Working papers

‘The Force Hypothesis’ (with Nicolaos Stavropoulos), to appear in Interpretivism and Its Critics, ed Nicolaos Stavropoulos.

‘The Disentitlement Theory of Negligence’, working draft here.

‘What is a Constitution?’, working draft here.

‘Mercy as Justice’, working draft here.

‘Disappearing Ink’, working draft here.

‘Judicial Review: Substance and Procedure’ (with Adam Perry), working draft here.

‘The Constitutional Foundations of Justiciability’ (with Firdaus Mohandas), working draft here.

‘Affective Alienation’ (with Anna Dvorishchina), working draft here.

‘The Existence and Extent of Blameworthiness’ (with Trenton Sewell), working draft here.

‘The Actus Reus of Attempts’ (with Trenton Sewell), working draft here.

‘The Bounds of Impossible Attempts’ (with Trenton Sewell), working draft here.

‘Punishing Youth Fairly’ (with Trenton Sewell), working draft here.

‘Guidance and the Rule of Law’, draft coming soon.

‘The Nemo Iudex Principle’, draft coming soon.

Works in progress

‘The Meta-Principle of the Separation of Powers’

This paper explains the separation of powers as a second-order principle. The principle is second-order because it concerns how various first-order principles relate to each other. These first-order principles govern legislative, executive, and judicial power. Those principles diverge in content and place different demands on institutional design. The separation of powers emerges from these differences.

‘The Force of the Rule of Law’

This paper gives an account of the normative force of the rule of law. In other words, why the rule of law’s requirements bind the state. Standard answers appeal to efficiency, dignity, or freedom. But they distort the relation between corruption and the rule of law. Then I show that the best way to explain corruption as a rule of law problem leads to an attractive account of the general normative force of the rule of law. When officials act corruptly, they accrue an unjust advantage traceable to a decision regarding the exercise of public power. This is seriously unfair as between officials and subjects. Violations of the other requirements of the rule of law, as it turns out, are similarly unfair.

‘Rationalist Interpretation’

This paper develops a theory of statutory and constitutional interpretation. When interpreting an enacted legal text, judges should seek a rational explanation for the precise pattern of the statutory text. The object of interpretation, on this view, is not the statute’s text or its purpose, but rather the reasons on which a lawmaker can be taken to act when approving the text. Various canons of interpretation neatly drop out of this account. If we seek a rational explanation for why this particular text was approved as opposed to nearby alternatives, then: the specific examples in a list will be taken to restrict the scope of general provisions, interpretations that render a provision redundant will be disfavored, and so on.

‘Complexity’

Complexity is often taken to be a bad-making feature of law. But complexity, when done right, is of substantial value. Only via complexity can law control the exercise of public power with precision. This reveals a tension. The complexity that enables law to arrive at precise ex-post determinations in adjudication also makes law worse at guiding the conduct of the public ex-ante. According to a standard, but mistaken, view about law’s nature, the law should shed itself of complexity so far as feasible to better pursue the project of ex-ante guidance. I argue against this suggestion. Once jettisoned, we can better see how three misunderstood values relate to one another: complexity, formalism, and the rule of law.

‘Punishing the Lucky’

Consider two criminals, each of whom shoots a bullet at a different victim. One kills their victim while the other misses. Although this is controversial, suppose you thought the first criminal deserves more punishment than the second in virtue of a difference in their moral responsibility. Here I show that, even if this is correct, it does not follow that there should be substantial differences in how much punishment the state should impose. Letting the second criminal ‘get away’ with less time in prison given a lucky difference in resultant responsibility is unfair. The state therefore has reason, as a matter of political principle, to punish in ways that take account of this luck. It follows that an attempter who gets very lucky (such as shooting a bullet that barely misses the victim) may be punished to roughly the same extent as a murderer. Conversely, criminals who are lucky to a lesser extent (like those who uneventfully drive home drunk) should be punished less than drunk drivers who end up killing someone on the road.

‘Democracy and Due Process’

It is tempting to think of democracy in terms of our relative influence. On this view, democracy seeks to ensure that each of us has an equal influence over political decisions. But this is false. Charisma, eloquence, and acumen with data analytics, among others, all affect the degree of our relative influence, but not in ways which pose a problem for democracy. Another problem with the equal influence view is that it cannot explain the normative significance of democracy in regimes that flatly flout one-person-one-vote, such as the United States. Another tempting approach is to understand democracy in terms of a shared ability to jointly make free decisions. But the issue with the shared freedom view is that, even if it turns out to be correct, it rests on controversial premises that may be inconsistent with the confidence we place on the binding force of democracy. I therefore lay out an alternative account of democracy in terms of an individual, non-relative right to have a say. On this view, democracy becomes a matter of due process. This places elections on one end of a continuum. When only one person has a right to a say, the best way to give institutional effect to due process may take the form of a trial. When various groups have the right, the best way may instead be notice-and-comment and related procedures in public administration. But when enough people have the right, mass elections may be required.

‘Forced Apologies’

Apologies are not part of the usual suite of judicial remedies. They are sometimes available, largely in defamation cases. But normally the law declines to order them. Many suppose this is because a remedy that orders an apology would result in a forced apology, and that forced apologies are somehow inconsistent with the nature of apologies. I show why this is incorrect. We force apologies all the time, particularly when it comes to children. Properly understood, this is entirely consistent with the nature of apologies. We should therefore take a second look at the legal reluctance to order apologies.

‘Standing as a Subject of Administrative Law’ (with Megan Pfiffer)

The requirement for standing to pursue a judicial review of administrative action is undertheorised. Some, unsurprisingly, call for abolishing the requirement altogether. Others, understanding the requirement as a potentially useful tool to prevent certain claims from being brought, offer a range of contingent, instrumental justifications. All this misses the non-instrumental significance of the standing requirement: by preventing those who lack it from bringing a claim for judicial review, the law constitutes a valuable status, namely that of being a right-holding subject of administrative law. The subjects who possess this status are, in turn, the subject of administrative law, understood as its topic or subject-matter.

‘The Original Sin of Vicarious Liability’ (with Trenton Sewell)

The doctrine of vicarious liability is standardly understood as a mode of holding employers indirectly liable for the torts of their employees. This account struggles to make sense of the principled limits to the doctrine, however. On a more promising account, the doctrine holds employers directly liable by imputing onto them the acts of their employees. The problem is that the basis of this imputation is morally obscure. Additionally, a doctrinal problem is that it is inconsistent with the liability of employees being a necessary condition for the vicarious liability of employers. Here we propose a different account. The vicarious liability of employers follows from a general principle of group responsibility, namely that groups are responsible for the acts arising from its reasons-responsive mechanism. So the law in this area should be rethought as either acting on corporate employers or an ad hoc corporate entity that the law recognizes for the ad hoc purpose of tortious liability.