The question whether to obey the law is not fundamentally different from the question whether to follow morality, or for that matter, the dictates of prudence. Morality, law, and prudence face the same normative challenge: they must confront and prevail over people’s occurrent psychological impulses. These three branches of ethics differ only in the level of abstraction at which they address or rather constitute us: respectively, as human beings, members of the human race; as citizens, members of a particular political community; and as unique individuals. Our autonomy consists in subjecting impulse to norm in these various capacities. What does distinguish law in this regard is therefore not its normative appeal, but the fact that this appeal comes armed with coercion, thus distancing us from our role as citizens and fracturing the autonomy that following the law could otherwise display.
The question of corporate criminal liability should be split into (at least) two questions: (1) Should corporations be subject to criminal sanctions? (2) Should these sanctions be subject to the same substantive, procedural, and evidentiary constraints as those that apply in the case of individual defendants? I argue for a positive answer to the first question, and a negative answer to the second.
Although antitrust courts sometimes stress the competitive process, they have not deeply explored what that process is. Inspired by the theory of the core, we explore the idea that the competitive process is the process of sellers and buyers forming improving coalitions. Much of antitrust can be seen as prohibiting firms’ attempts to restrain improving trade between their rivals and customers. In this way, antitrust protects firms’ and customers’ freedom to trade to their mutual betterment.
We compare homicide rates in two quite similar cities with vastly different execution risks. Singapore had an execution rate close to 1 per million per year until an explosive twentyfold increase in 1994-95 and 96 to a level that we show was probably the highest in the world. Then over the next 11 years, Singapore executions dropped by about 95%. Hong Kong, by contrast, has no executions all during the last generation and abolished capital punishment in 1993. Homicide levels and trends are remarkably similar in these two cities over the 35 years after 1973, with neither the surge in Singapore executions nor the more recent steep drop producing any differential impact. By comparing two closely matched places with huge contrasts in actual execution but no differences in homicide trends, we have generated a unique test of the exuberant claims of deterrence that have been produced over the past decade in the U.S.
How do the practices listed in the subtitle manage to forestall negative reactive attitudes, such as resentment and guilt, and render them no longer appropriate? I argue that these “revisionary practices” redraw the self’s temporal boundary to exclude the wrongful act, thus releasing the wrongdoer from continuing to bear responsibility for that act.
This essay provides a short overview, written for an interdisciplinary volume, of a theme I’ve pursued in previous work. A number of influential schools of thought converge on the view that human beings are self-creating. This constructive view of the self presents our normative systems, primarily those of morality and law, with an additional task: not only to guide us in what to do but also to shape who we are. Consequently, when devising behavior-guiding norms we must ask: what subjects will emerge from the practices and activities generated by a particular set of norms? And what considerations bear on the construction of selves through our normative engagements? I sketch some preliminary steps toward exploring this largely uncharted terrain.
In this lecture, presented at a German-Israeli conference on Dignity and the Criminal Law held in Jerusalem in January 2009, I track the idea of human dignity to its two main sources, the Old Testament notion of Imago Dei and Kant’s doctrine of the noumenal self. I then draw some implications that the provenance of dignity, so understood, has on the use of this concept in a number of contemporary debates.
This paper explores the relationship between moral luck and personal identity. Focusing on the notion of constitutive luck, I argue that although fortuitous circumstances often define our identity, our identity is nonetheless immune to luck. The argument revolves around the notion of regret. Bad luck is regrettable. But one cannot coherently regret the occurrence of constitutive circumstances and wish them to be otherwise, because this would amount to wishing to be someone else: conditions of personal identity set the limits on the counter-factuals about ourselves that we can intelligibly entertain.
Why don't people give more to charity? One reason is that the problems will be there whether individuals give or not. Here is a policy - inspired by the matching grants that charities use so effectively - that could actually make a real difference.
Antitrust opinions rely heavily on economic analysis but little on statutory text. Surprisingly, this text-free mode of interpretation is warmly endorsed by leading textualists such as Justice Scalia and Judge Easterbrook. We argue that their approach to antitrust is irreconcilable with their general theories of statutory interpretation. Their theory is that the antitrust texts are essentially lacking in content, operating as a delegation of policymaking authority to courts. We undertake a close textualist analysis of the Sherman Act and later antitrust statutes. For the conscientious textualist, the statutory texts are far from being blank checks. For instance, textualists have analyzed common law terms in other statutes far more cautiously than they interpreted section 1 of the Sherman Act, either applying the majority view of the state courts at the time of enactment or choosing among current variants of state common law. Nor do the texts of the antitrust statutes evidence a delegation to the courts - on the contrary, the only clear delegation of antitrust authority is to the FTC. Thus, textualists either need to rethink their theory of statutory interpretation or reconsider their allegiance to contemporary antitrust doctrine.