Kevin Tobia | Georgetown University Law Center (original) (raw)
Legal Theory by Kevin Tobia
Columbia Law Review, 2023
Textualism promises simplicity and objectivity: Focus on the text, the whole text, and nothing bu... more Textualism promises simplicity and objectivity: Focus on the text, the whole text, and nothing but the text. But the newest version of textualism is not so simple. Now that textualism is the Supreme Court's dominant interpretive theory, most interpretive disputes implicate textualism, and its inherent complexities have surfaced. This Article is the first to document the major categories of doctrinal and theoretical choices that regularly divide modern textualists and for which their theory currently provides no clear answers. Indeed, as practiced by the Justices, the newest textualism undermines the rule of law that is its theoretical foundation. As we demonstrate, there are at least twelve categories of analytical choices faced by textualists in the hard cases that dominate the Supreme Court's docket and academic discourse. At present, the new textualist Court is riven with internal divisions and sends less-than-clear messages to the lower courts. And the objective, text-based evidence the Justices claim to apply does not constrain the Court's results. This Article argues that textualists must better define their methodology and should jettison the most activist or idiosyncratic doctrines that have become prominent in Roberts Court legisprudence. The Article concludes with some best practices that would build on the Court's text-centric focus but render that focus better suited to the Court's proper role as a neutral partner to Congress in elaborating statutory schemes.
Columbia Law Review, 2023
Jurisprudence aims to identify and explain important features of law. To accomplish this task, wh... more Jurisprudence aims to identify and explain important features of law. To accomplish this task, what method should one employ? Elucidating Law, a tour de force in "the philosophy of legal philosophy," develops an instructive account of how philosophers "elucidate law," which in turn elucidates jurisprudence's own aims and methods. This Review introduces the book, with emphasis on its discussion of methodology. Next, the Review proposes complementing methodological clarification with methodological innovation. Jurisprudence should ask some timeless questions, but its methods need not stagnate. Consider that jurisprudence has a long tradition of asserting claims about how "we" understand the law-in which "we" might refer to all people, citizens of a jurisdiction, ordinary people, legal experts, or legal officials. There are now rich empirical literatures that bear on these claims, and methods from "experimental jurisprudence" and related disciplines can assess untested assertions. Today's jurisprudence can achieve greater rigor by complementing traditional methods with empirical ones.
University of Chicago Law Review, 2022
“Experimental jurisprudence” draws on empirical data, often experimental data, to inform question... more “Experimental jurisprudence” draws on empirical data, often experimental data, to inform questions typically associated with jurisprudence. Despite the movement’s growth, its justification is still opaque. Jurisprudence studies deep theoretical questions about law’s nature, but “experimental jurisprudence,” it might seem, simply surveys laypeople. This Article elaborates and defends experimental jurisprudence. Appropriately understood, experimental jurisprudence is not only consistent with traditional jurisprudence; it is an essential branch of it.
Alabama Law Review, 2018
A classic debate concerns whether reasonableness should be understood descriptively (e.g., reason... more A classic debate concerns whether reasonableness should be understood descriptively (e.g., reasonableness is what is common) or prescriptively (e.g., reasonableness is what is good). This Article elaborates and defends a third possibility. Reasonableness is a partly descriptive and partly prescriptive “hybrid concept.” Experiments reveal that people apply reasonableness as a hybrid concept, and the Article argues that a hybrid account offers the best general theory of reasonableness.
First, the Article investigates how ordinary people judge reasonableness. Reasonableness sits at the core of countless legal standards, yet little work has investigated how ordinary people (i.e., potential jurors) actually make reasonable-ness judgments. Experiments reveal that judgments of reasonableness are systematically intermediate between judgments of the relevant average and ideal across numerous legal domains. For example, participants’ mean judgment of the legally reasonable number of weeks for an online product to be refundable (five weeks) falls between the judged average (four weeks) and ideal (six weeks). So too for the reasonable number of days to accept a contract offer, the reasonable number of weeks of construction delay, the reasonable interest rate, and the reasonable annual number of loud events on a football field in a residential neighborhood. What is considered legally reasonable is better predicted by both descriptive and prescriptive factors than by either factor alone.
