Emad H Atiq

I am a Professor of Law & Philosophy at Cornell Law School and the Sage School of Philosophy at Cornell University.

CV  ·  Publications

Research summary:

My research interests are broad, spanning legal theory, ethics, epistemology, and the philosophy of mind. A recurring theme in my work is how normative judgments fit within an objective conception of the world, which includes questions about what makes normative judgments objective, and how normative commitments contribute to objectivity in belief and action.

Legal Philosophy

My scholarship in the philosophy of law covers topics in general jurisprudence and normative legal theory. Much of this work concerns the relationship between moral and legal norms, and how philosophical inquiry–through conceptual analysis and engineering, systematic moral theory, and metaphysics–can clarify legal doctrines and inform the design of legal institutions.

Ethics, Epistemology, and Philosophy of Mind

My broader philosophical work concerns the grounds of moral objectivity, the nature and value of knowledge, and the epistemic significance of conscious experience.

I co-organize (with Matt Duncan) the Cornell Workshop on Mind and Value.

Background:

I received a PhD in philosophy from Princeton University, where my committee consisted of Gideon Rosen, Michael Smith, Sarah McGrath, and Philip Pettit. Before that, I was at Yale Law School, where I earned a JD, and prior to that I completed an Mphil in philosophy at the University of Cambridge. My BA, which was also at Princeton, was in economics with a minor in applied & computational mathematics.

Monograph:

• Contemporary Non-Positivism. Cambridge Elements Series in the Philosophy of Law, Cambridge University Press (2025)show/hide abstract
This text defends and clarifies the thesis that the legality of a system of rules depends on its moral features. Positivists who deny this dependence struggle to explain: (1) the traditional classification of moral norms as a form of a priori law; (2) judicial reliance on moral norms in legal discovery; (3) persistent theoretical disagreement about intra-systemic, law-determining facts; (4) why radically arbitrary or immoral schemes of social organization represent borderline cases of law; and (5) why law, like other artifacts, can be evaluated in a kind-relative sense (“as law”). Meanwhile, traditional versions of non-positivism overstate the dependence going further than the desiderata warrant. A moderate theory is formulated: law is an artifact whose existence depends on adequately performing an essentially normative function. The theory’s justification lies in its explanatory power: a comparison with other “value-driven” artifacts, such as artworks, proves vital for understanding legal language, reasoning, and practice.

• Reviewed in Notre Dame Philosophical Reviews, Jotwell, and JuristenZeitung

Articles:

