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Abstract:
In this encyclopedia entry I deal briefly with whether the immorality of conduct is a necessary condition for its criminal prohibition, and then at greater length with the more controversial question of whether conduct's immorality is a sufficient condition for its criminal prohibition. On the latter question, I present and then critique the "liberal" views of J.S. Mill, Joel Feinberg, H.L.A. Hart, and Jonathan Schonsheck, the "liberal perfectionist" views of Michael Moore and Joseph Raz, and the conservative views of Patrick Devlin. I also discuss the relation between the criminal proscription of offensive conduct and the criminal proscription of "harmless immoralities".

Abstract:
In this fairly lengthy essay, I attempt to bring theoretical unity to the general part of the criminal law by viewing the issues of the general part - the voluntary act requirement, mens rea, culpability, attempts, defenses, etc. - through a controversial but plausible lens, namely that legal wrongs justify criminal punishment when their commission indicates negative desert commensurate with that punishment. In exploring the question what acts (or other things) justify punishment, I take positions, sometimes unorthodox, on such matters as what should count as an attempt, is self-defense really a justification, and should the defense of duress apply to nonhuman threats, among (many) others. In the last third of the essay, I discuss the special part of the criminal law, with particular emphasis on Feinberg's work on the moral limits of the criminal law and on criminal liability for omissions.

Abstract:
Should countries have constitutions? Should there be American or Canadian style judicial review of constitutional questions? Should constitutions have provisions establishing rights? Or is there a fundamental right to decide democratically the most important issues confronting us, and particularly, the content of the rights we possess?

These questions are frequently not distinguished, with the predictable result that an answer to one is taken to be an answer to another. I intend, however, to make it clear that and why they are separate questions.

constitutions, judicial review, moral rights, democracy

Abstract:
Should countries have constitutions? Should there be American or Canadian style judicial review of constitutional questions? Should constitutions have provisions establishing rights? Or is there a fundamental right to decide democratically the most important issues confronting us, and particularly, the content of the rights we possess?

These questions are frequently not distinguished, with the predictable result that an answer to one is taken to be an answer to another. I intend, however, to make it clear that and why they are separate questions.

Constitutional Law, Jurisprudence, Moral Rights, Judicial Review

Abstract:
Larry Kramer has written an awesome book, and we mean awesome in its original and now archaic sense. The People Themselves is a book with the capacity to inspire dread and make the blood run cold. Kramer takes the theory du jour, popular constitutionalism (or popular sovereignty), and pushes its central normative commitments to their limits. The People Themselves is a book that says boo to the ultimate constitutional authority of the courts and hooray to a populist tradition that empowers Presidents to act as Tribunes of the People and has even included constitutional interpretation by mob. Along the way, Kramer offers a rich and powerful interpretation of American constitutional history, exposing ideas that have long been submerged, and stimulating a fundamental reappraisal of the contemporary ascendancy of the United States Supreme Court as the ultimate and final expositor of constitutional meaning.

This Review offers a critical assessment of The People Themselves. In Part II, we provide a brief recapitulation of the main themes of The People Themselves, tracing the story of popular constitutionalism from before the Revolution through the founding era to the present day. We then undertake in Part III a careful examination of Kramer's central concept by answering the question, What is popular constitutionalism? From analytic reconstruction, we move to normative assessment in Part IV, which states the case in favor of judicial supremacy and against popular constitutionalism. In Part V, we conclude this Review with observations about the paradoxical nature of Kramer's discussion of popular acceptance of judicial supremacy and an observation about the value of The People Themselves: Kramer's book makes an important contribution to constitutional theory by pushing the idea of popular constitutionalism to its limits.

constitution, popular constitutionalism, legitimacy, popular sovereignty, democracy

Abstract:
The absence in Anglo-American law of any general duty to rescue others from harms - the legal permission to be a Bad Samaritan - has been both criticized and defended in numerous articles and books. There are, however, a number of exceptions to the legal permission that are enforced through the criminal law. Thus, one has a duty to rescue another if he has caused that person's peril, if he has previously agreed to rescue that person, if he is that person's husband or father, and so on. These exceptions to the "no legal duty to rescue" principle have received very little scholarly attention. Yet they raise a number of interesting issues, both theoretical and practical. My paper brings many of these issues to light and in some instances tentatively suggests how they should be resolved. My ambition, however, is not to have the last word on the issues' analyses, but is, rather, primarily to interest criminal law scholars in the issues I survey.

Abstract:
"Demystifying Legal Reasoning" defends the proposition that there are no special forms of reasoning peculiar to law. Legal decisionmakers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. Part II (abstracted here) addresses common law reasoning, when prior judicial decisions determine the law. Part III addresses interpretation of texts. We conclude that, in both areas, the popular view that legal decisionmakers practice special forms of reasoning are false.

In Chapter 2, we propose that there are two plausible models of common law reasoning, and only two. One is the natural model, in which courts resolve disputes by deciding what outcome is best, all things considered. The other is the rule model, in which courts treat rules announced by prior courts as serious rules of decision, then revert to natural decisonmaking when rules provide no answers. Despite the inescapable flaws of serious judicial rules, the rule model of common-law decisionmaking has advantages that we believe justify courts in adopting it.

