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.

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.

So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes…. [E]xtending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects.

The article uses the recent U.S. Supreme Court decision in the same-sex marriagecase Obergefell v. Hodges as the springboard for a generalenquiry into the nature and existence of a constitutional right to liberty underthe American Constitution. The discussion is divided into two main parts. Thefirst examines the meaning and the justifiability of there being a moral rightto liberty as a matter of political philosophy. Two such rights aredistinguished and defended: first, a right not to be coerced by the state whenthe state is motivated by improper reasons (prominent among which arepaternalistic reasons); and second, a right not to be coerced by the state whenthere are insufficient justifying reasons for the state to do so, irrespectiveof how such state coercion may be motivated. Neither right is regarded as“absolute,” and so it is morally permissible for the stateto override such rights in certain circumstances. The second part of the articleexamines the distinct and additional considerations that must be taken intoaccount when these two moral rights to liberty are fashioned into correspondinglegal rights under American constitutional law. Both such rights survive thetransformation, but each becomes altered somewhat in its content. This legaltransformation includes recognition of the nonabsolute nature of moral rights,such recognition taking the form of some doctrine of “compellingstate interests.” The discussion in these two main parts of thearticle is prefaced with a defense of the article's use of politicalphilosophy to inform constitutional law, a defense motivated by Chief JusticeRobert's denunciation of such an approach to constitutional law inhis opinion in Obergefell.

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.

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.

Despite the notion's prominence, scholarship has yet to offer a viable account of the view that crimes constitute public wrongs. Despite numerous attempts, some scholars are now doubting whether a viable account is forthcoming whereas others are reeling back expectations for what the concept itself can offer. This article vindicates crime's public character while asserting the relevance of political theory in doing so. After critiquing prior attempts and clarifying expectations, the article offers a novel account, relying on both key doctrinal features and a deliberative democratic framework through which to interpret their public significance. In doing so, it demonstrates how this framework explains the public nature of censure, and ultimately argues that crimes are public wrongs not because such actions themselves necessarily wrong or harm the public, but instead because they are the type of wrong that the public has a stake in addressing. This gives rise to an understanding of sentencing as public decision-making within which citizens and their representatives decide how best to use public power to manage public interests.

When I was invited to participate in this symposium, I welcomed what I thought would be the opportunity to apply my views about the semantics and logic of vague language to the real-life problems of vagueness legal theorists worry about. I confess to having formed my ambition without a very clear sense of what jurisprudential problems might be illuminated by general theories of vagueness. To be sure, I was able to guess that a symposium on Vagueness and Law must have something to do with the dilemmas courts face when it is indeterminate how a legal dispute should be resolved. What I had not thought through was how philosophers like myself might help to illuminate those dilemmas by bringing to bear on them their own logico-semantical theories of vagueness. This was unfortunate because, having done a bit of homework, I have reached the conclusion that philosophical theories of vagueness, even if true, have nothing to offer jurisprudential concerns about vagueness. Once she is reminded of certain platitudes about vagueness, the legal theorist needs no further help from philosophers of language and logic. Let’s see why this is so.

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.

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.

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.

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.

Christopher Wellman argues that Joel Feinberg fails to grasp the distinction between will theories and interest theories. According to Wellman, this failure leads Feinberg to defend a will theory in “The Nature and Value of Rights” and an interest theory in “The Rights of Animals and Unborn Generations” and therefore to hold an inconsistent theory of rights. Wellman's interpretation of Feinberg is plausible. I will argue that there is another plausible interpretation and that the texts do not allow us to determine which of the two plausible interpretations is correct. I will also argue that this alternative interpretation allows Feinberg to avoid Wellman's charge of inconsistency but has problems of its own. Along the way, I will make some points about how to defend a theory of rights and about the strengths and weaknesses of the will and interest theories of rights. (Wellman holds that choice theories are a subset of will theories. I have argued elsewhere that it is better to see will theories as a subset of choice theories. However, how one cuts up the field is irrelevant to the issue at hand. For the sake of argument, I will assume that Wellman's topology is correct.)

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.

What is the clean hands defense (CHD) normatively about? Courts designate court integrity as the CHD's primary norm. Yet, while the CHD may at times further court integrity, it is not fully aligned with court integrity. In addition to occasionally instrumentally furthering certain goods (e.g., court legitimacy, judge integrity, deterrence), the CHD embodies two judicially undetected norms: retribution and tu quoque (“you too!”). Tu quoque captures the moral intuition that wrongdoers are in no position to blame, condemn, or make claims on others who are guilty of similar or related wrongdoing. The CHD shares the structure of the tu quoque: both are doctrines of standing that deflate the illocutionary force (and not the truth-value) of normative speech acts directed against wrongdoers by those guilty of similar or connected wrongdoing. The CHD also exhibits retributive logic: it sanctions plaintiffs by reason of their wrongdoing and manifests the retributive principle that “punishment must fit the crime.”

Positivists and interpretivists (Dworkinians) might accept that conceptual facts about the law—facts about the content of the concept of law—can obtain in the absence of communities with law practices. But they would deny that legal facts can obtain in such communities’ absence. Under the moral impact theory, by contrast, legal facts can precede all communities with law practices. I identify a set of legal facts in private international law—the law of jurisdiction—that concerns when a community's law practices can, and cannot, have the legal effects that the practices claim to have. This law is noncommunitarian, in the sense that it precedes the communities to which it applies. In this law's light, the legal effects of communities’ law practices are legally coordinated (or, at the very least, can be shown to legally conflict). Although interest in, and even commitment to, a noncommunitarian law of jurisdiction has receded among private international law theorists, I argue that some well-placed questions can elicit from all of us a commitment to this law. And this commitment is a reason to believe that the moral impact theory is correct.

On a popular understanding, the rule of law is valuable because it enables people to plan their lives. However, planning conceptions of the rule of law are undermined by the sheer quantity of legal rules, regulations, and policies characteristic of modern administrative states. Under conditions of hyperlexis, people cannot reasonably be expected to reliably use the law as a guide to conduct. Rather than conclude that the rule of law is inimical to the administrative state, however, I defend an alternative conception of the rule of law. On what I term a contestatory conception, the rule of law requires an adequate opportunity to challenge decisions made by officials in the exercise of their legal powers. The animating idea of a contestatory conception of the rule of the law is that officials should relate to citizens in the space of reasons rather than merely through the exercise of power.

Ronald Dworkin's Tanner Lectures, “Foundations of Liberal Equality,” have hardly elicited comment within the academic political theory community. This is surprising for a number of reasons. First, Dworkin is widely taken to be one of the leading liberal theorists in the English-speaking world, and “Foundations” is a major statement (120 pages in length) involving reflection upon issues of principle that are at the center of contemporary scholarly debate among liberals. Secondly, “Foundations” introduces a number of ideas and concepts that are new in Dworkin's corpus and that serve to illuminate and clarify some of his wdely discussed earlier works, especially the famous article “Liberalism,” which sparked so much argument over the idea of neutrality and its place within liberal political theory. Finally, the lectures are interesting because of the approach they take to the matter of “defending liberalism,” an approach that departs in interesting and significant ways from those presently pursued by other leading liberal thinkers, notably John Rawls and Joseph Raz.