Christopher P. Taggart, Retributivism, Ultimate Responsibility, and Agent Causalism, 54 Tulsa L. Rev. 441 (2019).
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“Except for limited forms of omissions liability, Anglo-American criminal law generally requires a criminal defendant, D, to perform a voluntary action before imposing criminal liability. Further, D must be morally responsible for performing the action for D to deserve punishment for doing it. So, a puzzle about moral responsibility connected to longstanding debates about determinism and free will, a puzzle that implies that D is never morally responsible for performing any action, must have a moral-responsibility-preserving solution for any form of retributivism to be true. One compatibilist solution denies that moral responsibility requires what has been termed “ultimate responsibility.” Whether ultimate responsibility is required for moral responsibility is a contested issue. And, if ultimate responsibility is required for moral responsibility, then the compatibilist solution is unavailable. This article argues that, if ultimate responsibility is required for moral responsibility, then, unless both indeterminism and agent causalism are true, any form of retributivism is false.”
Christopher P. Taggart, The Limits and Significance of Kaplow and Shavell’s Pareto Argument, 99 Marq. L. Rev. 661 (2016).
In a series of articles and a book, Louis Kaplow and Steven Shavell (KS) articulated and defended the normative approach of standard law-and-economics. KS also argued that legal analysts should think in welfare-economic terms exclusively when advising on normative social issues of tremendous import. This thesis generated controversy within the legal academic community because it implied that numerous analysts were not doing an important part of their jobs the way that they should be doing it. One of KS’s main arguments featured a very plausible version of the Pareto principle. KS claimed that their Pareto argument demonstrated that any method of policy evaluation that gives any weight to principles independently of their effect on how well-off individuals become sometimes commits the evaluator to making everyone worse off. This Article argues that KS misstated what their Pareto argument demonstrated. It also argues that KS’s Pareto argument provides no independent reason to endorse any part of welfare economics and thus no independent reason to adhere exclusively to welfare-economic thinking. Additionally, the Article clarifies much of what is at stake in deciding whether to adopt an exclusively welfare-economic approach to normative legal scholarship. Finally, the Article suggests that KS’s central thesis is incorrect—there is an important place at the table for forms of normative analysis that diverge from a purely welfare-economic approach.
Christopher P. Taggart, How Can “Positivism” Account for Legal Adjudicative Duty?, 33 Oxford J. Legal Stud. 169 (2013).
One aspiration of an analytic jurisprudential theory is to provide an account of how legal obligations arise, including the legal obligation of judges to apply only legally valid norms when adjudicating cases. Also, any fully adequate theory should enable a solution to a ‘chicken-egg’ puzzle regarding legal authority: legal authority can exist only in virtue of rules that authorize it, but such rules require a legal authority as their source. Which came first? This article argues that it is difficult to see how a particular type of positivist theory (featuring a fundamental norm that plays certain roles) can solve the puzzle and also account for the aforementioned adjudicative duty. The challenge can be framed in terms of the need to be able to derive a legal ‘ought’ (applying to courts) from only ‘is’-statements expressing social facts, where the requisite derivation cannot rely on what John Searle has called ‘institutional facts’.