In Chapter 3, we explain why other supposed methods of legal reasoning are spurious. Analogical decisionmaking based on factual similarity between cases is either intuitive or deductive. If the process of identifying important similarities is intuitive, the precedent case does not constrain the outcome of the new case in any predictable or even detectable way. If the process is deductive, it is the rules or principles that govern similarity, rather than the outcome of the precedent.

We also reject the possibility of reasoning from legal principles. As a matter of logic, legal principles cannot operate in the way their proponents suggest, as a medium by which past decisions constrain the outcome of natural reasoning in current cases. The notion of weight is too elusive, and the criterion of fit with prior decisions is too malleable, to sustain the argument that legal principles guide judges in reaching decisions. Moreover, if legal principles could in fact effectively constrain decisionmaking, their effects would be pernicious: legal principles entrench past errors without securing the benefits associated with legal rules.

In Chapter 4, we address both the problems judges face as rulemakers and the descriptive gap between the rule model of decisionmaking we have proposed and prevailing judicial practice. Practices that appear to contradict the rule model of decisionmaking may have developed in response to the special problems that arise when a single authority must both resolve a particular dispute and also announce rules for a broader class of future cases.

Abstract:
This essay analyzes and compares different approaches to the problem of legal precedent. If judges reasoned flawlessly, the ideal approach to precedent would give prior judicial opinions only the weight they naturally carry in moral reasoning. Given that judges are not perfect reasoners, the best approach to precedent is one that treats rules established in prior decisions as authoritative for later judges. In comparison to the natural model of precedent, a rule-based model minimizes error. A rule-based model is also superior to several popular attempts at compromise, which call on judges to reason from the results of prior cases or from principles immanent in the body of precedent.

The principal drawback of a rule-based model of precedent is its seeming resistance to change. After defending the rule model against its competitors, we discuss a variety of refinements that clarify the model and make it more amenable to legal reform. Topics covered include identification of precedent rules, preconditions for authority, decision-making in the absence of a precedent rule, and overruling.

legal precedent, judicial reasoning, rule-based precedent, legal decision making

Abstract:
Even after 200 years, Marbury v. Madison continues to generate scholarly attention. There is a huge and rich literature on the merits and implications of the Marshall opinion apart from its assertion of judicial review. Nevertheless, the main body of the vast Marbury oeuvre is devoted to judicial review. Is judicial review provided for in the Constitution? If not, has its legitimacy been established other than by constitutional provenance? What is the scope of judicial review? In other words, to what governmental acts is it applicable? Finally, what is the force of judicial review? Does it have stare decisis effect as well as res judicata effect? And if it has stare decisis effect, is that effect as strong as or stronger than the Supreme Court's gloss on Marbury in Cooper v. Aaron implies?

In this paper I focus on the force question, its relation to the so-called countermajoritarian difficulty, and to what extent attacks on Cooper v. Aaron are meritorious.

Marbury v. Madison, Aaron v. Cooper, judicial review, consititutional law

Abstract:
In this paper I shall focus on a right that, along with the right against arbitrary arrest and punishment, the right to a fair trial, the right not to be tortured or inhumanely punished, and the right of freedom of religious belief, has perhaps the strongest claim for being a core human right, namely, the right of freedom of expression.

But is there a right of freedom of expression? It is surely widely thought so. However, the grounds, scope, and force of such a right are vigorously contested. What activities does it apply to? (Does it protect specific activities, such as writing and speaking? Or does it protect any activity intended to communicate an idea? Alternatively, does it protect the receipt or formation of ideas from whatever source? Or is its focus neither the communication nor the receipt of ideas but rather the reasons behind those acts that are said to violate the right?) Whom does freedom of expression restrict (only government, or large private entities, or everyone)? Does it have an affirmative aspect to it, requiring government or others to expend resources to further it and protect it? And what institutional mechanisms are consistent with it? For example, if freedom of expression requires that government not preempt others' assessments of the importance of speech, then there cannot be a governmentally-enforced (judicially-enforced) free speech right that turns on assessments of the importance of speech.

Finally, does freedom of expression have a secure philosophical underpinning? Or does it, like freedom of religion, ultimately rest on the philosophically dubious idea of "epistemic abstinence"? If so, is it possible nonetheless to identify a core set of acts that can form the basis of a principled and administrable human right of freedom of expression.

Abstract:
There is an ongoing debate in contemporary jurisprudence over whether law, properly conceived, is capable of incorporating morality. And these debates have their important practical analogues, especially in American constitutional law. For this is where lawyers and scholars argue about whether, for example, the guarantees of equal protection, freedom of speech, and the free exercise of religion, as well as the prohibitions on cruel and unusual punishments and unreasonable searches and seizures, require courts and other governmental decisionmakers to adhere to the correct moral principles regarding equality, freedom of speech, freedom of religion, punishment, and (locational) privacy. That these and other constitutional clauses appear to speak in moral language is relatively uncontroversial, but far more controversial is what it means for authoritative law to speak in moral language, and how, if at all, such language connects law with what it is simply and pre-legally morally right (and wrong) to do.

