Though most legal and labor historians have depicted an American labor movement that suffered from legal disabilities, American law has never denied organized labor's freedom of association. Quite the contrary, unions have always enjoyed at least some favoritism in the law, and this status provided the essential element to their success and power. But, even during the heyday of union power (1930–47), organized labor never succeeded in gaining all of the privileges that it sought, not enough to stem its current (private-sector) decline back to historically normal levels. This article provides a synoptic overview and reinterpretation of the development of American labor law.

In this paper I show how modern democratic states are likely to be inimical to traditional liberal education. Drawing on theoretical considerations and recent history I show how any attempt to promote traditional educational values through state interventions, such as national curricula or state regulation, is bound to be illusory. The preservation of liberal education will best be served by the wholesale removal of education from the progressive state and its bureaucracies.

Individuals frequently give gifts or make transfers to others for altruistic reasons. Parents devote time to raising their children, spouses make sacrifices on each other's behalf, and friends do favors for friends. We are also linked to many people indirectly because we care for someone who cares for them.

In analyzing the development of the concept of civil rights since the adoption of the Fourteenth Amendment, two historical accounts seem available. According to the first account, the concept initially encompassed a relatively limited set of rights, associated with the ability of all citizens to engage in the productive activities of the economy and avail themselves of the protection of the legal system. Then the concept gradually expanded to include what had initially been thought of as political rights, such as the right to vote, and then to identify the entire set of rights to equal treatment in all domains of life outside a relatively narrowly-defined private sphere. According to the second account, the concept of civil rights was fuzzy from the outset; although political actors spoke as if they had a clear understanding of distinctions among civil, political, and social rights, close examination of their language shows that the distinctions tended to collapse under slight pressure.

Drawing on themes important in moral and political philosophy, much of the scholarship on the constitutional law of privacy in the United States distinguishes between privacy understood as a person's control over information and privacy understood as a person's ability to make autonomous decisions. For example, Katz v. United States (1967) established the framework for analyzing whether police activity constituted a “search” subject to the Fourth Amendment's requirement that the police either obtain a warrant before conducting a search or otherwise act reasonably. The defendant was a professional gambler who knew enough about police techniques to use a public telephone to make his business calls. Police agents attached a listening device to the outside of the phone booth, and sought to use the recordings against the defendant. The Supreme Court agreed with the defendant that the Fourth Amendment had been violated. Justice John Marshall Harlan's influential concurring opinion asserted that a person's privacy, in the sense of control over information, depended on two factors: “that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” Fourth Amendment cases like Katz involve informational control; they define the circumstances under which the government may acquire information from or about a person without first obtaining the person's agreement. In contrast, cases like Griswold v. Connecticut (1965), which barred the state from making it a criminal offense to use contraceptives, and Roe v. Wade (1973), which restricted the state's power to prohibit or regulate abortions, used the language of privacy rights to protect a much broader interest in autonomous decision-making. Seeing these cases and related ones through lenseees provided by moral and political philosophy, scholars have attempted to describe what a morally sound constitutional law of privacy would be, and the broadest sense, dworkinian. That is, they seek to provide an account of privacy with two characteristics: it is broadly consistent with the relevant constitutional decisions, and it is the most morally attractive account possible that satisfies the requirement of consistency with the decisions.

This essay attempts to clarify the distinction between property and sovereignty, and to bring out the importance of that distinction to a liberal nationalism. Beginning with common intuitions about what distinguishes our rights to our possessions from the state's rightful governance over us, it proceeds to explore some historical sources of these intuitions, and the importance of a sharp distinction between ownership and governance to the rise of liberalism. From here, the essay moves into an exploration of group ownership, and the ways in which group ownership can in practice turn into an illiberal kind of sovereignty The point is to shed new light on problems that nationalist states — states purporting to represent or foster a particular group identity — characteristically face. Examples of these problems, from the Israel/Palestine conflict, are put forth in the conclusion.

