The willful ignorance doctrine says defendants should sometimes be treated as if they know what they don't. This book provides a careful defense of this method of imputing mental states. Though the doctrine is only partly justified and requires reform, it also demonstrates that the criminal law needs more legal fictions of this kind. The resulting theory of when and why the criminal law can pretend we know what we don't has far-reaching implications for legal practice and reveals a pressing (...) need for change. (shrink)

The ‘adjustment strategy’ currently seems to be the most common approach to incorporating objective elements into one's theory of well‐being. These theories face a certain problem, however, which can be avoided by a different approach – namely, that employed by ‘partially objective multi‐component theories.’ Several such theories have recently been proposed, but the question of how to understand their mathematical structure has not been adequately addressed. I argue that the most mathematically simple of these multi‐component theories fails, so I proceed (...) to investigate more sophisticated ways to formulate such a theory. I conclude that one of these – the Discount/Inflation Theory – is particularly promising. (shrink)

Internalism about a person's good is roughly the view that in order for something to intrinsically enhance a person's well-being, that person must be capable of caring about that thing. I argue in this paper that internalism about a person's good should not be believed. Though many philosophers accept the view, Connie Rosati provides the most comprehensive case in favor of it. Her defense of the view consists mainly in offering five independent arguments to think that at least some form (...) of internalism about one's good is true. But I argue that, on closer inspection, not one of these arguments succeeds. The problems don't end there, however. While Rosati offers good reasons to think that what she calls 'two-tier internalism' would be the best way to formulate the intuition behind internalism about one's good, I argue that two-tier internalism is actually false. In particular, the problem is that no substantive theory of well-being is consistent with two-tier internalism. Accordingly, there is reason to think that even the best version of internalism about one's good is in fact false. Thus, I conclude, the prospects for internalism about a person's good do not look promising. (shrink)

In this article, I aim to clarify how Actual Desire Satisfactionism should accommodate the ways in which desire and time are connected. In particular, I argue that Weak Concurrentism represents the most promising way for the Desire Satisfactionist to capture the temporal nature of desire. I consider the Desire Satisfactionist's other main options, but argue that none succeeds. This leaves Weak Concurrentism looking attractive. However, Weak Concurrentism might also be thought to have some implausible consequences of its own. Nonetheless, I (...) argue that, on closer inspection, these consequences are not implausible at all – at least by the lights of the Desire Satisfactionist. I do not offer a full-blown defence of Weak Concurrentism, but rather aim to defend only a conditional conclusion: in so far as one is committed to Actual Desire Satisfactionism, Weak Concurrentism represents the best way to tackle the problems raised by the temporal nature of desires. (shrink)

American criminal law is committed to some version of the doctrine of double effect. In this paper, I defend a new variant of the agent-centered rationale for a version of DDE that is of particular relevance to the criminal law. In particular, I argue for a non-absolute version of DDE that concerns the relative culpability of intending a bad or wrongful state of affairs as opposed to bringing it about merely knowingly. My aim is to identify a particular feature of (...) the former in virtue of which it is pro tanto more culpable than the latter. Providing an agent-centered argument of this kind for a culpability version of DDE, I argue, is an especially attractive route to take for those who are interested in vindicating the way the criminal law actually encodes DDE. (shrink)

Reactive emotion accounts hold that blameworthiness should be analyzed in terms of the familiar reactive emotions. However, despite the attractions of such views, we are not persuaded that blameworthiness is ultimately a matter of correctly felt reactive emotion. In this paper, we draw attention to a range of little-discussed considerations involving the moral significance of the passage of time that drive a wedge between blameworthiness and the reactive emotions: the appropriateness of the reactive emotions is sensitive to the passage of (...) time in ways that attributions of blameworthiness are not. There are a number of ways in which reactive emotion accounts might attempt to accommodate the moral significance of time, however. We consider the most important of these, but ultimately find them wanting. Accordingly, we conclude that the prospects for the reactive emotion accounts are bleak. Our argument, if successful, has a range of implications for legal theory, most importantly in providing a novel moral basis for statutes of limitations and in shedding light on new avenues in the theory of criminal law generally. (shrink)

Hausman and McPherson defend welfare economics by claiming that even if welfare does not consist in preference satisfaction, preferences still provide good, if fallible, evidence of welfare. I argue that this strategy does not yet fully solve the problems for welfare economics stemming from the preference satisfaction theory of welfare. More work is needed to show that our self-interested preferences are sufficiently reliable, or in some other sense our best, evidence of well-being. Thus, my aim is to identify the challenges (...) that remain and clarify what additional work is needed before Hausman and McPherson's defence of welfare economics succeeds. (shrink)

