It is widely accepted that electoral representative democracy is better—along a number of different normative dimensions—than any other alternative lawmaking political arrangement. It is not typically seen as much of a competition: it is also widely accepted that the only legitimate alternative to electoral representative democracy is some form of direct democracy, but direct democracy—we are told—would lead to bad policy. This article makes the case that there is a legitimate alternative system—one that uses lotteries, not elections, to select political (...) officials— that would be better than electoral representative democracy. (shrink)

This paper takes on several distinct but related tasks. First, I present and discuss what I will call the “Ignorance Thesis,” which states that whenever an agent acts from ignorance, whether factual or moral, she is culpable for the act only if she is culpable for the ignorance from which she acts. Second, I offer a counterexample to the Ignorance Thesis, an example that applies most directly to the part I call the “Moral Ignorance Thesis.” Third, I argue for a (...) principle—Don’t Know, Don’t Kill—that supports the view that the purported counterexample actually is a counterexample. Finally, I suggest that my arguments in this direction can supply a novel sort of argument against many instances of killing and eating certain sorts of animals. (shrink)

This paper connects the question of the rationality of voting to the question of what it is morally permissible for elected representatives to do. In particular, the paper argues that it is rational to vote to increase the strength of the manifest normative mandate of one's favored candidate. I argue that, due to norms of political legitimacy, how representatives ought to act while in office is tied to how much support they have from their constituents, where a representative’s “support” is (...) a function of the percentage of adults living in the political jurisdiction who voted for her. In a representative system, whether a particular law or policy is legitimate is in part a function of how much support the particular representative government has, rather than simply being a function of the governmental structure or the normative content of the law or policy. Representatives with more support can permissibly act more like trustees (doing what they think is best) and less like delegates (doing what their constituents presently prefer). I argue that this fact provides a reason for individuals to vote, even given the incredibly small chance an individual voter has of casting a pivotal vote. (shrink)

There has been a great deal of philosophical discussion about using people, using people intentionally, using people as a means to some end, and using people merely as a means to some end. In this paper, I defend the following claim about using people: NOT ALWAYS WRONG: using people—even merely as a means—is not always morally objectionable. Having defended that claim, I suggest that the following claim is also correct: NO ONE FEATURE: when it is morally objectionable to use people, (...) this is for many different kinds of reasons—there is no one wrong-making feature that every morally objectionable using has in common. After discussing these claims, I use them to present and motivate what I call the “precaution” theory of norms against using people. I conclude by considering a few cases from the criminal law context—cases that are naturally described as using people—to assess the moral appropriateness of this kind of use in these cases, and to demonstrate how the theory applies to the real world. (shrink)

So, you want to start a revolution. There is something significant in the world around you that is wrong: unjust, oppressive, unfair, unequal. Half measures won’t suffice. Something dramatic, revolutionary, is required. You have ideas. You might have a plan. But although you are certain of the wrong around you, you are not certain of the path forward. You have some doubt about the plan, whether it will work, its moral costs, and whether there are problems you cannot yet see. (...) You have revolutionary doubt. That is good. We need revolutions. But revolutions should not be only conducted by the certain. This article will help you to nourish that doubt, to see why it is almost always epistemically appropriate if also almost always difficult to maintain, to learn how to live and act with it, and to give it its due without it leading to paralysis and inaction. (shrink)

Maybe you only have 1000 units of some resource, but 10,000 people need the resource or would benefit from it. One question: why do you control the resource? Leave that aside for now. A second question: how should you allocate the resource? If you are a decision-maker in a health system, and if the resource has to do with medicine or public health, we are in the world of the ethics of scarce resource allocation decisions in healthcare. Munthe et al (...) 1 note that the ‘operational norms that guide actual decision making in this area tend to be similar across health systems’ and include principles concerning need, prognosis, equal treatment and cost-effectiveness. Even with just these principles, there are hard questions of how they ought to be specified, operationalised and balanced against each other when they conflict. They do not focus on this. Instead, they identify a concern: paying attention only to these principles in making allocation decisions may lead decision-makers to miss ‘negative dynamics’ that result from their decisions. They aim to rectify this by suggesting a ‘sustainability’ principle that would sit alongside these other ethical principles, serving as a side-constraint that rules out certain allocation choices or as a distinct reason to be weighed in the decision-making calculus. I agree that the downstream effects of our allocation decisions matter, …. (shrink)

