Author: chaowdur

Memo: Unpublished Decisions and Refugee Law

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Historical summary of US unpublished decisions from 1964-2007[1]
While there were some prior academic discussions on limiting publications,[2] 1964 is the year the Judicial Conference of the United States recommended that judges limited publications to opinions “of general precedential value.”[3] This was motivated by two emerging issues: (1) the “crisis of volume” in case law; and, (2) the “caseload crisis” for courts.[4]

First, the crisis of volume in case law mostly concerns archival problems related to storage and retrieval,[5] but also relates to the problem of effective mastery of the case law. Advancements in technology and digitization have mostly solved the problems of storage and retrieval, but recent empirical studies on legal databases have pointed to access problems for unpublished decisions.[6] As we will see below, such access problems can create an unfair disadvantage to parties without access to the materials since they cannot research and employ the case law.

Next, the caseload crisis concerns the overloading of courts with cases. There are a number of contributing factors discussed in the literature.[7] A key contributor was the expansion of federal jurisdictions.[8] In response, rather than appointing more judges or providing funding, an administrative reform occurred whereby the federal courts adopted an “Appellate Triage Model.”[9] In short, this model involved three notable changes: (1) judges wrote fewer precedential decisions; (2) courts held fewer oral arguments for non-precedential decisions; and, (3) judges relied more on law clerks and staff attorneys to perform judicial work.[10]

By 1978, every circuit had a “opinion publication plan” to deal with unpublished decisions.[11] While some plans are “not easily categorized,”[12] most plans dealt with four issues: (1) authorization of summary dispositions; (2) criteria for publication; (3) procedures to determine what to publish; and, (4) citation rules around unpublished decisions. This last issue (4) has sparked an explosion of academic literature with respect to violations of the First Amendment,[13] as well as further subtopics flowing from this.[14]

The subsequent status of unpublished decisions was contentious.[15] Jurisdictions proceeded in varying ways on these rules.[16] Commentators have since stressed that many court decisions have deviated from their own publication rules. Empirical methods of tracking these deviations have been particularly fruitful.[17] Within the last thirty years, scholars have given special attention to the caseload problem and its effects the quality of decisions.[18] 

One author attempts to parse out three rules that capture the core of the debate around unpublished decisions: 

[1] the selective publication rule itself, which authorizes the court to issue unpublished opinions and specifies the criteria the court is to use to determine whether to publish a particular opinion;

[2] the no-citation rule which bars or limits counsel from citing unpublished decisions in materials filed with the court; and

[3] the no-precedent rule, which declares that unpublished decisions have no or limited precedential value.[19]

Interestingly, these three rules map onto the debates in the UK and Canada. In the US context, the next major development was the abolishment of the no-citation rules. The Advisory Committee on the Federal Rules of Appellate Procedure, receiving approval from the Supreme Court, pushed and passed Rule 32.1 which was effective December 1, 2006.[20]

Post-2007 developments: contrasts and parallels between Canada and the USA in the rationale around unpublished decisions

Rule 32.1 abolished “no-citation” rules and no circuit was allowed to restrict citation of unpublished decisions as of January 1, 2007.[21] Crucially, this rule was silent on the precedential value of unpublished decisions, and it was not clear whether courts could designate some opinions as having no precedential value. While circuits have proceeded to fill in many of these gaps by adopting its own rules to fit jurisdictional practices, all circuits have determined that unpublished decisions are not precedential but may have persuasive value.[22] Here is one example from the Ninth Circuit of criteria for publication:

(a) Establishes, alters, modifies or clarifies a rule of federal law, or

(b) Calls attention to a rule of law that appears to have been generally overlooked, or

(c) Criticizes existing law, or

(d) Involves a legal or factual issue of unique interest or substantial public importance, or

(e) Is a disposition of a case in which there is a published opinion by a lower court or administrative agency, unless the panel determines that publication is unnecessary for clarifying the panel’s disposition of the case, or

(f) Is a disposition of a case following a reversal or remand by the United States Supreme Court, or

(g) Is accompanied by a separate concurring or dissenting expression, and the author of such separate expression requests publication of the disposition of the Court and the separate expression.[23]

The ambiguities around Rule 32.1 have sparked much debate and rich scholarship. One writer has argued that the empirical data from the last twenty years of unpublished decisions shows no correlation to caseload volume; in fact, while unpublished decisions have “continued increased over time, overall caseload volume has not.”[24] Other writers have identified differences in judicial decision-making between published opinions and unpublished opinions.[25] The discussions continue to present day regarding the status and function of unpublished decisions, especially in terms of its practical and jurisprudential implications. Notably, Richard Posner has been one staunch critic of unpublished reasons.[26]

It is difficult to make sweeping comparisons between, say, the discussions in the US and the discussions in Canada. US scholarship has similar normative concerns around judicial reason-giving, principles of democracy, non-arbitrariness, and common law concerns.[27] The Canadian rationale for reversing optional written reasons, for instance, is more-or-less analogous to the US worries about transparency; however, one might observe that the US literature is generally more concerned about the quality of judicial decision-making over the need for transparency.[28] Additionally, the discussions in the US around the status of unpublished decisions and their precedential value have shifted to the effects of a “deteriorated” circuit court system on individuals.[29]

One practical issue: asymmetries in immigration litigation (i.e., DOJ’s internal access to material that is not readily accessible to private parties).

A particularly problematic aspect of current practices around unpublished decisions is the potential asymmetries in litigation. For example, Kegan et al illustrates this point through petitions to review orders of removal against immigrants.[30] Their project analyzes on the availability of important cases decisions through common legal research tools and propose the following taxonomy of decisions: (1) precedent decisions; (2) nonprecedent, visible decisions; (2) nonprecedent, invisible decisions; and, (4) nonmerits decisions (invisible).[31] They focus on the (4) nonmerits decisions which may have significant value in litigation and they find that a large body such decisions are practically invisible in the immigration decisions-making context.[32] They note:

[…] litigants may have unequal access to potent legal authority. Consider that in an administrative law setting, the Department of Justice could theoretically have access to every case through its internal systems because it serves as the government’s law firm in all of them. Private parties would not have this access and thus could be disadvantaged if unpublished decisions start to have more influence in litigation. Nevertheless, this new system has survived despite its unresolved ambiguities.[33]

This raises obvious social justice issues of creating additional barriers to having full engagement with the courts. This results in different tiers in accessing the justice systems. Richman and Reynolds first describe this as a “two-track” system of justice:

Track-One-the portion of the circuit courts’ terminations that are decided using the traditional appellate process (oral argument, conference, published opinion) about half the total.

[…] Next, consider the Track-Two cases-those cases that are screened out of the traditional appellate process. These cases are not argued, often there is no conference, no opinion is published and, in some cases, no opinion is even written. These cases get very little attention from the judges; most of the work is done by staff attorneys and law clerks.[34]

McAlister develops this idea through empirical data. The “track-two” cases often involve private and pro se litigants – “30% of administrative proceedings” involving Social Security disability and immigration matters are pro se litigants.[35] McAlister explains:

Pro se appellate litigation therefore predominately involves prisoner, civil rights, habeas corpus, and other civil proceedings affecting vulnerable communities (including individuals in economic distress, without permanent status in the United States, and with health crises or disabilities).[36]

The upshot of McAlister’s article is that unpublished decisions may be necessary for efficiency concerns, but courts ought to be wary of “Kafkaesque” unpublished decisions and perhaps make public the reasons for the ruling (i.e., even if it involves releasing the staff lawyer or law clerk’s memos). McAlister brings us back to the importance of reason-giving for procedural fairness, and such issues cut to the core of normative principles such as the stare decisis and non-arbitrariness.[37]

[1] For the most comprehensive work on this topic, see William M Richman & William L. Reynolds, Injustice On Appeal: The United States Courts of Appeals in Crisis (Oxford: Oxford University Press, 2012).

