Numerous legal theorists argue that corrective justice is distinct both conceptually and normatively from distributive justice. In particular, they contend that it is an error to view corrective justice as ancillary to distributive justice, necessary only to maintain or restore a preferred allocation of benefits and burdens. The specific arguments of these legal theorists are addressed and shown to be inconclusive in relation to what I term the Dependence Thesis. The Dependence Thesis holds that a normative account of the occasions of corrective justice is dependent on a larger theory of distributive justice. The nature of this dependence relation varies from theory to theory. The role of tort compensation schemes within libertarian, liberal egalitarian, and utilitarian theories of distributive justice is discussed. It is argued that such theories provide comprehensive and critical perspectives on historical corrective practices, neither simply endorsing nor invalidating them. An alternative normative account of the occasions of corrective justice, offered by legal theorists who support the autonomy of corrective justice from distributive justice, is also discussed.

This article argues that the disjunctive obligation in contract law can be justified on moral grounds. It argues that from a perspective that regards human beings as free agents capable of choice and therefore independent of material objects, the contracting parties must be understood as agreeing to mutually guarantee one another's ownership of a certain value. This guarantee can be fulfilled either by handing over what was promised or by making up the difference between the market value and the contract value of what was promised. The plaintiff's contractual right is therefore a right that the defendant perform or pay. This makes expectation damages intelligible as a vindication of the plaintiff's contractual right. Moreover, the disjunctive obligation can be reconciled with all the doctrines that others take to be decisive arguments against it—with the doctrines of specific performance, inducing breach, impossibility, preexisting duty consideration, and nominal damages.

In this paper I argue that economic theories have never been able to provide a coherent explanation of the causation requirement in tort law. The economic characterization of this requirement faces insurmountable difficulties, because discourse on tort liability cannot be reduced to a cost-benefit analysis without a loss of meaning. More seriously, I try to show that by describing causation in economic terms, economic theories offer an image of the practice in which the participants incur in logical contradictions and develop patterns of inference that are far from intuitive. For this reason, efficiency cannot be the fundamental principle underlying tort law. Finally, I suggest that economic analysis of law can provide a genuine explanation of certain aspects of legal practice if it relinquishes its reductionist claims.

The wishes of the dead seem to have normative significance. We not only respect last wills and testaments, but we take seriously what the dead loved, what they valued, even after they have long escaped this mortal coil. But this presents a philosophical puzzle. Is this a normatively justified practice? Why should the fact that some dead person preferred state of affairs x to state of affairs y be a reason to bring about x rather than y—especially if there is otherwise reason to promote y rather than x? In this paper, I argue that extant solutions to this problem are inadequate and propose an alternative. I argue that the normative significance of the wishes of the dead is to be found not in the dead's well-being or interests, but instead in the relations of friendship we bear to the dead.

Legal reasoning is commonly thought of as being based on either rules or analogies. More specifically, there is ongoing debate regarding whether precedential reasoning is best characterized as rule-based or analogical. This article continues that work by comparing recent and representative approaches from each camp, namely, Stevens's analogical model and the “rule-based” model of Horty and Rigoni. In the course of the comparison improvements on each approach are suggested and the improved models serve as the basis for the ultimate evaluation. The evaluation demonstrates that the “best” approach depends on the goals one has in theorizing legal reasoning as well as the jurisprudential assumptions one is willing to make.

This paper provides a taxonomy of the different kinds of theory that may be offered of an area of law. We distinguish two basic types of philosophical accounts in special jurisprudence: nonnormative accounts and normative accounts. Section II explains the two central subspecies of nonnormative accounts of areas of law: (i) conceptual and ontological theories and (ii) reason-tracking causal theories. Section III explores normative theories of areas of law. Normative accounts subdivide into detached and committed normative accounts. Detached or committed normative accounts can be subdivided further into the following cross-cutting categories: (i) pro tanto or all-things-considered, (ii) hyper-reformist or practice-dependent, (iii) taxonomical or substantive. Section IV shows that our taxonomy does not presume a prior commitment to any particular school in general jurisprudence. This paper clarifies methodological confusion that exists in theorizing about areas of law, and contributes to the subfield of thinking generally about special jurisprudence.