These debates about the status of morality in legal argument are important, but our goal here is not to engage them frontally. Rather, we wish to illuminate a particular aspect of these debates. And that aspect is the logic of the incorporation by law of morality, and the way in which, if at all, law can retain its lawness and retain its ability to perform law's essential functions while still being open to the full universe of moral considerations. In a word, we do not believe that this is possible, and thus we believe, and shall argue here, that even when law incorporates morality it can only serve law's primary and essential functions if it has a considerable degree of resistance to the pressure of at least some morally correct moral claims. In other words, we strive here to make the moral argument for law's ignoring of at least some moral arguments in legal decision-making.

positivism, rules and standards, incorporation of morality

Abstract:
In this essay I take up the question of who is entitled to "academic freedom." By academic freedom I do not mean whatever first amendment rights professors and students possess with regard to the content of published research, class discussion, and informal remarks. That is a nettlesome topic, to be sure, but it is not mine, primarily because academic freedom is thought to extend to professors at private universities that are beyond the reach of the first amendment. Rather, by academic freedom I mean that freedom from job reprisals that is due academics when functioning as academics. And I argue that only when academics are so functioning is academic freedom their due.

On many campuses today there is a sizeable number of academics who are not so functioning in their publications or in their classrooms. Rather, they are engaging in crude political polemics. That is because disciplinary standards have vanished from many departments, especially in the humanities and social sciences, largely due to the confluence of identity politics and crude postmodernism, and abetted by the overwhelming political orthodoxy of the academy. If faculty are not faithful to arguments and evidence, assessed by traditional disciplinary standards, but are engaging in political polemics undisciplined by such standards, then actual politicians have as much claim to control the academy as do these politicized ersatz academics. For academic freedom is not their due.

academic freedom, identity politics, post modernism

Abstract:
In this essay I approach the topic of legal objectivity by analyzing law's possible relationships with morality, rules, standards, and principles. I argue that law's function is to settle moral controversies, which renders problematic law's incorporation of morality and points to the moral desirability of determinate rules, even though such rules will conflict with morality. I argue that legal rules can be objective. On the other hand, I deny that there are any norms that can play the role that so-called "legal principles" are said to play, whether in Dworkin's account of them or in Alexy's.

objectivity, rules, standards, principles, morality, settlement

Abstract:
Deontologists believe that agents are morally constrained in ways that preclude always being able to maximize good consequences and minimize bad ones. For example, deontologists would deny that one is morally permitted to torture an innocent person, even if doing so will save three other innocent persons from torture.

On the other hand, most deontologists concede that if the good or bad consequences of violating these deontological restrictions become sufficiently weighty, the restrictions give way and the agent is morally permitted to act as a consequentialist. The point at which consequences overcome the deontological restrictions is the deontological threshold, and those deontologists who think there is such a threshold -- for example, Michael Moore, Thomas Nagel, and Robert Nozick -- are threshold deontologists.

Threshold deontology has been almost completely neglected in the deontological literature. In this article, I examine aspects of threshold deontology, in particular pointing out peculiarities attributable to the presence of any deontological threshold, and raising a general question, previously raised by Anthony Ellis, of whether such a threshold can be rationally defended.

Abstract:
My thesis is simple: law is essentially formalistic. My plan to establish this thesis is as follows: First, I define what I mean by formalism. Second, I present my argument for why law is essentially formalistic. I maintain that the problem law is meant to solve is that of information, not immoral motivation - that men are not gods, rather than that men are not angels. To solve this problem, law must consist of determinate rules. Standards are unhelpful. And theories of law such as the "justice-seeking Constitution" or other heavily moralized versions of constitutional or statutory interpretation recreate the very problem law is meant to solve.

Third, I identify the basic dilemma that formalistic law presents and then canvass various methods that have been advanced as solutions to that dilemma. The dilemma raises the question whether formalism, and hence law, is a possibility for fully rational agents who understand its nature. Finally, I raise, not the question whether formalistic law is possible, but the question whether formalistic law is by its very nature a violation of deontological side constraints. I conclude that law may turn out to be a moral possibility only for consequentialists.

rules v standards, settlement function, coordination

Abstract:
The "problem" of judicial review turns out to be a number of different problems that should be disaggregated. There are two main categories of such problems. The first concerns the fact that the legal norms being judicially enforced have nondemocratic provenances. I shall call this the "democratic" critique of judicial review. What is important to note about the democratic critique is that democratic majoritarianism comes in various shapes and degrees. The democratic critique may or may not apply to constitutional entrenchments of rights, constitutional entrenchments of powers, bicameralism and even parliamentary systems (as opposed to plebiscitary rule). Moreover, the democratic critique applies, not to the subjecting of legal norms to judicial interpretation, but to the origin of the legal norms so subject.

The second category of problems concerns the fact that it is the courts rather than some other institution that is interpreting the legal norms. Here, it is important to ask how the problems are affected by (1) whether judges are elected; (2) whether the norms they are interpreting are constitutional or statutory; (3) whether those norms deal with the separation of governmental powers, federalism, or individual rights; and (4) whether those norms are determinate rules or vague standards.