[2] For a look into discussions pre-1964, see William L Reynolds & William M Richman, “The Non-Precedential Precedent – Limited Publication and No-Citation Rules in the United States Courts of Appeals” (1978) 78:6 Colum L Rev 1167.

[3] Administrative Office of the United States Courts, Judicial Conference Reports 1962-64, at 11.

[4] For a detailed historical analysis of the reasons for and against restricting publications, see Robert J Martineau, “Restrictions on Publications and Citation of Judicial Opinions: A Reassessment” (1994) 28:1 U Mich JL Reform 119. See also, Charles E Carpenter Jr, “No-Citation Rule for Unpublished Opinions: Do the Ends of Expediency for Overloaded Appellate Courts Justify the Means of Secrecy, The ” (1998) 50:1 S C L Rev 235.

[5] John B Winslow, “Courts and the Papermills” (1915-1916) 10:3 Ill LR 157.

[6] In a forthcoming article (see https://ssrn.com/abstract=3652566), Merritt McAlister examines commercial databases and their access to unpublished federal appellate decisions. There appears to be an access problem previously identified by scholars in the immigration context, yet the problem seems to be a broader and pervasive in other areas of law as well. 

[7] For a discussion on the socioeconomic changes resulting in caseload between 1950-1980, see Marjorie Lakin & Ellen Perkins, “Realigning the Federal Court Caseload” (1979) 12:4 Loy L A L Rev 1001. Cf. Michael C Gizzi, “Examining the Crisis of Volume in the U.S. Courts of Appeals” (1993) 77:2 Judicature 96.

[8] See Richman & Reynolds, supra note 1 at c 1.

[9] Richman & Reynolds, supra note 1 at c 1-2. See also David C Vladeck & Mitu Gulati, “Judicial Triage: Reflections on the Debate over Unpublished Opinions” (2005) 62 Wash & Lee L Rev 1667.

[10] Richman & Reynolds, supra note 1 at c 1-2

[11] Ibid.

[12] Richman & Reynolds, supra note 2 at c 1173.

[13] See, for example, Salem M Katsh & Alex V Chachkes, “Constitutionality of No-citation Rules” (2001) 3:1 J App Prac & Process 287.

[14] The Journal of Appellate Practice and Process published widely on such topics during this period. See, for example, Stephen L Wasby, “Unpublished Decisions in the Federal Courts of Appeals: Making the Decision to Publish” (2001) 3:1 J App Prac & Process 325.

[15] See Patrick J Schiltz, “Much Ado about Little: Explaining the Sturm und Drang over the Citation of Unpublished Opinions” (2005) 62 Wash & Lee L Rev 1429; Alvin B Rubin, “Bureaucratization of the Federal Courts: The Tension between Justice and Efficiency ” (1980) 55:5 Notre Dame Law 648; William L Reynolds & William M Richman, “An Evaluation of Limited Publication in the United States Courts of Appeals: The Price of Reform” (1981) 48:3 U Chi L Rev 573.

[16] For an excellent survey of where each state has landed on these rules, see Stephen R Barnett, “No-Citation Rules under Siege: A Battlefield Report and Analysis” (2003) 5:2 J App Prac & Process 473.

[17] A 2001 article by Merrit and Brudney used the rich data on labor law opinions to illustrate this point. See Deborah Jones Merritt & James J Brudney, “Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals” (2001) 54:1 Vand L Rev 69. See also, Michael Hannon, “A Closer Look at Unpublished Opinions in the United States Courts of Appeals” (2001) 3:1 J App Prac & Process 199.

[18] See, for example, Bert I Huang, “Lightened Scrutiny” (2011) 124:5 Harv L Rev 1109. See also, Boyce F Martin Jr, “In Defense of Unpublished Opinions” (1999) 60:1 Ohio St LJ 177.

[19] Norman R Williams, “The Failings of Originalism: The Federal Courts and the Power of Precedent” (2004) 37:3 UC Davis L Rev 761 at 768-769.

[20] Richman & Reynolds, supra note 1 at c 5. For a policy analysis, see Jessie Allen, “The Right to Cite: Why Fair and Accountable Courts Should Abandon No-Citation Rules,” (2005) Judicial Independence Series, Brennan Center for Justice at NYU School of Law.

[21] “A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been designated as ‘unpublished,’ ‘not for publication,’ ‘non-precedential,’ ‘not precedent,’ or the like.” See Memorandum from Judge Samuel A. Alito, Jr., Chair, Advisory Comm. on Appellate Rules, to Judge David F. Levi, Chair, Standing Comm. on Rules of Practice & Procedure 2 (May 6, 2005).

[22]Richman & Reynolds, supra note 1 at c 8-11.

[23] Federal Rules of Appellate Procedure (FRAP), Ninth Circuit Rules, R. 36.2.

[24] See Merritt E McAlister, “Downright Indifference: Examining Unpublished Decisions in the Federal Courts of Appeals” (2020) 118:4 Mich L Rev 533 at 551, 554-561.

[25] See, for example, Denise M Keele et al, “An Analysis of Ideological Effects in Published versus Unpublished Judicial Opinions” (2009) 6:1 J Empirical Legal Stud 213. See also Peter W Martin, “District Court Opinions That Remain Hidden Despite a Long-Standing Congressional Mandate of Transparency – the Result of Judicial Autonomy and Systemic Indiffernece” (2018) 110:3 Law Libr J 305.

[26] See Richard A Posner, The Federal Courts: Crisis and Reform (Cambridge: Harvard University Press, 1985). He has held to his views and continues to be vocal in interviews, newspapers, and subsequent articles. See, for example, Richard A Posner, Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments (Scotts Valley: CreateSpace Independent Publishing Platform, 2017).

[27] For an excellent summary of the debates and a suggestion for a novel framework addressing retroactivity principles, see Elizabeth Earle Beske, “Rethinking the Nonprecedential Opinion” (2018) 65:4 UCLA L Rev 808. For a common law argument against unpublished decisions, see Richard B Cappalli, “The Common Law’s Case against Non-Precedental Opinions” (2003) 76:4 S Cal L Rev 755.

[28] Richman & Reynolds, supra note 1 at c 6, 8, 10.

[29] Richman & Reynolds, supra note 1 at c 1, 12-14.

[30] Michael Kagan, Rebecca Gill & Fatma Marouf, “Invisible Adjudication in the U.S. Court of Appeals” (2018) 106:3 Geo LJ 683.

[31] Ibid at 689.

[32] Ibid at 696-700.

[33] Ibid at 694.

[34] William M Richman & William L Reynolds, “Elitism Expediency and the New Certiorari: Requiem for the Learned Hand Tradition ” (1995-1996) 81:2 Cornell L Rev 273 at 303.

[35] McAlister, supra note 24 at 556.

[36] Ibid.

