Political Science

It is commonly thought that while people should have equal opportunity to participate in processes of personal and political decision-making, morality does not require individuals to exercise this opportunity. Non-participation is morally neutral. Or is it? In this essay I draw on recent work in the literature on “social egalitarianism” to construct a novel defense of the duty to participate in personal and political relationships. Social egalitarianism requires that relationships display equal concern for the interests of all members. This requirement, I argue, cannot be met when some members systematically fail to participate. In the name of social equality, therefore, people must actually participate in their various relationships. This obligation applies not merely to personal but also to certain political relationships. The upshot: one has a duty to participate in at least certain kinds of political activity—a result interestingly at odds with recent work on the ethics of participation.

Capitalists have a great deal of power over workers, both at the site of production and in the realm of politics. Yet neither form of power is forced to track the interests of workers. On the contrary, capitalists are largely forced to use their power over workers in profit-maximizing ways—ways that frequently clash with the interests of workers. It follows that capitalists do not merely have power over workers; they have arbitrary power over them. But, as neo-republicanism teaches, to have arbitrary power over another is to dominate that other. Capitalists therefore dominate workers both economically and politically. This result holds even across ‘friendlier’ versions of capitalism, including those that feature robust labor market competition and unconditional income support.

Republicans define domination as subjection to arbitrary power. But
what is arbitrary power? We consider three views. According to the
first, championed recently by Frank Lovett, power is arbitrary insofar
as it is unconstrained. According to the second, advanced most
prominently by Philip Pettit in his recent work, power is arbitrary
insofar as it is uncontrolled by those subject to it. According to
the third, found (among other places) in Pettit’s early work, power
is arbitrary insofar as it is not forced to track the interests of those
subject to it. We advance several objections against each of the first
two views and offer support for the third. Pettit, we might say, got it
right the first time.

To be a liberal is, among other things, to grant basic liberties some degree of priority over other aspects of justice. But why do basic liberties warrant this special treatment? For Rawls, the answer has to do with the allegedly special connection between these freedoms and the 'two moral powers' of reasonableness and rationality. Basic freedoms are said to be preconditions for the development and exercise of these powers and are held to warrant priority over other justice-relevant values for that reason. In the first half of the article I mount an internal critique of this Rawlsian line, arguing that it is flawed in two main ways. First, it overestimates the contribution of basic freedom to moral personality. Second, it underestimates the contribution of non-liberty resources (such as basic material necessities, but also opportunities for culture, education, leisure, and social contribution) to moral personality. In the second half of the article I repair these flaws (thus putting liberty in its proper place, if you like). The result is a new, intriguingly radical version of justice as fairness, one with surprising—yet plausible—implications for economic and gender justice.

Liberal egalitarian justice requires a less unequal society, measured in terms of income and wealth. But does it also require a less consumerist society—a society less fixated on getting and spending? In this chapter I identify a number of distinctively liberal egalitarian concerns with consumerism and the work-spend cycle it spawns. I argue that consumerism potentially threatens every aspect of liberal egalitarian justice—from political equality, to equal opportunity, to economic fairness, and even to basic needs satisfaction.
My argument draws on empirical work by Juliet Schor and Robert Frank, which I discuss in section 1. I then identify, in sections 2 through 4, various ways in which the consumerist work-and-spend dynamic described by Schor and Frank threatens liberal egalitarian principles and institutions. Sections 5 and 6 address a key objection: since one person’s spending is another person’s income, isn’t consumerism actually good for the poor—hence, something liberal egalitarians ought to promote, not discourage? Section 7 summarizes the argument and notes several unresolved questions that warrant further inquiry.

A growing literature on the separation of powers focuses on the Supreme Court’s anticipation of implementation problems in a subset of cases called lateral, those that require executive action to take effect.  This topic still lacks a justice-centered analysis, use of ideological distance as an explanatory variable, and focus on the discretion that the justices have to vote their sincere preferences, in addition to merits outcomes.  The construction of majority opinions has been the subject of much scientific inquiry, but not yet when the Court fears that its cases may not be implemented faithfully.    Most importantly, the subject of judicial behavior in lateral cases lacks a full theoretical structure explaining the relationship between the Court and the President.  This project aims to supplement the literature on this important topic with analyses centering on all the aforementioned topics.  I develop and test competing theories of judicial behavior in lateral cases.

