The reason model of precedential constraint is supposed to generate a stricter doctrine than the minimalist result model. In the standard setting in which these models were originally formalized, that is exactly what we find. Surprisingly, however, in the more complex dimensional setting, the models become indistinguishable. In this paper, we provide an illuminating explanation of the collapse. We also shed light on recent proposals to modify the reason model, or the underlying dimensional setting, in order to avoid it. Finally, we show how the models can be made to collapse even in the simpler standard setting.

When do laws and policies that do not explicitly treat people differently on the basis of legally protected traits like race and sex nonetheless constitute disparate treatment on these bases? According to U.S. constitutional law, they do so when “facially neutral” laws are both enacted for impermissible reasons and also produce a discriminatory effect. To date, the first element of this claim – impermissible intention – has attracted significant attention. However, its second element – discriminatory effect – has been largely ignored. Yet it is critical that we better understand what discriminatory effect requires, as competing tests animate debates in Circuit court cases and the issue has recently been flagged by Justice Alito. This Article takes up the task. It explores the normative disagreement that underlies the controversy regarding how to assess whether discriminatory effect is present and diagnoses the genuine moral conflict that any test for discriminatory harm must navigate.

This article proposes that theoretical debates over the Rule of Law can be revitalised through careful focus on methodology. First, it contends that the prevalent methodology of theory-construction is a rationally reconstructive form of conceptual analysis which makes deadlock practically inescapable. The methodology requires the invocation of deeply controversial conceptual cross-references: to reconstruct vague intuitions about the Rule of Law, theories are compelled to invoke other concepts over which deeply engrained disagreements persist. Second, turning to the possibility of overcoming or mitigating deadlock through critical argument, it argues that the capacity of critique to pose meaningful challenges to rival theories turns on its treatment of its target’s conceptual cross-references. Dissonant critique, which is premised on the rejection of a rival theory’s defensible conceptual cross-references, is seldom productive. Internal critique, which proceeds from rival theories’ conceptual cross-references, poses more meaningful challenges and is more philosophically productive.

In recent years, scholars argue that, although the principle of fair play is able to establish obligations to reciprocate for benefits received, these do not include political obligations. They contend that recipients themselves should be able to determine the form their recompense takes. I examine different cases of benefit provision and identify instances in which the principle of fair play does not allow such discretion. An important consideration is epistemic difficulties that can be avoided only if citizens accept the judgment of law and follow it. In familiar political obligation cases, disagreements about benefits and burdens should be resolved by democratic procedures. Following decisions arrived at is necessary to avoid problems of two kinds: moral, making sure burdens of cooperation are distributed in ways that are fair to all participants; and empirical/sociological, making sure important benefits are provided.

Minors should not be punished as harshly as adults for any given crimes they commit. The most common explanation of why is that youths have diminished responsibility-relevant capacities. Recently, Gideon Yaffe has defended the revisionist view that the reason to give juvenile offenders a break in sentencing derives from their political disempowerment. Here, I defend a third alternative: youth is a developmental stage between legal infancy and adulthood during which people are owed special opportunities to cultivate their moral capacities and otherwise fortify themselves against engaging in criminal wrongdoing. Given that minors have not yet received all those opportunities they are owed, they have a claim to mitigated punishment on account of lacking a fully fair opportunity to protect themselves against criminal liability and punishment. They also have distinctive grounds to object to any punishment that would thwart their continued receipt of the developmental opportunity they are owed as youths.

Can the dead subject later generations to their will? Legal and political philosophers have long worried about this question. But some have recently argued that subjection between generations that do not overlap is impossible. Against these views, we offer an account of this kind of subjection and the conditions under which it may occur—the Mediated Subjection View. On this view, legal subjection between nonoverlapping generations occurs when past generations seek to guide the future’s behavior, and legal officials in the future deem the norms and legal frameworks inherited from the past as reason-giving and action-guiding, and have the effective power to enforce them. Under these circumstances, we argue, future legal officials act as intermediaries of the past, enabling past generations to subject later ones to their laws. We first inspect the normative significance of subjection and introduce and motivate the Mediated Subjection View. We next scrutinize four objections to the possibility of legal subjection between nonoverlapping generations and show how our view can answer them.