• Fitting Attention & Acquaintance In Teroni F., Pál-Wallin, R. (eds.), The Normativity of Mental States (forthcoming)show/hide abstract
I argue that the value of acquaintance can explaing why attention can be evaluated for fittingness
• Objective & Subjective in Legal Theory In Sieckmann, J., Baecker, C., & Borowski, M. (eds.), On Law's Ideal Dimension, Hart Publishing (forthcoming)show/hide abstract
I critically evaluate Robert Alexy's argument that non-postivist theories of law presuppose moral objectivity, mapping the space of viable positions
• Constitutional Rights as Allocations of Moral Authority Iowa Law Review (forthcoming)show/hide abstract
When one generation entrenches a constitutional right intended to bind subsequent generations, whose moral reasoning should govern its application? Constitutional theory usually treats this as a problem of political authority, with answers clustering around two opposing positions: either the adopting generation’s reasoning controls or contemporary interpreters should decide for themselves. Yet the designers’ own moral commitments suggest a more discriminating allocation of interpretive authority. Rational designers committed to the values underlying a right have reason to bind future interpreters to some original judgments about its scope while leaving others open to independent reconsideration, despite the possibility that such reconsideration will yield conclusions contrary to their own. When prospective deference is instrumentally rational turns on the right’s justification, the degree of confidence and convergence surrounding original judgments about its scope, and the comparative epistemic and institutional position of later interpreters. Open-textured rights provisions thus function not only as first-order constraints on government, but also as implicit second-order rules, allocating interpretive authority in accordance with the relative moral authority of successive generations. This allocative function, in turn, grounds a theory of constitutional interpretation. Respecting the allocation implicit in rational constitutional design better vindicates the values commonly invoked in defense of rigid adherence to historical practice—including the rule of law, popular sovereignty, and fidelity to ordinary meaning—without granting contemporary judges a standing license to enforce their preferred moral views. Applied to Jones v. Mississippi and United States v. Rahimi, the account offers a principled way of resolving recent disputes over the relevance of history and tradition. This paper is an invited contribution to the Iowa Law Review's symposium issue on "Philosophy at Trial".
• The Unmediated Normativity of Acquaintance Thought: A Journal of Philosophy 13 (forthcoming)show/hide abstract
Russell characterized acquaintance as an unmediated, non-propositional relation between a subject and the objects of perception, through which the subject knows the object. But the claim that this relation is unmediated admits of metaphysical, conceptual, and normative readings that have not been properly distinguished. The normative reading, in particular, has been overlooked, though it matters independently of whether acquaintance is also metaphysically or conceptually unmediated. On this reading, the experiential presence of objects instantiates final epistemic value, and this evaluative fact is not explained by more basic epistemic statuses, even if the value-bearing state depends causally or metaphysically on other processes. The normative reading vindicates Russell’s motivations for positing acquaintance, especially the intuitions of indubitability and ineffability, without metaphysical excess, while preserving what is indispensable: a real relation of presence through which epistemic normativity is first realized.
• The Normative Profile of Knowledge by Acquaintance Philosophy and Phenomenological Research 112: 664-678 (2026)show/hide abstract
Many philosophers have found it plausible that sense experience affords a species of non-propositional awareness and knowledge, what Russell (1911/12) termed “knowledge by acquaintance.” At the same time, a prominent strand in epistemology maintains that knowledge has a distinctive normative profile: it is embedded in justificatory relations, serves as a standard of success for underlying attitudes, grounds regulative norms, and qualifies as a cognitive achievement. Yet it remains unclear how a non-propositional state of acquaintance, formed without evidential basis and beyond rational control, could fit within this normative structure. I trace the connections between different formulations of what I call “the normativity objection” to Russell’s view and offer a unified response. The objection, I argue, rests on an overly passive conception of acquaintance. Once acquaintance is seen as partly constituted by attention—a subject-level, reasons-responsive activity—it can satisfy knowledge’s normative role by serving as the success condition of a norm-governed performance. This not only strengthens the Russellian program; it reveals a striking convergence between the structure of consciousness and the structure of epistemic normativity.
• Justice as Law's Constitutive Virtue: A Functional Reassessment Oxford Studies in Philosophy of Law, Vol. 7 (forthcoming, lead article)show/hide abstract
Some kinds can succeed or fail on their own terms. A clock that loses minutes is defective as a clock; a university that abandons teaching and research becomes deficient as a university. Pebbles and numbers, by contrast, are not evaluable in this way. Philosophers often place law in the first category, and some go further still: they claim that unjust law is defective as law. Yet the leading arguments for this claim—appeals to central cases (Finnis 2011), law’s characteristic activities (Murphy 2006), the logic of legal demands (Alexy 2021), or law’s justificatory role (Dworkin 1986)—fail when tested against canonical cases of kind-relative virtue. Their failure reveals a deeper lacuna in legal philosophy: the absence of a general theory of goodness-fixing kinds. I argue that if justice is law’s constitutive virtue, it must be explained using the same functional schemas that ground constitutive standards elsewhere: agentive functions stably intended across contexts; etiological functions that explain emergence and persistence; and systemic functions that locate law’s role within larger social orders. On this reconstruction, whether unjust law is defective “as law” is not a matter of conceptual stipulation or a priori intuition, but an empirical question—one that unsettles familiar readings of Dworkin and Hart, and standard narratives of legal history.
