A vast literature has developed probing the law's aversion to statistical/probability evidence in general and its rejection of naked statistical evidence in particular. This literature rests on false premises. At least so far as US law is concerned, there is no general aversion to statistical forms of proof and even naked statistics are admissible and sufficient for a verdict when the evidentiary proffer meets the normal standards of admissibility, the most important of which is reliability. The belief to the contrary rests upon a series of mistakes: most importantly, mismodeling of the structure of legal systems and the nature of common law decision making. Contributing to these mistakes is the common methodology in this literature of relying on weird hypotheticals that mismodel the underlying legal relations and contain impossible epistemological demands. Collectively, these phenomena have distracted attention from issues that actually affect real legal systems.

This article explores the nature and role of legal powers in private law. I show how powers are special in that they allow agents to change their (and others’) legal circumstances merely by communicating an intention to do so, without having also to change the nonnormative facts of the world. This feature of powers is, I argue, particularly salient in private law, with its correlative or bipolar normative structure; understanding powers and their role in private law thus requires careful attention to this correlativity. In the final section, I argue that the correct explanation of a variety of substantive problems in private law, many having to do with the role of a party's intention, turns on correctly understanding legal powers.

The fundamental tenet of the liberal conception of free speech is the principle of content neutrality, which Mill espoused in claiming that “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.”1. J.S. MILL, ON LIBERTY 36, n. 1 (John Gray and G.W. Smith eds., Routledge 1991) (1859). Note that content-neutrality as a principle of free speech is a different and less ambitious principle from neutrality among conceptions of the good. On this view, the immorality, the falsity, and even the harmfulness of an opinion are not good reasons to censor it. “However positive any one’s persuasion may be, not only of the falsity but of the pernicious consequences” of an opinion, Mill writes, its expression cannot legitimately be prohibited.2. Id. at 43. I am claiming that Mill does not consider harm prevention per se to be even a good (much less a sufficient) reason to censor an opinion or sentiment. This claim is admittedly in tension with some glosses of the so-called harm principle; but, as I have argued elsewhere, the role and content of Mill’s principle of liberty is often fundamentally misconstrued. See Daniel Jacobson, Mill on Liberty, Speech, and the Free Society, 29 PHIL. & PUB. AFF. 276 (2000). Nevertheless, in certain limited circumstances, particular acts of assertion or expression must “lose their immunity” from interference, as Mill puts it, so that we may proscribe incitement to riot, harassment, and the like. Just how to specify those circumstances consistently with content neutrality is a challenge for the liberal program. Of course, this principle and the liberal conception of free speech it embodies are controversial. It can be questioned whether the principle succeeds in protecting the class of speech and other expression that liberals aspire to protect. And even if it does cover the right class, the principle’s justification can be doubted. But I will not discuss these issues, on which there is already an immense literature, any further here.

In a recent paper Christopher Heath Wellman argues that—with some important qualifications—there are no procedural rights. And it's not as if he is squeamish about his examples: even someone who is “convicted” and “punished” by lottery is not wronged—their rights are not violated—if in fact they are guilty of the relevant crime. I respond, rejecting Wellman's conclusion and argument. I also show how the discussion has important wider implications.

Debates about our moral relation to the law typically focus on the moral force of law. Often, the question asked is: Do we have a moral duty to follow the law? Recently, that question has been given a virtue-ethical formulation: Is there a virtue in abiding by the law? This paper considers our moral relation to the law in terms of virtue but focuses on a different question from the traditional ones. The question here is: Can the law model virtue in beneficial ways that enable us to cultivate virtue? This paper shows that the law can do this by setting a moral example that we have good reason to emulate. This is significant given the distinctive influence the law has over our lives. The paper begins by examining the nature of a model, comparing different models of virtue, and then questions the possibility of a complete model of virtue such as the so-called Virtuous Person. The paper then articulates several ways in which the law can model virtue for us and responds to three objections: 1) the embodiment problem, 2) the poisoning problem, and 3) the emulation problem.