In sum, the judicial review "problem" is not one thing but potentially many, some more serious than others.

judicial review, democracy, constitutionalism, rules versus standards

Abstract:
In this encyclopedia entry I take up these questions: What are constitutions? What functions do they perform? And are they on balance desirable? My answer to the first question focuses on the relative entrenchment of constitutional norms relative to other legal norms and not primarily their position in the hierarchy of legal validity. My answer to the second question is that constitutions perform a variety of functions, from setting up governmental institutions and protecting various rights to guarding against various ways governmental decisionmakers can be corrupted or "misincentivized." With respect to the third question, I engage the arguments of super democrats and anti-constitutionalists such as Jeremy Waldron.

constitutions, entrenchment, hierarchy of legal validity, democracy, judicial review

Abstract:
In this essay we take up the question of the non-legal foundations of any legal system, and in particular H.L.A. Hart's notion of the ultimate rule of recognition, the master rule that pedigrees the other rules governing what officials and citizens are legally obligated to do. Initially, we shall raise but not necessarily resolve several questions about Hart's own account of the rule of recognition. But even though we leave those questions largely unresolved, we shall come away from this discussion with a sufficiently firm grasp of the idea of a rule of recognition to proceed to the second part of the essay. In that part we look at the United States Constitution - and the practices that have developed regarding its interpretation and enforcement - through the lens of the idea of an ultimate rule of recognition. And when we do so, we shall encounter some foundational questions about constitutional law and interpretation: Does the rule of recognition in the American legal system change over time, and if so, how does this occur? Has the Constitution itself changed other than by organic processes - processes prescribed by the Constitution itself - and, if so, how? If interpreters employ different interpretive methodologies in interpreting the Constitution, is there one constitution, or are there several (overlapping) constitutions? And if the latter, how is stability achieved? If the Supreme Court (or some other governmental body with final interpretive authority) misinterprets the Constitution, what is the legal status of such a misinterpretation, and why? And finally, given that one function of a constitution is to entrench the "rules of the game," and given that any entrenched rule will suffer from over- and under-inclusiveness with respect to its background purposes, how is it possible for officials and citizens to accept as binding the ultimate rule of recognition and the constitutional and subconstitutional rules it pedigrees?

Our enterprise in this paper is primarily conceptual and descriptive rather than normative. We shall be attempting to identify the rule of recognition in the United States. Or rather, we shall be attempting to identify the multiple rules of recognition in the United States, for we believe that actual American recognitional practices are multifaceted. There is also, however, a normative element in our paper, for we maintain that settlement for settlement's sake is an important legal, social, and moral value, and yet our existing recognitional practices inevitably put settlement at risk.

rule of recognition, judicial review, judicial supremacy, interpretation

Abstract:
"Textualism" is a very general and abstract term that represents a variety of views about the interpretation of legal texts. One strand of textualism is conceptual and descriptive; this strand makes claims about what texts actually mean. Another strand of textualism is normative; this strand makes claims about how judges ought to proceed when they interpret particular kinds of legal texts, such as constitutions and statutes. In the first part of this paper, we are particularly concerned with an especially strong form of conceptual textualism - the position that texts can be interpreted without any reference, express or implied, to the meaning intended by the author of the text. The defining feature of this form of textualism is the insistence that intentions play no role in the production of meaning, and so we call this view "intention free textualism," or "I-F-textualism." We do not know if anyone actually is an I-F-textualist so defined, although sometimes loose remarks by some self-identifying as textualists suggest that they hold this position. In any event, whether or not there is anyone who actually is a textualist of this stripe, it will be useful to drive a stake through the heart of such a position. Doing so will make it clear that what is at stake in the so-called dispute between textualists and intentionalists is not the conceptual point about what interpretation is and what determines texts' meanings. Rather, it is the normative point about what evidence of authorial intent authoritative interpreters of legal texts should or should not consider, or whether interpreters should look to the intentions of actual authors or hypothetical ones.

Part One, therefore, will establish that textualism of the I-F type is a conceptual impossibility. Regardless of what position people claim to hold, no one can be such a textualist. Part One will establish that texts mean what their authors mean by them. Indeed, texts can only be identified as texts by reference to authorial intent. All of this is consistent, of course, with the possibility that one author might appropriate the marks made by another author and intend a meaning by them that is different from the meaning intended by their creator. It is also consistent with a reader's imagining what a text would mean had it been authored by someone other than its actual author. Leaving these possibilities aside, however, the point Part One establishes is that texts mean what their authors intend them to mean.

In Part Two we deal with how the actual meaning of a legal text - what its author(s) intended it to mean - might differ from the authoritative meaning that an authoritative interpreter gives it. Essentially, such a divergence can be produced whenever the authoritative interpreter is debarred from considering certain types of evidence of authorial intent. The divergence occurs when the excluded evidence, had it been considered, would show the authorial intent to be different from what it appears to be given the restricted set of evidence.

textualism, conceptualism, actual meaning, intended meaning, legal texts

Abstract:
May Congress enact laws that instruct courts and other interpreters how to interpret future laws? Although Congress has understood its powers to include such a power, and although a recent article calls for Congress to exercise such a power more extensively than it has, we argue that Congress lacks such a power. Thus, previous exercises of the alleged power, such as the Dictionary Act, are unconstitutional. Moreover, we argue that arguments for such a power premised on the courts' possessing the power to constrain Congress through canons of statutory interpretation rest on an equally dubious foundation: judicial canons of construction that dictate outcomes different from what Congress means those outcomes to be - canons such as the Ashwander canon - are themselves constitutionally infirm. We argue that neither the courts nor Congress through canons or rules of interpretation can legitimately constrain the interpretation of statutes.