Freedom of self-expression is an elusive value. In ordinary political discourse, the value of self-expression seems obvious. But it is surprisingly difficult to specify freedom of self-expression without collapsing it into the value of freedom in general. And reducing freedom of self-expression to a special case of freedom of speech yields a Procrustean and underinclusive account. This paper develops a novel account of freedom of self-expression which avoids both pitfalls. First, I show that the ubiquity of self-expression as a phenomenon is compatible with the normative distinctiveness of freedom of self-expression as a value. Second, I show that freedom of self-expression requires, at minimum, freedom from content-based limitations on the exercise of personal style. Third, I ground the moral significance of freedom of self-expression in two distinct interests: in autonomy of self-definition, and in opportunities for recognition. Ultimately, freedom of self-expression emerges as a distinct and coherent moral and political value.

Carmen Pavel has recently provided an illuminating analysis of the limits of anarchic legal orders and, by extension, current arrangements for international law (Pavel 2021). Central to her argument is an account of the structural flaws in market anarchist institutions. The current paper argues that market anarchist theorists have robust responses to at least some of Pavel’s criticisms. From the anarchist viewpoint, statist approaches to legal enforcement have problems that are at least as “structural” as those Pavel attributes to anarchism. The paper seeks to articulate this anarchist position and clarify the ways in which it complicates some of Pavel’s claims. It then offers some suggestions regarding what insights this market anarchist perspective might offer for our understanding of international law.

This paper is about whether we can revise the highest rule in a legal system using legal reasoning. HLA Hart and Alf Ross argued that we can’t: either the highest rule is unchangeable, or it can only be changed in a revolution—a merely causal change, not a legal one. I argue, drawing on an idea from Hartry Field about logic and epistemology, that we can. The emergence of the conclusion, within a legal system, that the highest rule should be replaced by something else can provide a legal reason for the change. In making the change, we act for reasons internal to the legal system. This allows us to make sense of the distinction, recognized by legal subjects, between a revolution and a legal change of sovereignty.

Take two positions, both of which we take to be popular ways of thinking about law. First, some norm N is part of the law only if, and in virtue of, N being ultimately recognized or validated by the rule of recognition. Call this Hartian Orthodoxy. Second, statements about legal rights are best understood as claims about the existence of moral rights according to law. Call this legal perspectivalism. Here we show that the two are incompatible. Our argument is that, to account for certain arguments that mix legal and factual claims, perspectivalism must close the legal perspective according to some inference rule. As it happens, however, the only defensible candidates render perspectivalism incompatible with Hartian Orthodoxy.

Norms of standing are puzzling. Your friend asks you for a favor. In the past, that same friend has failed to grant you similar requests. It seems that under such conditions, you are allowed to disregard your friend’s request as a reason for granting it, on the grounds that he lacked standing to make the request. Yet, given that friends’ requests are reason-giving, your license to disregard that (valid) reason is mysterious. We aim to dispel this sense of mystery by conceptualizing standing norms as procedural norms. Procedural norms are second-order (outcome-neutral) norms about how to engage with other norms. And norms of standing are a particular type of procedural norm, namely procedural exclusionary permissions. More generally, understanding standing norms as part of the “procedural branch” of morality exemplifies how the interplay between substance and procedure can clarify and demystify certain puzzles of moral discourse.

This paper analyses the recent viral #MeToo and #ShoutYourAbortion campaigns and argues that examining them illuminates our thinking about privacy and standing.The paper argues that one of the aims of these campaigns was to debunk the view that women did not have standing with respect to matters concerning sexual harassment and reproductive care. The myths the campaigns sought to discredit – myths about sexual harassment and assault and abortion – involve victim-blaming, and one thing we do when we victim-blame is deny that the victim had standing. This paper also argues that women proved they had standing through these campaigns by revealing what was private. This is, I argue, a way of ‘exploding’ the private sphere as MacKinnon famously put it. By looking to these campaigns, we can see that their strategy relied on the value of privacy.

Many claim that if a state is responsible for structural injustice, then that state lacks the standing to hold marginalized offenders to account. Call this the compromised standing claim. I argue that this claim sits in tension with a further assumption: that states hold offenders to account in their people’s name. Specifically, I argue that when A holds B accountable in the name of C, A’s own hypocrisy and complicity are not sufficient to undermine her standing to hold B accountable. This means that there exists a gap between a state’s responsibility for structural injustice and its compromised standing. After motivating this challenge, I consider one response according to which the people have lost their standing with respect to marginalized offenders and that the state, qua representative, inherits the standing of its people. I propose two strategies for making this response precise and argue that neither can vindicate the compromised standing claim in its standard form.