Abstract I present an objection to the idea of democracy as an intrinsically fair procedure. I show that this idea rests on the assumption that citizens have equal stakes in their polity’s collective decisions. I then argue that, in real-world societies, this assumption does not hold. First, I claim that participants’ stakes in a collective decision are proportional to the level of risk the decision imposes on them. I then show that, in real-world societies, the polity’s decisions impose much higher risks on the worst off compared to their wealthier fellows. Hence, the former have higher stakes in their polity’s decisions, compared to the latter. My argument thus shows that, in the deeply unequal societies we inhabit, democracy is not an intrinsically fair procedure. I then discuss my argument’s implications for a theory of procedural fairness.
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.
Abstract 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.