• The Disaggregated Hand FormulaCalifornia Law Review 114:223-245 (2026)show/hide abstract
Commercial activities, like selling a car or serving hot coffee, can generate a risk of loss to which multiple individuals are exposed. Likewise, the burdens of avoiding such risks are rarely borne by a single person. When burdens and losses distribute across multiple stakeholders, when should negligence law tolerate or condemn the risky choice? A famous answer at the center of the One-L curriculum invokes the Hand formula: the failure to avoid a risk is negligent when the sum of the burdens of risk-avoidance is less than the sum of the expected losses. However, it is rarely explained why the sum of burdens and losses ought to be compared when there are other ways of comparing interests. This modest observation can serve as the starting point for reconstructing and reclaiming a fundamental concept of American tort law. This Article argues that the Hand formula should be applied to multi-party cases by, first, disaggregating burdens and losses and comparing them on a pairwise basis, starting with the individual who bears the highest burden and the one who bears the highest risk of loss. Three reasons favor this reconstruction. First, the traditional interpretation of the Hand formula rests on a controversial ethics of aggregation. The “disaggregated” formula is more ethically defensible, informed by values like impartiality and equality, not just utility maximization or cost minimization. Second, famous jury verdicts as well as Learned Hand’s reasoning in United States v. Carroll Towing support the alternative interpretation. Students of tort law are usually taught that jurors repudiate the Hand formula, perhaps most famously in the “Ford Pinto” (Grimshaw v. Ford Motor Co.) and “McDonald’s coffee” cases (Liebeck v. McDonald’s Restaurant). But such cases are only inconsistent with the traditional purely aggregative interpretation, while lesser-known cases where the formula was successfully applied involved disaggregated reasoning. Third, the Hand formula, on the proposed construal, can be translated into simple jury instructions as well as formalized to reveal new economic models of risk-related decision-making. In short, moral, legal, and practical reasons favor disaggregating the Hand formula, with implications for the economic theory of accidents and for high-stakes lawsuits currently in the public spotlight, such as the Abbott/Reckitt class actions over the sale of contaminated infant formula.
• Knowledge by Acquaintance and Impartial VirtuePhilosophical Studies 182:911-937 (2025)show/hide abstract
Russell (1911/12) argued that perceptual experience grounds a species of non-propositional knowledge, “knowledge by acquaintance,” and in recent years, this account of knowledge has been gaining traction. I defend on its basis a connection between moral and epistemic failure. I argue, first, that insufficient concern for the suffering of others can be explained in terms of an agent’s lack of acquaintance knowledge of another’s suffering, and second, that empathy improves our epistemic situation. Empathic distress approximates acquaintance with another’s suffering, and empathic agents who are motivated to help rather than disengage exhibit an important epistemic virtue: a variety of intellectual courage. A key upshot is that an independently motivated account of the structure and significance of perceptual experience is shown to provide theoretical scaffolding for understanding a famously elusive idea in ethics—namely, that the failure to help others stems from a kind of ignorance of their situation.
• The Nature of Law Stanford Encyclopedia of Philosophy (2025) (with Andrei Marmor & Alex Sarch)show/hide abstract
Lawyers tend to raise questions about the content of the law or about what the law requires on this or that issue. These are always local questions, answers to which are bound to differ depending on the jurisdiction. By contrast, philosophy of law is interested in a general question: what is law? This question presupposes that there are certain characteristics that law exhibits by its very nature, or essence, as law, whenever and wherever it happens to exist, characteristics that may be discernible through philosophical analysis. General jurisprudence, as the philosophical project is sometimes called, aims to give an account of law’s nature, in the service, ultimately, of several explanatory goals. A satisfying account is supposed to shed light on what determines the content of legal norms; on law’s normative significance—both how it purports to guide behavior and why it gives agents reasons for compliance; and on the relationship, if any, between law and other bodies of norms, such as the norms of morality or custom. But here, as elsewhere in philosophy, there are deep disagreements about the desiderata for a satisfying account. It might even be somewhat misleading to suggest that there is a single question—what is law?—that unites the field, as opposed to several related questions. For instance, there are at least two senses in which the term “law” is used in jurisprudence: to refer to a kind of norm (a legal norm), or to refer to a kind of normative system (a legal system). Corresponding to these two senses are different questions. One concerns the general conditions under which a norm gets to be a norm of law—whether the conditions refer only to the norm’s source, such as its enactment by some political institution, or also its content, such as its moral virtues. This is the question of the “grounds of legal validity.” A different but related question concerns the distinctive characteristics of a body of norms that make it a system of law. This is the question of the existence and persistence conditions of a legal system. Additionally, some philosophers focus primarily on explaining and justifying the normativity of law, and only secondarily on law’s nature. Their questions are several: how do legal norms give rise to reasons for action, what kinds of reasons are involved, and are there distinctively legal obligations. Section 1 considers these questions in turn and explains the main substantive debates. Section 2 highlights some further methodological issues that have generated recent discussion.
• Law, the Rule of Law, and Goodness-Fixing KindsIn Brownlee, K., Enoch, D., and Marmor, A., (eds.) Engaging Raz: Themes in Normative Philosophy. Oxford University Press (2025)show/hide abstract
