A vast literature has developed probing the law's aversion to statistical/probability evidence in general and its rejection of naked statistical evidence in particular. This literature rests on false premises. At least so far as US law is concerned, there is no general aversion to statistical forms of proof and even naked statistics are admissible and sufficient for a verdict when the evidentiary proffer meets the normal standards of admissibility, the most important of which is reliability. The belief to the contrary rests upon a series of mistakes: most importantly, mismodeling of the structure of legal systems and the nature of common law decision making. Contributing to these mistakes is the common methodology in this literature of relying on weird hypotheticals that mismodel the underlying legal relations and contain impossible epistemological demands. Collectively, these phenomena have distracted attention from issues that actually affect real legal systems.

This article develops a theory of just contractual relationships for a liberal society. As a liberal theory, our account is premised on liberalism's canonical commitments to self-determination and substantive equality. As a theory of contract law, it focuses on the parties’ interpersonal interactions rather than on the justice (or welfare) of the social order as a whole.

Normatively, the article claims that the rules governing cases where one party experiences harsh circumstances or vulnerability during the bargaining process or operates under significant informational disadvantage must be guided by the commitment to relational justice, that is, to reciprocal respect for self-determination and substantive equality. Jurisprudentially, the article studies the systemic difficulties hindering the translation of these normative prescriptions into legal language and analyzes how they affect the form assumed by the law of precontractual justice and its institutional pedigree.

According to contemporary nonpositivist theories, legal obligations are a subset of our genuine moral obligations. Debates within nonpositivism then turn on how we delimit the legal “domain” of morality. Recently, nonpositivist theories have come under criticism on two grounds. First, that they are underinclusive, because they cannot explain why paradigmatically “legal” obligations are such. Second, that they are overinclusive, because they count as “legal” certain moral obligations that are plainly nonlegal. This paper undertakes both a ground-clearing exercise for and a defense of nonpositivism. It argues, in particular, that Dworkin's claims about the legal domain of morality in his later work are often mischaracterized by critics, because these critics fail to read these claims in light of his earlier theory of “Law as Integrity.” A nonpositivist theory that unifies Dworkin's earlier and later work, I argue, deals with the criticisms leveled at nonpositivist theories better than other nonpositivist competitors.

The wishes of the dead seem to have normative significance. We not only respect last wills and testaments, but we take seriously what the dead loved, what they valued, even after they have long escaped this mortal coil. But this presents a philosophical puzzle. Is this a normatively justified practice? Why should the fact that some dead person preferred state of affairs x to state of affairs y be a reason to bring about x rather than y—especially if there is otherwise reason to promote y rather than x? In this paper, I argue that extant solutions to this problem are inadequate and propose an alternative. I argue that the normative significance of the wishes of the dead is to be found not in the dead's well-being or interests, but instead in the relations of friendship we bear to the dead.

The following two theses seem both plausible and consistent: in cases where it is indeterminate whether the relevant legal language applies to the relevant set of facts, officials are not bound to decide the case one way rather than the other, but may reason either way; all reasons for action are—in some relevant sense—knowable. In this paper, I point out what I take to be a robust but unacknowledged tension between these two claims. The tension requires some careful teasing out, but the basic idea is that given certain further plausible assumptions concerning law, language, and normativity, the two claims turn out to be inconsistent. In addition to examining the sources of the tension in some detail, I also address several possible objections to my argument and discuss which of the many theses should be rejected.

This paper examines what prevents us from legally enforcing the moral imperative of protecting human rights during military operations carried out for distinctly humanitarian purposes. The answer, I argue, lies not in familiar objections to bringing the law into greater congruence with morality, but in international law's indeterminacy regarding the use of force. Preserving stability within the nascent international legal system comes at the cost of a law that eschews the protection of individual rights even in cases in which the protection of human rights is what justifies military action. The tension between state sovereignty and the protection of human rights thus not only generates well-known controversies about the lawfulness of military intervention. It also prevents us from devising laws to protect human rights during wars whose very purpose it is to stop human rights violations. Protecting human rights during humanitarian interventions may thus remain an undertaking as quixotic as it is morally urgent.

