can science ever solve the mystery of consciousness? The answer is, perhaps. But not by itself. Science will need the help of philosophy.


THINKING TOOLS: The masked man fallacy

This section explains what may be wrong with Jackson’s argument. There is a popular form of argument often used to establish that two things are not identical. You search for a property that one of the two things has that the other lacks. If you can find such a property, it follows that the items in question are non-identical.
For example, if you want to establish that K2 and Everest are distinct mountains, all you need to do is find a property one mountain possesses that the other lacks. For example, you might argue like this:

Everest has the property of being over 29,000ft high
K2 doesn’t have the property of being over 29,000ft high
Therefore: Everest is not identical with K2

This is a sound argument: each of the two premises is true and the logic is impeccable. The argument really does establish that Everest and K2 are distinct.
Those who argue that mind and body are non-identical often appeal to the same form of argument. Here, for example, is an argument (often attributed to Descartes) called the argument from doubt.
            I don’t doubt that I exist. After all, by trying to doubt that I exist, I demonstrate that I do exist, so my attempt at doubting that I exist must inevitably be self-defeating.
            I do doubt that my body exists. It seems to me that I might be a disembodied mind, with all my experiences being generated by some sort of malevolent demon (for more on this sort of doubt, see chapter XX “Brainsnatched”).
But then it seems that my body has a property that I lack: my body has the property of being something the existence of which I doubt. I lack this property. So it surely follows – by an argument analogous to that about Everest and K2 – that I’m not identical with my body. Here’s the argument laid out more formally:

My body possesses the property of being something the existence of which I doubt
I don’t possess the property of being something the existence of which I doubt
Therefore: I am not identical with my body.

This sort of argument has convinced many that mind and body are non-identical. But, despite the similarity to the Everest/K2 argument, this is a bad argument. What we have here is an example of the masked man fallacy. Here’s another example of the fallacy. Suppose I witness a bank being robbed. This leads me to believe that the masked man robbed the bank. Later, detectives inform me that their lead suspect is my father. Horrified, I try to prove that my father cannot be the masked man. I point out that the masked man has a property my father lacks: he’s someone I believe to have robbed the bank. I argue like this:

The masked man has the property of being someone I believe robbed the bank
My father lacks the property of being someone I believe robbed the bank
Therefore: my father is not identical with the masked man.

This is obviously a bad argument, despite sharing the same form as the sound Everest/K2 argument. It could yet turn out that my father isthe masked man, despite the fact that both premises are true. Why is this?
The problem is that this form of argument does not work for all kinds of property. It works for properties such as being more than 29,000ft high. It does not work with properties such as being someone I believe to have robbed the bank. More generally, this form of argument is invalid whenever the property in question involves someone’s psychological attitude towards a thing.
For example, in the masked man case, I try to show that my father and the masked man are distinct by pointing out that I have an attitude towards one that I don’t have towards the other: I believe one robbed the bank but not the other. But such attitudes are incapable of revealing whether or not the items in question really are distinct. Here are a couple of other examples:

John Wayne is someone John knows appeared in “True Grit”
Marion Morrison is not someone John knows appeared in “True Grit”
Therefore: John Wayne isn’t Marion Morrison

Heat is widely recognised to cook food
Molecular motion is not widely recognised to cook food
Therefore: heat isn’t molecular motion

Both these arguments have true premises but false conclusions (“John Wayne” is the stage name of Marion Morrison). The problem, again, is that what someone may know or believe or recognise about one thing but not another is not the sort of property one can use to establish the non-identity of those things. The argument from doubt involves the same fallacy.
What of Jackson’s argument about Mary? Does it also involve the masked man fallacy? I think that, as it stands, it does. But you should check for yourself. Of course, none of this is to say that I believe dualism is now defeated. There may be better arguments for dualism than Jackson’s, arguments that don’t involve the masked man fallacy. [END OF TEXT BOX (FULL PAGE?)]

What to read next?

This chapter might usefully be read in conjunction with chapter XX “Could a Machine Think?” Look for where some of the arguments overlap.
In chapter XX “Do We Ever Deserve to be Punished?” I briefly discuss the discovery that the universe is not after all governed by strict and exceptionless laws, but merely by probabilistic laws. So it turns out that the most that someone furnished with full information about my physical body and environment could ever predict about my future behaviour is what I will probablydo. After reading chapter XX, you might wish to return to this chapter to consider the question: Does this discovery undermine the argument against dualism presented above? Even if it does, might some version of that argument still be salvaged?