[37] For a look into the US jurisprudence on precedent, see Lauren Robel, “The Practice of Precedent: Anastasoff, Noncitation Rules, and the Meaning of Precedent in an Interpretive Community” (2002) 35:2 Ind L Rev 399; Martha J Dragich, “Will the Federal Courts of Appeals Perish if They Publish–Or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat” (1995) 44:3 Am U L Rev 757; Elizabeth Y McCuskey, “Submerged Precedent” (2016) 16:2 Nev LJ 515.

Pros and Cons of Equity Crowdfunding

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The Business Landscape Around Crowdfunding

The focus here is on equity crowdfunding, and not the other models of crowdfunding (e.g., donation, reward, pre-purchase, or lending). In assessing the pros and cons of crowdfunding, it’s helpful to understand the landscape around crowdfunding, and by “landscape” I mean the different solutions you have on the table other than crowdfunding and why crowdfunding is different than these other solutions to financing your business needs. More specifically, as entrepreneurs, I’m going to assume that the other solutions you have in mind are (1) bank loans, (2) venture capital (VC), and (3) angel investors.

It’s important to understand that each of these solutions exist for small businesses. As you know, Canada is comprised of mostly small to medium sized businesses, so the availability of finance for small businesses is closely tied to the economic health of this nation. But small businesses still have trouble raising money. Often small businesses turn to personal savings, or friends or family.

After this, going to the bank and getting a small business loan might be the natural next step. But most small businesses don’t have a lot of collateral, cash flow, or financial history to qualify for substantial bank loans. Banks are relatively risk-adverse and less flexible when it comes to credit risks and give little weight to the potential growth of your small business. As we all know, most small business fail within the first few years and small businesses are an inherently risky enterprise.

Venture capital funds can be the natural next step. VC firms are fine with the risk of small businesses because they hedge their bets by investing in multiple small businesses, and they only need one of them to be really successful. I’ll return to the side-by-side comparison between VC and crowdfunding, but, for now, what’s important to highlight is that VC funds are pretty selective. They’re partial towards tech companies, and they tend to look for companies that have passed the initial phases and have a potential for large growth; as such, venture capitalists end up rejecting almost all of the business plans submitted to them, and invest in only a tiny sliver of small businesses in Canada.

Next stop, angel investors. Angel investors are typically really rich individuals or a small group of rich individuals, and, like VC firms, angel investors also look for high growth opportunities. Angel investors can be a little more relaxed than VC firms in assessing a business. Unlike VC firms, angel investors might not be so concerned with the numbers, and instead place more emphasis on things like your team or your idea or your plan. Still, they’re not a charity and they’re also fairly selective when it comes to investing in a small business.

This leaves us with a huge number of businesses that fall through the cracks and can’t access financing from banks, VCs, or angel investors. Crowdfunding can help here. Crowdfunding can support businesses that can’t access these traditional sources of small business financing and present this business as an attractive investment opportunity to a wider range of people. A useful analogy that academics use is that crowding funding is a combination of crowdsource (i.e., combining contributions from many people to achieve a goal, like Wikipedia) and microfinancing (i.e., lending small amounts of money to poor borrowers who do not have access to traditional funds, like purchasing new nets for fishers).

Is Equity Crowdfunding Right for Your Business?

Now I want to layout the pros and cons of equity crowdfunding, especially in relation to VCs and angel investors. I’ll then switch to some of the considerations for moving forward with crowdfunding and give a picture of what it looks like from the investors’ side.

First pro: time. Crowdfunding doesn’t require networking, pitching, or going back and forth with VCs or angel investors. That’s a very taxing process and often requires jumping through a lot of hoops, like creating a detailed business plan, disclosing your financials, and having regular check-ins. Crowdfunding can be as fast as filling out some forms, signing up to a platform, and creating a video with some marketing.

Second: control. Often in VCs or angel investors, they not only want equity in your business, they want managerial control over your business. This can vary from a board seat to having every business decision being approved by them first. This is understandable insofar as they want to keep an eye on their investment, and it could be beneficial in some aspects because they often come with a lot of business expertise. But entrepreneurs often don’t like people breathing down their necks and being micromanaged, and crowdfunding offers investors who are completely hands-off. VCs and angel investors are also often very sophisticated in negotiating their control rights and using their bargaining power, so businesses need to take added caution against predatory deals.

Third: flexibility. One element of flexibility is related to control: often, in VCs and angel investors, there is very little flexibility to change the business. But another element of flexibility is the flexibility in the kind of the business. Recall that VCs and angel investors primarily focus on high growth industries like tech. With crowdfunding, businesses have the added flexibility to choose virtually any kind of business; businesses don’t have to be concerned with high growth, rather they can choose something like person passion or social impact and still attract investors.

Fourth: cost. While there are fees associated with crowdfunding platforms and getting started with crowdfunding, they are likely considerably lower than, say, the cost of giving up control or the interest on a bank loan (or, compared to an IPO, no banks or underwriters). Moreover, businesses have the power to set the prices for shares, and you can set them for a higher price than any VC or angel investor would pay for them. The result is that you get more money per share, which means you have less dilution of the shares and more control.

Before we move onto cons, I want to highlight some double-edged swords that can either be a pro or a con depending on your business. For one, the visibility of crowdfunding can cut both ways. It may be a good thing to drum up attention to your business, which could lead to more investors or customers. On the other hand, crowdfunding can carry reputational risks and some might view this as a lack of ability to attract traditional investors. Next, the lack of interference from a VC or angel investor can look attractive at first, but businesses need to seriously consider the importance of managerial experience and the benefits of working with experienced professionals. Now, moving onto cons.

First: liability. Businesses ought to consider the legal risks involved in crowdfunding. Businesses are liable for misrepresentations and should consider the terms they agree to, such as setting milestones or promises to investors.

Second: precariousness. There is no guarantee that crowdfunding will be successful or attractive to investors. Additionally, there are regulatory limitations on funding and businesses need to consider how they want to use their limited funding.

To overcome these cons, business should be familiar with the crowdfunding regulations, but businesses need to also consider things from an investor’s point of view. The biggest concern for the investor is the risk that their investment becomes worthless. This can occur due to fraud or, more commonly, the inherent risk of failure for small businesses. These risks make crowdfunding a lower-quality investment, but it gives investors (including non-accredited investors) and potential avenue for massive returns. Of course, another worry is that such an investment would take a long time to materialize, but the regulatory limits on investing assume that the investment has relatively little impact on the total wealth of the investor.

To attract investors, it’s important to alleviate their concerns. Businesses interested in crowdfunding ought to consider the importance of marketing. On this front, we can learn from non-equity crowdfunding that use viral marketing and simple value propositions. It’s important to tell a compelling story rather than spelling out the details and complexities of the business. A useful example of crowdfunding in our daily lives is a political campaign: look at how politicians collect small campaign donations from the public. To conclude, equity crowdfunding is an alternative to small business who do not have access to loans, VCs, or angel investors. However, this isn’t just a Hail Mary for small businesses left without any financing options. It’s a way for businesses to take risks and start innovative projects.

Law Journal Application Sample

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The Associate Editor position resonates with my strong interests in exploring and contributing to legal scholarship. I look forward to sharpening my skills in legal research while aligning myself with the vision and high standards of the Osgoode Hall Law Journal (OHLJ).