This article explores the necessary and jointly sufficient conditions for the recognition of a ground of unlawful discrimination. It is important not only to have a coherent understanding of the currently enumerated grounds, but also to have a theoretical framework that can assist in enumerating new grounds through the open-ended “other status” aspect of many legal frameworks. To that end, this article argues that personal characteristics that are generally morally irrelevant, and that are socially salient in that they carry with them a prevalence of inequality-laden attitudes, amount to necessary and jointly sufficient conditions for recognizing a ground of unlawful discrimination. Other conditions, such as immutability and the presence of relative group disadvantage, will be assessed and dismissed as contingent but not necessary conditions.

This paper provides a taxonomy of the different kinds of theory that may be offered of an area of law. We distinguish two basic types of philosophical accounts in special jurisprudence: nonnormative accounts and normative accounts. Section II explains the two central subspecies of nonnormative accounts of areas of law: (i) conceptual and ontological theories and (ii) reason-tracking causal theories. Section III explores normative theories of areas of law. Normative accounts subdivide into detached and committed normative accounts. Detached or committed normative accounts can be subdivided further into the following cross-cutting categories: (i) pro tanto or all-things-considered, (ii) hyper-reformist or practice-dependent, (iii) taxonomical or substantive. Section IV shows that our taxonomy does not presume a prior commitment to any particular school in general jurisprudence. This paper clarifies methodological confusion that exists in theorizing about areas of law, and contributes to the subfield of thinking generally about special jurisprudence.

Take “legal reality” to be the part of reality that actual legal thought and talk is distinctively about, such as legal institutions, legal obligations, and legal norms. Our goal is to explore whether legal reality is disunified. To illustrate the issue, consider the possibility that an important metaphysical thesis such as positivism is true of one part of legal reality (legal institutions), but not another (legal norms). We offer two arguments that suggest that legal reality is disunified: one concerns the heterogeneity of different entities that are part of legal reality; the other concerns variation within legal thought and talk. We then show that taking the possibility of the disunity of legal reality seriously has important upshots for how we think about the positivist and antipositivist traditions, the debate between them, and their relation to other parts of legal theory, such as critical legal theory and legal realism.

Recent years have seen a proliferation of philosophical work on consent. Within this body of work, philosophers often appeal to an account of the interests, values, or functions that underpin the power of consent. By far the most commonly cited value realized by the power of consent is the promotion and protection of the power-holder's autonomy. This focus on autonomy yields what I call the Gate Opener Model of consent, according to which the central valuable function of consent is to give the power-holder control over whether other people can act in certain ways. In this article, I argue that the Gate Opener Model of consent is inadequate. I then defend an alternative Relational Model of consent, according to which a central valuable function of consent is to enable a non-instrumentally valuable form of interaction between people.

Conventionalism once seemed an attractive way to justify the viability of the positivistic social thesis. Subsequent criticism, however, has significantly lessened its attractiveness. This paper attempts to revive jurisprudential interest in conventionalism by claiming that positivists would profit more from the conventionalism of Ruth G. Millikan than that of David Lewis.

Three arguments are proffered to support this contention. First, Millikan's conventionalism is not vulnerable to the major criticism leveled at conventionalism, viz its compliance-dependence (i.e., the main reason to follow a convention is that other social actors do so), as this is not its defining feature. Second, Millikanian conventionalism retains conventionalism's ability to explain how law emerges from social practices while avoiding the main disadvantage of Lewisian conventionalism, viz its inability to explain the normativity and contestability of law. Third, Millikan's conventionalism can more effectively repel Dworkin's and Greenberg's assaults on legal positivism than its Lewisian counterpart.

How do legal texts determine legal content? A standard answer to this question—sometimes called “the standard picture”—is that legal texts communicate something and what they communicate is identical to legal content. Mark Greenberg criticizes the standard picture and offers in its place his own “moral impact theory.” My goal here is to respond to Greenberg by showing how the standard picture better explains legal practice than the moral impact theory does. To that end, I first clarify certain aspects of the moral impact theory. I then critique the theory, focusing on its inability to explain (i) why practitioners reason about legal content as they do and (ii) why they agree on legal content as often as they do. Finally, I refine the standard picture and demonstrate how it explains what the moral impact theory cannot.