Parents resemble trustees, conservators, and other fiduciaries; they exercise broad discretion while making choices for vulnerable people. Like other fiduciaries, parents can be tempted to neglect their duties or pursue self-interest at the expense of those they should protect. This article argues against treating parents as fiduciaries for three reasons. First, the scope of parental fiduciary duties cannot be narrowed enough to make them tolerable. Arguments limiting fiduciary duties to cases where parents exercise delegated powers or act within parenting roles (...) fail. Most parental decisions involve dual powers or roles. Efforts to address these dual-role cases produce principles that are unduly demanding, complex, arbitrary, and morally unappealing. Second, we could limit parental fiduciary duties by designing parental roles to benefit children. Since children need devoted, happy, well-rounded parents, the principle of designing parental roles to benefit children would produce rules that leave room for parents to flourish. However, this principle does not justify specific legal or moral fiduciary norms. Third, we could redefine fiduciary duties so parents can balance their interests against children’s interests, making fiduciary duties less burdensome. However, expanding the definition of fiduciary threatens to encompass many duties within the fiduciary category, rendering the description almost meaningless. (shrink)

Many climate ethicists maintain that climate policy costs should be borne by those who historically emitted the most greenhouse gases. Some theorists have recently argued, however, that actors only became liable for emitting once the emissions breached legitimate legal regulation governing emissions. This paper challenges this view. Focusing on the climate responsibility of states, it argues that even if we assume that legitimate legal regulation is needed to remove excusable ignorance of entitlements to emit or is constitutive of such entitlements, (...) it does not follow that states should be exonerated from responsibility for all pre-legal emitting. This is because the pre-legal emissions may have violated moral duties not to behave recklessly and to promote the emergence of the relevant regulation. The paper closes by noting how grounding liability for emitting in such duties complicates the link between past emissions and liability. (shrink)

In this paper, we argue that the widespread practice in the United States of busing voters to the polling station on Election Day is an instance of paying people to vote. We defend a definition of what it means to pay people to vote, and on this definition, busing voters to the polling station is an instance of paying people to vote. Paying people to vote is illegal according to United States federal election law. However, the United States courts have (...) historically considered the practice of busing voters to the polling station legally permissible. The United States legal system, therefore, faces a dilemma: either the courts must change their interpretation of current federal election law such that busing voters to the polling station is a violation of federal election law, or federal election law must be changed so that at least some instances of paying people to vote are legally permissible. We argue that choosing either horn of the dilemma has a controversial implication for the United States legal system. (shrink)

This paper examines the role of metalinguistic negotiation in lawyers’ and judges’ speech about the law. A speaker engages in metalinguistic negotiation when the speaker uses a term to advocate for what that term should mean or how it should be used relative to context. While I doubt that legal practitioners employ metalinguistic negotiation in the ways that David Plunkett and Tim Sundell have proposed, it is plausible that practitioners do so in another way. Specifically, I contend that lawyers and (...) judges sometimes use key terms in legal interpretation – e.g., ‘plain’, ‘meaning’, or ‘holding’ – to advocate for what those terms should mean or how courts should use them in adjudication. This suggests an intriguing role for metalinguistic negotiation in legal argumentation, one that could shed light on practitioners’ disputes in a range of cases dealing with constitutional, statutory, or common-law interpretation. (shrink)

Much contemporary discussion of mercy has focused on what I call ‘beneficent mercy’: compassionately sparing a person from harsh treatment that she deserves. Drawing on Seneca’s discussion of mercy, I articulate a different concept of mercy which I call ‘critical mercy’: treating a person justly when unjust social rules call for harsher treatment. Whereas beneficent mercy is grounded in recognition of imperfection in human individuals, critical mercy is grounded in recognition of imperfection in human institutions. I argue that political communities (...) have reason to authorize judges to grant critical mercy in criminal law. I contend with the objection that critical mercy appears to violate the ideal of the rule of law. I argue that where certain constraints are met, rule of law values in fact provide positive reason to authorize judges to grant critical mercy in criminal law. (shrink)

Recent philosophical accounts of discrimination face challenges in accommodating robust intuitions about the particular way in which it is wrongful—most prominently, the intuition that discriminatory actions intrinsically violate equality irrespective of their contingent consequences. The paper suggests that we understand the normative structure of discrimination in a way that is different from the one implicitly assumed by these accounts. It argues that core discriminatory wrongs—such as segregation in Apartheid South Africa—divide into two types, corresponding to violations of relational and distributive (...) equality; and that a pluralistic view of the internal structure of each type should be adopted. This normative structure serves to appropriately vindicate the mentioned intuitions; it also contributes to clarifying the normative underpinnings of legal concepts associated with discrimination (including the distinctions between direct and indirect, or ‘disparate treatment/impact’ discrimination, and intentional vs. unintentional discrimination), and developing a more productive public discourse around allegations of discrimination. (shrink)

Jurisprudes today differ in their interpretations of H.L.A. Hart’s analysis of the semantics of internal legal statements. Drawing upon the philosophy of language and metaethics to reconstruct Hart’s view, they disagree as to whether Hart should be interpreted as an expressivist or quasi-expressivist. In this paper I propose a third reconstruction, under which Hart adopted an inferentialist analysis of the semantics of internal legal statements. In executing this reconstruction, I focus on Hart’s inaugural lecture, and utilize the theoretical apparatus of (...) Robert Brandom, a leading advocate of inferential role semantics, to bring Hart’s methodological pragmatist—and more specifically inferentialist—insight in that lecture to the fore. (shrink)