Further Reading

Jackson’s story about Mary and the black and white room appears in:
·      “Epiphenomenal Qualia”, in W. Lycan (ed.), Mind and Cognition(Oxford: Blackwell, 1990).
For a breezy and yet quite thorough introduction to the problem of consciousness, see:
·      David Papineau and Howard Selina, Introducing Consciousness(Cambridge: Icon, 2000).
An interesting collection of pieces on the mind can be found in the now quite old but nevertheless still excellent:
·      Douglas R. Hofstadter and Daniel Dennett (eds.), The Mind’s I(London: Penguin, 1981).
The Mind’s I includes Thomas Nagel’s famous paper, “What is it Like to be a Bat?” [also included as chpt 38 of Nigel Warburton (ed.), Philosophy: Basic Readings (London: Routledge, 1999)].

[i] See Tomas Nagel, “What is it Like to be a Bat?”, in Douglas R. Hofstadter and Daniel Dennett (eds.), The Mind’s I (London: Penguin, 1981)

Sunday, 29 September 2013

Then how do you enforce rules?

I am going to take issue with Geoff on this: Penn State University as an institution was being punished. And if Penn State cannot be punished, then the entire scheme of NCAA regulations is unenforceable (and humor me for the moment and assume NCAA regs are worth enforcing). Any long-lasting institution survives its individual members; old members are replaced by new members, but the institution is understood to survive uninterrupted. And the institution bears responsibility for the conduct of its members--past, present, and future. The players and coaches who break rules are always gone by the time enforcement comes down. If that punishment is wrongful because current (rather than rule-breaking) players are in the institution at the time of enforcement, then punishment of the institution always becomes wrongful. Even in a case of lack of institutional control (as Penn State arguably was), the institution could always argue that its failure was to control previous players, but that shouldn't be taken out on current players. But then the university gets off scott-free and has no incentive to police its future members, because it always can argue against punishment falling on its current players.

Taken to its conclusion, Geoff's argument applies to any institution and institutional punishments. Germany should not be made to provide reparations or other compensation to Holocaust victims because the punishment falls on the current German government and citizens; ditto for arguments with respect to slavery. International law (which I rarely cite or discuss) recognizes the concept of successor governments. Why not for universities in the field of NCAA enforcement?

All that said, I agree with Geoff that this is an example of "punisher's remorse", a term I wish I had used in a radio interview I did last week. But the remorse is over punishing Penn State--the NCAA does not want one of its flagship institutions under such a harsh punishment.

Geoffrey Rapp: the NCAA's "Punisher's Remorse"

Geoff and I were interviewed by Mike Dawson of the Centre Daily to talk about the NCAA reducing Penn State's penalty and other challenges for the NCAA (O'Bannon case; concussions etc.).  Geoff has some powerful and smart quotes in it.  Here's a a couple of excerpts:
* * *

“I think what’s going on here is largely ... punisher’s remorse of sorts,” said Geoffrey Rapp, a sports law expert at the University of Toledo in Ohio. “As they now have lived with the sanction for a year, they realized the victims are the current players. It’s not really putting any hurt on the people that we think are really responsible.”

* * *

“All of these are examples of duplicitousness and double standards on the NCAA, which then makes them uncomfortable with the moral high horse they were riding last summer,” Rapp said, referring to the time the Penn State sanctions were handed down.

Read more here:

To read the rest, click here.

Read more here:

Friday, 27 September 2013

Electronic Arts' Settlement is a "Win" for Consumers

Electronic Arts' settlement of the O'Bannon-Keller litigation, assuming it gets approved by the court, is a big win for the consumer because it creates a new market opportunity for numerous video game producers.  These companies can now compete against each other by negotiating with college players, collectively as a group, over the payment of a licensing fee for the exclusive right to use clear images and actual names of players, which will result in a better quality game with better graphics for the consumer.  And the payment of a licensing fee to the players might not increase the price of the game for the consumer.  Case in point, EA pays a licensing fee to NFL players for the use of their names and images, yet the price of EA's Madden NFL game is the same as the price of its NCAA Football game in which a licensing fee is not paid to the players.  According to basic principles of supply and demand, price is determined by what the consumer is willing to pay.