We can evaluate laws as better or worse relative to different normative standards. One might lament the fact that a law violates human rights or, in a different register, marvel at its ease of application. A question in legal philosophy is whether some standards for evaluating laws are fixed by—or grounded in—the very nature of law. I take Raz’s (1977, 2019) discussion of the distinctively legal virtues, those that fall under the rubric of the “Rule of Law” such as clarity, generality, and non-retroactivity, as my starting point for exploring a very general puzzle about the relationship between law’s essence and its virtue.
• I Feel Your Pain: Acquaintance & the Limits of Empathy In Kriegel, U., (ed.) Oxford Studies in Philosophy of Mind 4 Oxford University Press (2024)(with Matt Duncan)show/hide abstract
The kind of empathy that is communicated through expressions like “I feel your pain” or “I share your sadness” is important, but peculiar. For it seems to require something perplexing and elusive: sharing another’s experience. It’s not clear how this is possible. We each experience the world from our own point of view, which no one else occupies. It’s also unclear exactly why it is so important that we share others' pains. If you are in pain, then why should it matter, and be a good thing, that I am also in the same pain? Our goal in this paper is to address these questions. Specifically, our goal is to clarify how empathy, in the regimented sense of sharing another’s pain, is possible and why it is important. Central to our account is the concept of being acquainted with—that is, directly aware of—pain. When I feel my own pain, and am acquainted with it, I want the pain to stop, and I’m moved—sometimes compelled—to stop it. My acquaintance with the pain is what reveals that it is no good, to be gotten rid of, and to be avoided in the future. Acquaintance also appears to be implicated in our understanding of, and motivation to relieve, others’ pains. When I say “I feel your pain” I express an awareness of your pain, a direct appreciation of its noxious qualities, and, as with my own pain, an understanding of why it ought to be eased. Explaining how empathy is both possible and important therefore involves clarifying the nature of acquaintance: its limits, epistemic role, and motivational significance. What our analysis reveals is that agents have both epistemic and moral reasons to share other people’s pain because pain-sharing is the source of a species of character-building knowledge that we have no other way of accessing except through direct acquaintance with pain.
• Legal Positivism and the Moral Origins of Legal SystemsCanadian Journal of Law and Jurisprudence 36:37-64 (2023)show/hide abstract
Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the positivist’s explanatory options, I suggest that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, founding-era Americans were not using ‘law’ (or ‘lex’ or ‘jus’) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication.
• The Uncertain Foundations of Public Law Theory Cornell Journal of Law & Public Policy 31:389-450 (2022) (with Jud Mathews)show/hide abstract · PDF
Recently, public law scholarship has taken a “jurisprudential turn.” Scholars have argued for controversial public law conclusions—concerning how to interpret the Constitution, the powers of administrative agencies, and the responsibilities of judges—based on assumptions about the fundamental grounds of legal validity. Some use this jurisprudential move to denounce opposing views as not merely mistaken, but denying or defying the law, thus raising the stakes in public law disputes. A surprising feature of this development in public law theory is that those who lean on jurisprudential assumptions either dismiss as irrelevant or pass over in silence persistent disagreement in general jurisprudence about the nature of law. We argue that tracing our public law convictions to contested assumptions about law’s nature should make us less (not more) confident in the rightness of our conclusions and the wrongness of the opposing side. Our case for “confidence-lowering” begins with a close examination of sophisticated examples of the jurisprudential turn, including arguments for broadly originalist conclusions. After highlighting the unargued-for assumptions about the nature of law on which these works rely, we develop a general challenge for this mode of advocacy based on the epistemology of “peer disagreement.” Our challenge invokes intellectual reasons for withholding judgment on questions that inspire persistent disagreement among good-faith reasoners. The upshot is that controversial claims about public law should be approached with ambivalence on all sides, and an awareness of the reasons for ambivalence has the potential to alter the tenor of public law debates.
• Reasonable Moral DoubtNew York University Law Review 97:1373-1425 (2022)show/hide abstract
Sentencing outcomes turn on moral and evaluative determinations. For example, a finding of “irreparable corruption” is generally a precondition for juvenile life without parole. A finding that the “aggravating factors outweigh the mitigating factors” determines whether a defendant receives the death penalty. Should such moral determinations that expose defendants to extraordinary penalties be subject to a standard of proof? A broad range of federal and state courts have purported to decide this issue “in the abstract and without reference to our sentencing case law,” as the Supreme Court recently put it. Kansas v. Carr, 577 U.S. 108, 119 (2016). According to these courts, “it would mean nothing” to ask whether the defendant “deserves mercy beyond a reasonable doubt” or “more-likely-than-not deserves it” because moral questions are not “factual.” Instead, moral determinations are highly subjective “value calls” to which concepts of doubt and certainty do not intelligibly apply. Implicit in these rulings is a controversial view of the nature of moral judgment that warrants close examination. This Article makes three main contributions. First, it clarifies the view of morality that courts seem intuitively drawn to, based on a framework borrowed from moral philosophy. Second, it compares the judiciary’s metaethics to the general public’s, parlaying the results of this comparison into an argument for greater neutrality from the courts on the objectivity of moral questions. Third, it develops a case, based on an original and suitably neutral account of moral doubt, for applying a standard of proof to at least some moral questions in the penalty phase. A standard of proof would simultaneously improve the sentencer’s deliberations and the legitimacy of the legal system. For the “reasonableness” of doubt depends on context; and moral questions—"are you certain the defendant deserves death?”—make salient the practical stakes relative to which a person should be deciding what to believe about ordinary empirical matters. On the resulting view, reasonable doubt in the final moral analysis is not just intelligible, but essential for correcting a bias in the structure of the bifurcated criminal trial that systematically disadvantages defendants: the tendency for de-contextualized “factual findings” in the guilt phase to control outcomes at sentencing.
