In this essay, I argue that absent special circumstances, there are no moral, judicial procedural rights. I divide this essay into four main sections. First, I argue that there is no general moral right against double jeopardy. Next, I explain why punishing a criminal without first establishing her guilt via a fair trial does not necessarily violate her rights. In the third section, I respond to a number of possible objections. And finally, I consider the implications of my arguments for the human right to due process.

According to the influential “expressive” argument for hate speech laws, legal restrictions on hate speech are justified, in significant part, because they powerfully express opposition to hate speech. Yet the expressive argument faces a challenge: why couldn't we communicate opposition to hate speech via counterspeech, rather than bans? I argue that the expressive argument cannot address this challenge satisfactorily. Specifically, I examine three considerations that purport to explain bans’ expressive distinctiveness: considerations of strength; considerations of directness; and considerations of complicity. These considerations either fail to establish that bans are expressively superior to counterspeech, or presuppose that bans successfully deter hate speech. This result severely undercuts the expressive argument's appeal. First, contrary to what its proponents suggest, this argument fails to circumvent the protracted empirical controversies surrounding bans’ effectiveness as deterrents. Second, the expressive argument appears redundant, because bans are expressively distinctive only insofar as hate speech is already suppressed.

In “Professional Detachment: The Executioner of Paris,” I concluded with the cheap and some would say libelous suggestion that lawyers might accurately be described as serial liars, because they repeatedly try to induce others to believe in the truth of propositions or in the validity of arguments that they believe to be false. Good lawyers have responded with some indignation that, in calling zealous advocacy “lying,” I have misdescribed the practice of law. I wish to explain why I believe that it is the practice of lawyering that engages in misdescription.

How much must we sacrifice in order to stop strangers from suffering serious losses, and does distance from them alter our obligations? When may we harm some people to help others? How can we best reason about these issues? These are three general questions—the first two are substantive ones, the third a methodological one—that Peter Unger discusses in his book Living High and Letting Die (hereinafter LHLD) and that I discuss in this article.1

This essay consolidates some fragments of the contemporary theory of expressive freedoms, bringing together scattered conceptual distinctions (e.g., hurting and harming, tolerating and legitimating) and moves (e.g., the need to rectify hateful speech and to constrain harmful actions legally) into an account that is sensitive to the needs of abused groups but faithful to the libertarian tradition associated with Mill's harm principle. Accepting this principle as the fundamental condition warranting legal control of action, we explore legislative responsibilities for protecting expressive freedoms through three additional presumptions. The chief of them is an expectation of epistemic rationality that limits occasions of harm requiring legal action. A presumption of enablement over punishment shows that criminal sanctions for hateful speech are almost never appropriate. A presumption of multiple responsibilities accepts that social sanctions may be appropriate where political coercion is not.

All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute's elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; and about the proper ambit of the criminal law. Each of these disputes may hinge on deeper disagreements about the identity of the wrong a statute aims to punish, and these deeper disagreements can be surprisingly hard to resolve, fueled as they are by the complex inner structure of our penal laws and the discretionary mechanisms of their administration.

The right to trial by jury and the requirement of proof beyond a reasonable doubt are two of the most fundamental commitments of American criminal law. This article asks how the two are related, that is, whether disagreement among jurors implies anything about whether the beyond a reasonable doubt standard has been satisfied: Does the due process requirement of the beyond a reasonable doubt standard also require jury unanimity in criminal cases? Drawing on literature about the epistemological significance of disagreement, this article considers the “equal-weight view” and its implications for the unanimity rule in criminal jury decision-making. The equal-weight view says that, roughly speaking, when people disagree on a topic, each view should be given equal weight. This implies, this article concludes, that the unanimity rule is required as a way of enforcing the beyond a reasonable doubt requirement. This article further concludes, however, that jurors should not always be instructed to apply the equal-weight view in their deliberation. Jurors, when applying crime definitions to particular cases, make determinations about both historical facts and normative issues through moral terms like “reckless,” “unjustifiable,” “depraved,” “cruel,” and “heinous,” which are common in criminal law. This article argues that while the equal-weight view should guide the jurors in determining factual issues, it is not the correct model for moral issues, not only because it would imply that acquittals are appropriate in many cases involving controversial moral questions but also because having the jurors follow it would undermine the basic justification for having the criminal jury as an articulator and enforcer of morality.

