What is unprincipled adjudication and when, if ever, is it justified? In addressing those questions, this essay attempts to complete a project begun with Professor Fred Schauer.

Fred Schauer’s work on probability and evidence exposes a persistent problem for criminal law: credible allegations of sexual assault routinely fall short of proof beyond a reasonable doubt, leaving serious wrongdoing unaddressed. Schauer highlights this failure through cases involving probabilistic aggregation, but ultimately locates the payoff of his analysis outside criminal adjudication. This Article returns the argument to where it belongs – within the criminal law. Deploying Schauer’s own analytical toolkit, it examines three potential levers – the burden of proof, the construction of criminal offenses, and evidentiary rules – that could be used to respond to the injustice of sexual violence. For each, it details the difficult trade-offs between protecting defendants and vindicating victims. There is no clear winner.

This Essay focuses on and expands Schauer’s justification for the rules of evidence. To that end, I present Schauer’s fundamental idea that establishes the necessity of rules in the domains of morality, politics and law while responding to the challenge of act-utilitarianism. In addressing that challenge, Schauer famously singled out the principal-agent settings featuring asymmetrically informed rule-maker and rule-applier and then demonstrated that rules have the ability to minimize this asymmetry—a social benefit that offsets the costs incurred by the over- and under-inclusiveness of the rules. After explaining this insight, I move the discussion to legal epistemology and examine how Schauer connected the “necessity of rules” thesis to the law of evidence. Based on Schauer’s work that established this connection, I identify reasons that can and cannot justify factual findings in adjudication.

Enforcement is costly, so sometimes states choose not to enforce their laws. We study this choice under rules and under standards. We show that nonenforcement of rules sends a relatively clear signal about state capacity. Regulated parties can use this information and violate law to some extent with impunity. Nonenforcement of standards sends a noisier signal, and this uncertainty may cause regulated parties to comply with law even though the state lacks capacity to enforce, a surprising implication. According to conventional wisdom, standards are costlier to enforce than rules, meaning a switch from rules to standards should decrease compliance. However, we argue that standards, by obscuring the state’s capacity, can increase compliance. We identify the characteristics of standards that yield these effects, and we show that the logic generalizes to the complexity of law as well as its precision.

Philosophy needs a methodology, including rules about burden of proof, in order to resolve many of its classic issues. Law might seem to provide a helpful model for assigning burdens of proof. However, candidate rules that distribute burden of proof according to form, degree of belief, and consequences all fail to help when inspected closely. This gap makes it difficult to see how to resolve many of the most important philosophical issues.

According to legal positivism, legality is socially constructed. Traditionally, the view maintains that legal validity is based on social conventions rather than morality. Critics, most notably Ronald Dworkin, argue that it cannot account for theoretical disagreement over criteria of legal validity. In this article, I examine how theoretical disagreement bears on legal positivism by presenting a specific version of Dworkin’s Argument from Theoretical Disagreement (“ATD”) as applied to positivism, his primary target. I review leading positivist strategies for accommodating or avoiding the problem. I then challenge the ATD’s underlying assumption—shared by orthodox positivists—that conventional recognition of valid law requires agreement on interpretive criteria. Instead, I argue that practitioners conventionally recognize valid law in common in ordinary legal practice through closure procedures rather than interpretive consensus. Finally, I show how this account supports a more accurate reconstruction of legal reasoning, argumentation, and practice than Dworkinian and existing positivist alternatives.

This Article develops a liberal theory for one of the most discussed topics of contract law (its rules of interpretation) and one of the most neglected (implication). It considers these topics in tandem because they both address contractual obligations that ostensibly flow from the parties’ own choices. We reject the view which misrepresents the task of distilling these choices as value-neutral, and offer in its stead an approach that grounds interpretation and implication on liberal contract’s commitment to proactively support people’s joint plans, while securing contract’s compliance with relational justice. This account offers conceptual clarity, vindicates and elucidates significant parts of contemporary law, and suggests several pathways for reform. Notably, it allows us to sketch a liberal doctrine for the interpretation of contractual writings in which at least one party is an individual, rather than a legally sophisticated wealth-maximizing firm.

There has been a recent turn toward a new form of nonpositivism in Anglo-American jurisprudence. This paper focuses on the theories articulated by Mark Greenberg and Scott Hershovitz (I label their views as the “New Legal Anti-Positivism” or NLAP). NLAP argues that questions about legal rights and obligations are moral questions; that legal reasoning is a form of moral reasoning; and that there is no domain of legal normativity that stands independently of moral considerations. This paper doesn’t offer a decisive argument against NLAP. Instead, it argues that NLAP is distinctively American: it relies on certain aspects of American legal practice that are not representative of other legal systems. To the extent that general jurisprudence attempts to offer a relatively general theory of law, theories that can accommodate variations across legal cultures are better than those that cannot. This is a relevant consideration against NLAP.

Courts that wish to avoid the effect of a binding precedent sometimes do so by reinterpreting the precedent so that its application depends on underlying facts of the case that were not invoked by the precedent court in the formulation of their reasons for decision. This article considers the implications of this practice, which I call “restrictive reinterpretation,” for the popular reason model of precedential constraint. The practice of restrictively reinterpreting precedent exposes the reason model to criticism on two opposing fronts. On one hand, it threatens the distinction between distinguishing and rule-modification that underlies the reason model. On the other hand, it provides a basis for challenging the view that courts’ formulations of their reasons for judgment have constraining effect. The article presents these challenges within an extended formal framework, before offering a qualified defense of the reason model.