The criminal law declines to punish merely for bad attitudes that are not properly manifested in action. One might try to explain this on practical grounds, but these attempts do not justify the law’s commitment to never punishing unmanifested mental states in worlds relevantly similar to ours. Instead, a principled explanation is needed. A more promising explanation thus is that one cannot be criminally culpable merely for unmanifested bad attitudes. However, the leading theory of criminal culpability has trouble making good (...) on this claim. This is the theory that an action is criminally culpable to the extent that it manifests insufficient regard for legally protected interests. The trouble is that this theory’s defenders have not adequately explained what it is for an action to manifest insufficient regard. In this paper, I aim to provide the required account of manifestation, thereby rendering the insufficient regard theory more defensible. This, in turn, allows the view to explain the broad range of doctrines that treat unmanifested mental states as irrelevant. The resulting theory of criminal culpability is both descriptively plausible and normatively attractive. Moreover, it highlights the continuity between criminal culpability and moral blameworthiness by showing how the former functions as a stripped-down analogue of the latter. (shrink)

This article introduces the main conceptual and normative questions about willful ignorance. The first section asks what willful ignorance is, while the second section asks why—and how much—it merits moral or legal condemnation. My approach is to critically examine the criminal law's view of willful ignorance. Doing so not only reveals the range of positions one might take about the phenomenon but also sheds light on foundational questions about the nature of culpability and the relation between law and morality.

Whether causing flash crashes in financial markets, purchasing illegal drugs, or running over pedestrians, AI is increasingly engaging in activity that would be criminal for a natural person, or even an artificial person like a corporation. We argue that criminal law falls short in cases where an AI causes certain types of harm and there are no practically or legally identifiable upstream criminal actors. This Article explores potential solutions to this problem, focusing on holding AI directly criminally liable where it (...) is acting autonomously and irreducibly. Conventional wisdom holds that punishing AI is incongruous with basic criminal law principles such as the capacity for culpability and the requirement of a guilty mind. -/- Drawing on analogies to corporate and strict criminal liability, as well as familiar imputation principles, we show how a coherent theoretical case can be constructed for AI punishment. AI punishment could result in general deterrence and expressive benefits, and it need not run afoul of negative limitations such as punishing in excess of culpability. Ultimately, however, punishing AI is not justified, because it might entail significant costs and it would certainly require radical legal changes. Modest changes to existing criminal laws that target persons, together with potentially expanded civil liability, are a better solution to AI crime. (shrink)

This paper looks at two accounts of Aristotle's views on the virtue of megalopsychia. The first, defended by Christopher Cordner, commits Aristotle to two claims about the virtuous person that might seem unpalatable to modern readers. The second account, defended by Roger Crips, does not commit Aristotle to these claims. Some might count this as an advantage of Crisp's account. However, I argue that Cordner's account, not Crisp's, is actually the better interpretation of Aristotle. Nonetheless, this does not ultimately spell (...) trouble for Aristotle, since, as I argue, the claims that Cordner's account commits Aristotle to are, on closer inspection, not really problematic. (shrink)

There are sometimes good reasons to define a criminal offense in a way that is over-inclusive, in the sense that the definition will encompass conduct that is not otherwise wrongful. But are these reasons ever sufficient? When, if ever, can such laws justifiably be made and enforced? When, if ever, can they permissibly be violated? In The Realm of Criminal Law, Antony Duff tackles this challenge head on. We find Duff’s strategy promising in many ways as an effort to reconcile (...) over-inclusive offenses with the wrongness constraint on criminalization. Nonetheless, we aim to move the discussion forward by raising questions about Duff’s solution and highlighting some limitations and costs. We begin in Part 2 by sketching the contours of Duff’s position; then in Part 3 we propose one refinement and offer two practical observations; and finally, in Part 4 we raise broader concerns. In particular, we question whether the problem of over-inclusive offenses is one that can or ought to be solved, or whether it is better conceived as a difficulty to be managed and mitigated. Of course, we should avoid undue harshness in the law where we can, and Duff’s approach is guided by this worthy ambition. But there may also be a limit to this. To the extent that the harshness cannot be avoided, perhaps this should be acknowledged and faced up to, rather than obscured or finessed. (shrink)