In “The Gettier Problem and Legal Proof,” I argue that epistemic conditions that undermine knowledge in Gettier-type cases also potentially undermine legal verdicts. For this reason, I argue, there is a deeper connection between knowledge and legal proof than is typically presupposed or argued for in the scholarly legal literature. To support these claims, I present several examples illustrating how conditions that render epistemically justified beliefs merely accidentally true (and thus disqualify them as cases of genuine knowledge) may also render evidentially well-supported verdicts merely accidentally true for similar reasons. Such “Gettierized” verdicts, I contend, fail to realize the epistemic goal or aim of legal proof. Thus I conclude there, legal proof includes something like a knowledge requirement—in the sense that legal verdicts aim not only at truth and sufficient evidential support but also, as with knowledge, at an appropriate connection between their truth and justifying evidential support.

Freedom of expression is often treated as a right held by speakers, with hearers holding only a derivative right to receive expression. Roger Shiner in particular argues that we should recognize hearers’ rights only where our intuitions regarding infringements of free expression are not already accounted for by speakers’ rights. However, Larry Alexander argues that, if there is a moral right of freedom of expression, it is most plausibly a hearer's right to receive expression, not a speaker's right. I argue that hearers have a basic (or original) right to receive a speaker's expression, one that stands alongside a speaker's right to express herself. The hearer's right to receive is no less fundamental than the speaker's right to express and, contra Alexander, the hearer's right is not more fundamental than that of the speaker. As a consequence, both Shiner's case against freedom of commercial expression and Alexander's case against so-called Track Two freedom of expression jurisprudence are weakened.

The hallmark of modern liberalism is its embrace of the Millian harm principle and its antipathy to legal moralism. In this article I consider whether aesthetic regulations can be justified under the harm principle as that principle has been elaborated by Joel Feinberg. I conclude that aesthetic and other regulations that most liberals regard as unproblematic are actually instances of legal moralism.

This paper defends pro-active policing measures that offer reasonable assurance that the authorities will elicit crimes from citizens that would likely have occurred anyway. Such pro-active measures generally should be directed only at citizens who the authorities can demonstrate to a court have active intentions to commit crimes, must mimic the kinds of opportunities already available to targeted citizens, must be abandoned if the citizens to whom they are offered appear to renounce their criminal intentions, and must be a last resort. They should also be focused on the prevention of serious harm rather than vice crime. Pressuring targeted citizens to accept the opportunities presented to them should be prohibited. When government officials exceed the remit of their pro-active policing warrants, the remedy should be the dismissal of all charges stemming from their overreach.

The debate over judicial review of legislation is profuse. But differences are often due to the lack of a common methodology. This article discusses the proper way to evaluate judicial review and confronts central challenges raised against it. It develops the two main models that can be used for analyzing the intersection between democracy and constitutional decision-making and shows that judicial oversight may not be rejected, regardless of how we interpret that connection. The article discusses in detail the model developed by Jeremy Waldron. A nice attempt to answer methodological questions, Waldron's model wrongly tips the balance against judicial review. Its excessive level of abstraction and idealization renders it inoperable. Few systems meet its standards, and those that do pay a high price: they contradict the concept of democratic legitimacy that underlies the model. Paradoxically, a system with judicial review may end up being more legitimate than one without it.

Despite an intractable judiciary, there is widespread consensus within the legal academy that jury nullification is compatible with the rule of law. This proposition is most strongly tested by “substantive nullifications,” where a jury nullifies simply because it disagrees with the law itself. While some substantive nullifications can comport with the rule of law, most commentators’ wholesale acceptance of the practice is not justified. They err by ignoring the nonsubstantive, procedural nature of the rule of law in favor of one determined by substantive “justice,” and also by taking a naïvely undifferentiated view of a “community's” morality (even though jurisdictional and vicinage morality can diverge). In doing so, a healthy vision of antityrannical nullifications is presented, but this leaves out many problematic cases. Once these errors are rectified, a more nuanced picture emerges, and it becomes apparent that localism will often disrupt the congruence feature of the rule of law.

At least since the French moralists—Montaigne, Pascal, La Rochefoucauld, La Bruyère—it has been a commonplace that people can fool themselves as well as others about their beliefs and motivations. In this article, I consider some mechanisms of transmutation (deceiving oneself) and misrepresentation (deceiving others), and their impact on behavior. (I refer to these collectively as transformations.) I argue that deception and self-deception are not merely ex post rationalizations of behavior whose real motive and explanation are found elsewhere, but that they have independent causal and explanatory power. If people, that is, did not fool themselves or others about why they do what they do they would act differently. The reason is that deception and self-deception take place under constraints that prevent us from offering totally opportunistic or self-serving rationalizations of what we do. There is a consistency constraint that is induced by the costs of being seen (by oneself or others) as offering inconsistent justifications for one's behavior, and an imperfection constraint diat is induced by the costs of being seen (by oneself or others) as offering justifications that are too blatantly self-serving.

