Papers by Mitchell Berman
Principles of Proportionate Punishment: Comments on John Deigh, From Psychology to Morality: Essays in Ethical Naturalism
Philosophy and Phenomenological Research
Let 'em Play" A study in the jurisprudence of sport
Georgetown Law Journal, Jul 1, 2011
For Legal Principles
Moral Puzzles and Legal Perplexities
In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court ... more In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while a handful of critics, all conservative, agreed with the dissenters that textualism could not deliver the outcome that the decision reached. This Essay shows that conservative critics of the majority’s reasoning were correct—up to a point. Specifically, it argues that Title VII’s ba...
Let’s start at the end, the very end. “If ‘[l]aw and philosophy are both in the distinction busin... more Let’s start at the end, the very end. “If ‘[l]aw and philosophy are both in the distinction business,’” Stephen Sachs’s Originalism: Standard and Procedure concludes, “we ought to keep our distinctions straight. Distinguishing standards from decision procedures will help.”1 I accept that first, conditional claim. (Who would deny it?) Going further, I affirm its antecedent heartily: law and philosophy are both in the distinction business. So, yes, we lawyers and legal scholars ought to keep our distinctions straight. The question remains: Will distinguishing standards from decision procedures help us see our way clearer? The answer depends, I think, on how we are to take the distinction — as analogy or as template. The locus classicus of the distinction, as Sachs faithfully recounts, is a fifty-year-old article by the philosopher Eugene Bales distinguishing two questions that philosophers and ordinary folk might want an ethical theory to answer.2 The first question is: What makes an ...
Larry Alexander is one of the most creative, penetrating, and wide-ranging legal theorists workin... more Larry Alexander is one of the most creative, penetrating, and wide-ranging legal theorists working today. This short essay, prepared as a tribute for a special issue of the APA Newsletter on Philosophy and Law, aims to convey a flavor of his work by introducing, and causing some trouble for, just a few of his more heterodox and provocative positions. The principal critical target of the essay is Alexander’s contention (a contention that he has pressed both alone and with Saikrishna Prakash) that extreme partisan gerrymandering does not violate the U.S. Constitution. The most persuasive grounding for the unconstitutionality of (extreme) partisan gerrymanders, I argue, is that partisan advantage is a consideration that legislators may not properly take into account (or may not weigh too heavily) when crafting electoral districts. This is a view about what inputs to certain types of legislative decisionmaking are impermissible, and does not rest upon, or imply, any views about what ele...
Dworkin versus Hart Revisited: The Challenge of Non-lexical Determination
Oxford Journal of Legal Studies, 2021
A fundamental task for legal philosophy is to explain what makes it the case that the law has the... more A fundamental task for legal philosophy is to explain what makes it the case that the law has the content that it does. Anti-positivists say that moral norms play an ineliminable role in the determination of legal content, while positivists say that they play no role, or only a contingent one. Increasingly, scholars report finding the debate stale. This article hopes to freshen it by, ironically, revisiting what might be thought its opening round: Dworkin’s challenge to Hartian positivism levelled in The Model of Rules I. It argues that the underappreciated significance of Dworkin’s distinction between rules and principles is not that Hart’s model cannot allow for the existence of legal principles, but that it cannot make sense of their operation. Hart’s model posits that legal rules are determined in a rule-like (‘lexical’) way, whereas legal principles contribute to rules in a manner that is at least partly non-lexical. The upshots of this reinterpretation are: first (against most...
Nw. UL Rev., 1994
Many people in American society believe that there is a causal link between viewing violence on t... more Many people in American society believe that there is a causal link between viewing violence on television and antisocial violent be-havior. One recent poll revealed that eighty percent of Americans surveyed agreed that "violence on TV shows is harmful to society."' This is ...
This paper explores a question of superficial triviality: when sports use instant replay technolo... more This paper explores a question of superficial triviality: when sports use instant replay technology to review on-field calls, what standard of review should they employ? The conventional view is that on-field calls should be entrenched against reversal such that, if the reviewing official has any doubt about the correctness of the initial call, he must let it stand even if he thinks it very probably wrong. Indeed, in the wake of officiating debacles at last summer‟s FIFA World Cup, commentators proposed not only that soccer employ instant replay, but also that it follow the NFL in directing officials to overturn on-field calls only when “indisputable visual evidence” (IVE) reveals that call to be mistaken. This essay argues that common wisdom in favor of IVE overlooks important considerations against entrenchment and likely rests upon mistaken premises, and it offers several concrete proposals for reform. A lengthy investigation into the optimal standard of review for instant replay...
The most fundamental question in general jurisprudence concerns what makes it the case that the l... more The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This twolevel account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing on concrete examples from statutory and constitutional law, the article shows how the version of positivism that it introduces betters Hart’s in meeting the most formidable challenges to positivism that Dworkin marshaled. In doing so, it also highlights the legal importance of the abst...
Negligence and Culpability: Reflections on Alexander and Ferzan
Criminal Law and Philosophy, 2021
Philosophers of criminal punishment disagree about whether infliction of punishment for negligenc... more Philosophers of criminal punishment disagree about whether infliction of punishment for negligence can be morally justified. One contending view holds that it cannot be because punishment requires culpability and culpability requires, at a minimum, advertence to the facts that make one’s conduct wrongful. Larry Alexander and Kim Ferzan are prominent champions of this position. This essay challenges that view and their arguments for it. Invoking a conceptual distinction between an agent’s being blameworthy for an act and their deserving punishment (or suffering) for that act, it explains that an agent can be blameworthy for negligent conduct, and thus liable to reasonable blaming practices, even if negligence is not culpable, hence not sufficient to ground negative desert. Turning from conceptual inquiry to substantive questions of political morality, it then argues that a faulty actor’s lack of culpability does not render them immune from just punishment, but does significantly limi...
Modest Retributivism
SSRN Electronic Journal, 2014
Replay
SSRN Electronic Journal, 2011
Constitutional Law
The Cambridge Companion to the Philosophy of Law
In its Florida Prepaid and College Savings Bank decisions of two terms ago, the Supreme Court rai... more In its Florida Prepaid and College Savings Bank decisions of two terms ago, the Supreme Court raised significant barriers to Congress's ability to subject the states to damages liability in federal intellectual property suits. These decisions provoked extensive academic commentary and have also sparked efforts in Congress and at the U.S. Patent and Trademark Office to amend the federal intellectual property laws to ensure that state governments will remain accountable for violations of federal rights. This article explores how such legislation might best be shaped in order to withstand constitutional challenge.Satisfactory treatment of the issue requires examination of a diverse array of difficult questions, ranging from murky corners of procedural due process and takings jurisprudence, to qualified immunity, the unconstitutional conditions doctrine, and U.S. obligations under international treaties and trade agreements. Very broadly, the article advances three broad conclusions...
Modest Retributivism
The Philosophy of Michael S. Moore, 2016
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Papers by Mitchell Berman