The underlying basis for recognition of publicity rights is the prevention of unjust enrichment.  For years EA has been profiting from the free use of college players' identities, and now they must disgorge the unjust gain.  The "Principles of Amateurism" should not be used as an excuse by a video game company or anyone else, including the hundreds of people who run big-time college sports and pay themselves multi-million dollar salaries, to unjustly enrich themselves at the expense of the players whose efforts make such revenue generation even possible.

The NCAA, the conferences and the universities can continue to dig their heels in and keep fighting this battle but, even if they end up winning the legal battle, the principles of supply and demand will ultimately prevail.  Baseball won the battle in Curt Flood's antitrust lawsuit but it ultimately lost the war, and not necessarily because of the National Labor Relations Act but essentially due to principles of supply and demand.  There is a small supply of elite college football players with unique skill and talent known as Four- and Five-Star recruits who are not fungible and are in huge demand because the product of big-time college sports, and the revenue it generates for all of those who produce it, simply does not exist unless these players agree to participate.  Can big-time college football make the same money with "scab" college players?  What would happen if these players ultimately got together and simply decided not to participate unless certain conditions were met, and not necessarily the right to compete for wages (which these players would concede changes the product of "amateur sports") but rather the right to receive payment for the commercial use of their names/likenesses, the right to have an agent negotiate with professional teams, or the right to better insurance and more scholarship funds?  And they do not have to be declared employees by law nor form a labor union to do it.      

Wednesday, 25 September 2013

Aaron Hernandez Discussion at UNH Law on Friday September 27

On Friday at 2:45 p.m., I'll be giving a talk at the University of New Hampshire School of Law alumni weekend on the Aaron Hernandez case and the range of legal and business issues at stake.  Those issues include (obviously) criminal law, but also issues in tort law, contract law and labor law. I've reported on this case for Sports Illustrated and, and I'm looking forward to talking about it.

Here's an outline of my discussion:


  1. A Brief History of Aaron Hernandez : From Bristol, Connecticut to Bristol County (Massachusetts) Jail.

  1. The murder charges and associated evidence for the death of Odin Lloyd.  Discussion will include analysis of:

·         Roles played by the alleged accomplices, Carlos Ortiz and Ernest Wallace;

·         Possibility of federal charges;

·         Hernandez’s possible defenses, including those connected to drug use; and

·         Hernandez reportedly being target of a Suffolk County (Boston) grand jury investigating the 2012 deaths of Safrio Furtado and Daniel Abreu.

  1. Can Hernandez Receive a Fair Trial?  Lessons from People of the State of California v. Orenthal James Simpson and Samuel Sheppard v. E.L. Maxwell.

  1. Possible Wrongful Death Action against Hernandez and Possible Vicarious Liability for New England Patriots.

  1. Dispute between New England Patriots and Hernandez over money purportedly owed to him under his NFL contract.

  1. Duty of Fair Representation of National Football League Players’ Association to advocate for Hernandez.

  1. Expectations for how Hernandez saga will impact the ways in which NFL and college teams investigate and evaluate players.

Although seating is reserved for alums of the school, a limited number of seats will be made available to others.  If you're interested in attending, please contact Matthew Solo at matthew.solo[at]

For more information about our law school's sports and entertainment law institute, click here.

Monday, 23 September 2013

AALS Section Call for Papers on O'Bannon v. NCAA

The AALS Section on Law and Sports is looking for one speaker to join a panel in January to explore the theme, O'Bannon v. NCAA: Is There An Unprecedented Change To Intercollegiate Sports Just Over The Horizon? The deadline is Oct. 1.  HT to the Legal Scholarship Blog.

Book now for Halloween special event CFI UK

Centre for Inquiry UK, The Skeptic magazine and Conway Hall present

Halloween Special: Ghosts, Zombies and Vampires!

Chaired and organized by Stephen Law, Heythrop College University of London.


