Forty years ago, Vaughn Ball demonstrated that the then received notion of conditional relevance served no useful purpose, as it would only come into effect if the probability of an element were 0.0. But, if the probability of an element were 0.0, a directed verdict would be in order and so once again conditional relevancy was doing no work. I extended that analysis to include the relationship between proffers of evidence and facts of consequence to demonstrate that the work that (...) conditional relevancy was supposedly doing was isomorphic to that done by relevancy in all significant ways, and yet the Federal Rules of Evidence provide different standards for the two situations to determine admissibility. I thus proposed an amendment to FRE 104(b) to provide for the same standard to be applied to ‘relevancy’ and ‘conditional relevancy’. In a recent article, Matthew Kotzen appears to subject this work to intense scrutiny and criticism, yet at the same time reaches, so far as I can tell, identical conclusions. This raises the question, which I examine, whether this is an example of cross-disciplinary difficulties in communication. (shrink)

It is frequently argued that wrongdoers forfeit, through their wrongdoing, their previously held claim rights against being punished. But this is a mistake. Wrongdoers do not forfeit their claim rights against being punished when they violate rights. They forfeit their _immunity_ to having their claim rights against being punished removed. The reason for this, I argue, is that when they violate rights, wrongdoers culpably disregard the authority of right-holders to negotiate the conditions under which it is permissible to interact with (...) them. The effect of this, far from undermining the authority of right-holders, is to transfer authority to right-holders to unilaterally impose the ‘conditions of interaction’ on wrongdoers _after_ the violation. The conditions can be imposed for a diverse range of reasons and can take a variety of forms, including punishment. In this essay I explain and defend this new ‘unilateral authority theory’ of punishment. (shrink)

It is natural to think of legal positivism and jurisprudential naturalism as intellectually allied ideas. Legal positivism is associated with the idea that law is a matter of social fact; naturalism is a philosophical tenet that, among other things suggests the importance of scientific findings and methods to philosophy. At the very least, there seems to be a close family resemblance between the two views. In this essay, I challenge this view from a naturalistic perspective. I show that the best-known (...) proponents of legal positivism in the twentieth century all rejected naturalism. I dedicate most of my discussion to H.L.A. Hart’s version of legal positivism, as it appears superficially friendly to naturalism. I show that throughout his career and in writings on a wide range of topics, Hart consistently argued against the applicability of the methods of science to the explanation of social phenomena. This is not a small matter: I argue that it is this anti-naturalistic stance that contributed to his descriptively faulty account of adjudication. After reviewing more briefly the work of other leading legal positivists, I argue in my conclusion that those seeking to advance a naturalistic approach to law should turn their backs of much of twentieth-century legal positivism, which in various guises has been hostile to naturalism. (shrink)

On one account, courts ought to enforce legislative intent only when the public meaning of the text of the statute is unclear, and on another account, they should enforce the intent even when the public meaning is clear. In this paper, I argue against both approaches. My argument rests on considerations related to the moral authority of the democratically made law. More specifically, I argue that those considerations which make democratic law morally authoritative entail that judges ought to enforce the (...) public meaning, when this is clear, and that interpretation of the public meaning which is closest to the balance of moral reasons, when the public meaning is unclear. (shrink)