Publication Type: Conference Paper/Unpublished Manuscript
Abstract: I consider the issue of political legitimacy in pluralistic societies by examining the reasons that public officials may use in crafting law. I present Rawls’s “political liberalism” focusing on his proposal that on questions of “basic justice and constitutional essentials” democratic states must offer their citizens reasons they can reasonably expect others to accept. While not abandoning the concept of public reason, George broadens its definition to include all those reasons which are in principle accessible to a citizen as a rational person, regardless of whether they are accepted in practice. While George’s public reason is wider than Rawls’s, I argue that it cannot be defended, for it arbitrarily limits public reason to natural reason, has an undefended prejudice against religious believers, and offers no reason why appeals to revelation should be excluded. I offer a critique of George’s public reason by drawing on his own arguments, as well as those by John Finnis and Jeffrey Stout. I conclude that George offers no alternative to Rawls; if one finds his critique of Rawls convincing, one should abandon the public reason project and adopt a pluralistic system of reason-giving as the best response to a pluralistic society.

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: This study involves an experiment with 77 law students. It looks at the seprarability of preferences in cases involving multiple issues. I investigate whether decision-makers are able to separate their views on divisive policy matters from a seemingly neutral �threshold� decision they are asked to make in a complex case. Specifically, participants were given a mock legal brief containing identical legal arguments on both sides of a standing dispute. All participants were told that the issue arose in the context of a case where the issues of (1) abortion (2) free speech and (3) restrictions on the political expression of public employees were potentially salient in the dispute on the merits. The experiment involved a 2 x 2 factorial design where the content of the political expression at issue (pro-life vs. pro-choice) and the jurisdiction the case arose in (jurisdiction with direct authority on the standing issue vs. without direct authority on the standing issue) were experimentally controlled. Participants� policy views were measured to test how they influenced the threshold standing decision. Findings demonstrate participants were able to separate views on abortion and restrictions on public employees from the standing decision. Opinions on free speech, however, did influence the standing decision a direction consistent with attitudinal hypotheses. The effect was more pronounced for participants in treatment conditions with no controlling legal authority on the standing issue.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: Should those who wield coercive power in democratic societies base their political choices only on suitably public reasons? John Rawls, with many of those influenced by his account of political legitimacy, answers this question in the affirmative. I think they are right to do so. But what reasons count as suitably public? Rawls thought that suitably public reasons must be commonsensical: in other words, some consideration may count as a reason to enact a potentially coercive policy or law only if its reason-giving force is non-controversial. I believe this is a mistake. In pluralistic democracies at the beginning of the 21st Century, the state must either prohibit or permit many deeply controversial practices (e.g. same-sex marriage, et al.). But the reason-giving force of considerations brought to bear on such practices�e.g. the nature of marriage, the place of government in regulating marriage, the moral status of same-sex relationships, etc�are equally controversial. Therefore, if coercive power is just only when motivated by public reasons, and public reasons must be non-controversial, the coercive power of law cannot be justly exercised either to permit or prohibit such practices. This looks like a reductio of liberal conceptions of political legitimacy. Here, I will argue for a formulation of public reason faithful to the requirements of the liberal conception of political legitimacy but which has the advantage of permitting controversial reasons to count as suitably public, thus widening the domain of considerations that can be brought to bear on questions of public policy.

Publication Type: Invited Paper

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: This paper describes two experiments designed to see how policy attitudes interact with case characteristics to influence the perception of legal precedent. First, we discuss how the concept of motivated reasoning has been invoked in the public law literature. Using Holyoak and Thagard�s (1995) theory of analogic, we propose a mechanism of motivated decision making involving analogical perception. We put forth a model of analogical perception where the role of policy preferences in shaping perceptions is greatest a middle range of cases that are neither too close, nor too far away, from disputes decision-makers are currently considering. We describe a comparative experimental design testing the model for 208 lay observers of judicial outputs (Experiment Number 1) and 77 law students (Experiment Number 2). Participants in each experiment read a mock newspaper article that described a �target case� involving unlawful discrimination. Embedded in the article was also a description of a �source case� cited as legal precedent where (1) the target of discrimination, (2) the entity accused of discrimination, and (3) the outcome of the case were experimentally manipulated. Results indicate that participants in both studies were more likely to find source cases with outcomes that supported their policy views in the target dispute as analogous to that litigation. Significantly, however, this effect was constrained by the manipulation of case characteristics bearing on similarity, as predicted. Findings also indicate that lay participants who were supportive of gay scout leaders used more lenient criteria in judging case similarity than did those who were opposed. Contrary to expectations, legal socialization did not attenuate the effects of attitudes in similarity judgments.