• Acquaintance, Knowledge, and ValueSynthese 199(5-6): 14035-14062 (2021)show/hide abstract
Taking perceptual experience to consist in a relation of acquaintance with the sensible qualities, I argue that the state of being acquainted with a sensible quality is intrinsically a form of knowledge, and not merely a means to more familiar kinds of knowledge, such as propositional or dispositional knowledge. We should accept the epistemic claim for its explanatory power and theoretical usefulness. That acquaintance is knowledge best explains the intuitive epistemic appeal of ‘Edenic’ counterfactuals involving unmediated perceptual contact with reality (cf. Chalmers 2006). It explains the elusiveness of knowledge gained through new acquaintances. It coheres with the knowledge-like functional role of acquaintance in the special context of evaluative beliefs and evaluative reasoning, where the objects of acquaintance serve as evidence and inferential basis. And, finally, taking acquaintance to be knowledge is theoretically fruitful: it helps vindicate claims about the relationship between knowledge and concern for others we already find intuitive or outright accept. After developing a novel case for the epistemic claim, I respond to two familiar objections against it: namely, (1) that there are no pre-propositional, pre-conceptual cases of perceptual experience that remain epistemically relevant (Sellars 1968, McDowell 2008); and (2) that the category of knowledge appears gerrymandered once we add ‘object’ knowledge to the epistemological mix (Farkas 2019).
• The Philosophy of Contract LawStanford Encyclopedia of Philosophy (2021) (with Daniel Markovits)show/hide abstract
The law of contracts, at least in its orthodox expression, concerns voluntary, or chosen, legal obligations. When Brody accepts Susan’s offer to sell him a canoe for a set price, the parties’ choices alter their legal rights and duties. Their success at changing the legal landscape depends on a background system of rules that specify when and how contractual acts have legal effects, rules that give the offer and acceptance of a bargain-exchange a central role in generating obligations. Contract law conceived as a body of rules empowering individuals to shape their own rights and responsibilities presents an object of philosophical study. The philosophy of contract includes two broad sets of projects. One set, the focus of the first part of this entry, targets the basic structure and normative justification of the law of contracts. The aim is to subsume a salient body of contract law rules under general principles in order to clarify contract law’s conceptual categories, distinguish it from other areas of law, and specify criteria relevant to its normative appraisal. This kind of philosophical work presupposes detailed knowledge of the law in existing legal regimes, and the entry begins by outlining the common law of contracts. A second set of projects draws on resources from the philosophy of language, philosophy of action, and moral and political philosophy to address debates within contract law. Questions about the nature of meaning and interpretation, intentionality, freedom in contract, and distributive justice drive contemporary legal debates concerning contract formation, interpretation, and enforcement. Philosophical work on these topics has attracted significant commentary which serves as the focus of the second part of this entry.
• There Are No Easy Counterexamples to Legal Anti-positivismJournal of Ethics & Social Philosophy 17(1) (2020)show/hide abstract · PDF
Legal anti-positivism is widely believed to be a general theory of law that generates far too many false negatives. If anti-positivism is true, certain rules bearing all the hallmarks of legality are not in fact legal. This impression, fostered by both positivists and anti-positivists, stems from an overly narrow conception of the kinds of moral facts that ground legal facts: roughly, facts about what is morally optimific—morally best or morally justified or morally obligatory given our social practices. A less restrictive view of the kinds of moral properties that ground legality results in a form of anti-positivism that can accommodate any legal rule consistent with positivism, including the alleged counterexamples. I articulate an ‘inclusive’ form of anti-positivism that is not just invulnerable to extensional challenge from the positivist. It is the only account that withstands extensional objections, while incorporating, on purely conceptual grounds, a large part of the content of morality into law.
• Supervenience, Repeatability, & ExpressivismNoȗs 54(3):578–599 (2020)show/hide abstract · PDF
Expressivists traditionally explain normative supervenience by saying it is a conceptual truth. I argue against this tradition in two steps. First, I show the modal claim that stands in need of explanation has been stated imprecisely. Classic arguments in metaethics for normative supervenience and those that rely on it as a premise presuppose a constraint on the supervenience base that is rarely (if ever) made explicit: the repeatability of the non-normative properties on which the normative supervenes. Non-normative properties are repeatable when it is possible for numerically distinct individuals to share them. Second, I show if the modal truth that stands in need of explanation entails that there are individuals exactly alike in repeatable non-normative respects that cannot normatively differ, then standard expressivist accounts of normative supervenience as a conceptual truth are unsuccessful. Expressivist metasemantics for normative terms, together with constitutive facts about the non-cognitive attitudes essentially involved in normative thought, strongly suggest that repeatable supervenience could not be a conceptual truth. I argue, finally, that although repeatable supervenience bears the marks of a conceptual truth, expressivists should be content to treat it as an ordinary normative truth, and to explain it the same way they explain other normative truths.
• Legal Obligation and its LimitsLaw & Philosophy (2019) 38(2):109–147show/hide abstract · PDF
Judges do not always have a legal obligation to follow the law. This result follows from ecumenical assumptions about the nature of law and legal obligation.
• On Ground as a Guide to Realism.Ratio (2018) 31(2):165-178 .show/hide abstract · PDF
