This paper takes it as a premise that a distinction between matters of fact and of law is important in the causal inquiry. But it argues that separating factual and legal causation as different elements of liability is not the best way to implement the fact/law distinction. What counts as a cause-in-fact is partly a legal question; and certain liability-limiting doctrines under the umbrella of “legal causation” depend on the application of factual-causal concepts. The contrastive account of factual causation proposed in this paper improves matters. This account more clearly distinguishes matters of fact from matters of law within the cause-in-fact inquiry. It also extends the scope of cause-in-fact to answer some questions currently answered by certain doctrines of legal causation—doctrines that, it is argued, are more naturally seen as applications of our ordinary causal concept than as noncausal liability-limiting devices.

This essay critiques Professor Martha Nussbaum's book, Liberty of Conscience: In Defense of America's Tradition of Religious Equality (2008). Nussbaum's thesis is that the entire tradition of religious liberty in America can be both best understood (as a historical exercise) and justified (as a philosophical one) by recourse to the overarching principle of equal respect—that “[a]ll citizens have equal rights and deserve equal respect from the government under which they live.” Nussbaum insists that equal respect pervades the tradition and that all other values of religious liberty are subordinate to it. She examines various free-exercise and establishment issues in light of this principle, concluding that the tradition of religious equality is under threat and calling for renewed vigilance in its defense. This essay criticizes Nussbaum's elevation of the principle of equal respect to supreme normative status. It claims that Nussbaum's single-minded focus on equal respect distorts and misunderstands the conflicts actually at issue in many religious liberty disputes. The essay focuses specifically on the inadequacies of her assessment of two prominent religious liberty cases, one in the free exercise and the other in the established context. This essay concludes that there are reasons for deep skepticism about Nussbaum's approach as a comprehensive theory of the religion clauses.

Retributive restrictions are principles of justice according to which what a criminal deserves on account of his individual conduct and character restricts how states are morally permitted to treat him. The main arguments offered in defense of retributive restrictions involve thought experiments in which the state punishes the innocent, a practice known as telishment. In order to derive retributive restrictions from the wrongness of telishment, one must engage in moral argument from generalization. I show how generalization arguments of the same form can be used subversively to derive morally unacceptable conclusions from other scenarios in which the state intentionally inflicts undeserved coercion. For example, our considered moral convictions approve of punishment policies that inflict collateral damage, such as the ubiquitous policy of excluding the family members of inmates from prison facilities outside visiting hours. I present a generalization argument for the conclusion that these policies are seriously unjust. If we firmly believe that these policies are not unjust, then we should put less stock in generalization arguments. We should not use them to support retributive restrictions. This conclusion has broad implications for the theory and practice of criminal justice.

This paper offers a critical reconsideration of the traditional doctrine that responsibility for a crime requires a voluntary act. I defend three general propositions: first, that orthodox Anglo-American criminal theory (as represented by Michael Moore's updating of Austin's volitionalism) fails to explain adequately why criminal responsibility requires an act. Second, when it comes to the just definition of crimes, the act requirement is at best a rough generalization rather than a substantive limiting principle. Third, that the intuition underlying the so-called “act requirement” is better explained by what I call the “practical-agency condition,” according to which punishment in a specific instance is unjust unless the crime charged was caused or constituted by the agent's conduct (broadly understood) qua practically rational agent. The practical-agency condition is defended as a reconstruction of what is worth retaining in Anglo-American criminal law's traditional notion of an “act requirement.”

It is widely accepted that vagueness in law calls for a specific interpretation of the law—interpretation that changes the meaning of the law and makes it more precise. According to this view, vagueness causes gaps in the law, and the role of legal interpretation in the case of vagueness is to fill such gaps. I argue that this view is mistaken and defend the thesis that vagueness in law calls only for an application of the law to the case at hand, leaving the meaning of the law intact.

The doctrine of promissory fraud holds that a contractual promise implicitly represents an intent to perform. A promisor's conditional intent to perform poses a problem for that doctrine. It is clear that some undisclosed conditions on the promisor's intent should result in liability for promissory fraud. Yet no promisor intends to perform come what may, so there is a sense in which all promisors conditionally intend to perform.

Building on Michael Bratman's planning theory of intentions, this article provides a theoretical account of the distinction between “foreground” and “background” conditions on intentions in general and then explains why foreground conditions on a promisor's intent to perform are likely to result in material promissory misrepresentation, while background conditions are not. The difference between foreground and background conditions lies in whether the agent accepts the satisfaction of the condition for the purposes of her practical reasoning. A promisor's nonacceptance of a condition on her intent to perform is material because it is likely to affect her preperformance deliberations and investment in the transaction, as well as her willingness to seek agreement with the promisee on how to fill contractual gaps.