My Master’s degree has equipped me with the necessary skills for legal scholarship and publication. My research explored the relationship between law and morality by looking closely at how related concepts, like “impartiality” and “duty”, are framed by legal and moral philosophers. Here, I had the opportunity to work closely with a cohort of faculty, authors, and peers specializing in the philosophy of law, and I had the opportunity to edit abstracts, papers, and manuscripts for publication. My contributions to the editing process was multilayered. Careful attention to grammar and citation were crucial for shaping and refining a final product that met the high standards of publication; however, my role extended to strengthening arguments, clarifying ideas, and ensuring that the author’s vision is realized through text. Moreover, as a Teaching Assistant, I enjoyed guiding students through rich philosophical texts and articulating complex ideas in writing. I am passionate about supporting writers of all kinds, because I can relate to the joy and pride of creating a satisfying final product.


I am particularly drawn to OHLJ’s collaborative working environment. I believe that collaboration fosters the best work as it utilizes and highlights a diversity of individual strengths, while creating a support system for team members. Prior to law school, I worked at the Ontario Medical Association where I was a part of an interdepartmental team that managed the nominations and election procedures for over 40,000 medical professionals across the province. My role was to act as the liaison between departments to solve technological issues and investigate policy constraints for the shared goal of a successful election cycle. This role has taught me to take ownership of and accountability for assigned tasks and working in a dynamic environment to meet multiple tight deadlines. I hope to bring this experience to a team devoted to legal scholarship


The value of legal scholarship is tied to the quality of ideas communicated through writing. A crucial part of communicating through writing an article for publication is the cogency of the argument, which consists of three elements: rigor, clarity, and flow. Rigor is achieved by engaging and situating ideas within the existing community of scholarship. This makes for a more balanced argument by considering objections in the existing literature. Next, clarity is essential for creating scholarship that can communicate complex ideas in a transparent and easily digestible manner to audiences. Often, the familiarity of our own ideas blinds us from the conceptual gaps and points of vagueness in our own writing. Finally, after situating an argument and ensuring that it is clearly presented, it is important to consider the writing as a freestanding entity and assess the overall coherence of the argument. The flow of argumentation can be achieved by pruning off any irrelevant or inconsistent pieces. The elements of rigor, clarity, and flow are constituent parts of the cogency of an argument, and the cogency of an argument (with a dash of creativity and originality) is the defining feature of a good academic article.


I look forward to sharing my values in a collaborative team. Speaking to the OHLJ editors at the club’s fair and open house confirmed that it is a fun and collegial environment. I hope to sharpen my skills and take the experiences gained as an Associate Editor further in my upper years in the role of a Senior Editor.

Commentary: Reproductive Technology–Savior Siblings and the Wrong “Rightness”

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Is creating a baby as a means to saving another human right or wrong? The question of “savior siblings” seems to be a question within the domain of normative ethics. The science around this question might help frame the issue by assessing things like harm, risk, or feasibility, but it does little to adjudicate the “rightness” or “wrongness.” In what follows, I will explicate an argument for the rightness of savior siblings proposed by Michelle Taylor-Sands (Savior Siblings and Collective Family Interests), which might be analyzed further as an argument from “special” obligations. Although I think Taylor-Sands has the right approach by investigating the nature of obligations, I think she comes to the wrong conclusion; in effect, my aim is to argue against the sort of “rightness” of savior sibling proposed by Taylor-Sands.

Let us begin with a (fairly crude) outline of Taylor-Sands’ argument. She pushes back on harm arguments that savior siblings are harmed in one way or another, and that therefore the creation of savior siblings is wrong. develops her argument by basing welfare on human flourishing and drawing a picture of how a child’s welfare is “inextricably connected” (122) to the general welfare of the family unit. With these pieces in place, she can argue that a savior sibling is engaging in a shared familial project to save another family member.

This is all very quick, so let us further dissect what the relevant moral players in Taylor-Sands’ argument. First, there is a dilemma: we have a positive duty to help sick children (especially if it is your child), but we also have a negative duty (ceteris paribus) to not cause harm. Here are the popular ways of dealing with this dilemma: (1) argue that the negative duty (tout court) to cause harm outweighs the positive duty to help (or argue vice versa), (2) argue savior siblings are not harmed and that there is no dilemma, or (3) argue that the consequences of subscribing to one duty permissibly outweigh the other duty (and its consequences). Second, Taylor-Sands argues that the “we” in the dilemma is not restricted to the parents but also includes the savior sibling. This is important because it might dissolve the second horn of the dilemma by shifting the “harm to others” to “harm to oneself”; as such, the issue becomes a matter of self-sacrifice on the part of the savior sibling for the sake of helping a sick sibling. Third, to establish that the “we” in the dilemma includes the savior sibling, Taylor-Sands provides a story about how the welfare (construed as general “flourishing” (126-128)) of the savior sibling is tied to their family.

Grounding duties within the family unit is to say that there are duties which apply to a “special” subset of people, namely, family members. We have duties we owe to all people, say, not to cause harm; however, we often say we have a “special” duty to (say) look after our elderly parents. Taylor-Sands thinks that savior siblings have these sorts of duties to their siblings (and obliquely to their parents). The general content of these duties all relate to promote the flourishing of the family which consequently benefits all family members. Taylor-Sands thinks that since savior siblings are the savior sibling’s welfare is “inextricably connected” to the welfare of the family, the savior sibling would obviously want to further the welfare of the family. There are two questions I would like to raise which point to some problematic areas of this story: first, is the savior sibling’s welfare really inextricably linked to the family’s welfare; and, a second related question, by merely speculating on what the savior sibling would do, is there a worry about the savior sibling’s autonomy?

I am sympathetic to Taylor-Sands’ approach to this topic of savior siblings, but I think she makes a mistake by grounding special obligations in mutual welfare. Barring this issue, we might still have a picture of a savior sibling’s defeasible (or pro tanto) duty to their family, but we need some further motivation or justification for believing that these duties hamper autonomy for the right reasons. Perhaps a better “relational” model might not need to appeal to mutual welfare. It might say that the duties we have to our family members are primary and more familiar to us than natural duties (i.e. duties we owe to everyone and which we have no say in accepting or denying).

Sample Cover Letter: In-house Tech

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I am a second-year law student at Osgoode Hall Law School and I am writing to express my interest in a summer position at [●]. I am immediately drawn to [●] dedication to fostering the growth of its employees through mentorship and professional development programs.

In my role as a Senior Associate at the Ontario Medical Association, I oversaw the nominations and election procedures for over 40,000 medical professionals across the province. Noticing a need for streamlining the election process, I modernized the election process using business intelligence tools, especially in database management and data visualization through reports, summaries, and dashboards. I gained a deep appreciation for how much dedication and scrutiny is required to produce high-quality work under strict time constraints and advancing corporate strategy, which fostered a keen eye to detail and scrutiny in analysis. 

In addition to my full-time job, I cultivated my passion for innovation and project management through starting Safe6ix, an e-commerce store specializing in personal alarms. Through this experience, I developed strong business acumen and creativity. When starting out, I made the cost-effective decision to target local markets in the city when overcoming a heavily saturated market proved challenging. Using a client-focused lens, I successfully developed community and business partnerships and leveraged connections to establish a client list. Leveraging my experience in market research, I developed a long-term digital marketing strategy based on A/B testing social media advertisements. This experience was particularly crucial for equipping me with the ability to develop detailed work plans, establish timelines, and navigate unique challenges. I hope to leverage my experience in data analysis and project management to the intersection of law and business, especially within the corporate setting. I believe my passionate for technology and innovation coupled with my background in research makes me the ideal candidate for this role.