How does age matter to moral responsibility and criminal liability? Almost no one thinks that a 3-year old is morally responsible for what she does. No one would think an 8-year old should be held criminally liable for engaging in illegal criminal action—even for something seriously harmful such as intentionally setting fire to a building or badly harming another child. Something else should happen, certainly, but not criminal prosecution and conviction and State punishment. And that’s true even if we might (...) start to think that the 8-year old can be morally responsible, or at least somewhat morally responsible, for what she does. Disagreement might start to enter in as the age increases. What do we think of a 12-year old? A 15-year old? A 17-year old? Gideon Yaffe’s excellent book, The Age of Culpability, is focused on the question of why children—for these purposes, all people under the chronological age of 18—should be given a break, legally speaking, and why this should be done categorically. Yaffe argues that the fact that no one under 18 is eligible to vote is a key part of the explanation. In this paper, I raise two objections to Yaffe’s account. In particular, I raise several questions about the details of Yaffe’s account regarding what it is to “have a say over the law” and the way in which this makes a difference to criminal culpability. (shrink)

Although the individual mandate was upheld and the Commerce Clause may have been cabined, the decision to strike down a significant element of the “Medicaid expansion” may prove to be the most significant aspect of the Supreme Court’s decision in NFIB v. Sebelius. Under the Affordable Care Act (ACA), States were required to extend Medicaid coverage to all individuals under the age of 65 with incomes below 133 percent of the poverty line, a new “essential health benefits” package was required (...) for all new Medicaid recipients, and the increased costs due to the expansion would be entirely covered by the Federal government through 2016, with the Federal payment gradually decreasing to a minimum of 90 percent of the total cost from the expanded coverage. The element found to be unconstitutional was §1396c of the ACA, which permitted the withdrawal of all Federal Medicaid funds from those States that did not comply with the ACA’s requirements for Medicaid expansion. The effect on access to health care may be significant: roughly half of those expected to gain coverage under the ACA were going to gain it through the Medicaid expansion; it is unclear how many States will choose to opt into that expansion in the absence of §1396c.1 Additionally, the argument offered by the Court to strike down that provision might be used to attack other federal programs—concerning transportation, social services, environmental protection, and others—that have a similar structure. This paper will demonstrate that the argument rests on a theoretical mistake concerning the relationships between coercion, compulsion, and political accountability and that, further, this mistake is not one legally forced upon the Court. (shrink)

In ‘Excusing Mistakes of Law’, Gideon Yaffe sets out to ‘vindicate’ the claim ‘that mistakes of law never excuse’ by ‘identifying the truth that is groped for but not grasped by those who assert that ignorance of law is no excuse’. Yaffe does not offer a defence of the claim that mistakes of law never excuse. That claim, Yaffe argues, is false. Yaffe’s article is, rather, an effort to assess what plausible thought might be behind the idea that mistakes of (...) law often should not excuse. (Yaffe is interested in more than just the descriptive claim that in Anglo-American legal jurisdictions mistakes of law routinely do not, in fact, excuse.) More particularly, Yaffe is interested in what plausible normative justification there might be for this asymmetric pattern: -/- Asymmetry: False beliefs about non-legal facts often excuse, but false beliefs about the law rarely excuse. -/- Yaffe offers a complex argument in support of Asymmetry. This paper is organised around my reconstruction of Yaffe’s argument. I argue that Yaffe’s argument does not succeed, but that his argument provides a template for an argument that could succeed. (shrink)

