Online research in philosophy

The goal of this paper is to explain and defend the following argument: (1) If it can be reasonably doubted that someone had free will with respect to some action, then it is a requirement of justice to refrain from doing serious retributive harm to him in response to that action. (2) Anyone who believes the free will debate to be philosophically valuable must accept that it can be reasonably doubted that anyone ever has free will. (3) Therefore, anyone who believes the free will debate to be philosophically valuable must accept that it is a requirement of justice to refrain from serious retributive harm.

Standards of reasonability play an important role in some of the most difficult cases of rape. In recent years, the notion of the reasonable person has supplanted the historical concept of the reasonable man as the test of reasonability. Contemporary feminist critics like Catharine MacKinnon and Kim Lane Scheppele have challenged the notion of the reasonable person on the grounds that reasonability standards are gendered to the ground and so, in practice, the reasonable person is just the reasonable man in a gender neutral guise. These critics call for the explicit employment of a reasonable woman standard for application to the actions of female victims of rape. But the arguments for abandoning a gender-neutral standard are double-edged and the employment of gendered standards of reasonability is likely to have implications that are neither foreseen by, nor acceptable to, advocates of such standards. Reasonable agent standards can be dropped, in favor of appeals to the notion of a reasonable demand (or expectation) by the law. However, if reasonable agent standards are to be retained, gendered versions of such standards are not preferable to gender-neutral ones.

Standards of reasonability play an important role in some of the most difficult cases of rape. In recent years, the notion of the ``reasonable person'' has supplanted the historical concept of the ``reasonable man'' as the test of reasonability. Contemporary feminist critics like Catharine MacKinnon and Kim Lane Scheppele have challenged the notion of the reasonable person on the grounds that reasonability standards are ``gendered to the ground'' and so, in practice, the reasonable person is just the reasonable man in a gender neutral guise. These critics call for the explicit employment of a ``reasonable woman'' standard for application to the actions of female victims of rape. But the arguments for abandoning a gender-neutral standard are double-edged and the employment of gendered standards of reasonability is likely to have implications that are neither foreseen by, nor acceptable to, advocates of such standards. Reasonable agent standards can be dropped, in favor of appeals to the notion of a ``reasonable demand (or expectation)'' by the law. However, if reasonable agent standards are to be retained, gendered versions of such standards are not preferable to gender-neutral ones.

The most compelling defense of the standard of reasonable care in negligence law casts itself in terms of equality. This commitment to equality may paradoxically turn out to be flatly inegalitarian. This is because it discriminates against the less capable through ignoring their deficient capabilities (and so against their chances of meeting the standard of reasonable care successfully). A promising, though still unfamiliar, way to revive the egalitarian aspirations of reasonable care would be to show that imposing the standard of reasonable care even on the less competent expresses, rather than inhibits, a true devotion to equality. I seek to make this showing, and thus to reclaim for this standard of care its egalitarian foundations more adequately than has so far been proposed.

In one of the more compelling introductions to philosophy, Bertrand Russell begins with this question: “Is there any knowledge in the world that is so certain that no reasonable man could doubt it?” (Presumably he means to include women.) “So certain that no reasonable man could doubt it.” And it’s a good question to begin an introduction to philosophy with, because so often, philosophy is in the mode of skepticism, so often it’s in the mode of offering a critical assessment of conventional wisdom. So, Russell wonders, is there anything so certain that no reasonable man could doubt it. And when we embark on this question, I suppose we have to ask about the question itself, we have to wonder what Russell’s talking about—right? We have to wonder what certainty is. So, what is certainty? It can’t merely be powerful confidence, it can’t merely be something like the assurance that we feel for ordinary knowledge claims. After all, there are lots of things that I know: I know that two plus two is four, I know that water is H2O, I know that I’m standing here before you. But I’d balk if you pressed me and asked me whether I was certain about these things—well, I don’t know if I’m certain about these things, I believe them on what I take is good evidence, I have a considerable confidence in these claims, I’d even bet a whole lot on at least some of them, but certain about it? I’m not sure about that. So we have to ask: what more is required than our confidence, then something like reasonable belief on plausible evidence? What’s certainty?

There is a substantial literature on the Bayesian approach, and the application of Bayes'' theorem, to legal matters. However, I have found no discussion that explores fully the issue of how a Bayesian juror might be led from an initial "presumption of innocence" to the judgment (required for conviction in criminal cases) that the suspect is "guilty beyond a reasonable doubt". I shall argue here that a Bayesian juror, if she acts in accord with what the law prescribes, will virtually never reach such a judgment. In section I, I discuss Bayesianism, Bayes'' rule and the relation between them. Section II addresses the two legal notions key to my worries about Bayesian jurors: the presumption of innocence and the reasonable doubt criterion. Section III explores what a Bayesian is to make of these notions, and how the legal system requires her to reason in their light. If I am right, there emerges a conflict between current legal prescriptions and the Bayesian approach. Section IV explores the import of this conflict and how it might be resolved.

This brief essay, written for a special issue on teaching intellectual property law, considers the "reasonable consumer" as he or she appears in trademark law cases. The "reasonable consumer" in trademark law is similar to tort law's "reasonable person," but they are not identical beings. The reasonable person in tort law is someone who sets a standard of care, who models how the law tells us we should act as we go about our lives. But the reasonable person in trademark law is more rule-like than standard-like. He or she doesn't embody an aspiration but rather, much like the speed limit on a highway, establishes the dividing line ex ante between what is legally appropriate and what is error. As a result, the reasonable consumer in trademark law is very much a judicial construct, a mythical figure assumed to have a certain set of characteristics - not surprisingly, often similar to those held by the court. By offering some examples from the case law, this essay encourages educators and their students to consider how often this judicial construct matches reality. For example, courts that look to a consideration of "sound, sight, and meaning" in determining whether two trademarks are similar (and therefore likely to be confused) may not always recognize that consumers hear, see, and interpret trademarks in unpredictable ways. Trademark law should expect consumers to exercise a fair amount of judgment, but it's useful to remember that, as Edward Rogers wrote almost one hundred years ago, trademark's "reasonable consumer" is "a real person . . . endowed with certain faculties and possessed of certain failings." The necessities of litigation may require judicial abstractions, but the realities of the marketplace persist.