Much recent work in applied legal and political theory has been preoccupied with the problem of the moral status of business organizations and corporations, and of the nature of their agency and personality. On the one hand, moral rights, such as rights to freedom and autonomy, are paradigmatically ascribed to natural, human persons; moral responsibility analogously seems therefore paradigmatically applicable to individuals. Organizations seemingly have no will or mind, no human feelings such as pleasure, pain, shame, and remorse. How can the language of rights and responsibility be applicable to them? On the other hand, it seems to be a fact that business organizations often do things that we human beings do—make deals, sign contracts, cause harm, and issue apologies. In ordinary and in legal discourse all the time we hear such things as, “Miller's Pulp Mill is responsible for its corrupt environmental practice”; “Philip Cosmetics Ltd. has the right to advertise its products”; and “Sunligt Co. is accountable for its irresponsible behavior.” How then are we to understand the attributions of organizational agency, personality, and responsibility that these statements presuppose? Are the predicates in these statements to be taken as having the same intension, or the same force, as similar ones predicated on natural persons? Or are the predications to be seen as extensions of meaning, justified or not? Or as exotic metaphors with no factual implications?

Sometimes there are reasons for us to think or act in certain ways. We pay our taxes, we show up on time for our classes, we refuse to assent to claims that we recognize to be inconsistent, and we refrain from wanton violence, and we do each of these things because—we assume—there are reasons for us to do them. I will express the general point by saying that there are norms that apply to us, and to our thought and action. For a norm to apply to a person is for there to be a reason for that person to think or act in a particular way—the way indicated by the norm. Perhaps this reason is one that the person herself does not in any way recognize or acknowledge. But the reason itself—whether or not it is recognized or acknowledged by the person for whom it purports to be a reason—is what I call a “norm.” For instance, I might not recognize or acknowledge various norms concerning theft. But those norms still exist, and they still apply to me; there is a reason for me not to steal, whether or not I recognize or acknowledge that reason. My failure to recognize or acknowledge such reasons does not make them any less real or any less applicable to me.

What does it take for lawyers and others to think or talk about the same legal topic—e.g., defamation, culpability? We argue that people are able to think or talk about the same topic not when they possess a matching substantive understanding of the topic, as traditional metasemantics says, but instead when their thoughts or utterances are related to each other in certain ways. And what determines the content of thoughts and utterances is what would best serve the core purposes of the representational practice within which the thought or utterance is located. In thus favoring a “relational model” in metasemantics, we share Ronald Dworkin's goal of explaining fundamental legal disagreements, and also his reliance on constructive interpretation. But what we delineate is a far more general and explanatorily resourceful metasemantics than what Dworkin articulated, which also bypasses some controversial implications for the nature of law that Dworkin alleged.

This essay presents a new theory of statutory application that is superior to two competitors. One of the competitors claims that statutory directives apply to act-tokens fitting the legislature's intention. The other holds that statutes apply to act-tokens that are of the genuine kinds named by the classifying words. These theories solve certain problems badly or not at all, respectively: (1) accounting for the capacity of statutes for epistemic guidance; and (2) avoiding literalism. Both do a limited job of accounting for the rationality of statutory promulgation. The theory developed here, social salience theory, does better on all counts. According to social salience theory, the default position is that statutes apply to act-tokens that are socially salient, given the linguistic and social contexts. The departure from that position is also social, produced by conventions to defer to experts on the statute's applications to particular cases.

The “small improvement problem” (“the Problem”) applies when no option in a comparison is best nor, it seems, are the options equal, because a small improvement to one would fail to make it the better choice. I argue that vagueness causes the Problem, such that the options are vaguely equal or vaguely “related.” I then unpack an important instance of the Problem, the comparison between a crime and a punishment upon which the ideal of a retributively deserved sentence is based. I argue that this comparison is not only vague, but remarkably vague, leading to an expansive array of “not undeserved” sentences. I conclude, however, that retributivism can only justify the least harmful “not undeserved” sentence.

This article examines accounts of the moral basis of compensatory duties that explain such duties as the continuation, in some way, of the pre-wrong normative situation. I identify, contrast, and assess three versions of this view—duty continuity, right continuity, and reasons continuity. I argue that each version is defensible, once properly articulated. The article responds to a range of objections to these views that have not received much critical attention by their proponents.