Whereas the Restatement of Torts and leading economic and justice-based approaches to explaining the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively fixed amount of care, whereas plaintiffs are generally assessed using a subjective measurement of reasonable care. Normatively, I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant's negligence with a favorable assessment of plaintiff's negligence, means that the victim gets to fix the terms of the interaction. This argument resonates with the powerful egalitarian idea of accommodating, rather than overlooking, relevant differences; different treatment is necessary for the duty of reasonable care to give effect to the qualitative difference between the plaintiff's life and limb and the defendant's autonomy. Asymmetric assessment of due care, I argue, is the doctrinal metric by which the law determines what it is for the plaintiff and the defendant to relate as equals given that difference, or to relate as substantive equals.

Numerous legal scholars have adopted the view that H. L. A. Hart offered an expressivist (or at least proto-expressivist) account of legal discourse. But philosophers of law have given comparatively little attention to the prospect of developing newer forms of legal expressivism informed by contemporary metaethics. One notable exception is Kevin Toh, who has recently addressed this constructive project. This article critically evaluates Toh's contributions to the project of legal expressivism. Despite the value of Toh's work in reviving legal expressivism as an explanatory strategy in jurisprudence, neither he nor anyone else has paid sufficient attention to the most important question now facing legal expressivists. I call this the “question of content”: to wit, what distinguishes the mental states expressed by legal statements from the mental states expressed in other forms of normative discourse? I argue that theorists interested in legal expressivism must prioritize this question.

Although the debate on the basic norms of punishment is well established, the basic norms of policing have received relatively little attention. This paper connects the two subjects, defending two claims. First, it argues that some police action that is not obviously illegitimate falls under the moral standards applicable to punishment. This may strike some as surprising. The explicit job of the police does not include punishment. Such a position is customarily defended by appeal to intention, form of treatment, or expression of censure. Such appeals prove ineffective against cases that involve a discretionary decision not to prosecute, such as in the recruitment of informants or in standard public order management tactics. Second, the paper urges that this first point presents a dilemma: either police routinely act in an illegitimately extrajudicial fashion, or the stringency of the standards to which we hold criminal court procedures is, if it is grounded, not grounded directly in the fact that the courts administer punishment. Neither option is attractive.

What is at the heart of conflict over abortion? In his celebrated contribution to the topic, Ronald Dworkin argues that disputants in the abortion debate are in fact deeply mistaken about the true terms of their disagreement. Rather than turning on the perennial question of whether or not the fetus is a person, Dworkin claims that abortion argument is, at bottom, an argument about the intrinsic value of all human life and how it is best respected. More than twenty years after Dworkin put forward his novel thesis, this article reassesses his key claims about the crux of abortion argument, partly in light of subsequent developments in the public abortion conflict. Against Dworkin's revisionist account of the abortion problem, I set out to show that his arguments do not successfully displace the primacy of the personhood question in moral and legal constitutional reasoning about abortion. Nor do they convincingly establish that prenatal personhood is not what contestants in the abortion debate are really arguing about.

Several theorists argue that blackmail is morally wrong because the blackmail proposal is coercive. These coercion-based views are promising but incomplete. A full explanation of blackmail's immorality must address both the blackmail proposal and the blackmail agreement. I defend what I call the complex account, on which blackmail is morally wrong because blackmail proposals are coercive and blackmail agreements are fraudulent. The complex account avoids difficulties that beset other coercion-based views and provides a stronger case for why blackmail should be criminalized.

One of the central debates in legal philosophy is the debate over legal positivism. Roughly, positivists say that law is ultimately grounded in social facts alone, whereas antipositivists say it is ultimately grounded in both social facts and moral facts. In this paper, I argue that philosophers involved in the dispute over legal positivism sometimes employ distinct concepts when they use the term “law” and pick out different things in the world using these concepts. Because of this, what positivists say might well then be true of one thing (e.g., law1) but false of another (e.g., law2). Accepting this thesis does not mean that the philosophers engaged in this dispute are “talking past each other” or engaged in a “merely verbal dispute” that lacks substance. I argue that participants in this dispute are sometimes arguing about what they should mean by the word “law” in the context at hand. This involves putting forward competing proposals about which concept the word “law” should be used to express. This is an issue in what I call “conceptual ethics.” This argument in conceptual ethics can be well worth having, given the connotations that the term “law” plays in many contexts, ranging from legal argument to political philosophy to social-scientific inquiry. Sometimes, I claim, philosophers (and ordinary speakers) engage in such argument tacitly by competing “metalinguistic” usages of the term “law”—usages of the term that express a view (in this case, a normative view) about the meaning of the word itself. In such cases, speakers on different sides of the positivism debate might in fact both speak truly, in terms of the literal (semantic) content of what they both say. Nonetheless, they may disagree in virtue of views in conceptual ethics about “law” that they express through the nonliteral content of what they say. These views in conceptual ethics often reflect further disagreements about issues that are not ultimately about words or concepts. These include foundational ones in ethics and politics about how we should live and what kind of institutions should govern our lives. My metalinguistic account of the dispute over legal positivism better equips us to identify what such issues are and to engage them more fruitfully.

The disadvantaged have incentives to commit crime, and to develop criminogenic dispositions, that limit the extent to which their co-citizens can blame them for breaking the law. This is true regardless of whether the causes of criminality are mainly “structural” or “cultural.” We need not assume that society as a whole is unjust in order to accept this conclusion. And doing so would neither stigmatize nor otherwise disrespect the disadvantaged.

There are two distinct types of legal wrongdoing: civil and criminal. This article demonstrates in three ways that Immanuel Kant's Universal Principle of Right, properly interpreted, offers a plausible and resilient account of this important distinction. First, Kant's principle correctly identifies attempted crimes as crimes themselves even when they do not violate the rights of any individual. Second, it justifies our treatment of reckless endangerment as a crime by distinguishing it from ordinary negligence, traditionally thought to be only civilly wrong. Third, it explains and justifies differences between the features of traditional criminal punishments and the features of civil remedies. Moreover, the Universal Principle of Right yields a Kantian standard for criminal wrongdoing that is compelling enough to inform future philosophical inquiries into the nature and limits of the state's criminal lawmaking authority.

Courts commonly allow willful ignorance to satisfy the knowledge element of a crime. The traditional rationale for this doctrine is that willfully ignorant misconduct is just as culpable as knowing misconduct. But it is not obvious that this “equal culpability thesis” holds across the board. Is it true in all cases of willful ignorance or only some? This is the question I investigate here.

Specifically, I argue against several common versions of the equal culpability thesis before defending my own restricted version. First, I argue that the broadest version of the thesis, adopted by many courts, is overinclusive. Then I argue against several restricted versions of the thesis offered by legal theorists including Doug Husak, David Luban, and Deborah Hellman. My own account, by contrast, is premised on a duty of reasonable investigation. If my account is on the right track, the widely employed willful ignorance doctrine stands in need of reform.