This Article uses this experimental discovery to develop a normative view of reasonableness. It elaborates an account of reasonableness as a hybrid standard, arguing that this view offers the best general theory of reasonableness, one that applies correctly across multiple legal domains. Moreover, this hybrid feature is the historical essence of legal reasonableness: the original use of the “reasonable person” and the “man on the Clapham omnibus” aimed to reflect both descriptive and prescriptive considerations. Empirically, reasonableness is a hybrid judgment. And normatively, reasonableness should be applied as a hybrid standard.
Yale Law Journal, Jun 2017
Statistical evidence is crucial throughout disparate impact’s three-stage analysis: during (1) th... more Statistical evidence is crucial throughout disparate impact’s three-stage analysis: during (1) the plaintiff’s prima facie demonstration of a policy’s disparate impact; (2) the defendant’s job-related business necessity defense of the discriminatory policy; and (3) the plain- tiff’s demonstration of an alternative policy without the same discriminatory impact. The circuit courts are split on a vital question about the “practical significance” of statistics at Stage 1: Are “small” impacts legally insignificant? For example, is an employment policy that causes a 1% disparate impact an appropriate policy for redress through disparate impact litigation? This circuit split calls for a comprehensive analysis of practical significance testing across disparate impact’s stages. Importantly, courts and commentators use “practical significance” ambiguously between two aspects of practical significance: the magnitude of an effect and confidence in statistical evidence. For example, at Stage 1 courts might ask whether statistical evidence supports a disparate impact (a confidence inquiry) and whether such an impact is large enough to be legally relevant (a magnitude inquiry). Disparate impact’s texts, purposes, and controlling interpretations are consistent with confidence inquires at all three stages, but not magnitude inquiries. Specifically, magnitude inquiries are inappropriate at Stages 1 and 3—there is no discriminatory impact or reduction too small or subtle for the purposes of the disparate impact analysis. Magnitude inquiries are appropriate at Stage 2, when an employer defends a discriminatory policy on the basis of its job-related business necessity.
Identity by Kevin Tobia
Oxford Handbook of Moral Psychology (M. Vargas & J. Doris, eds. forthcoming), 2022
The aim of this chapter is to articulate the state of the art in the moral psychology of personal... more The aim of this chapter is to articulate the state of the art in the moral psychology of personal identity. It begins by discussing the major philosophical theories of personal identity, including the Psychological View, the Biological View (animalism), and the Anthropological View (humanism). The chapter discusses shortcomings of those theories, including their lack of empirical support. It then turns to recent psychological work on personal identity and the self, investigations that often illuminate person-related normative concerns. It concludes by discussing the implications of this psychological work for some contemporary philosophical theories, and suggests fruitful areas for future work on personal identity.
Analysis, 2015
Phineas Gage’s story is typically offered as a paradigm example supporting the view that part of ... more Phineas Gage’s story is typically offered as a paradigm example supporting the view that part of what matters for personal identity is a certain magnitude of similarity between earlier and later individuals. Yet, reconsidering a slight variant of Phineas Gage’s story indicates that it is not just magnitude of similarity, but also the direction of change that affects personal identity judgments; in some cases, changes for the worse are more seen as identity-severing than changes for the better of comparable magnitude. Ironically, thinking carefully about Phineas Gage’s story tells against the thesis it is typically taken to support.
Neuroethics, 2016
The personal identity relation is of great interest to philosophers, who often consider fictional... more The personal identity relation is of great interest to philosophers, who often consider fictional scenarios to test what features seem to make persons persist through time. But often real examples of neuroscientific interest also provide important tests of personal identity. One such example is the case of Phineas Gage – or at least the story often told about Phineas Gage. Many cite Gage’s story as example of severed personal identity; Phineas underwent such a tremendous change that Gage “survived as a different man.” I discuss a recent empirical finding about judgments about this hypothetical. It is not just the magnitude of the change that affects identity judgment; it is also the negative direction of the change. I present an experiment suggesting that direction of change (improvement or deterioration) also affects neuroethical judgments. I conclude we should consider carefully the way in which improvements and deteriorations affect attributions of personal identity. This is particularly important since a number of the most crucial neuroethical decisions involve varieties of cognitive enhancements (improvements) or deteriorations.