Resentment and other hard feelings may outlive their targets, and people often express a desire to overcome these feelings through forgiveness. While some see forgiving the dead as an important moral accomplishment, others deny that genuine forgiveness of the dead is coherent, let alone desirable or valuable. According to one line of thought, forgiveness is something we do for certain reasons, such as the offender’s expressed contrition. Given that the dead cannot express remorse, forgiveness of the dead is impossible. Others see the apparent coherence and moral importance of forgiving the dead as a reason to give up on the idea that forgiveness is conditional upon the offender’s remorse. According to these philosophers, forgiveness of the dead poses no special problems; forgiveness of the dead, like forgiveness of the living, is not contingent upon the offender’s contrition. I steer a path between these two positions in such a way as to bring out an important aspect of forgiveness that is not adequately addressed in the literature: I argue that forgiving the dead may be perfectly coherent and morally valuable even though the dead cannot ask for forgiveness or engage in reparative activities. A full appreciation of the relational character of forgiveness allows us to make sense of forgiving the dead.

The problem of Marxism is the problem of tyranny. The central argument against Marxism is an empirical one: the universally tyrannical nature of all hitherto existing Marxist regimes. Defenders of Marxism must continually defend themselves against the charge that Marxism, when it comes to power, increases the sum total of human misery by increasing political oppression. Marxists have answered in several ways. Some have argued that the social and economic benefits of Marxism outweigh the political misery it causes. Others have argued that while tyranny might count against any particular regime, it is not intrinsic to Marxist regimes as such. Some have argued that tyranny is a transitional phase, necessary but impermanent. Finally, some Marxists have denied that the regimes they defend are tyrannical at all.

In this essay I identify two burdens for eliminativist accounts of moral responsibility. I first examine an underappreciated logical gap between two features of eliminativism, the gap between descriptive skepticism and full-blown prescriptive eliminativism. Using Ishtiyaque Haji’s luck-based skepticism as an instructive example, I argue that in order to move successfully from descriptive skepticism to prescriptive eliminativism one must first provide a comparative defense of the conflicting principles that motivate the former. In other words, one must fix the skeptical spotlight. I then present and assess a second burden for eliminativists, they must meet what I call the motivational challenge. In order to meet this second burden, eliminativists must motivate their prescriptive account over preservationist competitors, and I assess two potential strategies for doing so. The first is to offer arguments that appeal to the gains and losses of abandoning our responsibility-related attitudes and practices, and the second is to offer direct arguments that we cannot retain these attitudes and practices. I conclude that the adequacy of either strategy remains at best an open question, but that making these burdens explicit might better position eliminativists to meet their competitors on more equal ground.

Freedom of speech, press, assembly, and petition have long been celebrated as crucial to democratic government. (I will often refer to these rights collectively as ‘freedom of expression’ or as ‘freedom of speech’.) United States Supreme Court decisions have, quite rightly, justified strong protection of these freedoms because of their crucial role in the functioning of American democracy. (Of course, there are other justifications as well, but I will not discuss them in this paper.)

Modern discussions of natural resources focus on increasing public control over extractive industries proposing measures that range from increasing the public's share of the gain via royalties and taxes to regulating extractive activities to prevent environmental problems to outright expropriation of private investments. This article argues that such efforts are counterproductive because the fundamental economic problem of natural resources is producing the knowledge necessary to locate and extract resource deposits. The public benefit comes from enabling the use of the resources and the increased economic activity their discovery produces rather than from royalties or expropriation. The key question in designing natural resource laws is thus their effects on the incentive to discover and manage resources. Private property rights in natural resources are the best way to provide such incentives. Fortunately, the combination of property rights and tort law principles (trespass and nuisance) enables property rights to solve environmental problems related to natural resource extraction as well.

Individuals care deeply about with whom they associate and on what terms. A liberty to avoid entanglement in the disfavored designs of others is counterposed by an entitlement not to be excluded from valued modes of activity. These interests generate not one but two freedoms of association, the former negative and the latter positive. Often they conflict. This essay begins by setting out several respects in which negative free association is crucial to a liberal order and then examines several pleas for positive association, at least one of which is judged to be compelling. Because the two freedoms of association are in conspicuous tension, the essay concludes with strategies for reconciling their competing claims.