During my time at Osgoode Hall Law School, I have started to build practical legal skills through my extracurriculars. As the Business Manager of the school newspaper, Obiter Dicta, I was tasked with auditing and consolidating their finances to ensure that student fees are used effectively and ethically. I conducted negotiations with staff to develop a comprehensive and mutually agreeable funding plan on an annual basis. Such communication skills were also key in my role as Head of Sponsorship role in the National First Generation Network, particularly in securing funding and curating new partnerships with firms for all school chapters across Canada. I am drawn to the prospect of cultivating my interest in the intersection of law, innovation, and business. I am eager to contribute my entrepreneurial experience coupled with my background in research and data analysis.

Thank you for your consideration. I believe I can make a valuable contribution to the team at [●], and I look forward to hearing from you.

Sample Cover Letter: Social Justice Law

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I am a second-year law student at Osgoode Hall Law School and I am writing to express my interest in a summer position at [●]. After receiving my permanent residence, I carried a strong interest in how these issues could be remedied, particularly at a global level given the transnational nature of migration. I further developed on these ideas at the graduate level through a seminar on the ethics of migration. Here, I strengthened my passion for studying the complex, multidimensional interactions between social institutions, globalism, unequal power relations, colonialism, and the historical roots of current issues. Given the rate of globalisation, the modernization of the economy, and the exponential growth of technology, the platform of international and transnational law are particularly timely and relevant, as it carries immense potential in governing these issues. Through this program, I strive to further develop specialized knowledge of international and transnational law through policy analysis, advocacy, research, and praxis. A strong point of consideration for me is the hands-on experience offered by the program, which allows the opportunity to apply knowledge areas. I am drawn to the opportunity to connect with peers and professionals within a diverse, collaborative, transnational setting, to cultivate discussions and synthesise ideas which I believe is crucial for social change.

I aspire to bring with me my strong communication, research, and analytical thinking competencies, honed through my graduate studies, to engage in critical discussions with a diverse body of peers and professionals. My skills as a researcher are an asset to the development of evidence-based policy. I am thoroughly experienced in researching relevant scholarly material in scientific journals, legal textbooks, and statistical databases. In addition, my academic discipline has honed my writing to be clear, comprehensive, and concise. Finally, I have presented my work to audiences beyond areas philosophy, such as interdisciplinary conferences, and this shows research versatility. My interests in the issues surrounding public policy push me to understand the moral, legal, and political ramifications of specific policies through my graduate studies. I learned to juggle the deadlines of graduate courses, working on original research, and teaching students.

Alongside my research, I worked as a Teaching Assistant over four courses, where I had the opportunity to guide students through complex topics, such as global health ethics, the ethics of war and torture, and the legal theory of international law. In particular, I played a key role in leading lectures and small-group discussions which encouraged students to engage in critical thinking and pose questions on the underlying root causes of structural issues in the contemporary world, while acknowledging assumptions, and privileges. Upon graduation, I joined the Ontario Medical Association (OMA) as a Senior Associate where I oversaw the organization’s election process. I coordinated the nominations and elections for over 40,000 members across Ontario, which involved developing, reviewing, and updating policy documents and by-laws around OMA governance and operations.

Sample Cover Letter: On Campus Interviews

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I am a second-year law student at Osgoode Hall Law School and I am writing to express my interest in the 2021 Summer Student position at [●]. After speaking to previous Summer Students, I resonate with your firm’s culture of teamwork and excellence in the face of challenging work. I am especially drawn to [●]’s dedication to fostering growth through mentorship and professional development programs.

Prior to law school, I oversaw the internal governance election and nomination procedures for over 40,000 medical professionals across the province in my role as a Senior Associate at the Ontario Medical Association. I worked with the legal department to ensure compliance with governing statutes, the external stakeholders to promote member satisfaction, and the senior management to facilitate risk management. To streamline the election process, I modernized procedures by automating data analytics and implementing new business intelligence tools. Through this position, I gained a deep appreciation for the dedication and scrutiny required to produce high-quality work under strict time constraints.

During law school, I joined three law journals to build on the research skills that I gained from my Master’s degree. As an Associate Editor of the Osgoode Hall Law Journal, I developed strong legal research, drafting, and editing skills. To diversify my substantive knowledge and technical competencies, I took on an editorial role for the Intellectual Property Journal and the Transnational Legal Theory Journal. This past summer, I also worked with four Professors to assist with their research projects. I enjoyed the challenge of undertaking complex tasks and juggling multiple projects across various subject matters, from contracts to telecommunications law. I am confident that I can apply my attention to detail and legal analysis to the Summer Student position.

Since beginning my legal studies, I cultivated my interest in business through my extracurriculars. As the Business Manager of the school newspaper, Obiter Dicta, I audited and consolidated their books to ensure that student fees were used effectively, and I conducted negotiations with Obiter Dicta staff to develop a comprehensive annual funding plan. As the Head of Sponsorship at the National First Generation Network, I secured funding and curated new partnerships with firms for first generation law student programing. In response to funding shortages due to the pandemic, I organized new strategies to promote sponsorship, including firm recognition initiatives, pre-law scholarships, and government grants. This process of developing business relationships and initiating new projects has prepared me to be agile in problem solving and servicing a variety of client needs. I am eager to bring the same tenacity and adaptability to [●].

Thank you for your consideration and I look forward to hearing from you.

Sample Cover Letter: International Law Firm

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I am a second-year law student at Osgoode Hall Law School and I am writing to express my interest in a summer position at [●]. My desire to join [●] is driven by the opportunity to join a passionate team at a leading, global law firm. I am immediately drawn to [●]’s dedication to fostering the growth of its employees through mentorship and professional development programs. With an academic curiosity in business law, I am interested in the cross-border, interdisciplinary nature of the firm’s mergers and acquisitions and transactional practice groups. I am especially drawn to the flexible structure of [●]’s summer programs, which will allow me to explore these areas further, while simultaneously exploring other practices.

I believe my ability adapt to changing environments, my attention to detail, and my comfort with solving problems under pressure will be an asset to [●]. During my graduate studies, I worked closely with faculty, authors, and peers to development new research projects in philosophy, and this resulted in my thesis focusing on ethics. I was further given the opportunity to be a Teaching Assistant for a pilot program that taught the fundamentals of ethics to business students. I enjoyed guiding students through dense philosophical texts and learned how to breakdown abstruse ideas into more manageable pieces. In my capacity as a Senior Associate at the Ontario Medical Association, I developed a technical expertise in business intelligence tools, especially in database management and data visualization through reports, summaries, and dashboards. I was entrusted to oversee the nominations and election procedures for over 40,000 medical professionals across the province. This role involved interdepartmental collaboration with respect to reviewing governance documents to ensure their compliance with governing statutes, stakeholder satisfaction, and risk management. From this experience, I learned how much dedication and scrutiny is required to produce high-quality work under strict time constraints and advancing corporate strategy.

