What is the relationship between a theory of permissible criminalization and a theory of permissible state punishment? One answer runs as follows: to identify the conditions under which it is permissible to criminalize, we must first identify the conditions under which it is permissible for the state to punish. The latter set of conditions doubles as part of the former set. Call this the punishment thesis. It is a thesis with some prominent advocates, but explicit defenses are hard to find. In this paper, I ask how such a defense might proceed. Section I clarifies the punishment thesis itself. Sections II–IV consider a number of arguments in its favor. My contention is that none of these arguments succeeds. Unless a better argument can be found, we should reject the punishment thesis.

Irving Kristol invoked the example of voluntary gladiatorial contests to show that liberalism's commitment to personal autonomy cannot override majoritarian standards of morality. Liberalism cannot explain why voluntary gladiatorial contests should be banned, but liberals know that such contests should be banned. Thus, honest liberals must concede that majoritarian morality trumps consent. Arthur Ripstein argues that the consent in gladiatorial agreements contains a formal defect. According to Ripstein, because both gladiators sanction their own deaths, both reduce themselves to the status of mere things or slaves. On the Kantian view, slavery contracts undermine the personal sovereignty that binding contracts must presuppose, so Kantian liberals can reject gladiatorial contracts and still avoid legal moralism. I argue that while Kantian liberals have cogent internal reasons for rejecting slavery contracts, not all gruesome and deadly contests are matters of slavery. Thus, Kristol's challenge remains intact.

Seana Shiffrin's Speech Matters is a remarkably rich, original, and insightful work, casting new and sometimes surprising light on a wide range of issues in law and morality.

At the top of page 7 of the article by Kaiserman in the March 2017 issue of Legal Theory, two equations are reversed. The sentence containing these equations should read as follows:

Suppose for the sake of argument that P(c │ d ˄ b) = 0.9 and P(c │ r ˄ b) = 0.2; then it follows from Causal Contribution that f(D, [R, D]→C)b ≈ 0.82 and f(R, [R, D]→C)b ≈ 0.18.