Normative Ethics by Kevin Tobia
Philosophical Psychology, 2014
Book Review of Joshua Greene's Moral Tribes: Emotion, Reason, and the Gap Between Us and Them
Utilitas, 2018
Rule-Consequentialism faces “the problem of partial acceptance”: How should the ideal code be sel... more Rule-Consequentialism faces “the problem of partial acceptance”: How should the ideal code be selected given the possibility that its rules may not be universally accepted? A new contender, “Calculated Rates” Rule-Consequentialism claims to solve this problem. However, I argue that Calculated Rates merely relocates the partial acceptance question. Nevertheless, there is a significant lesson from this failure of Calculated Rates. Rule-Consequentialism’s problem of partial acceptance is more helpfully understood as an instance of the broader problem of selecting the ideal code given various assumptions—assumptions about who will accept and comply with the rules, but also about how the rules will be taught and enforced, and how similar the future will be. Previous rich discussions about partial acceptance provide a taxonomy and groundwork for formulating the best version of Rule-Consequentialism.
American Philosophical Quarterly , 2017
Scalar Utilitarianism eschews foundational notions of rightness and wrongness in favor of evaluat... more Scalar Utilitarianism eschews foundational notions of rightness and wrongness in favor of evaluative comparisons of outcomes. I defend Scalar Utilitarianism from two compelling critiques, the first against an argument for the thesis that Utilitarianism’s commitments are fundamentally evaluative (or Scalar) and the second that Scalar Utilitarianism does not issue demands or sufficiently guide action. These defenses suggest a variety of more plausible Scalar Utilitarian interpretations, and I argue for a version that best represents a moral theory founded on evaluative notions and offers better answers to demandingness concerns than the ordinary Scalar Utilitarian response. If Utilitarians seek reasonable development and explanation of their basic commitments, they may wish to reconsider Scalar Utilitarianism.
Ethical Theory and Moral Practice, 2013
Most plausible moral theories must address problems of partial acceptance or partial compliance. ... more Most plausible moral theories must address problems of partial acceptance or partial compliance. The aim of this paper is to examine some proposed ways of dealing with partial acceptance problems as well as to introduce a new Rule Utilitarian suggestion. Here I survey three forms of Rule Utilitarianism, each of which represents a distinct approach to solving partial acceptance issues. I examine Fixed Rate, Variable Rate, and Optimum Rate Rule Utilitarianism, and argue that a new approach, Maximizing Expectation Rate Rule Utilitarianism, better solves partial acceptance problems.
The Monist, Jan 2016
Walzer begins his seminal Just and Unjust Wars with a linguistic claim: ordinary language provide... more Walzer begins his seminal Just and Unjust Wars with a linguistic claim: ordinary language provides evidence about the nature of war. This paper explores the relation between ordinary language-use and just war theory. I begin by attacking Walzer’s central thesis about the language of war, the claim that ordinary language distinguishes between adjectival and adverbial claims about jus ad bellum and jus in bello, respectively. I then propose and defend a different distinction in ordinary language that better corresponds to this distinction in war. I argue this analysis of language-use provides insight into the nature of war and conclude by defending a requirement of declaration of war.
Res Philosophica, 2015
Wonder’s significance is a recurrent theme in the history of philosophy. In the Theaetetus, Plato... more Wonder’s significance is a recurrent theme in the history of philosophy. In the Theaetetus, Plato’s Socrates claims that philosophy begins in wonder (thaumazein). Aristotle echoes these sentiments in his Metaphysics; it is wonder and astonishment that first led us to philosophize. Philosophers from the Ancients through Wittgenstein discuss wonder, yet scant recent attention has been given to developing a general systematic account of emotional wonder. I develop an account of emotional wonder and defend its connection with apparent or seeming value. Recently, several philosophers invoke wonder to back non-eudaimonistic value judgments. I introduce methods to incorporate these judgments into a eudaimonistic moral framework. On the analysis presented, wonder requires its object to seem valuable, but whether the object is in fact valuable remains an open question. Wonder enraptures us with objects that might be of true or merely illusory value, grounded either in our own well-being or in non-eudaimonistic value.
