This is the second of two closely related articlesThe first is Warren F. Schwartz, Long-Shot Class Actions: Toward a Normative Theory of Legal Uncertainty, 8 LEGAL THEORY 297 (2002). challenging the widely held belief that plaintiffs, through the settlement process, are realizing “too much” from “unmeritorious” claims. No one has offered a systematic justification for this belief. It appears, however, to be based upon the effects produced by three characteristics of the settlement process: (1) the outcome of litigation is uncertain; (2) when, as in a class action, the stakes are very high for a defendant, the defendant will be very risk-averse and will consequently be prepared to pay in settlement much more than the expected value of its liability; and (3) litigation is costly.

Global political organization in recent centuries has been dominated by the juridical model of the international states system. Originating in early modern Europe, this distinctive way of structuring political authority has progressively extended its reach to the point where, today, the inhabitable land surfaces of the world are entirely divided up among sovereign states. I will argue that we have both practical and moral reasons to move away from this form of political organization. While my immediate target will be the ideal states system that John Rawls proposes in The Law of Peoples,J. Rawls, THE LAWOF PEOPLES (1999); hereafter “LP.” the main conclusions defended here are applicable to a range of possible models that can be characterized as states-system models. Theories in this range may depart in various ways from current international law but all are marked by the claim that legal-political authority should be concentrated in exclusive or nearly exclusive territorial jurisdictions regarded as equal and independent political units.

Prior to the publication of Hart's The Concept of Law, it was not uncommon for legal philosophers to identify jurisprudence with the quest for a definition of “law.”The subject of this paper is “law” as it pertains to systems of governance of human conduct. Therefore we are not offering an analysis of “law” as it pertains to regularities in nature and thus we do not explore the semantic or metasemantic relations between the two.See, for example, Herman Kantorowicz, THE DEFINITION OF LAW (Cambridge University Press, 1958). In a similar vein, see Lewis Zerby's suggestion that “the most famous definition of law [sic]… is that made by Justice Holmes when he said: ‘The prophecies of what courts will do in fact, and nothing more pretentious, are what I mean by law.‘” Some Remarks on the Philosophy of Law, 46 J. PHIL. 773–779 (1949). Hart explicitly resisted this characterization of the ambition of jurisprudence; the subject matter of jurisprudence is law, not “law.” Notwithstanding Hart's assertions to the contrary, in Law's Empire Ronald Dworkin argues that Hart's own legal positivism as well as other familiar jurisprudential theories (like natural law) are semantic theories: that is, accounts of the meaning of “law.” Dworkin further identifies semantic theories with criterialism, according to which the meaning of a term is given by shared criteria for applying it. The meaning of the expression “law” on this view is given by a rule or set of criteria specifying the conditions that must be satisfied in order properly to employ that expression, and the project of a semantic jurisprudence is to identify that rule.

“Justice,” wrote John Rawls, at the beginning of his magisterial work on the subject, “is the first virtue of social institutions, as truth is of systems of thought.”A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. [TJ3]

Reasons appear to fall into well-recognized types: pro tanto or decisive, moral or nonmoral, and so on. Nowadays, it is widely held that reasons can also be “content-independent.” This paper is directed against this belief.

Joseph Raz has developed a highly detailed analysis of the nature of authority that accounts for its structure, the role it plays in practical reasoning, and the conditions under which it is legitimate. Raz's analysis, which has been evolving over the last few decades, is impressive in both scope and insight. With it, Raz dissolves many of the paradoxes and conundrums that have traditionally puzzled students of authority.

Two methodological claims in Hart's The Concept of Law have produced perplexity: that it is a book on “analytic jurisprudence”H.L.A Hart, THE CONCEPT OF LAW (1994). and that it may also be regarded as an essay in “descriptive sociology.”Id. Are these two ideas reconcilable? We know that mere analysis of our legal concepts cannot tell us much about their properties, that is, about the empirical aspect of law. We have learned this from philosophical criticisms of conceptual analysis; yet Hart informs us that analytic jurisprudence can be reconciled with descriptive sociology. The answer to this puzzle lies in the notion of nonambitious conceptual analysis. The theorist analyzes concepts but accepts the limitations of conceptual analysis and therefore uses empirical knowledge and substantive arguments to explain, refine, or perhaps refute initial insights provided by intuitions. This is the conclusion that this paper arrives at as an argumentative strategy to defend Hart's legal theory from the criticisms of Stavropoulos and Dworkin. The latter argues that Hart's legal theory cannot explain theoretical disagreements in law because he relies on a shared criterial semantics. Stavropoulos aims to show that Hart's semantics is committed to ambitious conceptual analysis and relies on the usage of our words as a standard of correctness. Both attacks aim to show that the semantic sting stings Hart's legal theory. This essay refines both challenges and concludes that not even in the light of the most charitable interpretation of these criticisms is Hart's legal theory stung by the semantic sting. This study defends the view that Hart's methodological claims were modest and that he was aware of the limits of conceptual analysis as a philosophical method. He was, this study claims, far ahead of his time.

