Nearly everyone is at times an advocate. By professional role, some people act quite regularly as advocates: lawyers, legislators, executives, merchants, and, in many contexts, educators. Lawyers often consider themselves obligated to maintain a special “zeal” toward their clients' interests, and there are many laws and principles of legal ethics that govern advocacy by attorneys. This article concerns the ethics of advocacy, not its legal aspects. Indeed, I cannot even address the full range of moral issues raised by advocacy; I focus mainly on an area rarely addressed by writers in legal ethics and insufficiently examined in the genral literature of ethics. It is the domain of individual conscience, the arena of internal states and processes, such as desires, beliefs, and thoughts. I am particularly interested in how moral standards apply to the use of reasons in the practice of advocacy. My broadest thesis is that advocacy needs an ethics of reasons, and not just of external behavior.

This article is about decision making by juries in capital cases. A jury is a collection of individuals who may possess differing views about factors relevant to the task before them, but who must, nonetheless, arrive collectively at a decision. As such, the members of the jury face a classic social choice problem. We investigate how this problem is likely to be resolved under various institutional regimes, differentiated by the set of individuals who are allowed to participate and the decision rule controlling their activities. As in our previous paper analyzing decision making by juries, we focus here on an aspect of the process that has been neglected in judicial opinions and academic scholarship: namely to what extent, and how, persistent disagreement among jurors can and will be resolved.

Twenty years ago, when feminism was younger and greener, crides who thought the movement was sinking into a quagmire of unscientific irrationality had a relatively easy time in making out their case. In the first place, many feminists were themselves claiming to have rejected both science and reason, along with morality and all other such male devices for the oppression of women. And, furthermore, this position was a relatively easy one for the skeptical outsider to attack. Unless feminists could say such things as that the present treatment of women was morally wrong, or prevailing ideas about their nature false or unfounded, or traditional reasoning about their position confused or fallacious, it was difficult to see on what basis they could rest the feminist case. And, of course, as they did say such things, all the time, it was obvious that any systematic attempt to reject ethics and rationality was systematically undercut by feminists' own arguments.

Much recent work in applied legal and political theory has been preoccupied with the problem of the moral status of business organizations and corporations, and of the nature of their agency and personality. On the one hand, moral rights, such as rights to freedom and autonomy, are paradigmatically ascribed to natural, human persons; moral responsibility analogously seems therefore paradigmatically applicable to individuals. Organizations seemingly have no will or mind, no human feelings such as pleasure, pain, shame, and remorse. How can the language of rights and responsibility be applicable to them? On the other hand, it seems to be a fact that business organizations often do things that we human beings do—make deals, sign contracts, cause harm, and issue apologies. In ordinary and in legal discourse all the time we hear such things as, “Miller's Pulp Mill is responsible for its corrupt environmental practice”; “Philip Cosmetics Ltd. has the right to advertise its products”; and “Sunligt Co. is accountable for its irresponsible behavior.” How then are we to understand the attributions of organizational agency, personality, and responsibility that these statements presuppose? Are the predicates in these statements to be taken as having the same intension, or the same force, as similar ones predicated on natural persons? Or are the predications to be seen as extensions of meaning, justified or not? Or as exotic metaphors with no factual implications?

According to communitarian antiliberals, liberalism is fatally marred by a false metaphysics of the self. Liberalism, communitarians charge, regards the self as atomistic, isolated, presocial, ahistorical, “Cartesian,” Crusoeesque, essentially independent of other selves—in Michael Sandel's felicitous word, “unencumbered.” In reality, the self is constituted by relationships with others, hence by its contingent history. The self is fundamentally historical and social, and a true metaphysics of the self would, in the words of George Fletcher, take “relationships as logically prior to the individual.” Sandel puts it thus: “Can we view ourselves as independent selves, independent in the sense that our identity is never attached to our aims and attachments? I do not think we can….”

Criminal attempts, it is often said, are crimes of intention. While many complete crimes can be committed recklessly, criminal attempts require “purposive conduct”; in attempts “the intent is the essence of the crime.” But what kind of intention is required; what must be intended, or purposed, by someone who is to be guilty of a criminal attempt?

The criminal law presently distinguishes between actions and omissions, and only rarely proscribes failures to avert consequences that it would be an offense to bring about. Why? In recent years it has been persuasively argued by both Glover and Bennett that, celeris paribus, omissions to prevent a harm are just as culpable as are actions which bring that harm about. On the other hand, and acknowledging that hitherto “lawyers have not been very successful in finding a rationale for it,” Tony Honoré has sought to defend the law's differential treatment. He proposes a “distinct-duties theory” that in addition to the general duties we owe to everyone (e.g., not to inflict harm), we also owe distinct duties to a more limited collection of people and associations, specified by features of our relationship with them (we owe, for instance, duties as parents to our own children). Where a distinct duty holds, breach by omission may well be no better than breach by positive action. But absent a distinct duty, omissions, per Honoré, are less culpable. They are mere failures to intervene and improve or rectify things, whereas actions are positive interventions which make things worse. And, thus, the law has good reason to differentiate between them.