Philosophical Methodology by Kevin Tobia
Blackwell Companion to Experimental Philosophy
The term “experimental philosophy” has no standard or widely agreed upon definition, and recent w... more The term “experimental philosophy” has no standard or widely agreed upon definition, and recent writers have proposed very different accounts of how the term should be used. On the usage we prefer, the term has a broad extension and very fuzzy boundaries: experimental philosophy is empirical work undertaken with the goal of contributing to a philosophical debate, though of course that may not be the only goal. During the last decade, the term “experimental philosophy” has often been used in a much more restricted way. On that more restricted interpretation, which we will adopt for this chapter, experimental philosophy is the empirical investigation of philosophical intuitions, the factors that affect them, and the psychological and neurological mechanisms that underlie them. This characterization of experimental philosophy immediately raises a pair of questions: 1. What are philosophical intuitions? 2. Why do experimental philosophers want to study them using the methods of empirical science? Our goal in this chapter will be to explore answers to these questions and explain how these answers link experimental philosophy to the philosophical tradition.
Religion, Brain & Behavior, 2016
One popular conception of natural theology holds that certain purely rational arguments are insul... more One popular conception of natural theology holds that certain purely rational arguments are insulated from empirical inquiry and independently establish conclusions that provide evidence, justification, or proof of God’s existence. Yet, some raise suspicions that philosophers and theologians’ personal religious beliefs inappropriately affect these kinds of arguments. I present an experimental test of whether philosophers and theologians’ argument analysis is influenced by religious commitments. The empirical findings suggest religious belief affects philosophical analysis and offer a challenge to theists and atheists, alike: reevaluate the scope of natural theology’s conclusions or acknowledge and begin to address the influence of religious belief.
Metaphilosophy, 2015
Many philosophers claim to employ intuitions in their philosophical arguments. Others contest tha... more Many philosophers claim to employ intuitions in their philosophical arguments. Others contest that no such intuitions are used frequently or at all in philosophy. This article suggests and defends a conception of intuitions as part of the philosophical method: intuitions are special types of philosophical assumptions to which we are invited to assent, often as premises in argument, that may serve an independent function in philosophical argument and that are not formed through a purely inferential process. A series of philosophical case studies shows that intuitions in these arguments contain the relevant features. The view has implications for philosophical method, offering a compromise between opponents on the divisive debate of the merits of experimental philosophy: experimental philosophy provides an especially useful role in philosophical assumption analysis.
Philosophical Psychology, 2014
Recent experimental studies in cognitive science report the influence of ‘disgust’ and ‘cleanline... more Recent experimental studies in cognitive science report the influence of ‘disgust’ and ‘cleanliness’ manipulations on moral judgment, yet little attention has been given to interpreting these studies together or developing models of the causal influence of cleanliness and disgust manipulations on moral judgment. I propose considerations for the causal modeling of these effects. The conclusions are not decisive in favor of one theory of disgust and cleanliness, but suggest several distinct causal roles of disgust and cleanliness-type manipulations. The incorrect views, I argue, are those that posit causal effects from a single common cognitive mechanism for both disgust and cleanliness.
Journal of Consciousness Studies, 2013
A number of studies have shown that seemingly morally irrelevant factors influence the moral judg... more A number of studies have shown that seemingly morally irrelevant factors influence the moral judgments of ordinary people. Some argue that philosophers are experts and are significantly less susceptible to such effects. We tested whether an unconscious cleanliness prime – the smell of Lysol – affects the judgments of both non-philosophers and professional philosophers. Our results suggest that the direction of cleanliness effects depends both on the respondent and whether the question is framed in the second or third person. They also provide evidence that cleanliness cues affect the moral judgments of both non-philosophers and philosophers, challenging the philosopher-as-expert view.
Philosophical Psychology, 2013
Psychologists and experimental philosophers have reported findings showing that in some cases ord... more Psychologists and experimental philosophers have reported findings showing that in some cases ordinary people's moral intuitions are affected by factors of dubious relevance to the truth of the intuition. Some defend the use of intuition as evidence in ethics by arguing that philosophers are the experts in this area, and philosophers’ moral intuitions are both different from those of ordinary people and more reliable. We conducted two experiments indicating that philosophers and non-philosophers do indeed sometimes have different moral intuitions, but challenging the notion that philosophers have better or more reliable intuitions.