Is the act/omission distinction relevant to assessments of responsibility, and if so, why? The traditional view is that the distinction is relevant in that ceteris paribus acts are more blameworthy than omissions. Until about the 1960s that position tended to be assumed rather than justified, but since then there has been considerable debate over the issue. Some philosophers have challenged the validity of the moral position upon which the distinction rests, and some have questioned its conceptual grounding.See, e.g., J. Bennett, Whatever the Consequences Analysis, 26 (1966); P. Unger, LIVING HIGHAND LETTING DIE (1996) on the moral relevance of the AOD. See, e.g., J. Bennett, THE ACT ITSELF (1995); B. Vermazen, Negative Acts, in ESSAYS ON DAVIDSON: ACTIONSAND EVENTS 95 (Vermazen and Hintikka, eds., 1985) on the concept of omission. But others have come to its defense.See, e.g., A.M. Honore, Are Omissions Less Culpable? in ESSAYS FOR PATRICK ATIYAH 31 (Cane and Stapleton, eds., 1991); M. Moore, ACTAND CRIME 23 (1993). So the question remains. Exactly what (if anything) does the act/omission distinction (henceforth AOD) tell us about responsibility in general or legal responsibility?

In this paper, I restrict discussion to cases of psychopathy in which it is assumed that psychopaths who satisfy epistemic requirements of responsibility, including the requirement that one is culpable for an action only if one performs it in light of the belief that one is doing wrong, can and do perform actions they take to be immoral or illegal. I argue that in such cases, the well-documented emotional impairment of psychopaths fails to subvert moral culpability. In particular, it does not undermine the sort of control required for moral blameworthiness and, hence, assuming all other conditions of responsibility have been met, the psychopaths of concern are indeed culpable for their behavior. Drawing, however, from certain lessons regarding the effects of coercion on responsibility, I propose that emotional impairment is a factor that should abate, perhaps even significantly, negative reaction to or treatment of such agents.

It is difficult, if not impossible, to so define the term “reasonable doubt” as to satisfy a subtle and metaphysical mind, bent on the detection of some point, however attenuated, upon which to hang a criticism. —Supreme Court of VirginiaMcCue v. Commonwealth, 103 Va. 870 at 1002 (1905).

I find it rather unsettling that we are using a formulation that we believe will become less clear the more we explain it. —Jon Newman, Chief Judge of the U.S. Court of Appeals for the 2nd CircuitJon. O. Newman, Beyond “Reasonable Doubt,” N.Y.U. L. REV. 979, 984 (1993).

The complete lack of controversy that surrounds the reasonable doubt standard implies that we are pretty happy with the way the standard operates. —Erik LillquistErik Lillquist, Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, U.C. DAVIS L. REV. 85, 190–191 (2002).

The import and intentions of Ronald Dworkin's work are fairly grand. Dworkin does not propose a plain theory of law. Indeed, his theory of law is one part of a grand architectonic that also encompasses a theory of liberal equality and an important discussion of community. Though it is the last component that this essay is most interested in, it is impossible to consider one part in isolation from the others. Dworkin believes that community can serve as a go-between for authority and autonomy; or, to use a different rubric, community can explain and justify obligation. The authority must present a legal system that is true to the value of integrity. If a legal system displays integrity, the political community becomes amenable to personification. Personification of the community allows for the formation of feelings of veneration and attachment towards it. These feelings are critical to the well-being of the individual. Hence if authority abides by the demands of community, it deserves allegiance from the individual. The tension between authority and autonomy is in this manner resolved.

The objectivity of legal interpretation has often been denied from a linguistic perspective. According to some, legal interpretation cannot be objective because law consists of language, and language is naturally indeterminate. In my view, there is something odd about this argument. For its conclusion to be warranted, language should always be indeterminate, that is, all words, sentences and texts in our language should be indeterminate, and indeterminate at all times. Yet this is clearly not the case. If language were always indeterminate, we would not be able to have a conversation; if language were indeterminate at all times, you would not be able to understand me if I told you loud and clear right now to stop reading this article. But we do have conversations; and you would understand what I meant if had told you to stop reading. In fact, our language seems to be determinate enough for the purposes of most of our daily conversations. If I said “hi” to you, you would, I suppose, say “hi” back. If I told you to pick up a pen right now, you would know exactly what to do. Most of our conversations work, that is, they serve their purposes. And our language seems to be as determinate as these purposes require.