In this article I criticize a theory of political obligation recently put forward by Christopher Wellman. Wellman's “samaritan theory” grounds both state legitimacy and political obligation in a natural duty to help people in need when this can be done without unreasonable cost. I argue that this view is not able to account for some important features of the relation between state and citizens that Wellman himself seems to value. My conclusion is that the samaritan theory can be accepted only if we are ready to give up either the traditional notion of political obligation as a prima facie duty valid for every citizen or the current view of the relationships that should exist between states, citizens, and foreigners (the view according to which states should have special concerns for their own citizens).

There is an emerging consensus among political philosophers that state legitimacy involves something more than—or perhaps other than—political obligation. Yet the principle of fair play, which many take to be a promising basis for political obligation, has been largely absent from discussions of the revised conception of legitimacy. This paper shows how the principle of fair play can generate legitimate political authority by drawing on a neglected feature of the principle—its stipulation that members of a cooperative scheme must reciprocate specifically by submitting to the scheme's rules.

In this article, I examine several distinctions that may be relevant to the morality (and conceptual characterization) of terrorism: (1) the state/nonstate agent distinction, (2) the combatant/noncombatant distinction, (3) the intention/foresight distinction, (4) the means/side-effect distinction, (5) the interrelated necessary/nonnecessary means and produce/sustain distinctions, (6) the mechanical/nonmechanical use distinction, (7) the military/political distinction, (8) the harm/terror distinction, and (9) the harm-for-terror/terror-for-goal distinction. I conclude that some of these factors (though not those most commonly cited) account for the prima facie wrongness of terrorism and that the nondistinctive properties of terrorism (which it shares with some nonterrorist acts) are what make it most seriously wrong. I also provide a conceptual examination of terrorism as we commonly think of it and its relation to torture. In the course of discussing the distinctions and also in concluding the article, I consider why terrorism may sometimes be morally permissible.

I. INTRODUCTION

Stanley Fish says that theory does not exist, and because it does not exist, it has no consequences. This is doubly disturbing for someone who thinks of himself or herself as a legal theorist. While it is one thing to be dismissed as an impractical ivory tower type, out of touch with the real world of practice, it is quite another to be told that you do not exist at all. If legal theory does not exist, what have I been doing these past years? Indeed, what is it that Fish himself has been up to in his many books and articles devoted to jurisprudential issues?Most of his law-related writings have been collected in Stanley Fish, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES (Duke University Press, 1989); Stanley Fish, THERE’S NO SUCH THING AS FREE SPEECH . . . AND IT’S A GOOD THING, TOO (Oxford University Press, 1994); and Stanley Fish, THE TROUBLE WITH PRINCIPLE (Harvard University Press, 1999). Moreover, simply existing is not the limit of a legal theorist’s ambition. We want what we do to have significance, and Fish’s claim that theory has no consequences denies us that status.

The concept of “difference” forms the core of contemporary attacks on “liberal legalism” and is central to proposals for replacing it. Critics charge that liberal law quashes difference because it grounds political equality and individual rights in the assumption that all persons share certain “samenesses,” such as rationality or autonomy. In the words of the philosopher Iris Marion Young, “liberal individualism denies difference by positing the self as a solid, self-sufficient unity, not defined by or in need of anything or anyone other than itself.” The claim is that this “sameness”-based vision of equality is in fact an exercise of power, reflecting a highly specific model of personhood that was constructed by and for a white male elite and ensures its continued social dominance. Liberalism's critics conclude that the achievement of social justice will be possible only when sameness-based conceptions of equality are rejected.

This article explores the necessary and jointly sufficient conditions for the recognition of a ground of unlawful discrimination. It is important not only to have a coherent understanding of the currently enumerated grounds, but also to have a theoretical framework that can assist in enumerating new grounds through the open-ended “other status” aspect of many legal frameworks. To that end, this article argues that personal characteristics that are generally morally irrelevant, and that are socially salient in that they carry with them a prevalence of inequality-laden attitudes, amount to necessary and jointly sufficient conditions for recognizing a ground of unlawful discrimination. Other conditions, such as immutability and the presence of relative group disadvantage, will be assessed and dismissed as contingent but not necessary conditions.