Mill advocated an unqualified defense of the liberty of conscience in the most comprehensive sense, which he understood to include not just the freedom to hold but also to express any opinion or sentiment. Yet considerable dispute persists about the nature of Mill’s argument for freedom of expression and whether his premises can support so strong a conclusion. Two prominent interpretations of Mill that threaten to undermine his uncompromising defense of free speech are considered and refuted. A better interpretation can be founded on Mill’s claim that the liberties of conscience are inseparable in practice. This claim can be defended with modern psychological insight about the nature of cognitive bias, and epistemological insight about why justification of creedal beliefs requires the universal toleration of opinion, insights which are largely anticipated by Mill. This argument is especially vital because it highlights the divide between classical liberalism and progressivism that has become a flashpoint in the current political debate over free speech.

Liberal egalitarians argue that the state is justified in taxing members of a political community to achieve distributive justice and ensure political equality and regime stability. This involves an uneasy compromise between equality and efficiency, a compromise that many argue has recently been undermined by the growth of unchecked wealth and income inequality. This essay argues that there is also a trade-off between selecting fair processes for taxation and aiming for particular distributive outcomes. The way people accumulate wealth, and the way states tax often matters more than distributive outcomes. Policymakers must allow for the fair assessment of tax liabilities, avoid excessive enforcement costs and prevent political actors from using tax systems to achieve their partial ends. Recognizing these considerations justifies a systematic scheme of taxation while constraining the mechanisms for collecting revenue. I justify this position using comparative analysis, which I contrast with the conceptual intuitionistic approach associated with egalitarianism.

When the modern administrative state emerged in America during the Progressive Era, at the beginning of the twentieth century, it was typically grounded on the premise that administrative officials are experts who should be insulated from politics. This theory, combined with emerging ideas of scientific management, contributed to the intellectual justification for the administrative state. However, progressives never fully reconciled the tension between this theory and the democratic nature of American politics. Because of this ambiguity and tension in the progressives’ theory of expertise, the politics/administration dichotomy was abandoned shortly after the administrative state was constructed. The place of expertise in the administrative state is still ambiguous, even in the twenty-first century.

This essay explains how to use the calculus of consent framework to think more rigorously about self-governance, and applies this framework to the issue of evaluating federal regulatory agencies. Robust political economy is the idea that institutions should be designed to work well even under weak assumptions about decision-makers’ knowledge and benevolence. I show how the calculus of consent can be used to analyze both incentives and knowledge problems. The calculus is simultaneously a theory of self-governance and a tool for robust political economy analysis. Applying this framework to the case of public administration leads to the conclusion that private goods (such as medicine) tend to be over-regulated, public goods tend to be under-regulated (such as enabling too much pollution), and regulatory agencies tend to be over-centralized (and should in most cases either be replaced with certification markets or moved to state level).

The question of what constitutions should do is deeply connected to what constitutions are. In the American founding conception, a constitution was a fundamental law, hierarchically superior to the decisions of the legislature, and intended to act as a restraint on legislative action. Despite the massive gulf between the ancient Greeks and the Americans, classical Athens offers an important lesson about how the failure to recognize fundamental laws can lead to catastrophic consequences. The evidence suggests that the Athenians understood the need for conceptual, procedural, and institutional distinctions between the fundamental laws and the more specific decrees of the governing institutions. The Athenian and American experiences also suggest that certain philosophical positions conditioned their understanding of their fundamental laws, and guided the practices that followed from that understanding.

This essay is about the moral and political justification of affirmative action programs in the United States. Both legally and politically, many of these programs are under attack, though they remain ubiquitous. The concern of this essay, however, is not with what the law says but with what it should say. The main argument advanced in this essay concludes that most of the controversial affirmative action programs are unjustified. It proceeds in a way that avoids dependence on controversial theories of justice or morality. My intention is to produce an argument that is persuasive across a broad ideological spectrum, extending even to those who believe that justice requires these very programs. Though the main focus of the essay is on affirmative action, in the course of making the case that these programs are illegitimate, I shall defend some principles about the conditions under which it is appropriate for the state to impose on civil society the demands of justice. These principles have broader implications for a normative theory of social change in democratic societies.