- There Are No Easy Counterexamples to Legal Anti-positivism. Journal of Ethics & Social Philosophy (2020) 17(1)
Legal anti-positivism is widely believed to be a general theory of law that generates far too many false negatives. If anti-positivism is true, certain rules bearing all the hallmarks of legality are not in fact legal. This impression, fostered by both positivists and anti-positivists, stems from an overly narrow conception of the kinds of moral facts that ground legal facts: roughly, facts about what is morally optimific—morally best or morally justified or morally obligatory given our social practices. A less restrictive view of the kinds of moral properties that ground legality results in a form of anti-positivism that can accommodate any legal rule consistent with positivism, including the alleged counterexamples. I articulate an ‘inclusive’ form of anti-positivism that is not just invulnerable to extensional challenge from the positivist. It is the only account that withstands extensional objections, while incorporating, on purely conceptual grounds, a large part of the content of morality into law.
- Supervenience, Repeatability, & Expressivism. Noȗs (2020) 54(3):578–599
Expressivists traditionally explain normative supervenience by saying it is a conceptual truth. I argue against this tradition in two steps. First, I show the modal claim that stands in need of explanation has been stated imprecisely. Classic arguments in metaethics for normative supervenience and those that rely on it as a premise presuppose a constraint on the supervenience base that is rarely (if ever) made explicit: the repeatability of the non-normative properties on which the normative supervenes. Non-normative properties are repeatable when it is possible for numerically distinct individuals to share them. Second, I show if the modal truth that stands in need of explanation entails that there are individuals exactly alike in repeatable non-normative respects that cannot normatively differ, then standard expressivist accounts of normative supervenience as a conceptual truth are unsuccessful. Expressivist metasemantics for normative terms, together with constitutive facts about the non-cognitive attitudes essentially involved in normative thought, strongly suggest that repeatable supervenience could not be a conceptual truth. I argue, finally, that although repeatable supervenience bears the marks of a conceptual truth, expressivists should be content to treat it as an ordinary normative truth, and to explain it the same way they explain other normative truths.
- Legal Obligation and its Limits. Law & Philosophy (2019) 38(2):109–147
Judges do not always have a legal obligation to follow the law. This result follows from ecumenical assumptions about the nature of law and legal obligation.
- On Ground as a Guide to Realism. Ratio (2018) 31(2):165-178 .
I argue that a property can be real and fundamental without needing to be invoked in grounding explanations of true nonbasic propositions involving it. Among other things, this entails that Kit Fine's ground-theoretic criterion for realism, which has been influential in metaethics, must be rejected.
- Legal vs. Factual Normative Questions. Notre Dame Journal of Law, Ethics, & Public Policy (2018) 38.
I argue that the distinction between convention-dependent normative quesitons and convention-independent ones explains the differential classification of norms in contracts and torts as legal or factual under the common law
- The Limits of Law in the Evaluation of Mitigating Evidence (with Erin Miller) American Journal of Criminal law (2018) 45:167–201.
We argue that judicial evaluation of the weight of mitigating evidence at capital sentencing based on precedential reasoning or legal rules violates the Constitution. The Constitution demands moral not legal consideration of mitigating evidence. We clarify the difference between these two modes of consideration.
- What Unconditional Credence in Individual Desert Claims Does Retributivism Require? Illinois Law Review Onl. (2018) 138.
Punishing a person based on low unconditional credence in their deservingness to be punished is consistent with retributivist deontological principles. Negative retributivism absolutely prohibits the intentional or knowing infliction of undeserved harm on individuals identified as undeserving, not the intentional or knowing infliction of risks of undeserved harm on individuals. Meanwhile, the knowing infliction of undeserved harm on some unidentified individuals generates not overriding reasons against punishment, but pro tanto reasons against punishment that are to be weighed against other non-overriding reasons for punishment like crime prevention. The upshot is that uncertainty regarding any identified person’s deservingness to be punished does not entail that punishment is generally impermissible if negative retributivism is true. One might be misled into thinking that impossibly high levels of unconditional credence in individual desert claims is morally required by failing to distinguish our actual criminal law practices, which are extremely harsh and unjustifiable, from criminal law as it ought to be.
- How to Be Impartial as a Subjectivist. Philosophical Studies (2016) 173:757–779.
The metaethical subjectivist claims there is nothing more to a moral disagreement than a conflict in the desires of the parties involved. Recently, David Enoch has argued that metaethical subjectivism has unacceptable ethical implications. If the subjectivist is right about moral disagreement, then it follows, according to Enoch, that we cannot stand our ground in moral disagreements without violating the demands of impartiality. For being impartial, we’re told, involves being willing to compromise in conflicts that are merely due to competing desires–the parties to such conflicts should decide what to do on the basis of a coin flip. I suggest that Enoch is mistaken in his conception of what it means to be impartial. Once impartiality is properly construed, standing one’s ground in desire-based conflicts, whether or not moral values are at stake in the conflict, is consistent with being impartial. I defend a view on which impartiality can be understood in terms of features of our desiring attitudes. An agent acts impartially in desire-based conflicts whenever she is motivated by a final (i.e. non-instrumental) desire that aims at promoting the wellbeing of persons in a way that is insensitive to the identities of persons and their morally arbitrary features like their gender or skin color. Based on the account, I explain where Enoch’s discussion of the argument goes wrong, as well as why responses to the argument from Enoch’s critics have so far missed the mark.
- Why Motives Matter. Yale Law Journal (2014) 123:1070–1116
Legal rules and regulations are routinely rationalized by appeal to the incentives they create. This Note examines an important but misunderstood fact about incentives–namely, that they often "crowd out" the natural motivations that citizens have to engage in socially valued behavior, such as a sense of civic duty, a commitment to personal growth, and charity towards others. The “crowding out effect” of incentives has traditionally been viewed as problematic because of cases where it renders incentives counter-productive–when fear of legal sanction or desire for financial reward substitutes for other forms of motivation in agents, this often leads to less of the socially valued behavior regulators sought to incentivize. In contrast, I explore whether the effect of legal incentives on our motivational psychology might be inherently regrettable in some cases, quite apart from the effect on behavioral outcomes. I show that a reframing of the crowding out effect that takes seriously the inherent value that resides in our "higher motives" generates insights into a variety of legal phenomena, including doctrinal rules in intellectual property, contracts, and torts; and a neglected theory for legal reformation, one that bears on the choice between rule- and standard-based legal directives and on the strategic use of the law to improve the way citizens conceptualize their obligations to each other.
- How Folk Beliefs about Free Will Influence Sentencing. New Criminal Law Review (2013) 16:449–493.
Do results in neuroscience and psychology that portray our choices as predetermined threaten to undermine the assumptions about free will that drive criminal law? This Article answers in the affirmative and explains why a revision in the law’s assumptions is morally desirable. Problematic assumptions about free will have a role to play in criminal law not because they underlie substantive legal doctrine or retributive theory, but because everyday actors in the sentencing process are authorized to make irreducibly moral determinations outside of the ordinary doctrinal framework. Jurors, judges, and legislators are each required, at key points in the sentencing process, to make moral judgments that cannot be reached without reference to the person’s own understanding of free will. As a result, sentencing actors give legal effect to widely-held folk beliefs about free will, beliefs that the evidence suggests are scientifically suspect and morally distorting. The relevant beliefs make adjudicators less likely to attend to the underlying causes of crime, such as social deprivation; a tendency that biases adjudicators against relevant arguments for mitigation in sentencing. Modern science could have an important corrective effect in this context.