I argue that a property can be real and fundamental without needing to be invoked in grounding explanations of true nonbasic propositions involving it. Among other things, this entails that Kit Fine's ground-theoretic criterion for realism, which has been influential in metaethics, must be rejected.
• Legal vs. Factual Normative Questions.Notre Dame Journal of Law, Ethics, & Public Policy 38 (2018).show/hide abstract · PDF
I argue that the distinction between convention-dependent normative quesitons and convention-independent ones explains the differential classification of norms in contracts and torts as legal or factual under the common law
• The Limits of Law in the Evaluation of Mitigating Evidence American Journal of Criminal law 45:167–201 (2018) (with Erin Miller).show/hide abstract · PDF
We argue that judicial evaluation of the weight of mitigating evidence at capital sentencing based on precedential reasoning or legal rules violates the Constitution. The Constitution demands moral not legal consideration of mitigating evidence. We clarify the difference between these two modes of consideration.
• What Unconditional Credence in Individual Desert Claims Does Retributivism Require?Illinois Law Review Online 138 (2018).show/hide abstract · PDF
Punishing a person based on low unconditional credence in their deservingness to be punished is consistent with retributivist deontological principles. Negative retributivism absolutely prohibits the intentional or knowing infliction of undeserved harm on individuals identified as undeserving, not the intentional or knowing infliction of risks of undeserved harm on individuals. Meanwhile, the knowing infliction of undeserved harm on some unidentified individuals generates not overriding reasons against punishment, but pro tanto reasons against punishment that are to be weighed against other non-overriding reasons for punishment like crime prevention. The upshot is that uncertainty regarding any identified person’s deservingness to be punished does not entail that punishment is generally impermissible if negative retributivism is true. One might be misled into thinking that impossibly high levels of unconditional credence in individual desert claims is morally required by failing to distinguish our actual criminal law practices, which are extremely harsh and unjustifiable, from criminal law as it ought to be.
• How to Be Impartial as a Subjectivist.Philosophical Studies 173:757–779 (2016).show/hide abstract · PDF
The metaethical subjectivist claims there is nothing more to a moral disagreement than a conflict in the desires of the parties involved. Recently, David Enoch has argued that metaethical subjectivism has unacceptable ethical implications. If the subjectivist is right about moral disagreement, then it follows, according to Enoch, that we cannot stand our ground in moral disagreements without violating the demands of impartiality. For being impartial, we’re told, involves being willing to compromise in conflicts that are merely due to competing desires–the parties to such conflicts should decide what to do on the basis of a coin flip. I suggest that Enoch is mistaken in his conception of what it means to be impartial. Once impartiality is properly construed, standing one’s ground in desire-based conflicts, whether or not moral values are at stake in the conflict, is consistent with being impartial. I defend a view on which impartiality can be understood in terms of features of our desiring attitudes. An agent acts impartially in desire-based conflicts whenever she is motivated by a final (i.e. non-instrumental) desire that aims at promoting the wellbeing of persons in a way that is insensitive to the identities of persons and their morally arbitrary features like their gender or skin color. Based on the account, I explain where Enoch’s discussion of the argument goes wrong, as well as why responses to the argument from Enoch’s critics have so far missed the mark.
• Why Motives Matter.Yale Law Journal 123:1070–1116 (2014).show/hide abstract · PDF
Legal rules and regulations are routinely rationalized by appeal to the incentives they create. This Note examines an important but misunderstood fact about incentives–namely, that they often "crowd out" the natural motivations that citizens have to engage in socially valued behavior, such as a sense of civic duty, a commitment to personal growth, and charity towards others. The “crowding out effect” of incentives has traditionally been viewed as problematic because of cases where it renders incentives counter-productive–when fear of legal sanction or desire for financial reward substitutes for other forms of motivation in agents, this often leads to less of the socially valued behavior regulators sought to incentivize. In contrast, I explore whether the effect of legal incentives on our motivational psychology might be inherently regrettable in some cases, quite apart from the effect on behavioral outcomes. I show that a reframing of the crowding out effect that takes seriously the inherent value that resides in our "higher motives" generates insights into a variety of legal phenomena, including doctrinal rules in intellectual property, contracts, and torts; and a neglected theory for legal reformation, one that bears on the choice between rule- and standard-based legal directives and on the strategic use of the law to improve the way citizens conceptualize their obligations to each other.
• How Folk Beliefs about Free Will Influence Sentencing.New Criminal Law Review 16:449–493 (2013).show/hide abstract · PDF
Do results in neuroscience and psychology that portray our choices as predetermined threaten to undermine the assumptions about free will that drive criminal law? This Article answers in the affirmative and explains why a revision in the law’s assumptions is morally desirable. Problematic assumptions about free will have a role to play in criminal law not because they underlie substantive legal doctrine or retributive theory, but because everyday actors in the sentencing process are authorized to make irreducibly moral determinations outside of the ordinary doctrinal framework. Jurors, judges, and legislators are each required, at key points in the sentencing process, to make moral judgments that cannot be reached without reference to the person’s own understanding of free will. As a result, sentencing actors give legal effect to widely-held folk beliefs about free will, beliefs that the evidence suggests are scientifically suspect and morally distorting. The relevant beliefs make adjudicators less likely to attend to the underlying causes of crime, such as social deprivation; a tendency that biases adjudicators against relevant arguments for mitigation in sentencing. Modern science could have an important corrective effect in this context.