Abstract:
In this essay I explore the relationship between constitutionalism and democracy, between both of these notions and judicial review, and how all three notions relate to moral rights.

constitutionalism, democracy

Abstract:
My topic in this essay is a major fault line within normative theory. More precisely, it is a major fault line within that part of a normative theory that deals with the content of our moral obligations to others. When I refer to moral obligations here, I am referring to those acts that morality demands of us such that it permits force or its threat to be employed to secure those acts. Moral obligations as I use the term are thus candidates for legal enforcement.

I argue that much of what is debated within liberal political/moral theory can be usefully illuminated by dividing liberal conceptions of justice into two major camps. In one camp are those conceptions that are thoroughgoingly impartialist. That is, their impartialism applies to any good over which people might make competing claims. I shall refer to this group of conceptions as Unrestricted Impartialism, or UI.

Opposed to this camp of liberal conceptions of justice is that group of conceptions that limits impartialism to some goods but puts other goods beyond the writ of justice (enforceable morality). I shall call this group of conceptions Restricted Impartialism, or RI.

In this essay, my aim is to paint these two conceptions and their strengths and weaknesses using a very broad brush. In philosophy, the devil is more frequently than not in the details, and broad brush strokes generally obfuscate more than illuminate. Moreover, my metier tends to be fine analytical points and not big picture tableaux. Nonetheless, not only do space limitations preclude in-depth analyses of the conceptions I discuss, but my message is a wholesale rather than retail one, namely, that there is a single and major gulf dividing liberal conceptions of justice into these two distinct camps. Analytical fine points about these conceptions are beside the point.

normative theory, moral obligations, legal philosophy

Abstract:
This essay, prepared for a symposium on the role of philosophy in law, suggests that philosophical discipline calls into question several features of practical legal decisionmaking. In particular, philosophical analysis of the practice of following rules shows that complying with legal rules when they dictate outcomes contrary to the rule's objectives is irrational. At the same time, important benefits associated with law depend on unreflective application of legal rules, without reference to underlying objectives.

Philosophical analysis also suggests that the supposed practice of analogical reasoning in law is illusory. Courts cannot make intelligible decisions based on similarities and differences between cases. At the same time, the process of seeking analogies in the facts and outcomes of prior cases can have salutary effects on judicial rulemaking.

This is not to say that philosophers should abstain from analyzing legal practices. Tradition and habit are likely to prevail over philosophical insight in the daily business of judicial decisionmaking.

Abstract:
In this essay I defend the unfashionable, maligned, and ridiculed view that interpretation of the Constitution is a search for its authorially-intended meaning, and that constitutional interpretation is no different in this respect from the interpretation of shopping lists, toy assembly instructions, and ordinary conversations.

Adler & Bix, legal philosophy and jurisprudence, constitutional interpretation

Abstract:
American style judicial review, until recently much celebrated for its rendering legislative and executive actions subject to judicial policing for violations of individual rights, is now subject to mounting attacks under the banner of popular sovereignty. Many who were for a long time quite sanguine about the so-called "countermajoritarian difficulty" have apparently now become convinced that it is a countermajoritarian nightmare. Larry Kramer wants to take constitutional interpretation in the United States away from the Supreme Court and put it in the hands of "the People," even in cases where individual rights are at stake. Mark Tushnet wants the U.S. Constitution to be "thinned," that is, reduced from its welter of specific provisions to the broad platitudes of its Preamble and the Declaration of Independence. On a more theoretical level, Jeremy Waldron has been consistently denouncing judicial review and the possibility of its invading other parts of the Anglophone world for its antidemocratic character, and particularly so when it purports to protect our rights against the government. And many other theorists have joined the piling on, on both positive and normative grounds.

These attacks come, perhaps ironically, but perhaps unsurprisingly, as judicial review has taken hold in Europe and is poised to take hold elsewhere. My purpose here is to inquire whether these attacks have merit, and if so, just what that merit is. Is American style judicial review as a means of protecting our rights to be celebrated or condemned? Or is that a question that can even be answered independently of some partisan view of what our rights are and some empirical hunches regarding the best strategies for vindicating them?

In what follows I shall not give a definitive answer to these questions, though I shall attempt to rule out some answers. What I will do is provide a framework for thinking about these questions and their possible answers.

judicial review, moral rights, constitution

Abstract:
In this essay I take up the question of whether and how we are harmed when government compels us to utter propositions whose truth we reject or which we find offensive for other reasons. I conclude that none of the various explanations offered - that we suffer harm to our autonomy, to our epistemic capacity, to our integrity, to our control over self-presentation, to our compliance with social norms or performative norms, or to our preference not to deceive others - is ultimately satisfactory. Along the way I offer a taxonomy of the Supreme Court's "compelled speech" cases, arguing that only West Virginia State Board of Education v. Barnette and Wooley v. Maynard actually raise the issue of compelled speech. I also introspect about the phenomenology of uttering propositions we do not believe, and how that compares to singing such propositions in hymns, or reciting them in plays.

compelled speech, freedom of belief, autonomy

Abstract:
Last year's Supreme Court decisions on affirmative action, Gratz and Grutter, are dubious as constitutional law, bringing to mind what John Hart Ely said about Roe v. Wade: "[I]t is not constitutional law, and gives almost no sense of an obligation to try to be." There was at best a cosmetic difference between the University of Michigan undergraduate school's crude "20-points-extra for minority applicants" (which the Court struck down) and the Law School's "holistic" and disingenuous preferences (which the Court upheld). The idea that the Law School has a "compelling state interest" in these racial and ethnic preferences is utterly inconsistent with the Court's suspect classification-compelling interest jurisprudence now extending back over many decades.