Courts commonly allow willful ignorance to satisfy the knowledge element of a crime. The traditional rationale for this doctrine is that willfully ignorant misconduct is just as culpable as knowing misconduct. But it is not obvious that this “equal culpability thesis” holds across the board. Is it true in all cases of willful ignorance or only some? This is the question I investigate here. -/- Specifically, I argue against several common versions of the equal culpability thesis before defending my own (...) restricted version. First, I argue that the broadest version of the thesis, adopted by many courts, is overinclusive. Then I argue against several restricted versions of the thesis offered by legal theorists including Doug Husak, David Luban, and Deborah Hellman. My own account, by contrast, is premised on a duty of reasonable investigation. If my account is on the right track, the widely employed willful ignorance doctrine stands in need of reform. (shrink)

George Bealer has provided an elaborate defense of the practice of appealing to intuition in philosophy. In the present paper, I argue that his defense fails. First, I argue that Bealer’s theory of determinate concept possession, even if true, would not establish the “autonomy” of philosophy. That is, even if he is correct about what determinate concept possession consists in, it would not follow that it is possible to answer the central questions of philosophy by critical reflection on our intuitions. (...) Furthermore, I argue that Bealer’s account of determinate concept possession in fact faces serious problems. Accordingly, I conclude that Bealer does not succeed in vindicating the appeal to intuition in philosophy. (shrink)

In a recent paper in this journal, Gideon Yaffe provides an expected utility model of culpability in order to explain why willfully ignorant misconduct sometimes is just as culpable as knowing misconduct. Although promising, I argue here that challenges remain for Yaffe’s view. First, I argue that Yaffe’s proof of the equal culpability of willful ignorance and knowledge is not watertight in certain realistic cases. Next, I argue that Yaffe’s view of culpability is motive-sensitive in a way that sits uncomfortably (...) with criminal law doctrine, and I show that his view has difficulty with unjustified actions that are nonetheless privileged. Perhaps these problems can be solved by modifying Yaffe’s account using the notion of legally recognized reasons. However, I argue that difficulties remain when it comes to implementing this solution into Yaffe’s mathematical model. Finally, I raise concerns about Yaffe’s account of willful ignorance in particular. While his view initially seems to have a major advantage over the additive picture of willful ignorance I’ve defended, this advantage does not stand up under scrutiny. In fact, Yaffe likely relies on an additive metaphysical picture of willful ignorance as well. (shrink)

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in such (...) inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible—even if the acts in question would not strictly count as optimal by the lights of the law or morality. This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas. This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system. (shrink)

The problem of legal luck asks why defendants who cause harm should receive more punishment than analogous actors who, simply due to luck, don’t cause harm. Here I consider one type of justification that assumes luckily harmless actors are just as culpable as their harmful counterparts. Specifically, I focus on the legislature’s reasons to ratchet down punishments for harmless wrongdoers beneath what is permitted on culpability grounds. After critiquing several such arguments, I develop a more promising version based on the (...) idea that the legislature has a duty not to be cruel. The legislature would violate this duty if it always passed laws imposing the maximum punishments permitted on culpability grounds. Withholding some punishment otherwise due harmless wrongdoers thanks to their culpability is a particularly appropriate way for the legislature to eschew cruelty. This provides a promising new justification for punishing luckily harmless misconduct less harshly. (shrink)

This dissertation is structured in such a way as to gradually home in on the true theory of welfare. I start with the whole field of possible theories of welfare and then proceed by narrowing down the options in a series of steps. The first step, undertaken in chapter 2, is to argue that the true theory of welfare must be what I call a partly response independent theory. First I reject the entirely response independent theories because there are widely-shared (...) intuitions suggesting that some psychological responses are indeed relevant to welfare. Then I reject the entirely response dependent theories because there are other central intuitions suggesting that our welfare is not determined solely by our psychological responses. Thus I reach the preliminary conclusion that welfare must involve some response independent (or objective) component. The next step is to consider the most promising theories in the partly response independent category. In particular, I formulate, refine and ultimately reject what seem to be the main monistic theories that have been proposed in this category. In chapter 4, I reject the Adjusted-Enjoyment Theories of Welfare because they cannot account for the claim that a life containing no pleasure or pain can still contain a positive amount of welfare (e.g. if it’s a particularly successful life). Then in chapters 5-7, I discuss Desire Satisfaction theories of welfare. I argue that even the most promising of these theories – e.g. Worthiness Adjusted Desire Satisfactionism – are problematic because they cannot accommodate the claim that a life containing no success with respect to worthwhile projects can still contain a positive amount of welfare (e.g. if it’s a particularly pleasant life). Finally, I suggest that in order to accommodate the intuitions that led to the rejection of all these other theories of welfare, what is needed is a multi-component theory. In the final chapter, I formulate a multi-component theory that is particularly promising. Not only does it avoid the problems of the monistic theories discussed earlier, but, by incorporating a number of novel mathematical devices, it avoids problems that undermine several other initially promising multi-component theories of welfare. (shrink)

I am immensely grateful to the commentators for their insightful challenges to Criminally Ignorant.1 I’ve learned a tremendous amount from grappling with their objections and am indebted to them fo...

