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"Instrumentalism (Philosophy)"
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Constitutive Instrumentalism and the Fragility of Responsibility
Constitutive instrumentalism is the view that responsibility practices arise from and are justified by our being prosocial creatures who need responsibility practices to secure specific kinds of social goods. In particular, responsibility practices shape agency in ways that disposes adherence to norms that enable goods of shared cooperative life. The mechanics of everyday responsibility practices operate, in part, via costly signaling about the suitability of agents for coordination and cooperation under conditions of shared cooperative life. So, there are a range of identifiable conditions where the ordinary operation of responsibility practices—and thus, the usual normative force of the practices—is disrupted. Even so, these conditions are not so widespread as to favor a more thoroughgoing abandonment of responsibility practices.
Journal Article
Torts Mismatches
In torts, the damages required for full compensation of the victim and optimal deterrence of the injurer are normally the same. This correspondence is perfectly natural: If the injurer fully compensates the victim, then the injurer will completely internalize his externalities. Yet sometimes full compensation and optimal deterrence do not align. A well-known example is punitive damages, in which victims are purposely overcompensated to optimally deter injurers. What the literature has failed to acknowledge is that these torts mismatches--when full compensation of victims and optimal deterrence of injurers are incompatible--occur elsewhere and explain controversial and unresolved doctrinal areas of torts. When these mismatches occur, often the result is deep inconsistency on two levels. First, courts of different jurisdictions will disagree, leading to doctrinal ambiguities. Second, within a jurisdiction, tort law will at times and without explanation prioritize compensation while it will at other times prioritize deterrence. For example, the U.S. Supreme Court has prioritized compensation when determining the implications of tax on tort damages but has prioritized deterrence when crediting third-party tort settlements, all without any acknowledgment of the incoherence.
Journal Article
Fictionalism and the Folk
Mental fictionalism is the view that, even if mental states do not exist, it is useful to talk as if they do. Mental states are useful fictions. Recent philosophy of mind has seen a growing interest in mental fictionalism. To date, much of the discussion has concerned the general features of the approach. In this paper, I develop a specific form of mental fictionalism by drawing on Kendall Walton's work on make-believe. According to the approach I propose, talk of mental states is a useful pretence for describing people and their behaviour. I try to clarify and motivate this approach by comparing it to well-known alternatives, including behaviourism, instrumentalism, and eliminativism. I also consider some of the challenges that it faces.
Journal Article
The Ghost of John Hart Ely
The ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely's conjectures about the superiority of judges relative to legislatures in the protection of minorities and the policing of the democratic process remain second nature. Indeed, they have been credible enough among liberals to underwrite an anxious or even hostile attitude toward judicial reform. In order to exorcise Ely's ghost and lay it to rest, this Article challenges his twin conjectures. First, the Article argues that there is little historical and no theoretical basis for the belief that courts will outperform legislatures in overcoming deeply entrenched historic discrimination against deserving minorities--even as courts act to entrench the power of undeserving ones, like the powerful and wealthy, today. Second, the Article contends that Ely's almost complete failure to anticipate the inaction of the judiciary in policing the democratic process--except when judges assist their own ideological allies--is devastating for his theory, which depended precisely upon an empirical prediction. Ely's conjecture about the comparative superiority of judges in policing the democratic process has proved untrue because he ignored ideological affiliation (focusing exclusively on personal self-interest) in supposing that, with their independence and life tenure, judges are less likely to act in self-dealing fashion than politicians. And the deepest reason for the ideological affiliation of judges, who often exacerbate what many take to be the worst pathologies of democratic exclusion, is that identifying what arrangements count as more rather than less democratic is itself a matter of intense ideological division. If Ely's two conjectures fail, nothing remains to support the conclusion that judges deserve excess countermajoritarian power, leaving democracy's shortcomings to be remedied within democratic politics--which is, in turn, the most desirable future of liberal constitutionalism.