The most discussed theory of law of the twentieth century – HLA Hart’s theory from _The Concept of Law_ – is fundamentally _psychological_. It explains the existence of legal systems in terms of an attitude taken by legal officials: the internal point of view. Though much has been said about this attitude (what statements _express_ it, what it is _not_, how Hart _ought_ to have conceived of it, etc.), we nonetheless lack an adequate account of the attitude itself. This paper (...) presents and defends an account of the internal point of view and shows how, when understood as the account suggests, this attitude can play the several roles that Hartian positivists need it to play. (shrink)

In this paper, I aim to explicate the distinction between ‘unconditional relevance’ and ‘conditional relevance’ as those terms and related concepts are applied in the context of admissibility determinations in modern trials. I take the U.S. Federal Rules of Evidence to be my model in analyzing these concepts, though on my view any reasonable approach to legal evidence will have to distinguish between these concepts and make appropriate provisions for their separate treatment. I begin by explaining how the Federal Rules (...) define and apply the concepts of relevance and conditional relevance, and I present an influential argument due to Vaughn Ball that threatens to undermine the distinction between the two concepts. I then argue that Ball's argument fails and I diagnose that failure. However, building on some insights from a variety of evidence scholars, I argue that the approach to conditional relevance adopted by the Federal Rules is crucially flawed for reasons entirely independent of the ones raised by Ball's argument. I identify the main constraints that, on my view, any reasonable approach to conditional admissibility must obey, and I argue for a specific proposal that obeys those constraints. On my positive view, two pieces of evidence should be admitted under a Conditional Admissibility Principle only when each piece of evidence would survive ordinary admissibility scrutiny, conditional on the admission of the other one. I conclude by considering the question of whether it should also be necessary for the two pieces of evidence to survive admissibility scrutiny together, as an ‘evidential package’; I argue that, though the issue may arise infrequently in practice, there is good reason to impose this additional requirement. (shrink)

This essay defends the moral permissibility, as a form of punishment, of banishment, namely the exclusion by a state of a citizen from its territory. I begin by outlining the prima facie case for banishment, consider for whom it may be appropriate, and acknowledge constraints on its permissibility. I then defend banishment against the main objections in the literature to banishment or the related measure of denationalization (stripping citizens of their citizenship): impermissible permanency; excessive severity; ineffectiveness; unfairness to those who (...) are punished and the creation of two classes of citizens; unfairness among states; and that banishment without denationalization is incompatible with the nature of citizenship. I adopt a ‘cantilever strategy’: if incarceration is permissible notwithstanding a certain objection, so is banishment. In concluding, I sympathetically discuss the view that, despite the moral permissibility of banishment, the power to banish should not be instituted because of the risk of abuse. (shrink)

Under the Mental Capacity Act 2005 (MCA) in England and Wales, the liberal commitments to subjective freedom guide obligations towards persons who do not lack capacity. For the subject of proceedings who might lack capacity (P), it is less clear as to what obligations orient best interests decision-making on their behalf. The UK Supreme Court has emphasised the centrality of ‘P-centricity’ in best interests decision-making, where there is the legal obligation to consider P’s subjective views and wishes in a holistic (...) consideration of best interests. Unclarity nonetheless persists as to what is owed to P in the best interests standard, leading to the tendency to interpret obligations of P-centricity through the normative prism of subjective autonomy. This paper argues that such moves reduce the complex moral phenomenology of what a P-centric ethos entails. Instead, the phenomenological and ethical stance of moral considerability and recognition respect can best capture the enriched normative grounding for P-centric decision-making in mental capacity law. (shrink)

Philosophical theories of property rights struggle to adequately explain the moral significance of ownership. We propose that the moral significance of property rights is due to the intersection of what we call "the extended self” and conventionally protected rights claims. The latter, drawing on conventionalist accounts of property rights, explains the social nature and flexibility of property. The former, drawing on naturalist theories, explains their personal nature. The upshot is that we find at this intersection the full moral significance of (...) property. (shrink)

This paper argues that the inheritance of wealth must be grounded on reasons other than the defense of the testator’s right to bequeath or that of an heir’s alleged moral right to receive inheritance. It asserts that the accepted approach in anglophone political philosophy about the justice of inheritance along the framework of ‘justice in transfer’ is misguided. Taking _Rest_ land inheritance in Ethiopia as a case study, it defends a system of corporate ownership of land by the descent group (...) with an internal limitation put on the absoluteness of individual titles. Moreover, it submits, inheritance is permissible on reasons that (a) it must relate to preserving equality of opportunity and of a fair playing field, and (b) it ought to be predicated on a more expansive conception of kinship than is customarily accepted in Western societies. As land becomes progressively scarce, the evolution of ownership from private to family and then to corporate ownership signifies a sound interpretation of what it means to leave enough and as good for others to appropriate. (shrink)

This essay examines why coerced conduct tends not to have the moral and legal consequences that non-coerced conduct often has. In it, I argue against the “incapacitation approach,” the view that coerced conduct tends not to result in the coercer acquiring a permission or an entitlement because the coercee is typically incapable of exercising her rights to change the coercer’s permissions or entitlements. After demonstrating that coercees retain the ability to exercise those rights, this article develops an alternative account: that (...) coerced conduct tends not to have a licensing effect because coercees typically do not elect to effect a change in their coercers’ permissions or entitlements. (shrink)