Columbia Law Review, 2023
Textualism promises simplicity and objectivity: Focus on the text, the whole text, and nothing bu... more Textualism promises simplicity and objectivity: Focus on the text, the whole text, and nothing but the text. But the newest version of textualism is not so simple. Now that textualism is the Supreme Court's dominant interpretive theory, most interpretive disputes implicate textualism, and its inherent complexities have surfaced. This Article is the first to document the major categories of doctrinal and theoretical choices that regularly divide modern textualists and for which their theory currently provides no clear answers. Indeed, as practiced by the Justices, the newest textualism undermines the rule of law that is its theoretical foundation. As we demonstrate, there are at least twelve categories of analytical choices faced by textualists in the hard cases that dominate the Supreme Court's docket and academic discourse. At present, the new textualist Court is riven with internal divisions and sends less-than-clear messages to the lower courts. And the objective, text-based evidence the Justices claim to apply does not constrain the Court's results. This Article argues that textualists must better define their methodology and should jettison the most activist or idiosyncratic doctrines that have become prominent in Roberts Court legisprudence. The Article concludes with some best practices that would build on the Court's text-centric focus but render that focus better suited to the Court's proper role as a neutral partner to Congress in elaborating statutory schemes.
Columbia Law Review, 2023
Jurisprudence aims to identify and explain important features of law. To accomplish this task, wh... more Jurisprudence aims to identify and explain important features of law. To accomplish this task, what method should one employ? Elucidating Law, a tour de force in "the philosophy of legal philosophy," develops an instructive account of how philosophers "elucidate law," which in turn elucidates jurisprudence's own aims and methods. This Review introduces the book, with emphasis on its discussion of methodology. Next, the Review proposes complementing methodological clarification with methodological innovation. Jurisprudence should ask some timeless questions, but its methods need not stagnate. Consider that jurisprudence has a long tradition of asserting claims about how "we" understand the law-in which "we" might refer to all people, citizens of a jurisdiction, ordinary people, legal experts, or legal officials. There are now rich empirical literatures that bear on these claims, and methods from "experimental jurisprudence" and related disciplines can assess untested assertions. Today's jurisprudence can achieve greater rigor by complementing traditional methods with empirical ones.
University of Chicago Law Review, 2022
“Experimental jurisprudence” draws on empirical data, often experimental data, to inform question... more “Experimental jurisprudence” draws on empirical data, often experimental data, to inform questions typically associated with jurisprudence. Despite the movement’s growth, its justification is still opaque. Jurisprudence studies deep theoretical questions about law’s nature, but “experimental jurisprudence,” it might seem, simply surveys laypeople. This Article elaborates and defends experimental jurisprudence. Appropriately understood, experimental jurisprudence is not only consistent with traditional jurisprudence; it is an essential branch of it.
Alabama Law Review, 2018
A classic debate concerns whether reasonableness should be understood descriptively (e.g., reason... more A classic debate concerns whether reasonableness should be understood descriptively (e.g., reasonableness is what is common) or prescriptively (e.g., reasonableness is what is good). This Article elaborates and defends a third possibility. Reasonableness is a partly descriptive and partly prescriptive “hybrid concept.” Experiments reveal that people apply reasonableness as a hybrid concept, and the Article argues that a hybrid account offers the best general theory of reasonableness.
First, the Article investigates how ordinary people judge reasonableness. Reasonableness sits at the core of countless legal standards, yet little work has investigated how ordinary people (i.e., potential jurors) actually make reasonable-ness judgments. Experiments reveal that judgments of reasonableness are systematically intermediate between judgments of the relevant average and ideal across numerous legal domains. For example, participants’ mean judgment of the legally reasonable number of weeks for an online product to be refundable (five weeks) falls between the judged average (four weeks) and ideal (six weeks). So too for the reasonable number of days to accept a contract offer, the reasonable number of weeks of construction delay, the reasonable interest rate, and the reasonable annual number of loud events on a football field in a residential neighborhood. What is considered legally reasonable is better predicted by both descriptive and prescriptive factors than by either factor alone.
This Article uses this experimental discovery to develop a normative view of reasonableness. It elaborates an account of reasonableness as a hybrid standard, arguing that this view offers the best general theory of reasonableness, one that applies correctly across multiple legal domains. Moreover, this hybrid feature is the historical essence of legal reasonableness: the original use of the “reasonable person” and the “man on the Clapham omnibus” aimed to reflect both descriptive and prescriptive considerations. Empirically, reasonableness is a hybrid judgment. And normatively, reasonableness should be applied as a hybrid standard.