In his recent book Interpretation and Legal Theory, Andrei Marmor makes a number of claims about meaning and interpretation, both in general and in law, which I will argue are mistaken. Actually, there is some confusion in his book between what I take to be his “official” view of the nature of meaning and interpretation, and a very different view which keeps surfacing despite his official rejection of it. I will argue that this alternative, rejected view, when properly developed, is more plausible than his official view, and that the difference between them is of considerable practical consequence for legal interpretation. What is at stake is the role of legislative intention. The alternative view denies Marmor's claim that the meaning of a statute is conceptually independent of the intention or purpose which the legislature had in enacting it. It should be said at the outset that I will focus on just three of the eight chapters in Marmor's book, which contains many virtues that are untouched by my critique.

The obligation of a court to follow the law of a superior court is commonly taken to be stronger than the obligation of the higher court to respect its own precedent. The Supreme Court has recently asserted this stronger obligation in the most forceful terms. What follows is an attempt to demonstrate that this is wrong as a matter of policy and as a matter of law.

Conceptual analysis is an integral part of legal theory, but the nature and purpose of such inquiries are often not clearly stated. In this article, I attempt to elaborate upon some of the differing reasons for conceptual analysis and what consequences may follow from choosing one objective rather than another. By showing that divergent purposes are often present in competing analyses of the same concept, I also hope to indicate why some “debates” in the jurisprudential literature are best understood as theorists talking past one another.

Ronald Dworkin's Tanner Lectures, “Foundations of Liberal Equality,” have hardly elicited comment within the academic political theory community. This is surprising for a number of reasons. First, Dworkin is widely taken to be one of the leading liberal theorists in the English-speaking world, and “Foundations” is a major statement (120 pages in length) involving reflection upon issues of principle that are at the center of contemporary scholarly debate among liberals. Secondly, “Foundations” introduces a number of ideas and concepts that are new in Dworkin's corpus and that serve to illuminate and clarify some of his wdely discussed earlier works, especially the famous article “Liberalism,” which sparked so much argument over the idea of neutrality and its place within liberal political theory. Finally, the lectures are interesting because of the approach they take to the matter of “defending liberalism,” an approach that departs in interesting and significant ways from those presently pursued by other leading liberal thinkers, notably John Rawls and Joseph Raz.

In this article I want to support a certain conception of legal authority. The question I want to address is this: Is it possible to attribute legal authority to a given norm if its authority does not derive from the authority of someone who has issued that norm? Basically, I will try to defend here a negative answer to this question, espousing a personal conception of authority.

In his most recent article, “The Appeals Process as a Means of Error Correction,” Steven Shavell asks a very important question: Why do we use a hierarchical court structure? The flip side of this inquiry is whether we might not be better off simply making our trial courts more efficient (in the sense of making them less error-prone). Although I certainly applaud the recent efforts of Shavell and other law and economics scholars to examine issues of institutional design, this particular attempt suffers from two major flaws. The first involves the asymmetric treatment of litigants before trial courts and appeals courts: Appellants can choose to either appeal cases or not, but the population of cases before the trial courts is assumed to be exogenous. This severely limits the ability to improve the efficiency of trial courts, leading to an overestimation of the value added from an appeals process. The second problem involves the behavior of judges, who are assumed to behave as automatons. Allowing judges to behave rationally dramatically changes the nature of the model's results, most fatally leading to the elimination of the separation equilibrium that Shavell wishes to achieve.

Liberalism is a wonderful theory, but its adherents have a difficult time explaining why. In his Tanner Lecture entitled Foundations of Liberal Equality, Ronald Dworkin proposes to defend liberalism in a new way. Dworkin is not content to view liberalism as a political compromise in which people set aside their personal convictions in the interest of social peace. Instead, he undertakes to make liberal political theory “continuous” with personal ethics, by describing an ethical position that endorses liberalism as a matter of conviction.

To say that the law is indeterminate is to say that the class of legal reasons (hereafter “the Class”) is indeterminate. The Class, in turn, consists of four components:

1. Legitimate sources of law (e.g., statutes, constitutions, court decisions, social policy, morality);

2. Legitimate interpretive operations that can be performed on the sources in order to generate rules of law (e.g., proper methods of interpreting statutes or prior cases or of reasoning about moral concepts as these figure in the sources);

3. Legitimate interpretive operations that can be performed on the facts of record in order to generate facts of legal significance (e.g., proper ways of grouping and categorizing fact situations for purposes of legal analysis); and

4. Legitimate rational operations that can be performed on facts and rules of law to finally yield particular decisions (e.g., deductive reasoning).