Saturday October 26th, 2013

Conway Hall (Main Hall)
25 Red Lion Square

£10 (£5 students and BHA Ethical Soc members; free to friends of CFI UK). Tickets here or on the door.
10.30am registration. 11am-3.30pm

10.30 Registration
11.00 Deborah Hyde on vampires
12.00 Chris French on ghosts
1.30 Frank Swain on zombies
2.30 Scott Wood on London ghosts
3.30 END

(CFI reserves the right to change the programme due to unforeseen circumstances)

Deborah Hyde: Vampires

“The Vampire has fascinated Western Europe from the early 1700s, but the tradition was a real part of Eastern European lives for a considerable time before that. In the last three centuries, the icon has been taken up by art of all kinds – literature, film and graphics – and it has had a lasting effect on fashion and culture. But what is the authentic story behind tales of the predatory, living dead and can we understand a little more about being human by studying these accounts? We will look at recent attempts to understand the folklore and try to work out how an Eastern European ritual made its way to late nineteenth century New England, USA.

Deborah Hyde writes writes, lectures internationally and appears on broadcast media to discuss superstition, religion and belief in the supernatural. She uses a range of approaches and disciplines from history to psychology to investigate the folklore of the malign and to discover why it is so persistent throughout all human communities & eras. She is currently writing a book ‘Unnatural Predators’. She is also a film industry makeup effects production manager who gets on the wrong side of the camera from time to time”

Chris French: The Psychology of Ghosts and Hauntings

This talk will consider a number of factors that may lead people to claim that they have experienced a ghost even though they may not in fact have done so. Topics covered will include hoaxes, sincere misinterpretation of natural phenomena, hallucinatory experiences and pareidolia (seeing things that are not there), the fallibility of eyewitness testimony, the possible role of complex electromagnetic fields and infrasound, photographic evidence, EVP, and the role of the media.

Professor Chris French is the Head of the Anomalistic Psychology Research Unit at Goldsmiths, University of London. He is a Distinguished Supporter of the British Humanist Association and a Fellow of the Committee for Skeptical Inquiry.

Frank Swain: Zombies

Ever wanted to make your own army of undead servants? Join author Frank Swain as he reveals 300 years of reanimation and mind control experiments. You learn the tricks, techniques and toxins that everyone from clandestine government scientists to crazed basement obsessives have used in their quest to raise the dead and enslave the living.

Frank Swain writes and talks about science. His first book, HOW TO MAKE A ZOMBIE, if out now from Oneworld. Frank has a history of making zines, being a filthy scenester, stage-managing burlesque shows, climbing buildings, harrying his betters, arguing the toss and generally being a force for good.

Scott Wood: Ghosts of London
In London you are never more than ten feet from a ghost story*. Ghosts have been an enduring part of London’s history, folklore and media and it seems that nothing of note can take place in the city without planting new ghosts.
Scott Wood, of the London Fortean Society and author of the forthcoming Urban Legends of London: The Corpse on the Tube examines how ghosts and London ghost stories have changed through time, from early modern revenants on Bankside to the Greenwich spooks that disturbed Lady Gaga. What do we talk about when we talk about ghosts?

Tuesday, 17 September 2013

Skeptical theism and divine lies: The McBrayer/Swenson response to Wielenberg

Here's a draft (to be deleted shortly) for comments...

Skeptical Theism and Divine Lies: The McBrayer/Swenson response to Wielenberg

1. Skeptical Theism

Evidential arguments from evil often[i]take something like the following form:

If God exists, gratuitous evil does not exist.
Gratuitous evil exists.
Therefore, God does not exist

Gratuitous evil is evil for which there is no God-justifying reason. Why suppose gratuitous evil exists? Well, we observe great evils for which we can identify no God-justifying reason. Thus, it is suggested, it’s reasonable to believe gratuitous evil exists.

The skeptical theist challenges the reasoning offered in support of the second premise. True, we are sometimes justified in inferring that there are no Fs on the basis that there do not appear to be any Fs. I am justified in believing there are no elephants in my garage if there do not appear to be any elephants. But such Noseeum Inferences (REF), as they are known, aren’t always sound. I am not justified in supposing there are no insects in my garage just because there do not appear to me to be any. Given my perceptual limitations, there could, for all I know, still be insects present. But then, given my cognitive limitations, there could, for all I know, be God-justifying reasons for the evils I observe despite the fact that I cannot identify any. I am not in a position to claim with any confidence either that such reasons exist, or that they do not. According to the skeptical theist, the probability that such reasons exist is inscrutable to me. But then I must withhold judgement on whether the second premise is true.