Yet the Grutter decision does not require public colleges and universities to have racial preferences in admissions, much less in faculty hiring or promotions. The decision merely permits admissions preferences. So the question is thrown back to the universities, or to the state legislatures, to decide about preferential affirmative action as a matter of policy. And in this article, we suggest that racial preferences, at least in higher education, have proved very bad as a matter of policy.

First, if you are going to give racial preferences, you have to identify people by race. It is not only invidious for the government to do that, it is increasingly impossible as people marry and have children outside the racial "affirmative action" boxes.

Second, racial preferences are bad for students and for educational institutions themselves. Preferences dilute admissions standards that, while far from perfect, are much better than "race" as admissions criteria. Preferential admissions tend to lower educational standards too, as schools try to disguise the educational gap between those admitted preferentially and those admitted by standard criteria. One of the worst outgrowths of racial preferences is that students admitted through such preferences are systematically mismatched educationally. A generation of minority students, who would have done well, or certainly no worse than average, at colleges where they would have been admitted on their merits, have instead been "cascaded" upwards to colleges where their preparation is significantly below average and where, entirely predictably, they do poorly.

Preferences, moreover, lead to identity politics and racial segregation on campus; they promote nihilism about academic quality; and they create a culture of dishonesty which inevitably spills over into many aspects of educational life. This article urges public - and private - colleges and universities to hold students and faculty of whatever race or ethnicity to the same high standards, and to reject the educational politics of racial and ethnic division which are implicit in preferential affirmative action.

affirmative action, consitutional law, racial preferences, ethnic preferences, higher education, admissions

Abstract:
The nondelegation doctrine has roots that extend as far back as three centuries, or so most of us suppose. In The Second Treatise of Government, John Locke listed four constraints on the legislative power, the last that the power, being derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands.

Most contemporary readers have assumed two things about Locke's statement: First, that the legislative power was the power to make rules for society. Second, that this delegated power to make laws could not be transferred to third parties because the people had never authorized their agents to further delegate. These two principles underlay the conventional nondelegation doctrine, which maintains that if a statutory delegation of discretion to third parties sweeps too broadly, it will constitute an impermissible delegation of legislative power.

In their recent article, Interring the Nondelegation Doctrine, Professors Eric Posner and Adrian Vermeule reconsider the meaning of Locke's epigram and reassess the foundations of the nondelegation doctrine. In their view, the "legislative power" generally references the right to vote on bills in a legislature along with the other de jure powers of legislators. Moreover, Locke's maxim means no more than that the legislature cannot make third parties "legislators" by giving them the power to vote in the legislature. So when Article I of the Constitution speaks of "legislative Powers," it refers to those powers individually held by federal legislators, including most prominently the right to vote on bills. Furthermore, under their "naive" nondelegation doctrine, these are the legislative powers that cannot be delegated to third parties. Under their view, neither Locke's epigram nor the federal Constitution go further and prohibit broad delegations of discretion to third parties because such delegations do not create legislators and hence cannot delegate legislative power. Accordingly, should Congress delegate to some third party its entire power to "regulate Commerce," Congress has not delegated legislative power at all in either a Lockean or a constitutional sense.

Professors Posner and Vermeule deserve praise for reexamining fundamental assumptions about the nature and meaning of legislative power and of the nondelegation doctrine. When scholars don't periodically reconsider conventional wisdom, scholarship stagnates and shibboleths are unreflectively accepted as constitutional gospel.

Having said this, we doubt that they truly have laid to rest either the traditional understanding of legislative power or the conventional nondelegation doctrine. Our disagreements are both normative and descriptive. We cannot discern (and they do not advance) a plausible rationale for simultaneously permitting Congress to delegate large amounts of lawmaking or rulemaking discretion to third parties while strictly forbidding delegations of the right to vote in Congress. Moreover, as an original matter, we believe that Locke and the Constitution used the phrase "the legislative power" to refer to the power to make rules for society and not the ability to exercise the de jure powers of legislators. Hence, if one concludes that Congress cannot delegate legislative powers (either because such grants are not authorized or, alternatively, are implicitly forbidden), one must be worried that at some point, the delegation of large amounts of discretion might constitute a delegation of legislative power.

Furthermore, whatever meaning one should ascribe to the phrase "legislative Powers" found in the Article I Vesting Clause, we think that Posner and Vermeule too quickly reject the conventional reading of Locke's nondelegation principle. Their revisionist reading simply cannot make sense of Locke's repeated claims that only those whom the people have appointed as legislators can make rules for the people. Locke denied that the legislative power entailed the power to make third parties into legislators by delegating to them the right to make laws. He was not merely claiming that those with the legislative power could not cede votes in the legislature.