Some societies used to impose liability on inanimate objects, a practice we’d now regard as silly and confused. When we punish corporations today, are we making similar mistakes? Here I consider some important sources of philosophical skepticism about imposing criminal liability on corporations, and I argue that they admit of answers, which places punishing corporations on stronger footing than punishing inanimate objects. First, I consider the eligibility challenge, which asserts that corporations are not the right kind of thing to be (...) punished. Second, the reductionist challenge insists that corporate culpability always reduces to individual culpability. I suggest that progress can be made in addressing these challenges by asking the right law-focused questions and attending to recent developments in criminal law theory and moral philosophy. (shrink)

In Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform to, or mirror critical morality’. Here I explore whether substantive criminal law rules should directly mirror not moral blameworthiness, but a distinct legal notion of criminal culpability – akin to moral blameworthiness but refined for deployment in legal systems. Contra Husak, I argue that the criminal law departing from the moral ideal embodied in (...) the standard of moral blameworthiness is not always to be regretted. After showing how criminal culpability might come apart from moral blameworthiness, I argue that my alternative to Husak’s view has practically interesting upshots. In particular, it allows us to resist Husak’s central conclusions about the exculpatory force of normative ignorance. There are good reasons for the criminal law to make certain charitable presumptions about citizens as competent agents, which the standard of moral blameworthiness needn’t similarly embody, and this calls into question Husak’s argument for the claim that normative ignorance exculpates. (shrink)

To help explain in a principled way why criminal law doctrine tends to abstract away from motives and other individualized circumstances, I have defended an insufficient regard theory of criminal culpability that is more objective in certain respects than other views in the same camp. This has led Alec Walen to object that my view is too objective to be an account of culpability and is better understood as a theory of criminal wrongs. This challenge is important not least because (...) it requires getting clearer about what wrongness and culpability are and what roles they play on a legal moralist picture of the criminal law. Here, I argue that Walen’s objection is mistaken. Once we get clearer on what distinguishes wrongness and culpability, it becomes clear that my account is best seen as a theory of culpability. This is so even though it calculates degrees of culpability in a more objective way than other insufficient regard views. Besides just defending my account from Walen’s objection, this paper aims to make a positive contribution by developing a more sophisticated version of the Manifestation Account I proposed earlier. To do this, I focus on the main area of criminal law doctrine where culpability comes apart from wrongness – namely, excuse cases. My earlier Manifestation Account is implausible – or at least limited – because it has nothing distinctive to say about how to determine the culpability of excused misconduct. Accordingly, the theory would be, if not outright false, at best incompatible with the orthodox view in criminal law theory, which takes excuses to accept wrongdoing but deny culpability. To solve this problem and enhance the Manifestation Account’s explanatory value, I show how to extend the theory to account for the culpability of wrongs where a putatively excusing condition is in play. This not only fills a gap in the Manifestation Account but has the further benefit of providing a unified reasons-based account of the main categories of misconduct in the criminal law, which shows what separates criminal wrongness from culpability both in justification cases and excuse cases. The hope is that this effort will shed light on the distinct roles of wrongness and culpability in legal moralist theories of the criminal law and provide a better understanding of degrees of culpability for criminal wrongs – not only when justifications are at issue, but also when excuses are involved. (shrink)

In his recent book Attempts, Gideon Yaffe suggests that attempts should be criminalized because of a principle he dubs the “Transfer Principle.” This principle holds that if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized. Although Yaffe provides a powerful defense of the Transfer Principle, in this paper I argue that Yaffe’s argument for it ultimately does not succeed. In particular, I formulate two objections to Yaffe’s (...) argument for the Transfer Principle. First, I argue that a basic assumption about criminalization, on which Yaffe’s argument crucially depends, is incomplete, and Yaffe’s own attempt to supplement it undermines his argument for the Transfer Principle. Second, I argue that Yaffe’s argument does not properly account for the fact that those who merely attempt a crime and those who complete it might sometimes be responding to reasons in different ways. Accordingly, I conclude that Yaffe has not succeeded in establishing the truth of the Transfer Principle. (shrink)

This book review sketches the main arguments of Findlay Stark’s book, and then goes on to develop an objection to Stark’s account of one of the core notions in the book—namely, awareness of risk.