Reviews and Essays:

• Empathy can take a toll -- but 2 philosophers explain why we should see it as a strength The Conversation (2025) (with Colin Marshall).show/hide abstract
At its core, empathy is a form of mental strength that enables us to better understand the impact of our actions on others, and to make informed choices.
• Standards of Proof, Statistical Evidence, and the Stakes.JOTWELL (2023).show/hide abstract
Comments on Sarah Moss's "Knowledge and Legal Proof"
• Disagreement about Law & Morality: Empirical Results and The Meta-Problem of Jurisprudence.JOTWELL (2022).show/hide abstract
Commentary on Flanagan & Hannikainen's "The Folk Concept of Law" and on the results of Bourget and Chalmer's PhilPapers survey.
• Review of Natural Law & the Nature of Law, by Jonathan Crowe.Notre Dame Philosophical Reviews (2020).show/hide abstract
Commentary on Crowe's metaethics & his theory of law as a goodness-fixing kind.

Work in progress (titles suppressed for blind review):

• A paper on technology and exploited attention (available upon request)
• A paper on perspectival knowledge (under review; available upon request)
• A paper on Iris Murdoch's epistemology (available upon request)
• A paper on the rule of law
• A paper on fittingness and attention
• A paper on moral objectivity (available upon request)

Teaching:

