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2476Commentary on Szmukler: Mental Illness, Dangerousness, and Involuntary Civil CommitmentIn Daniel D. Moseley Gary J. Gala (ed.), Philosophy and Psychiatry: Problems, Intersections, and New Perspectives, Routledge. pp. 147-160. 2016.Prof. Cohen and I answer six questions: (1) Why do we lock people up? (2) How can involuntary civil commitment be reconciled with people's constitutional right to liberty? (3) Why don't we treat homicide as a public health threat? (4) What is the difference between legal and medical approaches to mental illness? (5) Why is mental illness required for involuntary commitment? (6) Where are we in our efforts to understand the causes of mental illness?
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1092Does Situationism Excuse? The Implications of Situationism for Moral Responsibility and Criminal ResponsibilityArkansas Law Review 68 731-787. 2015.In this Article, I will argue that a person may be deserving of criminal punishment even in certain situations where she is not necessarily morally responsible for her criminal act. What these situations share in common are two things: the psychological factors that motivate the individual’s behavior are environmentally determined and her crime is serious, making her less eligible for sympathy and therefore less likely to be acquitted. -/- To get to this conclusion, I will proceed in four steps.…Read more
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1029Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject to Criminal Punishment And to Preventive DetentionSan Diego Law Review 48 1299-1395. 2011.I argue for two propositions. First, contrary to the common wisdom, we may justly punish individuals who are not morally responsible for their crimes. Psychopaths – individuals who lack the capacity to feel sympathy – help to prove this point. Scholars are increasingly arguing that psychopaths are not morally responsible for their behavior because they suffer from a neurological disorder that makes it impossible for them to understand, and therefore be motivated by, moral reasons. These same sch…Read more
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1023Normative Ignorance: A Critical Connection Between the Insanity and Mistake of Law DefensesFlorida State University Law Review 47 411-443. 2020.This Article falls into three general parts. The first part starts with an important question: is the insanity defense constitutionally required? The United States Supreme Court will finally try to answer this question next term in the case of Kahler v. Kansas. I say “finally” because the Court refused to answer this question in 2012 when it denied certiorari to an appeal brought by John Joseph Delling, a severely mentally ill defendant who was sentenced to life in prison three years earlier for…Read more
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923On the Rationalist Solution to Gregory Kavka's Toxin PuzzlePacific Philosophical Quarterly 90 (2): 267-289. 2009.Gregory Kavka's 'Toxin Puzzle' suggests that I cannot intend to perform a counter-preferential action A even if I have a strong self-interested reason to form this intention. The 'Rationalist Solution,' however, suggests that I can form this intention. For even though it is counter-preferential, A-ing is actually rational given that the intention behind it is rational. Two arguments are offered for this proposition that the rationality of the intention to A transfers to A-ing itself: the 'Self-P…Read more
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838Why Retributivism Needs Consequentialism: The Rightful Place of Revenge in the Criminal Justice SystemRutgers Law Review 66 629-684. 2014.Consider the reaction of Trayvon Martin’s family to the jury verdict. They were devastated that George Zimmerman, the defendant, was found not guilty of manslaughter or murder. Whatever the merits of this outcome, what does the Martin family’s emotional reaction mean? What does it say about criminal punishment – especially the reasons why we punish? Why did the Martin family want to see George Zimmerman go to jail? And why were – and are – they so upset that he didn’t? -/- This Article will argu…Read more
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781Killing, Letting Die, and the Case for Mildly Punishing Bad SamaritanismGeorgia Law Review 44 607-695. 2010.For over a century now, American scholars (among others) have been debating the merits of “bad Samaritan” laws — laws punishing people for failing to attempt easy and safe rescues. Unfortunately, the opponents of bad Samaritan laws have mostly prevailed. In the United States, the “no-duty-to-rescue” rule dominates. Only four states have passed bad Samaritan laws, and these laws impose only the most minimal punishment — either sub-$500 fines or short-term imprisonment. -/- This Article argues th…Read more