Yale Law Journal, Jun 2017
Statistical evidence is crucial throughout disparate impact’s three-stage analysis: during (1) th... more Statistical evidence is crucial throughout disparate impact’s three-stage analysis: during (1) the plaintiff’s prima facie demonstration of a policy’s disparate impact; (2) the defendant’s job-related business necessity defense of the discriminatory policy; and (3) the plain- tiff’s demonstration of an alternative policy without the same discriminatory impact. The circuit courts are split on a vital question about the “practical significance” of statistics at Stage 1: Are “small” impacts legally insignificant? For example, is an employment policy that causes a 1% disparate impact an appropriate policy for redress through disparate impact litigation? This circuit split calls for a comprehensive analysis of practical significance testing across disparate impact’s stages. Importantly, courts and commentators use “practical significance” ambiguously between two aspects of practical significance: the magnitude of an effect and confidence in statistical evidence. For example, at Stage 1 courts might ask whether statistical evidence supports a disparate impact (a confidence inquiry) and whether such an impact is large enough to be legally relevant (a magnitude inquiry). Disparate impact’s texts, purposes, and controlling interpretations are consistent with confidence inquires at all three stages, but not magnitude inquiries. Specifically, magnitude inquiries are inappropriate at Stages 1 and 3—there is no discriminatory impact or reduction too small or subtle for the purposes of the disparate impact analysis. Magnitude inquiries are appropriate at Stage 2, when an employer defends a discriminatory policy on the basis of its job-related business necessity.
Oxford Handbook of Moral Psychology (M. Vargas & J. Doris, eds. forthcoming), 2022
The aim of this chapter is to articulate the state of the art in the moral psychology of personal... more The aim of this chapter is to articulate the state of the art in the moral psychology of personal identity. It begins by discussing the major philosophical theories of personal identity, including the Psychological View, the Biological View (animalism), and the Anthropological View (humanism). The chapter discusses shortcomings of those theories, including their lack of empirical support. It then turns to recent psychological work on personal identity and the self, investigations that often illuminate person-related normative concerns. It concludes by discussing the implications of this psychological work for some contemporary philosophical theories, and suggests fruitful areas for future work on personal identity.
Analysis, 2015
Phineas Gage’s story is typically offered as a paradigm example supporting the view that part of ... more Phineas Gage’s story is typically offered as a paradigm example supporting the view that part of what matters for personal identity is a certain magnitude of similarity between earlier and later individuals. Yet, reconsidering a slight variant of Phineas Gage’s story indicates that it is not just magnitude of similarity, but also the direction of change that affects personal identity judgments; in some cases, changes for the worse are more seen as identity-severing than changes for the better of comparable magnitude. Ironically, thinking carefully about Phineas Gage’s story tells against the thesis it is typically taken to support.
Neuroethics, 2016
The personal identity relation is of great interest to philosophers, who often consider fictional... more The personal identity relation is of great interest to philosophers, who often consider fictional scenarios to test what features seem to make persons persist through time. But often real examples of neuroscientific interest also provide important tests of personal identity. One such example is the case of Phineas Gage – or at least the story often told about Phineas Gage. Many cite Gage’s story as example of severed personal identity; Phineas underwent such a tremendous change that Gage “survived as a different man.” I discuss a recent empirical finding about judgments about this hypothetical. It is not just the magnitude of the change that affects identity judgment; it is also the negative direction of the change. I present an experiment suggesting that direction of change (improvement or deterioration) also affects neuroethical judgments. I conclude we should consider carefully the way in which improvements and deteriorations affect attributions of personal identity. This is particularly important since a number of the most crucial neuroethical decisions involve varieties of cognitive enhancements (improvements) or deteriorations.
Philosophical Psychology, 2014
Book Review of Joshua Greene's Moral Tribes: Emotion, Reason, and the Gap Between Us and Them
Utilitas, 2018
Rule-Consequentialism faces “the problem of partial acceptance”: How should the ideal code be sel... more Rule-Consequentialism faces “the problem of partial acceptance”: How should the ideal code be selected given the possibility that its rules may not be universally accepted? A new contender, “Calculated Rates” Rule-Consequentialism claims to solve this problem. However, I argue that Calculated Rates merely relocates the partial acceptance question. Nevertheless, there is a significant lesson from this failure of Calculated Rates. Rule-Consequentialism’s problem of partial acceptance is more helpfully understood as an instance of the broader problem of selecting the ideal code given various assumptions—assumptions about who will accept and comply with the rules, but also about how the rules will be taught and enforced, and how similar the future will be. Previous rich discussions about partial acceptance provide a taxonomy and groundwork for formulating the best version of Rule-Consequentialism.