I offer in this paper an argument in support of the orthodox view that resultant luck should not affect judgments of blameworthiness—and so, for example, that we should not blame the successful assassin more than the attempted assassin who equally tries but fails. This view, though widely held among moral philosophers and legal scholars, has been severely challenged as implying either the implausible rejection of moral luck or an equally implausible theory of wrongness according to which actual consequences may play no wrong-making role. The argument I offer, however, assumes both challenges to be true and shows that the orthodox view is consistent with holding them. Indeed, I argue that all other things being equal, successful offenders are no more to blame than their unsuccessful counterparts, even though agents are responsible for what they actually do (and therefore are subject to moral luck), and successful offenders do more wrong than their unsuccessful counterparts do (and therefore consequences do play a wrong-making role). The reason is that the difference in the amount of wrong done by one and the other offender, I show, is counterbalanced by a difference in the degree to which the successful offense and the unsuccessful one are attributable to their respective agents—blameworthiness being a function of both amount of wrong done and degree of attributability.

This essay examines the ambition to taxonomize law and the different methods a legal taxonomer might employ. Three possibilities emerge. The first is a formal taxonomy that classifies legal materials according to rules of order and clarity. Formal taxonomy is primarily conventional and has no normative implications for judicial decision-making. The second possibility is a function-based taxonomy that classifies laws according to their social functions. Function-based taxonomy can influence legal decision-making indirectly, as a gatekeeping mechanism, but it does not provide decisional standards for courts. Its objective is to assist in analysis and criticism of law by providing an overview of the body of legal doctrine. The third possibility is a reason-based taxonomy that classifies legal rules and decisions according to the moral principles or “legal principles” thought to justify them. Reason-based taxonomy of this type offers courts a set of high-level decisional rules drawn from legal data. Its objective is to guide courts in deciding new cases and evaluating precedents. A predominantly formal taxonomy facilitates legal analysis and communication. A functional taxonomy can assist those who make and apply law by providing a purposive overview of the field. Reason-based taxonomy may be useful to lawmakers but is unhelpful when offered as a guide to adjudication of disputes.

In 1966 the U.S. Supreme Court wrote, “The basic purpose of a trial is the determination of truth.” This is Larry Laudan's guiding premise in his “essay on legal epistemology.” Without ascertaining the facts about a crime, he writes, it is impossible to achieve justice, since a just resolution crucially depends on correctly figuring out who did what to whom. Thus, he continues, “it is entirely fitting to ask whether the procedures and rules that govern a trial are genuinely truth-conducive.” In chapter 1 of the book, Laudan identifies one of the most important and legitimate methods for finding truth, namely, ensuring that the jury hears all and only relevant evidence. Laudan bemoans the fact, however, that “legal texts and the practices of courts routinely flout” this principle. Much of the rest of the book is devoted to the other tests for admissibility that the system imposes, tests that Laudan often regards as misguided.

Why do we grant religious exemptions? Many distinguished scholars and judges have been drawn to the idea that conscience is entitled to special protection, because a person in its grip cannot obey the law without betraying his deepest, most identity-defining commitments. The weakness of this justification is shown by philosopher Harry Frankfurt's account of what he calls “volitional necessity,” which clarifies the structure of the argument that invocations of conscience imply. Frankfurt shows that a person can be bound in this way by allegiances that there is no reason to respect; volitional necessity can arise from anything at all that a person cares about. Conscience is thus a poor basis for claims upon other people. Accommodation must rather depend on some idea of the value of religion.

We argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states (or statelike actors) and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state's fiduciary duty to provide equal security under the rule of law, a duty that flows from the state's institutional assumption of irresistible sovereign powers.

This paper attempts to identify a principle of equal treatment that gives specific structure to our widely shared judgments about the circumstances in which we have moral reason to object to the differential adverse treatment of others. I formulate what I call a “substantive” principle of equal treatment (to be distinguished from principles of formal equality) that describes a moral constraint on the reasons we can have for picking out individuals for differentially adverse action. I argue that this constraint is violated when an action, in view of its rationale, expresses lesser respect for the moral status of an individual under some differentiating description compared to the respect reserved to another class of individuals who are not picked out by that description. I show that this substantive demand of equal treatment is not morally otiose and I reveal the fallacy underlying accounts that have concluded otherwise.