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758Baumann on the Monty Hall Problem and Single-Case ProbabilitiesSynthese 158 (1): 139-151. 2007.Peter Baumann uses the Monty Hall game to demonstrate that probabilities cannot be meaningfully applied to individual games. Baumann draws from this first conclusion a second: in a single game, it is not necessarily rational to switch from the door that I have initially chosen to the door that Monty Hall did not open. After challenging Baumann's particular arguments for these conclusions, I argue that there is a deeper problem with his position: it rests on the false assumption that what justifi…Read more
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668The Solution to the Real Blackmail Paradox: The Common Link Between Blackmail and Other Criminal ThreatsConnecticut Law Review 39 1051-1096. 2007.Disclosure of true but reputation-damaging information is generally legal. But threats to disclose true but reputation-damaging information unless payment is made are generally criminal. Many scholars think that this situation is paradoxical because it seems to involve illegality mysteriously arising out of legality, a criminal act mysteriously arising out of an independently legal threat to disclose conjoined with an independently legal demand for money. -/- But this formulation is not quite r…Read more
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630Why It Is Sometimes Fair to Blame Agents for Unavoidable Actions and OmissionsAmerican Philosophical Quarterly 42 (2). 2005.It is generally thought that ought implies can. If this maxim is correct, then my inability to do otherwise entails that I cannot be blamed for failing to do otherwise. In this article, however, I use Harry Frankfurt’s famous argument against the "Principle of Alternative Possibilities" (PAP) to show that the maxim is actually false, that I can be blamed for failing to do otherwise even in situations where I could not have done otherwise. In these situations, I do not act otherwise not because I…Read more
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584Why the Late Justice Scalia Was Wrong: The Fallacies of Constitutional TextualismLewis and Clark Law Review 21 (1): 45-96. 2017.My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories u…Read more
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582Hume, the New Hume, and Causal ConnectionsHume Studies 26 (1): 41-75. 2000.In this article, I weigh in on the debate between "Humeans" and "New Humeans" concerning David Hume's stance on the existence of causal connections in "the objects." According to New Humeans, Hume believes in causal connections; according to Humeans, he does not. My argument against New Humeans is that it is too difficult to reconcile Hume's repeated claims that causal connections are inconceivable with any belief that they these inconceivable somethings still exist. Specifically, Hume either a…Read more
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578The Solution to the Problem of Outcome Luck: Why Harm Is Just as Punishable as the Wrongful Action that Causes ItLaw and Philosophy 24 (3): 263-303. 2005.A surprisingly large number of scholars believe that (a) we are blameworthy, and therefore punishable, only for what we have control over; (b) we have control only over our actions and intentions, not the consequences of our actions; and therefore (c) if two agents perform the very same action (e.g., attempting to kill) with the very same intentions, then they are equally blameworthy and deserving of equal punishment – even if only one of them succeeds in killing. This paper argues against these…Read more
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432Criminal ResponsibilityIn Robert D. Morgan (ed.), SAGE Encyclopedia of Criminal Psychology, Sage Publishing. pp. 269-272. 2019.This invited entry offers a brief overview of criminal responsibility. The first part starts with a question: is Clyde criminally responsible for killing his girlfriend Bonnie? The answer: it depends. Particular circumstances determine whether Clyde is guilty of murder, guilty of manslaughter, not guilty because he has a good excuse, or not guilty because he has a good justification. The second part addresses the complicated relationship between criminal responsibility and moral responsibility…Read more
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432Gonzales v. Oregon and Physician-Assisted Suicide: Ethical and Policy IssuesTulsa Law Review 42 699-729. 2007.The euthanasia literature typically discusses the difference between “active” and “passive” means of ending a patient’s life. Physician-assisted suicide differs from both active and passive forms of euthanasia insofar as the physician does not administer the means of suicide to the patient. Instead, she merely prescribes and dispenses them to the patient and lets the patient “do the rest” – if and when the patient chooses. One supposed advantage of this process is that it maximizes the patient’s…Read more
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409Trying to Make Sense of Criminal Attempts (review)Jurisprudence 7 (3): 656-664. 2016.Issues include attempts generally; the problem of outcome luck; the impossibility defense; physical movement and intent; and reckless attempts, attempted rape, and attempted theft. In the final section, I offer a hypothetical that challenges Prof. Donnelly-Lazarov's theory.