I present Pettit’s conception of freedom as non-domination interpreted through the experiences of Frederick Douglass in the antebellum American South.  Douglass’ accounts of slaves experiencing freedom, the (un)freedom of the slave owners, and what it took to attain the status of a free man counsel readers to interpret the experience and status of a slave without removing his or her agency entirely.  Pettit’s conception of republican liberty understates the role of agency in determining the extent of freedom on the part of the dominated person.  Domination consists in the substitution of the will of the dominated party with the will of the dominating party.  But by understanding Douglass’ and others‘ personal efforts as a sort of nonviolent resistance in the vein of King’s “soul force” or Gandhi’s satyagraha, we may understand the status of the slave as affected not only by the masters’ power of interference, but also by the slaves’ ability to resist, even if only in small ways.  This is not to say that the slaves’ status as dominated is fully—or even mostly—within their control.  I propose merely to understand freedom as non-domination through the experiences of antebellum American slaves, focusing on the small resistances that allow for Douglass three claims to: 1) that a slave’s freedom is a function of the degree of supervision on them; 2) that a slave can become a free man without quitting the formal status of a slave; 3) that slave owners are somehow more un-free than their slaves.  Pettit’s account of liberty struggles to incorporate these claims.  My aim is to reconcile them.

This study presents a brief exploration into the Court constructs its opinions under conditions that favor non-compliance by the executive branch.  Previous research suggests that the Supreme Court behaves differently when the justices have reason to fear that their policies will not be implemented, or implemented unfaithfully, by executive actors.  Another body of research suggests that the Court uses clear language to enhance the chances for compliance when dealing with other government agents, whereas other work suggests that the Court obfuscates its opinion language to protect itself from the political consequences of noncompliance.  I propose to find evidence for these competing theories by using the LIWC content-analysis software of Supreme Court majority opinions in lateral cases.  The evidence I find is mixed between the two theories, but tends to support the clarity model.  I also find evidence that the Court’s opinions reflect awareness of its weakened position in lateral cases, when ideological distance between the Court and President, which favors non-implementation, is high.

A detailed body of literature has challenged the model of Supreme Court justice voting as ideologically sincere, arguing that legal regimes exert independent effects on merits voting and restrain ideological discretion. This study hypothesizes that this proposition should manifest itself most clearly in the voting behavior of justices on the ideological extremes, the justices whose votes are most reliable. We find evidence that although legal rules do correlate with restrictions on ideological voting, we find that there is little evidence that this behavior is externally imposed by a legal regime. Rather, we find that evidence that the changes in ideological voting patterns are attributable to common consensus to abide by new legal frameworks.

SEE NOTE: this version of this paper is a bit obsolete. The paper is now being framed as a work on democratic equality directly rather than on judicial review. Such an argument as this would still work, I think, but I believe that my argument on democratic equality is the more salient and useful contribution at the moment.

Academic literature is still divided over whether judicial review is a legitimate political institution in a democracy. All conceptions of democracy involve both substantive and procedural components. The defenders of judicial review tend to argue that substantive commitments to self-government and equal effective power justify and limit the procedures of collective decision-making. Its opponents argue that those procedures determine the content of a society’s moral commitments. Here I contribute to the understanding of judicial review in the following three ways: first, I extract from the defenders of judicial review a conception of democracy whose core is the commitment to equal power and individual autonomy. This contributes an understanding of the concept of democracy common to major contributors to the liberal tradition. Further, I use this conception both to defend judicial review conditionally, and to show that its detractors miss something fundamental about the concept of collective and individual self-government.

Neuroscience has assembled an impressive array of evidence that political ideology is a function of biological, genetic, and psychological characteristics. Among these claims is the well tested proposition that self-described conservatives have stronger fear and disgust responses to laboratory stimuli and different brain structures compared to self-described liberals. In this paper, I marshal this evidence  to argue that conservatism is linked to risk focus in an opinion's text. I test this hypothesis using the Language Inquiry and Word Count (LIWC) software on a large sample of Supreme Court majority opinions. I find that conservative opinions score more highly on the LIWC dimension called Risk Focus than liberal opinions. This suggests that neuroscientific work on the biological determinants of ideology applies to judges, and that the investigation into the effect of ideology on judicial behavior would profit from the studies of ideology in other fields.