Philosophers have been attracted by the theory that an agreement consists of undertakings by the parties. But the theory faces objections from three sides: unconditional undertakings by both parties are insufficient for an agreement; if the parties give interconditional undertakings, both comply if neither does anything; and, if one party gives an unconditional undertaking and the other a conditional one, a condition of interdependence is breached. The options are to live with the breach, to produce an undertaking-based theory that avoids the objections, or to analyze an agreement otherwise than in terms of undertakings. I consider each option and advocate the third: a better theory is that two people have an agreement where one makes an offer to the other that the other accepts.

The article considers what Kant's theory of property, as set out in Arthur Ripstein's Force and Freedom, contributes to contemporary property theory. I argue that by drawing our attention to a new set of questions concerning the basis of the state's authority, a Kantian approach provides an important alternative to the dominant instrumentalist approach to the moral problems that private ownership introduces (specifically, the problems of poverty and dependence). I consider the extent to which the Kantian framework is normative appealing. After raising a number of objections to the Kantian division of labor in response to the problem of material dependence, I suggest a way to restore some harmony between the rights of owners and the interests of others within a Kantian framework.

In his recent book Interpretation and Legal Theory, Andrei Marmor makes a number of claims about meaning and interpretation, both in general and in law, which I will argue are mistaken. Actually, there is some confusion in his book between what I take to be his “official” view of the nature of meaning and interpretation, and a very different view which keeps surfacing despite his official rejection of it. I will argue that this alternative, rejected view, when properly developed, is more plausible than his official view, and that the difference between them is of considerable practical consequence for legal interpretation. What is at stake is the role of legislative intention. The alternative view denies Marmor's claim that the meaning of a statute is conceptually independent of the intention or purpose which the legislature had in enacting it. It should be said at the outset that I will focus on just three of the eight chapters in Marmor's book, which contains many virtues that are untouched by my critique.

Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should therefore repair the harm they have done. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent. This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse Tort is a law of wrongs, not just a law of redress for wrongs. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Rights and remedies form a unity in which rights have priority. Corrective justice is thus an essential but subordinate aspect of tort. This paper develops this line of criticism of corrective-justice theory and offers an alternative account of tort that places primary norms of harm avoidance and respect for rights at its center. On this conception, tort is—as the corrective-justice theorists rightly insist—a law of wrongs, but its distinctiveness lies in the content and character of the wrongs with which it is concerned. At its core, tort is concerned with protecting essential conditions of individual agency.

It has often and correctly been remarked that the Hart-Fuller debate of 1956–1969 set the agenda for Anglo-American jurisprudence in the last half of the twentieth century. The nature of law, of legal obligation, of legal authority, and of law's relation to morality were the questions that debate made central to jurisprudence as we have since practiced it.

This paper hypothesizes that the paradox Hart confesses to in Ch. X of Essays on Bentham was the result of metaethical ambivalence. Hart eclectically yokes together metaethically incompatible elements from two disparate models of “normativity of law” with different sources of normativity: the impinging model based on a cognitivist metaethic and the projectivist model based on a noncognitivist metaethic. The “sources” of normativity in the two models are different. On the impinging model the source of normativity is a reason-giving objective moral requirement, and on the projectivist model, the source of normativity is a motivationally affective conative attitude. The metaethical configuration of the rule of recognition in Essays on Bentham constrained Hart to postulate a “source” of normativity metaethically congruous with the impinging model. However, the “source” of normativity Hart seemed keen to advance—he makes an “attitude” the source of normativity—was only congruous with the projectivist model.

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.

Review of Foundations of Evidence Law, by Alex Stein (Oxford University Press, 2005)