Even good lawyers get a bad rap. One explanation for this is that the professional rules governing lawyers permit and even require behavior that strikes many as immoral. The standard accounts of legal ethics that seek to defend these professional rules do little to dispel this air of immorality. The revisionary accounts of legal ethics that criticize the professional rules inject a hearty dose of morality, but at the cost of leaving lawyers unrecognizable as lawyers. This article suggests that the (...) problem with both the professional rules and the extant accounts of legal ethics is that they treat the role of lawyer as largely uniform, whereas lawyers actually serve several importantly different roles in different contexts. The central insight of the article is that legal ethics must be fundamentally context-sensitive: what lawyers are morally permitted or required to do depends on the background context in which they are working. Additionally, by taking context into account, this article is the first to present a theory of legal ethics as appropriately shaped and constrained by normative political philosophy and norms of political legitimacy. -/- Specifically, the article argues that people act as lawyers in three different contexts: State v. Individual (situations in which the State seeks to apply some general law to a particular individual), Individual v. Individual (situations in which private individuals are engaged in a dispute), and Individual v. State (situations in which individuals object to State conduct on constitutional or other grounds unrelated to the question of whether a general law applies to their particular case); that the value of lawyers, qua lawyers, stems from a different source in each of these contexts; and that a theory of legal ethics must take into account both of these first two claims. This article develops one such theory - the Multi-Context View. To demonstrate how the theory applies in practice, the article applies the Multi-Context View to two significant issues in legal ethics: the ethical issues involved in deciding whether to represent a client and the moral permissibility of the use of tactical delay. (shrink)

The law marks a significant difference between violent and non-violent criminal actions. Violent crimes are typically met with more severe punishments and consequences than non-violent crimes. Even in discussions of criminal justice reform, the refrain remains: violent crime is different; those convicted of violent crimes are different; and it is appropriate to respond to violent crime differently. This article argues that the violent/non-violent distinction cannot bear the normative weight placed on it and that we should jettison violence and move to (...) thinking about objectionable harm caused and risked. There are moral constraints on punishment from considerations of proportionality and equality, these are connected to wrongful harm and facts about agent culpability, and there is no consistent relationship between violence and wrongful harm nor between violence and culpability. The article concludes by offering an error-theory concerning our commitment to treating violent crime differently and suggests that morally better categorizations are available. (shrink)

The existence of experts raises a host of interesting questions in social, legal, and political epistemology. This article introduces and discusses interested experts – people who are experts on some topic, but who also have a distinct set of values and preferences regarding that topic, so that they are not well-described as “disinterested” parties. Interested experts raise several distinct problems in social, legal, and political epistemology. Some general questions arise: can we rationally or justifiably form beliefs relying on interested expert (...) testimony? Do they constitute knowledge? Under what circumstances? This article focuses on a specific question in legal epistemology: should interested experts be allowed to serve on juries and, if so, should it be permissible for lawyers to strike them from the pool of potential jurors? My hope is that concentrating on this question will provide insight into the more general questions concerning the epistemology of testimony with respect to interested experts, while also providing concrete recommendations for jury reform to improve the epistemic performance of juries. (shrink)

In “Publicity and Measurement,” Marie Collins Swabey writes that “if democracy is not to be abandoned, some attempt must be made to devise ways in which what is of genuine public concern may be made to concern the public." Her article grapples with the problem of democratic governance in an age of policy complexity and voter ignorance, a problem that remains arguably the core problem of democracy today, with policy issues having become, if anything, substantially more complex. Unfortunately, despite the (...) prominence and extent of her work on this topic—including four articles in Ethics and a widely reviewed book— her contributions to political philosophy have been entirely lost. In this piece, I aim to highlight the continuing importance of the problem with which Swabey is grappling, and the distinctiveness, prescience, and continuing interest of her response to that problem. (shrink)

In most common-law and civil-law jurisdictions, mistakes of law do not excuse. That is, the fact that one was ignorant of the content or requirements of some law does not excuse violations of that law. Many have argued that this doctrine is mistaken. In particular, many have argued that if an individual’s ignorance or false belief is blameless, if she held the false belief reasonably, then she ought to be able to use that ignorance as an excuse for violating the (...) law. It is much harder to find defenders of the doctrine, despite its prevalence. Pragmatic considerations are occasionally offered on its behalf, but these are generally not impressive. In this paper, I consider a more direct kind of justification for the doctrine, one that attempts to identify something more immediately normatively objectionable about being ignorant of the law. In particular, I consider an argument that suggests that legal ignorance is more like moral ignorance than like nonmoral ignorance and maintains that even nonculpable moral ignorance does not excuse. (shrink)