American Philosophical Quarterly , 2017
Scalar Utilitarianism eschews foundational notions of rightness and wrongness in favor of evaluat... more Scalar Utilitarianism eschews foundational notions of rightness and wrongness in favor of evaluative comparisons of outcomes. I defend Scalar Utilitarianism from two compelling critiques, the first against an argument for the thesis that Utilitarianism’s commitments are fundamentally evaluative (or Scalar) and the second that Scalar Utilitarianism does not issue demands or sufficiently guide action. These defenses suggest a variety of more plausible Scalar Utilitarian interpretations, and I argue for a version that best represents a moral theory founded on evaluative notions and offers better answers to demandingness concerns than the ordinary Scalar Utilitarian response. If Utilitarians seek reasonable development and explanation of their basic commitments, they may wish to reconsider Scalar Utilitarianism.
Ethical Theory and Moral Practice, 2013
Most plausible moral theories must address problems of partial acceptance or partial compliance. ... more Most plausible moral theories must address problems of partial acceptance or partial compliance. The aim of this paper is to examine some proposed ways of dealing with partial acceptance problems as well as to introduce a new Rule Utilitarian suggestion. Here I survey three forms of Rule Utilitarianism, each of which represents a distinct approach to solving partial acceptance issues. I examine Fixed Rate, Variable Rate, and Optimum Rate Rule Utilitarianism, and argue that a new approach, Maximizing Expectation Rate Rule Utilitarianism, better solves partial acceptance problems.
The Monist, Jan 2016
Walzer begins his seminal Just and Unjust Wars with a linguistic claim: ordinary language provide... more Walzer begins his seminal Just and Unjust Wars with a linguistic claim: ordinary language provides evidence about the nature of war. This paper explores the relation between ordinary language-use and just war theory. I begin by attacking Walzer’s central thesis about the language of war, the claim that ordinary language distinguishes between adjectival and adverbial claims about jus ad bellum and jus in bello, respectively. I then propose and defend a different distinction in ordinary language that better corresponds to this distinction in war. I argue this analysis of language-use provides insight into the nature of war and conclude by defending a requirement of declaration of war.
Res Philosophica, 2015
Wonder’s significance is a recurrent theme in the history of philosophy. In the Theaetetus, Plato... more Wonder’s significance is a recurrent theme in the history of philosophy. In the Theaetetus, Plato’s Socrates claims that philosophy begins in wonder (thaumazein). Aristotle echoes these sentiments in his Metaphysics; it is wonder and astonishment that first led us to philosophize. Philosophers from the Ancients through Wittgenstein discuss wonder, yet scant recent attention has been given to developing a general systematic account of emotional wonder. I develop an account of emotional wonder and defend its connection with apparent or seeming value. Recently, several philosophers invoke wonder to back non-eudaimonistic value judgments. I introduce methods to incorporate these judgments into a eudaimonistic moral framework. On the analysis presented, wonder requires its object to seem valuable, but whether the object is in fact valuable remains an open question. Wonder enraptures us with objects that might be of true or merely illusory value, grounded either in our own well-being or in non-eudaimonistic value.
Blackwell Companion to Experimental Philosophy
The term “experimental philosophy” has no standard or widely agreed upon definition, and recent w... more The term “experimental philosophy” has no standard or widely agreed upon definition, and recent writers have proposed very different accounts of how the term should be used. On the usage we prefer, the term has a broad extension and very fuzzy boundaries: experimental philosophy is empirical work undertaken with the goal of contributing to a philosophical debate, though of course that may not be the only goal. During the last decade, the term “experimental philosophy” has often been used in a much more restricted way. On that more restricted interpretation, which we will adopt for this chapter, experimental philosophy is the empirical investigation of philosophical intuitions, the factors that affect them, and the psychological and neurological mechanisms that underlie them. This characterization of experimental philosophy immediately raises a pair of questions: 1. What are philosophical intuitions? 2. Why do experimental philosophers want to study them using the methods of empirical science? Our goal in this chapter will be to explore answers to these questions and explain how these answers link experimental philosophy to the philosophical tradition.