During my time at Osgoode Hall Law School, I have started to build practical legal skills through my extracurriculars. As the Business Manager of the school newspaper, Obiter Dicta, I was tasked with auditing and consolidating their finances to ensure that student fees are used effectively and ethically. It was crucial to negotiate with the rest of the staff how an agreeable way to spend funds can be achieved. Such communication skills were also key for my Head of Sponsorship role in the National First Generation Network, particularly in securing funding and curating new partnerships with firms for all school chapters across Canada. As an Associate Editor of the Osgoode Hall Law Journal, I developed strong legal research, drafting, and editing skills. In order to diversify competency, I additionally took on editorial role for the Intellectual Property Journal and the Transnational Legal Theory Journal. Moreover, during my summer, I had the opportunity to work with four Professors to assist with each of their research projects. I enjoyed the challenge of undertaking increasingly complex tasks and juggling multiple projects. I intend to expand on my skills through participation in the Advanced Business Law Workshops in Corporate Finance and Mergers and Acquisitions, and I hope to further grow under the mentorship of [●].

Thank you for your consideration. I believe I can make a valuable contribution to the team at [●], and I look forward to hearing from you.

Sample Cover Letter: Supreme Court of Canada

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I am pleased to submit this letter as a part of my application for a clerkship position with the Supreme Court of Canada. My chief contribution is my experience in research and writing. Prior to law school, I completed my Master of Arts degree in Philosophy, and my thesis primarily focused on ethics. This experience provided the opportunity to engage in interdisciplinary approaches to scholarship, particularly in areas of law, psychology, and sociology. I learned new ways to approach classical problems and, as a Teaching Assistant, this allowed me to analyze complex ideas into more manageable components for undergraduate students. During my first-year summer, I had the opportunity to assist four Professors with their research projects. Here, I further developed my legal research skills and enjoyed comparing nuanced lines of argumentation by judges, lawyers, and scholars. For example, Professor Jennifer Nadler’s work on contract law theory focused on the theory underlying the doctrine of expectation damages, while Professor Carissima Mathen’s work on Section 7 of the Charter focused on the theory underlying the principle of arbitrariness. These narrow issues gave me the opportunity to explore caselaw, commentary, and textbooks.

I continue to sharpen my research and writing skills through my law school extracurriculars. As an Associate Editor on the Osgoode Law Hall Journal, I reviewed and analyzed articles for publication. I also completed substantive checks of citations to ensure that they conformed to the McGill Guide. To expand the legal scholarship I engaged with, I took on an editorial role for the Intellectual Property Journal and the Transnational Legal Theory Journal. In these roles, I provided substantive feedback on preliminary drafts and copyedited final versions for publication. My exposure to diverse scholarship has renewed my passion for the importance of advocacy, the complexity of social justice issues, and the varied nature of policy reform.

Studying both philosophy and law has led me to consider how questions of ethical, political, and economic theory have a role in illuminating judicial decision-making. Currently, I am interested in tracking normative moral claims in the law, especially in contract law theory, theories of criminal punishment, and Section 7 of the Charter. I am confident that my research skills and enthusiasm for legal analysis would be a valuable asset for the clerkship program.

Draft Essay: Filial Obligations — Revisiting the Friendship Theory

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Most of us agree that we have some special duties to our parents, and these duties seem weightier than what we owe to our friends. We might have a duty to pay our parent’s medical bills, but we do not have the same duty to pay our friend’s medical bills; such a friend would be acting from generosity and supererogation, or beyond the call of duty. But why do we owe these things to our parents? You might say that you owe it to them because they sacrificed just as much in raising you, or you might point to the special relationship you have with you parents. Following this intuition, there have been three main suggested theories of filial duty: the Debt Theory, the Gratitude Theory, and the Friendship Theory. Recently, Simon Keller (2006) proposed a Special Goods Theory, stating that our filial duties arise from parents and children being able to provide “special goods” to one another – that is, goods which can be provided only by child or parent. Brynn Welch (2012) identified some counterintuitive cases in Keller’s theory, and added some amendments which resulted in the Gratitude for Special Goods Theory.

However, both of these “special goods” theories, along with their predecessors, have the issue of being too stringent. On these views, filial duties are “weighty,” they demand much, and interfere with our plans and projects; in other words, these theories suggest that they “override almost everything else” (Welch, 726). This issue requires a closer look into the nature of these filial duties, which consequently requires a closer look at their structure and motivation. Diane Jeske (2001) offers a unique perspective of how the reasons behind intimate relationships can be “objective” and “agent-relative” by using an analogy to one’s relation to one’s future self. This paper will use Jeske’s concepts to supplement the Friendship Theory with the “weightiness” of filial duties. On this new model of the Friendship Theory, filial duties are analogous to duties of friendship, and therefore less weighty; however, the intuition that filial duties ought to be more stringent are captured by reducing them to projects (I call this the “familial project”). Although projects are within the domain of permission and supererogation,[1] the intuition that filial duties ought to be more stringent is not undercut if, following Jeske, we see this “familial project” as  “objective” and “agent-relative,” which are “weightier” than other projects. This model captures our normative intuition of filial duties within the Friendship Theory, making this theory tenable and comprehensive.

Debt Theory, Gratitude Theory, and Friendship Theory

Before looking at the Special Goods theory and the Gratitude for Special Goods theory, I will quickly gloss over the other competing theories prominent in the literature. My exposition of these other theories is only aimed at providing context for the contemporary “special goods” theories.  Starting with the Debt Theory, it claims that parent-child relation is analogous[2] to the creditor-debtor relation. Parents provide various resources, like financial support, time or effort to rearing a child. The debt theory says that all of these goods provided by a parent are on credit, and that the child is in debt to the parent which they must repay. In essence, filial duties are the child’s duties to pay their debts back to their parents.

Filial duties, however, seem to be different from a duty to repay a debt in several ways. First, filial duties do not look like they can be “discharged, once and for all.” (Keller, 256) Imagine if a parent’s services were reduced to a monetary amount, say, one-million-dollars; it seems wrong to think that a child can pay one-million-dollars to this parent and be released from any subsequent familial duties. Second, filial duties do not have the same proportionality concerns as duties of debt might have. That is, “you may have been a healthy and angelic child, undemanding and a delight to nurture,” (Keller, 256) but that does not mean you have weaker filial duties, whereas on the Debt Theory you might have a smaller debt.[3] Third, filial duties are sensitive to the relationship itself. The parent-child relationship can be affected by some irreconcilable differences, and this can leave the child with fewer filial duties, whereas duties of debt would be insensitive to these changes in the relationship. By and large, duties of debt do not seem to be adequately analogous to filial duties.  

The Gratitude Theory claims that “to fulfill your filial duties is to perform appropriate acts of gratitude in response to the good things your parents have done for you” (Keller, 257). The Gratitude Theory meets the proportionality concerns of the debt theory because gratitude is less strict about proportionality. If somebody saved your life, duties of gratitude do not demand you to be their personal servant or take a bullet for them.  The duty of gratitude might be satisfied by something as small as a nice dinner or at least something proportionally smaller than the price of one’s life. The gratitude theory seems much more plausible than the debt theory so far.

The criticism with the gratitude theory is that it, too, fails to capture our intuitions of filial duties. First, there is a similar proportionality concern with the gratitude theory. Gratitude might be lax in its demands to reciprocate proportionally, but it still asks to give gratitude in some proportional manner. Again, if filial duties were analogous to duties of gratitude, they would demand less if you were “undemanding and a delight to nurture,” and demand more if you were a little hell-raiser. This seems counterintuitive to notions of filial duties because filial duties are thought to be indifferent to these proportionality concerns. Second, filial duties are “ongoing and open-ended, and can be very demanding,” (Keller, 260) whereas duties of gratitude are not. The general thought here is that gratitude fails to capture the weight of the demands of familial duties. If a parent fell deathly ill, filial duties might demand that the child invest significant amounts of time and money for their parents, even more than what is demanded by the duties of gratitude. In contrasts, duties of gratitude might be discharged with a card, a bottle of wine, or whatever, and one might be subsequently released from the duty; however, filial duties seem to go on for a lifetime, and cannot be discharged and released. Again, duties of gratitude are not analogous to filial duties.