Journal Article
The Vices and Virtues of Instrumentalized Knowledge
This article starts by defining instrumentalized knowledge (IK) as the practice of selectively valuing some set of reliable beliefs for the promotion of a more generally false or unreliable worldview. IK is typically exploited by conspiratorial echo chambers, which display systematic distrust and opposition towards mainstream epistemic authorities. We argue that IK is problematic in that it violates core epistemic virtues, and this gives rise to clear and present harms when abused by said echo chambers. Yet, we contend, mainstream epistemic authorities (MEAs) are also complicit in practices resembling IK; we refer to these practices as instrumentalized knowledge* (IK*). IK* differs from IK in that the selective valuing of beliefs corresponds to a ”reliable” worldview, namely, one independently verified by the relevant epistemic experts. We argue that IK*, despite its apparent veracity, is also problematic, as it violates the same epistemic virtues as IK despite its aim of promoting true beliefs. This, we argue, leads it to being counterproductive in its goal of producing knowledge for the sake of the pursuit of truth, thereby raising the question of what distinguishes virtuous from nonvirtuous practices of instrumentalized knowledge. In an attempt to avoid this violation and to distinguish IK* from IK, we investigate whether and how IK* could still be epistemically virtuous. We conclude that IK* can be virtuous if its goal is to produce understanding as opposed to mere knowledge.
Journal Article
COPYRIGHT AS LEGAL PROCESS: THE TRANSFORMATION OF AMERICAN COPYRIGHT LAW
American copyright law has undergone an unappreciated conceptual transformation over the course of the last century. Originally conceived of as a form of private law—focusing on horizontal rights, privileges; and private liability—copyright law is today understood principally through its public-regarding goals and institutional apparatus, in effect as a form of public law. This transformation is the result of changes in the ideas of law and lawmaking that occurred in American legal thinking following World War II, manifested in the deeply influential philosophy of the Legal Process School of jurisprudence which shaped the modern American copyright landscape. In the Legal Process conception, determining the substantive content of the law is fiindamentally a matter of identifying the institution with formal competence (and legitimacy) to decide the matter, and then deciphering its policies and directives for an area of law in a purposive manner. The heyday of the Legal Process School, the 1950s and 1960s, coincided with the period during which the current U.S. copyright regime was being constructed. Several of its core lessons find direct veneration therein, including: the centrality of legislation as the harbinger of copyright's policy and purposes; the primacy of collectivist copyright policy over individual copyright principles; a recognition of the limitations of courts and judge-made law; and the treatment of copyright as a specialized but autonomous body of law requiring expert administration. As this Article argues, the U.S. copyright regime is today better conceived of as a \"legal process,\" wherein the law is dynamic, purposive, and multi-institutional in origin. Modern copyright thinking would do well to embrace this reality and develop mechanisms to deal with this fundamental—yet unacknowledged—transformation, which explains a variety of perceived anomalies and puzzles within the working of the system.
Journal Article
Pragmatic Reconstruction in Jurisprudence: Features of a Realistic Legal Theory
A century ago the pragmatists called for reconstruction in philosophy. Philosophy at the time was occupied with conceptual analysis, abstractions, a priori analysis, and the pursuit of necessary, universal truths. Pragmatists argued that philosophy instead should center on the pressing problems of the day, which requires theorists to pay attention to social complexity, variation, change, power, consequences, and other concrete aspects of social life. The parallels between philosophy then and jurisprudence today are striking, as I show, calling for a pragmatism-informed theory of law within contemporary jurisprudence. In the wake of H.L.A. Hart’s mid-century turn to conceptual analysis, “during the course of the twentieth century, the boundaries of jurisprudential inquiry were progressively narrowed.”1 Jurisprudence today is dominated by legal philosophers engaged in conceptual analysis built on intuitions, seeking to identify essential features and timeless truths about law. In the pursuit of these objectives, they detach law from its social and historical moorings, they ignore variation and change, they drastically reduce law to a singular phenomenon—like a coercive planning system for difficult moral problems2—and they deny that coercive force is a universal feature of law, among other ways in which they depart from the reality of law; a few prominent jurisprudents even proffer arguments that invoke aliens or societies of angels.
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