Skeptical theists sometimes draw a chess analogy. We are, it is suggested, like chess novices trying to comprehend why a Chess Grand Master has made the move she has. Given our cognitive limitations relative to the Chess Grand Master, the fact that the novices cannot think of a good reason for Grand Master’s move does not make it reasonable for them to believe there is no reason. Similarly, given our cognitive limitations relative to God, the fact that we cannot think of a God-justifying reason for the evils we observe does not make it reasonable for us to believe there is no reason.

As McBrayer and Swenson, two exponents of skeptical theism, point out, the skeptical theist’s applies not just to evils, but to any feature of the universe we might observe. Our inability to think of a God justifying reason for X, where X is some observed feature of the universe, is no reason to think that there is no such reason. Thus, according to McBrayer and Swenson, “we are not in a position to make all-things-considered judgements about what the world would be like if there were a God.” (REF) According to McBrayer and Swenson,

“What a sceptical theist is committed to… is a general scepticism about our knowledge of what God would do in any particular situation. We don’t think that atheists or theists can say with any serious degree of confidence why God does what he does or why he would or wouldn't do a certain thing.” (REF)

2. Skeptical theism and knowledge of God’s goodness

As McBrayer and Swenson acknowledge, skeptical theism threatens many popular arguments for the existence of the God of traditional monotheism. How are we to know that, not only is there an omnipotent and omniscient creator of the universe, but that this creator is good? Not, according to these authors, by observing the universe and drawing conclusions about the moral character of God on that basis. Skeptical theism has the consequence that what we observe of the universe and what goes on in it gives us no clue as to the moral character of our creator, if any.

Michael Bergmann, another skeptical theist, concurs that arguments for God’s goodness based on identifying something as an all-considered good are undermined by skeptical theism. According to Bergmann, anyone who considers the order we see in the natural world or the joy we witness in people’s lives give us reason to think that there is a good being who is the cause of such things is failing to take into account the lessons of skeptical theism. (2009 p.617)

However, all these authors are quick to point out that the fact that this particular route to justified belief in God’s goodness is blocked by skeptical theism does rule out our possessing justified belief in God’s goodness by some other route. Alternative ways by which we might come to hold such a reasonable belief presumably include divine revelation and perhaps also some other form of inference not vulnerable to skeptical theism. As Bergmann says: “We needn’t conclude … that the skeptical theist’s skepticism is inconsistent with every way of arguing for the existence of a good God.” 2009, pREF

3. Wielenberg on Divine Lies

In his paper “Skeptical Theism and Divine Lies” (2009), Erik Wielenberg points out what appears to be an interesting and, for many theists, deeply worrying consequence of skeptical theism. If the fact that we cannot think of a justification for a given evil fails to justify the belief that no such justification exists, then the fact that we cannot think of a justification for God lying to us fails to justify the belief that no such justification exists. If skeptical theism is true, then the probability that God is lying to us is also inscrutable to us. But then, according to Wielenberg, skeptical theism has the consequence that, for all we know know, God’s word constitutes not divine revelation but rather a justified, divine lie.

And this in turn implies that skeptical theism is at odds with any religious tradition according to which there are certain claims that we can know to be true solely in virtue of the fact that God has told us they are true. (2009 p509)

Such claims appear to include, for example, the Christian claim that all who believe in Christ will have eternal life. A Christian who, in response to the problem of evil, expresses skepticism about our ability to discern what reasons God might have to allow evil, but, in response to God’s utterances, fails to be similarly skeptical about our ability to discern what reasons might have to lie to us, is would appear to be employing their skepticism in an inconsistent and partisan way.

4. McBrayer and Swenson’s response to Wielenberg

In response to Weilenberg’s argument, McBrayer and Swenson maintain that, for the mainstream religious folk who employ skeptical theism to deal with the problem of evil, Wielenberg’s argument, “is not as scary as it first appears”. The skeptical theist should grant the possibilityof divine lies. However,

(o)ther things being equal, God would, of course, tell us only what was true. This isn’t an all-things-considered judgement but a ceteris paribus one. Only the former is off limits according to sceptical theism. But since we’re in no position to determine whether or not the ceteris paribus clause is met, we should allow that it is possible that God is lying to us.