The Friendship Theory claims that filial duties are analogous to duties of friendship. Friendships are aimed at sustaining an ongoing relationship rather than meeting duties of debt or gratitude. This view meets the proportionality concerns because friendships do not require strict reciprocity. It would be odd to think that friends keep a record of every benefit bestowed on one another; in fact, this would be the sign of a bad friendship. Friendships rather have the general positive duty to care for the well-being of one another. By and large, Friendship Theory is more tenable than the Gratitude Theory and the Debt Theory.

The Friendship Theory seems like the most plausible account of filial duties. But again, there are reasons to think that the analogy fails. Like families, friendships can have fallouts and disagreements which change their respective duties. However, families are more demanding in that reasons which affect friendship duties do not apply with familial duties. For instance, paying the medical bills of a parent appears to be a duty whereas paying the medical bill of a friend appears not to be a duty. Friendship duties are less demanding and do not seem to be completely analogous to filial duties.

Special Goods Theory and the Gratitude for Special Goods Theory

Keller’s Special Goods theory does away with analogies altogether. According to Keller, filial duties should be understood on “its own distinctive terms” (Keller, 265). The other theories fail because the family relationship is a different kind of relationship than the friendship or debtor-creditor relation. The family relationship is unique and gives rise to its own sui generis duties. The idea here is there are unique (“special”) goods and needs which can only be provided and satisfied by reciprocity between parent and child. This is not to be confused with generic goods, like your mother cooking you dinner or helping your mother move furniture. A special good, for instance, can be a parent’s “sense of continuity and transcendence, a feeling that they will, in some respect, persist beyond their own deaths” (Keller, 267).[4] Another is a child’s “special value in having a parent from whom to seek advice” (Keller, 267). A less starry-eyed example is the comfort of having someone who is “committed to ensuring that your needs and interests will be met.” (Keller, 267) A child then has filial duties because the parent-child relationship bestows special goods to them and they have duties within that relationship to bestow special goods to their parents.

It looks like this theory does better than its alternatives. It can explain why filial duties are “ongoing and open-ended” because parents will have special needs as long as they are alive. It explains the proportionality concern by making it irrelevant; that is, as long as the conditions of a good (on the “special goods” picture) family are met, the aim becomes providing special goods without tally, like the Friendship Theory. It can also explain the demands of filial duties and why they cannot be easily escaped. If the aim of filial duties is to provide special goods, then it does not matter how great the special needs are; moreover, terminating the relationship does not change the duties arising from these special needs.

However, Welch raises problematic cases for the Special Goods theory. An “elderly woman suffering from dementia requires medical care, and she has a wealthy daughter who can provide such care for her” (Welch, 728). According to the Special Goods theory, the daughter has no duty to care for the mother since the mother cannot reciprocate the contributions of special goods with the daughter.  Welch’s complaint is that Keller’s view “cannot offer a reasonable, theoretical limit to filial obligations” (Welch, 728). Another problem case, “the Abandonment Case,” (Welch, 727) is of a mother who selfishly abandons her daughter and is reunited to now provide her daughter with special goods. Here, the daughter seems to have filial duties to this negligent mother. It seems counterintuitive to say that the daughter owes less in the first case than the second.

Welch offers an alternative hybrid theory to settle these issues with the Special Goods Theory: the Gratitude for Special Goods Theory. This theory stipulates the value of providing special goods in the past, and further adds the following new condition to the Special Goods theory: “expressing gratitude by meeting the parent’s needs would not undermine the mutual respect on which moral relationships are based” (Welch, 730). Applied to the Abandonment Case, it releases the daughter from her duties to the mother because an expression of gratitude would violate the new clause.

A criticism Welch must deal with is that filial duties are too weighty and demand too much from us. Filial duties may ask us to devote unreasonable amounts of effort to our parents. A move to deal with this problem is to argue that excessive self-sacrifice is a failure of self-respect. Perhaps we want to say that some “serious”[5] projects take priority over filial duties. Keller writes that “the child’s duties to provide special goods to the parent should not be such as seriously to impede the child’s ability to live a good life” (Keller, 269). But little argument is provided for this, and we can think of problem cases, for instance, where a child makes various serious projects to escape filial duties. Where does this leave the force of filial duties? Surely some serious projects ought to be put aside for filial duties, but which ones? It seems there is some worry to one’s autonomy if we purport that the push of filial duties override all other endeavors. The rest of this paper will explore this issue.

“Familial Project” Theory

It seems counterintuitive to say that all instances of serious projects are precluded by filial duties to provide special goods, as “special goods” theories suggest. Perhaps familial duties really should override everything else, and it might be an entirely western view which places undue importance on individualism. This seems farfetched, as autonomy is generally very important to us. Or perhaps one might want to endorse some perfectionist account of the value of being a virtuous person outweighing the value of personal projects – this, however, seems equally unconvincing. On the other hand, to allow serious projects to take priority over filial duties may be a serious precedence to set, and may undercut the force of filial duties. This is an issue from the Friendship Theory, namely, that it fails to reflect the robust nature of familial duties. Friendships can change, grow apart and the duties of friendship correspondingly fade, but filial duties are not like that – filial duties appear to be more robust in the sense that they more resilient to change and have stronger demands.

The Friendship Theory may not match our intuition of filial duties, but perhaps it is too early to jettison this theory altogether. There is a worry that familial duties are not acquired voluntarily. Nobody chooses to be in a family yet everybody has filial duties thrust upon them, and these filial duties can affect choices, plans, and projects, and (ipso facto) impede autonomy. Duties of friendship, on the other hand, seem to be voluntarily taken when one voluntarily enters into the relationship. This might be further motivation for taking the Friendship Theory, but we need an explanation of its counterintuitive results if it is to be a comprehensive theory. Before sketching this new Friendship Theory, we must first explicate some concepts offered by Jeske.

Jeske analyzes the reasons for entering and maintaining friendships, and recognizes two sets of distinctions: “subjective” and “objective,” and “agent-relative” and “agent-neutral.” First, subjective reasons are reasons for an agent to desire (or to bring about) a state of affairs, whereas objective reasons are agent neutral. (Jeske, 330) Subjective reasons are thought of as “agent-relative,” meaning one’s reasons (per se) for promoting a state of affairs are not reasons for anybody else. My liking for a particular chair, for instance, might be subjective agent-relative because my reason for liking it are not reasons for you to like it. In contrast, objective reasons are thought of as “agent-neutral,” meaning they are reasons for everyone; to go back to the illustration, perhaps there is a chair with universally appealing features, like perfect lumbar support. Jeske suggests that the reasons for friendships are unique because they are “objective” and “agent-relative.”