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391Blocking BlockagePhilosophia 44 (2): 565-583. 2016.The Blockage Argument is designed to improve upon Harry Frankfurt’s famous argument against the Principle of Alternative Possibilities by removing the counterfactual intervener altogether. If the argument worked, then it would prove in a way that Frankfurt’s argument does not that moral responsibility does not require any alternative possibilities whatsoever, not even the weakest “flicker of freedom”. -/- Some philosophers have rejected the Blockage Argument solely on the basis of their intuiti…Read more
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381The Main Problem with USC LibertarianismPhilosophical Studies 105 (2): 107-127. 2001.Libertarians like Robert Kane believe that indeterminism is necessaryfor free will. They think this in part because they hold both (1) thatmy being the ultimate cause of at least part of myself is necessary forfree will and (2) that indeterminism is necessary for this ``ultimateself-causation''. But seductive and intuitive as this ``USCLibertarianism'' may sound, it is untenable. In the end, nometaphysically coherent (not to mention empirically valid) conception ofultimate self-causation is avai…Read more
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358It's Not Too Difficult: A Plea to Resurrect the Impossibility DefenseNew Mexico Law Revview 45 225-274. 2014.Suppose you are at the gym trying to see some naked beauties by peeping through a hole in the wall. A policeman happens by, he asks you what you are doing, and you honestly tell him. He then arrests you for voyeurism. Are you guilty? We don’t know yet because there is one more fact to be considered: while you honestly thought that a locker room was on the other side of the wall, it was actually a squash court. Are you guilty now? -/- Probably. You might argue that your scopophiliac ambition was…Read more
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350Let's Not Do Responsibility SkepticismJournal of Applied Philosophy 40 (3): 458-73. 2023.I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal nonresponsibility excuse. Second, a universal nonresponsibility excuse would diminish some of our most deeply held values, further dehumanize criminals, exacerbate mass incarceration, and cause an even greater number of innocent people (nonwrongdoers) to be punished. Third, while Saul Smilansky's ‘illusionist’ response to responsibility skeptics – …Read more
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270On Three Arguments Against Metaphysical LibertarianismReview of Metaphysics 76 (4): 725-748. 2023.I argue that the three strongest arguments against metaphysical libertarianism—the randomness objection, the constitutive luck objection, and the physicalist objection—are actually unsuccessful and therefore that metaphysical libertarianism is more plausible than the common philosophical wisdom allows. My more positive thesis, what I will refer to as “Agent Exceptionalism,” is that, when making decisions and performing actions, human beings can indeed satisfy the four conditions of metaphysical …Read more
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214The Solution to the Surprise Exam ParadoxSouthern Journal of Philosophy 47 (2): 131-158. 2009.The Surprise Exam Paradox continues to perplex and torment despite the many solutions that have been offered. This paper proposes to end the intrigue once and for all by refuting one of the central pillars of the Surprise Exam Paradox, the 'No Friday Argument,' which concludes that an exam given on the last day of the testing period cannot be a surprise. This refutation consists of three arguments, all of which are borrowed from the literature: the 'Unprojectible Announcement Argument,' the 'Wri…Read more
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156Criminal ResponsibilityIn A Companion to Free Will, Wiley Blackwell. pp. 406-413. 2023.I explicate the conditions required for criminal responsibility, provide an overview of criminal defenses, distinguish criminal responsibility from both tort liability and moral responsibility, and explicate the current state of the insanity defense.
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22Free Will, Responsibility, and Crime: An IntroductionRoutledge. 2019.In his book, philosopher and law professor Ken Levy explains why he agrees with most people, but not with most other philosophers, about free will and responsibility. Most people believe that we have both - that is, that our choices, decisions, and actions are neither determined nor undetermined but rather fully self-determined. By contrast, most philosophers understand just how difficult it is to defend this "metaphysical libertarian" position. So they tend to opt for two other theories: "respo…Read more
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1Free Will HuntingDissertation, Rutgers the State University of New Jersey - New Brunswick. 1999.Philosophers misleadingly speak of "the problem of free will". This is misleading because there is not just one but several different problems of free will. "The problem" to which philosophers usually refer is the question: is free will even possible? I address this question in Chapters 2 and 3. In Chapter 2, I argue that if free will entails ultimate self-causation, then free will is indeed impossible. But I then argue in Chapter 3 that free will does not entail ultimate self-causation. It does…Read more
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Metaphysics |
Philosophy of Action |
Applied Ethics |
Normative Ethics |
Philosophy of Law |
17th/18th Century Philosophy |