McBrayer and Swenson’s thought here seems to be that, given that we know that, ceteris paribus, God would tell us the truth, it’s reasonable for us to believe what he tells us. True, given skeptical theism, we cannot know, all things considered, whether or not that ceteris paribus clause is met. But this is to acknowledge only the possibilityof God lying to us. If we know that, other things being equal, God would tell the truth, we can remain justifiably confident about the truth of his pronouncements, just as we can justifiably remain confident about the pronouncements of other people even while acknowledging the possibility that they are lying, as McBrayer and Swenson go on to explain:

People have deceived us in the past. And in many cases, we simply can’t tell whether they are being deceitful in any given instance. And yet we think it’s perfectly rational to accept the testimony of such people. Thus it is appropriate to accept testimony in general even though we know that it is possible the testimony is misleading. Given this epistemic fact, it is also appropriate to accept the testimony of God even though we know that it is possible that God is deceiving us.” (McBrayer and Swenson, p148, see also McBrayer ST 2010 617

5. Why McBrayer and Swenson’s response to Wielenberg fails

Consider McBrayer and Swenson’s claim that

(G) Ceteris paribus: God would tell us only what is true

How should this claim to be understood? Ceteris paribus claims often take the form of generalizations that license predictions. Consider:

(T) Ceteris paribus: cats live more then six years

The suggestion here is that as a general rule (more often than not, setting aside just a few exceptions) cats live more then six years. Thus understood, (T) licenses predictions. It allows me justifiably to conclude that my cat Tiddles will, or will probably, live more than six years (assuming, of course, that I have reason to believe or suspect that the ceteris paribus condition is not met).

However, ceteris paribus claims don’t always license predictions. Consider:

(J) Ceteris paribus, John would be naked at home

Note the subjunctive mood of what follows the ceteris paribus clause. (J) would not usually be understood to license the prediction that, as John is home, he is, or is probably, naked. It might well be the case that, though, other things being equal, John would be naked at home, other things rarely are equal. Perhaps, though being naked is John’s strong preference, John does not live alone and so, out of courtesy to his easily offended cohabitees, he usually remains clothed.

Let’s now return to McBrayer and Swenson’s (G) and ask: how should (G) to be understood?

Given the subjunctive mood of what follows the ceteris paribus clause, it appears (G) does not allow us to conclude that God usually, for the most part, tells the truth. Even granted (G), God’s telling the truth may be the exception rather than the rule.

But then, thus understood, it is hard to see how (G) provides McBrayer and Swenson with the basis for an effective response to Wielenberg. Suppose we know God is good. Then perhaps we can know that, when other things are equal, God tells us only the truth. However, Wielenberg’s point is that if skeptical theism is true then, for all we know, things rarely are equal. But then, (G) fails to provide us with any grounds for trusting what God says. It’s not merely possible God lies regularly. For all any of us know, God does lie regularly. (G) no more justifies our believing that, as God asserts that P, P is, or is probably, true than (J) justifies our believing that, as John’s home, John is, or is probably, naked.

But perhaps, despite employing the subjunctive mood, McBrayer and Swenson do nevertheless intend (G) to be understood as asserting or supporting a generalization about what God will do: as a general rule, for the most part, setting aside a few exceptions, if God asserts that P then P is true. But if that is how (G) should be understood, then it’s hard to see how McBrayer and Swenson can know (G) is true. Wielenberg’s point is that if skeptical theism is true, then none of us are in a position to know what God would do. But then none of us are in a position to know that God usually tells the truth.

True, it’s usually reasonable to trust other people. The possibility that they are lying to us should not lead us to distrust what they say. But Weilenberg’s point is not that, if skeptical theism is true, then it is possible that God is lying to us. It is that of skeptical theism is true then for all we know God is lying to us. So skeptical theism has the consequence that we should distrust what God says. Skeptical theism does not justify a similar scepticism about what other people say because it does not have the consequence that, for all we know, other people are lying to us. As McBrayer and Swenson point out (p 145), I have no reason to suppose other human beings have access to a potential range of action-justifying reasons that I, given my own human cognitive limitations, cannot access. Moreover, I have good inductive evidence that other humans do generally tell the truth. Thus, given skeptical theism, it remains reasonable for me to believe what other people tell me, but not what God tells me.

[i]Not all arguments from evil have this form. For an important exception, see Paul Draper’s version of the argument presented in his 1989 paper “Pain and Pleasure: An Evidential Problem for Theists.” Nous 23: 331-50. Reprinted in Howard-Snyder, Daniel (ed.) 1996 The Evidential Argument From Evil Bloomington: Indiana University Press: 12-29.