What does it mean for a reason to be objective and agent-relative? Jeske uses a parallel case to illustrate. She relates the relationship one has to one’s future self as a case of objective agent-relative reasons. Private projects have reference to a particular agent, and one’s self in the distant future will have private projects that differ from one’s present self. One’s present projects are subjective agent-relative, but it would not be appropriate to call the projects of one’s future self “subjective,” because subjectivity is defined by current values. (Jeske, 342) Reasons one has to one’s future self are objective agent-relative reasons, and can be analogous to reasons of intimacy. Taking into account the subjective agent-relative reasons of a friend in one’s deliberative process is to treat them as objective because they belong to your friend and not yourself. As it follows, reasons can be both objective and agent relative.

Jeske’s picture offers a richer foundation to reply to the criticism of the Friendship Theory. My view is not committed to Jeske’s overall view of friendships and duties; rather I borrow her distinctions, particularly objective agent-relativity. To reiterate the issue at hand, the main objection to the friendship theory is that it does not match our intuitions of filial duties. Filial duties seem more stringent than duties of friendship; again, duties of friendship can be released on laxer grounds than filial duties, and duties of friendship seem to be less demanding. Let us begin by distilling our notions of filial duties from our duties of friendship, demarcating the duties of friendship from the(sui generis) filial duties. Let us further generalize duties of friendship to something along the lines of “to care for each other’s well-being,” and call everything else (the weightiness, the robustness, the stringency, etc.) “mere familial duties.” My suggestion is that “mere familial duties” are to be understood as an objective agent-relative “familial project,” although projects are commonly understood to be subject and agent-relative. This of course makes filial duties not duties at all; rather, they are within the realm of permissions. This leaves only the duties of friendship to be duties proper, meaning they are objective and agent-neutral. Let us take a closer look at this view.

To begin, it may be helpful to clarify the features of a “project.” Projects have a feature of intentionality, meaning there is some goal or aim which generates actions; moreover, this goal can be open-ended and subject to change. For instance, a private project of mine could be to become a better philosopher, and this leads me to read more philosophy. There is no “end” to becoming a better philosopher, and it is entirely possible for me to change this goal to becoming a better philosopher of religion. Goals or aims direct action in prudential ways, and can generate pro tanto rules or constraints. If my aim was to train to win a marathon, it might generate rules which are prudent to follow, such as running ten miles every day; however, perhaps if I only have time to run five miles today, I would feel disappointment or compunction. Projects can also be shared among people – for example, when a community comes together to raise money for a cause. Again, failure of prudential actions is met with a feeling of guilt, not in moral failure but a failure to bring about better results.

The familial project is a project of shared narrative. The aim is to preserve the family unit and foster its continuation. Let me explain this without appealing to neo-Darwinian principles or some collectivistic normative theory.[6] I think this is where the Special Goods Theory can help. “Special” goods, previously distinguished from “generic” goods, are particular to family members having special needs. There is a mutual understanding that special needs can only be satisfied within the family unit. With this mutual understanding, a common project is formed to meet these needs through the shared project. With this project, there are prudential rules to follow, and these are the “mere familial duties” which are conflated with duties of friendship. Due to the diversity of special needs, the family unit must be sustained and preserved. One might begin with a special need of a parent with wisdom and knowledge, then a special need to be taken care of, and a further special need to have some continuity after death through children or grandchildren.

The familial project is properly understood as objective and agent-relative, and not subjective and agent-relative. The shared project is agent-relative in that it only applies to the particular members of a family, yet it is objective because the familial project is not a project contrived by me. There is an element of externality to the familial project because I am merely a subscriber to the project and not the provider. Private projects are subjective because they are built around what I value. There is a sense in which I similarly value the familial project, but this seems incidental because other private projects often conflict with the familial project.[7]

When projects conflict, we assess the motivation for subscribing to projects and see how important they are to us. This weighing of the options and subscribing to projects is within the realm of permissions and has no (ceteris paribus) moral bearing. Again, thinking of a daughter who chooses to travel the world rather than help with her mother’s medical bills, it seems the daughter is callous and doing something wrong. But one must keep in mind that weighing the options is difficult; there is still a realm of regret, doubt, and compunction. On this view, she has no strict duty to choose the option of helping her sick mother, and her choosing to do so would be beyond the call of duty. This might be a novel case since the daughter’s private project of travelling the world seems obviously outweighed by her familial project, but more serious cases may shed light on the importance of having the freedom to choose between projects.

The motivation for taking this view is that on the “special goods” theories filial duties seem stringent enough to violate one’s autonomy. Familial duties can preclude other projects that are genuinely important to us and living a good life. Arguments from self-respect, which say that being concerned only about meeting familial needs violates respect to oneself, leave room for problem cases where self-respect is not violated but familial duties ask us to sacrifice important projects. This is the motivation for casting off familial duties and reframing them as mere projects. Weighing projects leaves room for autonomy. The familial project is also important to add to the picture because the friendship theory seems too lax. Duties of friendship alone are often not enough to motivate certain actions.

It is possible to make a further ambitious claim that is not an essential piece of my argument, but might suggest another motivation for taking this view. Jeske suggests at the end of her paper that “a mark of moral reasons” (Jeske, 345) is the fact that they are objective rather than subjective. Since on this view, the familial project is objective, it may suggest that they have a quasi-ethical role in affecting our actions. This might sound like a case of “having your cake and eating it too,” as this might fall into the pitfalls of the other theories of filial duties and violate autonomy; however, we still have the choice of subscribing to the familial project, whereas we would not have the choice to take on filial duties on the other theories. In any case, this is just a complementary motivation for my argument, and its only use would be to give more weight to familial projects when they conflict with private projects.

Theories preceding the “special goods” theories have been counterintuitive to our notions of filial duties in one way or another. The “special goods” theories, however, have the issue of being too weighty and plausibly restricting autonomy. The Friendship Theory’s fault was that it was not stringent enough, but we can build a model which contains the intuitions of mere familial duties within the familial project. My suggested theory amounts to a return to the Friendship Theory and while explaining away the counterintuitive aspects. This is more than just a descriptive account of how to settle the autonomy worry. It makes the stronger claim that other theories of filial duties are mistaken in their normative grounding. Filial duties proper are analogous to the mere duties of friendship.

Sources

Jeske, Diane. (2001) “Friendship and Reasons of Intimacy.” Philosophy and Phenomenological Research, Vol. 63, No. 2, 329-346.

Keller, Simon. (2006) “Four Theories of Filial Duty.” The Philosophy Quarterly, Vol. 56, No. 223, 254-274.

Welch, Brynn F. (2012) “A Theory of Filial Obligations.” Social Theory and Practice, Vol 38, No. 4, 717-737.

[1] This claim might be contentious to some, but nothing of importance hinges on my narrow use of “projects.” 

[2] By “analogous,” I mean that they give rise to the same duties; I do not mean that they are the same type or kind of relationship.

[3] In response to the proportionality concern, some have tried to propose an “insurance theory,” which says that investments from the parent can yield duties indifferent to the proportionality of good bestowed by the parent. This theory fails for the same reasons: filial duties are not analogous to exchanging goods and services.

[4] The idea here is that parents (qua existential beings) gain some solace in their legacy through their child. Keller is not completely clear on the “specialness” of special goods, but there seem to be plausible examples of goods only attained by the relationship between children and parents (or vice versa). (Although, in principle, “special goods” relations can be instantiated in friendships and romantic relationships.

[5] “Serious” interests are not “basic” enough to impede on a good life, but not trivial (“peripheral”) enough that it is obviously outweighed by duty.

[6] I do not want to be committed to some innate need to protect the family unit or some culturally relative zealous value of the family unit.

[7] The ontology of the familial project is not a concern here.