Anarchy is often contrasted with law, order, or security. But anarchist societies, by which I mean societies that lack a monopoly of coercive force, need not be lawless. They can develop sophisticated legal systems that regulate the behavior of their members and protect their rights. International law, market anarchism, and other models of anarchism such as the one proposed by Chandran Kukathas already exhibit or could plausibly exhibit complex legal rules and institutions. I will show that insofar as these models rely on consent, they all share similar structural flaws, namely, that they cannot meet basic rule-of-law values such as equality before the law and access to legal remedies for wrongs that embody and respect individual moral equality, even minimally conceived. The implication of this argument is not to vindicate state-based legal systems. Rather it is to show that legal systems, state-based or not, must have a strong nonconsensual, coercive element: the process of making, applying, and enforcing law must, to some extent, be severed from consent if law is to perform its function of providing for minimal justice.

This article argues that legal proof should be tantamount to justified belief of guilt. A defendant should be found guilty just in case it is justified to believe that the defendant is guilty. My notion of justified belief implies a threshold view on which justified belief requires high credence, but mere statistical evidence does not give rise to justified belief.

Richard Arneson finds that Joel Feinberg's “principled arguments against hard paternalism are defective and merit rejection.” Furthermore, Arneson concludes with a tone of finality, “there is no successful case against hard paternalism to be made.” This diagnosis seems especially dire coming from Arneson, who formerly defended hard antipaternalism against Feinberg's revisionistic “soft” antipaternalism. On Feinberg's behalf I will try to show how Arneson's critique downplays certain costs of hard paternalism. These costs may be worth paying, but (I think Feinberg believed) their magnitude itself constitutes a powerful case against paternalism.

Yaffe's handling of two general questions is assessed in this review. The first question is why mere attempts (as opposed to successful wrongdoing) should be made punishable in a well-conceived criminal code. The second question is how attempt liability should be conceived in such a code. As to the first question, Yaffe's nonsubstantive mode of answering it (in terms of his “transfer principle”) is contrasted to answers based on some more substantive desert-bases; Yaffe's own more substantive kind of answer (in terms of a desert-base of “faulty modes of reason recognition and response”) is examined in light of the implication that the traditional requirements of trying and intending are mere proxies for faulty reason recognition and response as the basis for blaming and punishing attempts. As to the second question, Yaffe's analysis of trying in terms of a “guiding commitment view” is examined in some detail. Canvassed here are the subquestions of: (1) whether appropriate assessibility by certain norms of rationality can give the nature of intending and thus of trying; (2) whether the externally de dicto intent requirements of criminal law statutes can easily be interpreted and applied by standard, extensional methods; (3) whether the distinctions between various kinds of elements within the content of intentions, can be justified ontologically or only practically; (4) whether actors necessarily intend results of their actions that are “very close” to other results that clearly are intended, and if not, whether such actors are nonetheless just as blameworthy for those results as if they did intend them; and (5) whether intention with respect to circumstance-elements differ (in either their psychology or in their moral effect) from beliefs with respect to such circumstance-elements.

In an impressive and important article, Rights Against Rules: The Moral Structure of American Constitutional Law, Matthew Adler maintains that constitutional rights are “rights against rules: they protect citizens against the legislative enactment and judicial application of particular rules (rules with wrong act-type predicates); they do not provide guarantees that citizens can perform any particular sorts of actions free of governmental interference.”Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998). As Adler writes:

Philosophers have long debated whether there is a morally significant difference between acting with the intention of bringing about some state of affairs and acting with the mere awareness that that state of affairs will occur as an unintended side effect of what one is trying to achieve. This controversy is mirrored in the criminal law in a number of places, most notably with respect to the question of whether the mens rea for the crime of murder should require the intent to cause death or only the knowledge that it will occur. In this paper I propose what I believe is a satisfactory way of drawing the intended/foreseen distinction and then argue, contrary to what Duff and others have supposed, that such a distinction does not underwrite a difference in moral or legal culpability. I leave open the possibility, however, that there may be consequentialist reasons for sometimes imposing greater liability in the case of intended harms than in the case of those that are merely foreseen.

Several theorists argue that blackmail is morally wrong because the blackmail proposal is coercive. These coercion-based views are promising but incomplete. A full explanation of blackmail's immorality must address both the blackmail proposal and the blackmail agreement. I defend what I call the complex account, on which blackmail is morally wrong because blackmail proposals are coercive and blackmail agreements are fraudulent. The complex account avoids difficulties that beset other coercion-based views and provides a stronger case for why blackmail should be criminalized.