Finally, we conclude that if Posner and Vermeule applied the relentless criticism that they visit upon the conventional nondelegation doctrine to the naive prohibition on the delegation of legislative voting rights, the naive prohibition would seem equally dead. The "heavy burden" that they insist applies to the conventional nondelegation doctrine makes all implicit constraints extremely dubious. Perhaps we should prepare for two interments rather than one.

Although we have sympathy for the conventional nondelegation doctrine, space considerations prevent us from mounting an adequate defense of it here. Hence, all we claim is that if one concludes that the delegation of legislative power is impermissible (for whatever reason), one must have in mind a prohibition akin to the conventional nondelegation doctrine. If, as Posner and Vermeule claim and as many others believe, the Constitution prohibits the delegation of legislative power, the nondelegation doctrine is alive and kicking.

constitutional law, balance of power, nondelegation, legislative power

Abstract:
In this review essay, I examine and criticize Arthur Ripstein's notions of objectivity and reasonableness that he makes central to the philosophy of both tort law and criminal law. Ripstein holds that what is reasonable conduct is an objective matter that turns neither on how the actor perceives the situation nor on the particular costs and benefits that will accrue to the actor from engaging or failing to engage in the conduct. On the other hand, Ripstein does argue that how conduct appears "objectively" is relevant to the doctrines of self-defense and attempts.

I argue that Ripstein's notions of objectivity and reasonableness are both theoretically untenable and normatively inert. At bottom, the source of Ripstein's difficulty is the point that both risk and appearance are always perspectival-relative to someone's point of view.

Abstract:
Freedom of association, as I understand it, refers to the liberty a person possesses to enter into relationships with others - for any and all purposes, for a momentary or long-term duration, by contract, consent, or acquiescence. It likewise refers to the liberty to refuse to enter into such relationships or to terminate them when not otherwise compelled by one's voluntary assumption of an obligation to maintain the relationship. Freedom of association thus is a quite capacious liberty.

I am going to approach the topic of freedom of association by attempting to illustrate what its denial would look like in each of several domains. I shall then ask why a government might seek to deny it and then, in the article's final section, on what grounds such a denial would violate the rights with respect to freedom of association of those affected.

freedom of association

Abstract:
Do we have constitutional rights that certain states of affairs exist (for example, that I burn an American flag and am not punished); or do we instead have constitutional rights that certain rules not exist (for example, that there be no rule forbidding the burning of American flags on pain of punishment)? I believe that as a positive account of at least most of our constitutional law, our constitutional rights are best conceived as rights against rules. However, the question remains, why should the Constitution concern itself with rules rather than with states of affairs, with rule-differentiated act types rather than rule-independent act tokens? Must not its concern for the former be based on its concern for the latter?

The most plausible explanation for the constitutional concern with rules is that most states of affairs are constitutionally optional - neither forbidden nor mandated. By itself, however, that would not justify a concern with rules. The concern with rules must be based additionally on the fact that rules are temporally extended - that although today's application of a rule produces a state of affairs that is constitutionally permissible, over time the rule will likely produce states of affairs that, in conjunction with other rules, are constitutionally forbidden.

That then raises two final questions: (1) What makes the temporal extension of a rule constitutionally problematic if the same states of affairs could be brought about by the legitimate changing of rules? (2) Why should we assume that a rule will be temporally extended and not repealed at the point that its applications become constitutionally problematic?

Abstract:
Judges and scholars are convinced that the Constitution forbids gerrymandering that goes "too far" - legislative redistrictings that are too partisan, too focused on race, etc. Gerrymanders are said to be unconstitutional for many reasons - they dilute votes, they are anti-democratic, and they generate uncompetitive elections won by extremist candidates. Judges and scholars cite numerous clauses that gerrymanders supposedly violate - the Equal Protection Clause, the Guarantee Clause, and even the First Amendment. We dissent from this orthodoxy. Most of these claims rest on the notion that the Constitution establishes certain ideals about representation in legislatures and about the outcome and conduct of elections. Yet the Constitution nowhere provides that a party's strength in the legislature should roughly mirror its strength in the populace, as the partisan gerrymandering cases suppose. Nor does the Constitution favor competition in legislative races, thereby forcing legislators to draw districting lines that maximize the number of competitive elections. In maintaining that the Constitution establishes districting and election ideals, the critics of gerrymandering have supposed that the Constitution incorporates their preferences about what is fair and just with respect to electoral outcomes. But as we show, there are innumerable reasonable preferences about the composition of districts and legislatures, not all of which can be satisfied simultaneously. More importantly, there is no reason to think that the Constitution enshrines any of these preferences about districting and election outcomes, let alone the critics' particular preferences. We believe that the critics of gerrymandering have made the mistake of imagining that the Constitution incorporates their particular preferences. That is to say, they have sought a constitutional resolution to an ordinary political issue. Unfortunately, the search is futile, for the Constitution does not address the ills, real or imagined, associated with drawing district lines. The Constitution no more regulates gerrymandering than it regulates pork barrel spending or the many advantages of incumbency.

gerrymandering, districting, vote dilution

Abstract:
In this essay I comment on an article setting forth the outline of a methodology for intentionalist statutory interpretation. Although I agree that intentionalism is the proper way to interpret statutes, I raise a conceptual problem that the authors purport to handle but in fact elide.

statutes, interpretation

Abstract:
In the moral realm, our deontic judgments are usually (always?) binary. An act (or omission) is either morally forbidden or morally permissible. Yet the determination of an act's deontic status frequently turns on the existence of properties that are matters of degree. In this paper, I give several examples of binary moral judgments that turn on scalar properties, and I claim that these examples should puzzle us. How can the existence of a property to a specific degree demarcate a boundary between an act's being morally forbidden and its not being morally forbidden? Why aren't our moral judgments of acts scalar in the way that the properties on which those judgments are based are scalar, so that acts, like states of affairs, can be morally better or worse rather than right or wrong?