This study elaborates a theory of the Court’s responses to the President’s power to control the implementation of its cases. The central idea is that in certain cases, the Court must be aware of how the President and executive branch will implement those cases, and will alter their decision-making ex ante to reduce the probability of disobedience. This study investigates the relationship between three key factors: lateral cases, ideological distance between Court and President, and the President’s involvement through executive orders. The key finding is that even when the President grows ideologically distant from the Court, the Court becomes more likely to rule in the federal government’s favor. This effect is exacerbated by the extent of that distance, and the number of executive orders in a case’s issue areas.

Neuroscience proffers evidence that self-described conservatives have stronger fear responses and aversion to risk than self-described liberals. Combined with studies showing that judicial ideology drives the content of Supreme Court majority opinions, I marshal this evidence to argue that conservatism is linked to risk focus in Supreme Court majority opinions. I use the Language Inquiry and Word Count (LIWC) software on a sample of Supreme Court majority opinions, and find that conservative opinions score higher on the LIWC dimension called Risk Focus than liberal opinions. This effect is enhanced in criminal procedural cases. The relevance of this evidence lies in the role of assessments of risk in governing the Supreme Court precedents which affect decision-making throughout the American judicial hierarchy. If conservative judges’ perceptions of risk are inflated, then such opinions may present problems for the relationship between government power and the preservation of civil liberties from government interference.

This study examines how the possibility of non-compliance by the executive branch influences how the Supreme Court constructs its opinions . Previous research suggests the Court behaves differently when the justices have reason to fear that their policies will not be implemented, or implemented unfaithfully, by executive actors.  Another body of research is divided on whether the Court uses clear language to enhance the chances of compliance when dealing with other government agents or obfuscates its language to protect itself from the political consequences of noncompliance. I test these theories by comparing the complexity of Supreme Court majority opinions under conditions that favor non-compliance by executive actors. Our findings suggest the Court tends to use both greater clarity and greater obfuscation, depending on the case’s category and outcome, in its aim to reduce the possibility of non-compliance.

Note: This paper has been renamed "Integrity and the Chain-Novel Metaphor: Assessing the Fit Between Chain Authors and Judges". I'm putting the new version of the manuscript here, because although this new one is on my Academia page, this version is still getting some hits from searches, while the new one is not.

The old version of the paper is available upon request.

New abstract:

According to Dworkin’s Law’s Empire, law has much to learn from literature. Dworkin’s conception of the judge straddles the literary roles of author and critic.  Judges must identify legal rights and duties as though they stemmed from a single author, the community as a whole, expressing a coherent theory of justice and fairness in law. Integrity requires that the judge contribute to the law as such. That is the role of the author. The judge critiques the law in order to work up a conception of the kind of legal system they work in. That is the role of the critic. Dworkin seems to put more emphasis on the role of author through his famous metaphor of the judge as chain novelist. In this paper, I attempt to deepen and qualify our understanding of this heuristic. The metaphor of judge as chain novelist leads to some troubling conclusions which are not supported by law as integrity. I propose, and provide solutions to, two problems with the chain-novel metaphor: the hierarchy problem, and conceptual drift. I suggest some qualifications which enhance its fit to the practice and normative standards of judgeship.

The objective of this paper is to combine two orthogonal conceptions of political liberty into one heuristic. The liberal and republican conceptions of liberty are the dominant explanations of political liberty: the former consisting in the absence of restraint, and the latter in the absence of domination. I argue that neither of these conceptions is adequate on its own. Using either in isolation leads to gaps, occasions in which we might wish to describe a person as unfree without the resources from either conception allowing us to do so. Therefore, I provide a heuristic that allows combining both conceptions into one conceptual plane. I hope also to describe the underlying dimension on which I place both the liberal and republican conceptions, invoking Nussbaum's and Sen's conceptions of capabilities.