In his most recent article, “The Appeals Process as a Means of Error Correction,” Steven Shavell asks a very important question: Why do we use a hierarchical court structure? The flip side of this inquiry is whether we might not be better off simply making our trial courts more efficient (in the sense of making them less error-prone). Although I certainly applaud the recent efforts of Shavell and other law and economics scholars to examine issues of institutional design, this particular attempt suffers from two major flaws. The first involves the asymmetric treatment of litigants before trial courts and appeals courts: Appellants can choose to either appeal cases or not, but the population of cases before the trial courts is assumed to be exogenous. This severely limits the ability to improve the efficiency of trial courts, leading to an overestimation of the value added from an appeals process. The second problem involves the behavior of judges, who are assumed to behave as automatons. Allowing judges to behave rationally dramatically changes the nature of the model's results, most fatally leading to the elimination of the separation equilibrium that Shavell wishes to achieve.

Challenging problems for moral and legal culpability, as Jennifer Radden has impressively brought to our attention, are generated when people suffering from dissociative-identity disorder commit various transgressions. In the type of case of interest in this paper, “Self2” of a two-self multiple is unaware that “Self1” has committed a crime and has played no role in Self1's commission of the crime. This case generates, among others, the following pressing problems. Is Self2 morally to blame for Self1's deed, and is the multiple itself either morally or legally culpable for this deed? In this paper, after critically discussing some of Radden's views on these issues, I defend negative responses to both these questions by appealing to central constituents of a theory of moral responsibility.

Joseph Raz famously argues that given that the law necessarily claims authority and given the account of authority he provides, exclusive legal positivism is the only tenable theory of law. In this article, I contend that even if one accepts that the law necessarily claims authority and that Raz's account of authority is correct, it does not follow that exclusive legal positivism is the only tenable theory of law. This is because even if the law necessarily claims authority, it need not be capable of satisfying the requirements for possessing authority laid down by the correct account of authority. Thus, even if exclusive legal positivism is the only theory of law according to which the law can satisfy those requirements, this does not show that exclusive legal positivism is correct.

This paper examines the scope of John Rawls's theory of liberty. It first develops an account of how this theory, which Rawls presents in largely abstract terms, applies in specific cases. It then argues that this account reveals that the scope of Rawls's theory of liberty is surprisingly narrow and that it does not include such seemingly obvious liberal rights as the freedom to engage in the sexual behavior of one's choice or to have access to pornography.

This article seeks to parry Ronald Dworkin’s assaults on the legal-positivist thesis that the authoritative norms in any legal system are ascertained by reference to some overarching set of criteria that may or may not require the making of moral judgments. Four main lines of argument are presented. First, Dworkin does not establish that judges disagree with one another at a criterial level in easy cases; second, even if criterial disagreements are indeed present (at least subterraneously) in all cases, they will be quite sharply limited by the need for regularity at the level of outcomes in a functional legal system; third, Dworkin errs in thinking that legal conventions must be static, and he further errs in thinking that the adjudicative practices of American law can plausibly be portrayed as based solely on convictions and not on conventions. Finally, with his recent reflections on the metaphysics of morals, Dworkin helps to reveal the resilience of a doctrine (viz., soft or inclusive positivism) that he seeks to confute.

I am grateful to Alan Madry and Joel Richeimer for their intelligent and stimulating critique of my article “Heidegger and the Theory of Adjudication.” It is the most interesting commentary I have seen on the paper, and I have learned much from it. It may facilitate discussion, and advance debate, to state with some clarity where exactly we agree and disagree. I leave to the footnotes discussion of certain minor points where Madry and Richeimer (hereafter “M&R”) are guilty of some critical overreaching.

This article addresses the question of whether judges can take the internal point of view toward—accept—their legal system's rule of recognition for purely prudential reasons. It takes a fresh look at an underappreciated conceptual argument of Joseph Raz's that answers: no. In a nutshell, Raz argues that purely prudential reasons are reasons of the wrong kind for judges to accept their legal system's rule of recognition. And should Raz's argument succeed, an important necessary connection between law and morality would be established.