• LAW 5041 Contracts (Fall 2018, Fall 2019, Fall 2020, Fall 2022, Fall 2026)
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The assigned text for this class is Ayres & Klass, Studies in Contract Law (9th Edition). We will rely on excerpts from various other classic and contemporary works reflecting philosophical, historical, and economic approaches to contract law.
• LAW 6641 Legal Ethics (Spring 2020, Spring 2021, Spring 2023, Spring 2024)
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We will study the law governing lawyers as derived from bar association promulgated ethics rules, enacted statutes, and common law. Discussion of the law will be organized around general lawyerly duties—duties of competence, loyalty, confidentiality, honesty, and others—owed to distinct individuals: clients, affected non-clients, as well as the legal system as a whole. Additionally, we shall examine the law governing lawyers against the background of a moral puzzle at the heart of legal ethics: the puzzle of unjust advocacy (Huemer 2016). In general, there is a strong duty to avoid knowingly causing severe harm to others. Lawyers, whether involved in criminal defense, prosecution, corporate advising, and so on, seem to reliably and knowingly cause such harm. What, if anything, morally justifies lawyers behaving in this way? We’ll consider whether and to what extent the law governing lawyers itself constitutes a response to the problem of unjust advocacy.
• LAW 7736 Seminar on the History of Legal Systems (Spring 2024)
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We shall read classic legal texts and explore several questions. What features do ancient and modern legal systems share? What features of past legal systems seem alien relative to contemporary legal practice and culture? The overriding goal is to understand how our conception of law and legal systems has evolved over time, especially in the western legal tradition.
• PHIL 6410 Other Minds (Fall 2026)
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The problem of other minds is several problems at once. The metaphysical problem concerns what kind of thing another subject is, how to make sense of multiple loci of first-personal facts, and what follows for our picture of reality if subjectivity is irreducibly perspectival. The epistemic problem asks how, if at all, we can achieve knowledge of another’s inner life and personhood, whether through perception, acquaintance, inference, or simulation, and whether the first-person/third-person gap admits of genuine closure. The moral problem asks what the existence of other experiencing, minded beings demands of us; whether genuinely seeing another person as minded is already a form of moral acknowledgement; whether uncertainty about consciousness generates distinctive obligations; what it means to acknowledge and empathize with another person; and how, if at all, we can respond adequately to the existence of another’s suffering. This advanced graduate seminar works through all three dimensions of the problem of other minds. The primary readings focus on contemporary work in metaphysics of mind, epistemology, and ethics, with canonical texts assigned as optional background reading for students interested in the historical roots of current debates. The seminar concludes with two weeks of test cases involving animal consciousness and artificial intelligence, where the frameworks developed through the course of the semester are brought to bear on urgent, contemporary instances of the problem.
• PHIL 6425/LAW 7743 Idealization in Ethics and Epistemology (Spring 2025)
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This advanced seminar examines idealizations in ethics and epistemology, with an eye to understanding idealization more generally. In ethics, the concept of an “ideal agent” or “ideal reasoner” plays an important role in accounts of the functions of moral concepts, the grounds of moral truth, and the content of morality. In epistemology, idealization plays a similar role. What perfectly rational, cognitively idealized, computationally unlimited believers would believe informs theories of epistemic normativity and of how we ought to conduct our doxastic lives. Some general questions can be raised about idealization and its role in meta-normative theory. What determines the standards for being ideal? How do we figure out what ideal agents would do or believe? Why do the beliefs, actions, and dispositions of ideal agents have normative significance for ordinary non-ideal agents? Is there a connection between being epistemically ideal and morally ideal? Why should we care about being ideal? We shall explore these and other questions in the seminar and consider how our answers inform our understanding of normative idealization elsewhere (e.g., in law, politics, economics, and aesthetics).
• PHIL 6430/LAW 7782 Authority, Coercion and the Rule of Law (w/ Andrei Marmor) (Spring 2024)
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This advanced seminar explores concepts central to political and legal philosophy, and is divided into three parts. The first part raises questions concerning the nature of authority. What does it take for an agent to have theoretical or practical authority? What are the roles and responsibilities of authorities? To what extent do legal institutions and actors claim such authority, and are such claims ever warranted? The second part explores the nature of coercion: What makes an inducement coercive? Is coercion ever justified? To what extent does the law coerce its subjects? The third and final part of the seminar explores the ideal of the Rule of Law. What are the ingredients of this legal ideal? What makes the ideal distinctively legal? To what extent does the answer to such questions relate to law’s claims to authority and justified coercion? Discussion will be guided by classical as well as recent works on these topics
• PHIL 6410 Expressivism (Spring 2023)
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Meta-normative expressivists maintain that the function of normative assertions isn’t to describe the normative properties of objects, persons, or states of affairs; rather, it is to express the speaker’s non-cognitive attitudes. The view is usually motivated as part of a larger package of philosophical commitments, including naturalism and minimalism about truth. This graduate seminar will explore recent work on meta-normative expressivism, specifically work on challenges based on the Frege-Geach problem, moral uncertainty, minimalism about truth, normative explanation, and related topics. Additionally, we shall compare expressivist proposals in other domains of discourse, including expressivism about the language of probability, credence, modality, and avowals.
• PHIL 6410 Moral Objectivity (Spring 2022)
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To what extent is moral thought and talk objective? When we think about what we morally ought to do, do we hope to discover facts that would answer the question? Or is there nothing more to moralizing than projecting our own idiosyncratic preferences on to reality? These questions are somewhat obscure, and we will spend much of the seminar trying to give a precise characterization (or several) of what objectivity in ethics amounts to and why it might matter to moral practice. Along the way, we shall evaluate recent efforts at securing ethics from such putative threats as error theory (all moral claims are false), relativism (the truth of moral claims is dependent on community conventions), and expressivism (the function of moral claims is not to describe the world, but to make explicit the speaker’s non-cognitive attitudes). A question in the background of our discussions that we shall revisit throughout the semester is whether we can vindicate morality without getting mired in disputes about moral metaphysics—concerning the place of moral properties in a naturalistic world, problems of access, and so on.
• PHIL 7402 Recent Work in Legal Philosophy (w/ Andrei Marmor) (Fall 2019)
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Anticipated topics include legal epistemology, negligence, discrimination, the ethics of taxation, ideology and injustice, and the responsibitites of officials in the face of unjust law. Invited speakers: David Enoch (Hebrew U), Sophia Moreau (U of Toronto), Kristi Olson (Bowdoin C), Sally Haslanger (MIT), Gideon Rosen (Princeton), and Jonathan Quong (USC).
• PHIL 6411 Philosophy of Law (w/ Andrei Marmor) (Fall 2018)
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First half of the course is devoted to analytic jurisprudence, covering Austin, Hart, Kelsen, and Dworkin. Second half of the course covers topics in philosophy of torts, legal epistemology, philosophy of contracts, and the morality of economic approaches to law. Invited speakers: Aditi Bagchi (Fordham), Johann Frick (Princeton), and Daniel Viehoff (NYU).