I conceive of this inquiry as operating primarily within the realm of normative theory. Presumably it will give aid and comfort to consequentialists, who have no trouble mapping their binary categories onto scalar properties. For example, a straightforward act utilitarian, for whom one act out of all possible acts is morally required (and hence permissible) and all others morally forbidden, can, in theory at least, provide an answer to every one of the puzzles I raise. And, in theory, so can all other types of act and rule consequentialists. They will find nothing of interest here beyond embarrassment for their deontological adversaries.

The deontologists, however, must meet the challenges of these puzzles. And for them, the puzzles may raise not just normative questions, but questions of moral epistemology and moral ontology. Just how do we know that the act consequentialist's way of, say, trading off lives against lives is wrong? For example, do we merely intuit that taking one innocent, uninvolved person's life to save two others is wrong? Can our method of reflective equilibrium work if we have no theory to rationalize our intuitions? And what things in the world make it true, if it is true, that one may not make the act consequentialist's tradeoff? I do not provide any answers to these questions any more than I provide answers to the normative ones. But they surely lurk in the background.

threshold deontology, informed consent, preemptive strike, burdens of sacrifice, consequentialism, coercion, duties of rescue, equality

Abstract:
Conventional delegations - statutes delegating Article I, section 8 authority - are familiar enough and have spawned a large literature regarding their constitutionality. Rather than discussing whether Congress may delegate these powers, we wish to shift the focus to delegation of other powers. Starting from the assumption that conventional delegations are constitution, we ask whether Congress may delegate other congressional power, such as those found in Articles II, III, and IV. For instance, we consider whether Congress may delegate the power to admit states and to propose amendments to the Constitution. We also consider whether Congress may delegate cameral authority, such as the House's ability to impeach and the Senate's ability to confirm nominations. Finally, we address whether the Congress may delegate powers to other entities and in the process circumvent or evade powers granted to other branches. We conclude that if one accepts the constitutionality of conventional delegations, one must likewise accept the constitutionality of all manner of unconventional delegations. If the Necessary and Proper clause permits the making of laws outside of the Article I, section 7 process, it likewise permits the approval of treaties outside the Article II, section 2 process. And the same is true for the other unconventional delegations we discuss here. In this way, the delegation of cameral and bicameral power can be a means for "altering," or at least evading, the structural Constitution's most notable features.

delegation, necessary and proper, congress

Abstract:
Gerald Postema argues that Joel Feinberg's harm and offense principles in The Moral Limits of the Criminal Law point toward, but are not co-extensive with, what Postema labels "grievance legal moralism." Grievance legal moralism is a liberal view that posits, as the proper concern of the criminal law, not that a moral wrong has been committed, but that a moral wrong has been committed about which someone has a legitimate grievance. As Postema says, "perhaps it is just and right that Pol Pot suffer for his sins, but it is not right for you or me to exact that suffering, to exact that justice."

In my response to Postema, I raise questions about grievance legal moralism from many angles, including its internal coherence as well as its normative attractiveness, and I conclude that it is of dubious plausibility as a principle for limiting the reach of the criminal law. I also question whether the distinction between criminal law and other methods of handling non-grievance immoralities makes normative sense. Finally, I raise doubts about Postema's ability to meet the challenges of Parfit's "malicious conception" case and Kristol's gladiatorial contest case by claiming, as Postema does, that both involve wrongs that are grievances of the child conceived and the gladiator killed.

paternalism, legal moralism, offense, harm principle, limits of the criminal law

Abstract:
In this encyclopedia entry I set forth my analysis of culpability and its place in a justification of criminal punishment. I argue that culpability is the product of the totality of the risks the actor believes he is unleashing through his willed bodily movement (or through his failure to act) and his reasons for so acting (or omitting). Culpability is also affected by the quality of the actor's deliberation. This risks/reasons analysis of culpability eliminates the separate roles of purpose, knowledge, and recklessness in traditional mens rea analysis and rejects the notion that negligence is culpable. It also casts doubt on traditional inchoate crimes such as the "substantial step" attempt, conspiracy, and solicitation as well as on the traditional requirements of complicity and instead asks only whether the actor believes he has unleashed risks of harm or only intends to unleash risks at some future time.

culpability, retributivism, desert, recklesness, omissions, purpose, knowledge, negligence, intention

Abstract:
In this book I offer a skeptical appraisal of the claim that freedom of expression is a human right. I examine the various contexts in which a right of freedom of expression might be asserted and conclude that such a right cannot be supported in any of these contexts. I argue that some legal protection of freedom of expression is surely valuable, though the form such protection will take will vary with historical and cultural circumstances and is not a matter of human right.