Religion, Brain & Behavior, 2016
One popular conception of natural theology holds that certain purely rational arguments are insul... more One popular conception of natural theology holds that certain purely rational arguments are insulated from empirical inquiry and independently establish conclusions that provide evidence, justification, or proof of God’s existence. Yet, some raise suspicions that philosophers and theologians’ personal religious beliefs inappropriately affect these kinds of arguments. I present an experimental test of whether philosophers and theologians’ argument analysis is influenced by religious commitments. The empirical findings suggest religious belief affects philosophical analysis and offer a challenge to theists and atheists, alike: reevaluate the scope of natural theology’s conclusions or acknowledge and begin to address the influence of religious belief.
Metaphilosophy, 2015
Many philosophers claim to employ intuitions in their philosophical arguments. Others contest tha... more Many philosophers claim to employ intuitions in their philosophical arguments. Others contest that no such intuitions are used frequently or at all in philosophy. This article suggests and defends a conception of intuitions as part of the philosophical method: intuitions are special types of philosophical assumptions to which we are invited to assent, often as premises in argument, that may serve an independent function in philosophical argument and that are not formed through a purely inferential process. A series of philosophical case studies shows that intuitions in these arguments contain the relevant features. The view has implications for philosophical method, offering a compromise between opponents on the divisive debate of the merits of experimental philosophy: experimental philosophy provides an especially useful role in philosophical assumption analysis.
Philosophical Psychology, 2014
Recent experimental studies in cognitive science report the influence of ‘disgust’ and ‘cleanline... more Recent experimental studies in cognitive science report the influence of ‘disgust’ and ‘cleanliness’ manipulations on moral judgment, yet little attention has been given to interpreting these studies together or developing models of the causal influence of cleanliness and disgust manipulations on moral judgment. I propose considerations for the causal modeling of these effects. The conclusions are not decisive in favor of one theory of disgust and cleanliness, but suggest several distinct causal roles of disgust and cleanliness-type manipulations. The incorrect views, I argue, are those that posit causal effects from a single common cognitive mechanism for both disgust and cleanliness.
Journal of Consciousness Studies, 2013
A number of studies have shown that seemingly morally irrelevant factors influence the moral judg... more A number of studies have shown that seemingly morally irrelevant factors influence the moral judgments of ordinary people. Some argue that philosophers are experts and are significantly less susceptible to such effects. We tested whether an unconscious cleanliness prime – the smell of Lysol – affects the judgments of both non-philosophers and professional philosophers. Our results suggest that the direction of cleanliness effects depends both on the respondent and whether the question is framed in the second or third person. They also provide evidence that cleanliness cues affect the moral judgments of both non-philosophers and philosophers, challenging the philosopher-as-expert view.
Philosophical Psychology, 2013
Psychologists and experimental philosophers have reported findings showing that in some cases ord... more Psychologists and experimental philosophers have reported findings showing that in some cases ordinary people's moral intuitions are affected by factors of dubious relevance to the truth of the intuition. Some defend the use of intuition as evidence in ethics by arguing that philosophers are the experts in this area, and philosophers’ moral intuitions are both different from those of ordinary people and more reliable. We conducted two experiments indicating that philosophers and non-philosophers do indeed sometimes have different moral intuitions, but challenging the notion that philosophers have better or more reliable intuitions.
Los Angeles Review of Books, 2018
This is an increasingly familiar question in the face of overwhelming social and political challe... more This is an increasingly familiar question in the face of overwhelming social and political challenges. This question and its variations—“but is that the most important issue?” and “is that worth our efforts?”—suggest a commonsense philosophy: Concentrate on the biggest problems, and don’t sweat the small stuff. A three-percent gender pay gap might matter in theory, but activists must make hard choices about which battles to fight. And when resources are limited, comparatively smaller harms don’t demand immediate attention. However, this popular philosophy is false—and dangerous. Ignoring small harms is a moral mistake, and neglecting small harms can have surprisingly large consequences. From environmental harm to the gender pay gap to racial injustice, large problems caused by cumulative small harms are immunized when we judge that none of the single contributing harms merits attention.
