FAU Wilkes Honors College

Mark Tunick 
Professor of Political Science
Honors CollegeFAU
5353 Parkside Drive, Jupiter, FL 33458
HC 104 | (561) 799-8670 (ph) | (561) 799-8602 (fax) | tunick@fau.edu

Abstracts of Selected Works
(click title for abstract; links to online versions are available for many works; the PhilPapers version is free but may require that you click 'Download from Archive' on the PhilPapers page)

Punishment: Theory and Practice (University of California Press, 1992)
Hegel's Political Philosophy (Princeton University Press, 1992)
Practices and Principles: Approaches to Ethical and Legal Judgment (Princeton University Press, 1998)
Balancing Privacy and Free Speech: Unwanted Attention in the Age of Social Media (Routledge, 2015)
Texting, Suicide, and the Law: The case against punishing Michelle Carter (Routledge, 2019)



Constitutional Protections of Private Property: Decoupling the Takings and Due Process Clauses,  3 University of Pennsylvania Journal of Constitutional Law 885 (May 2001). Online at PennLaw
Reprinted in Patricia E. Salkin, ed. 2002 Zoning and Planning Law Handbook (West Pub, 2002), 99-151.

The Supreme Court, in deciding whether a government enactment that restricts the use or value of private property amounts to a violation of a constitutional right, focuses on the "Takings Clause" of the Fifth Amendment, which declares that private property "shall not be taken for public use without just compensation."  In deciding whether a regulation of property amounts to a "taking" the Court appeals to a variety of considerations: whether the government regulation amounts to a physical confiscation, whether it leaves the property owner with economically viable use of the property, whether the regulation was enacted to prevent a noxious use of property, whether the regulation unfairly singles out some people and forces them to bear a burden that should be borne by the public as a whole, whether on balance the benefits of the regulation outweigh the detriment to the property owner, and whether the regulation is necessary to the effectuation of a substantial public purpose. While all of these considerations may be relevant in making an all-things-considered judgment of whether it is a good thing, morally or as a matter of public policy, to allow government to restrict the use of property, several are logically unconnected to the takings clause, the plain meaning of which requires only that government must not "take" (i.e. confiscate, appropriate, seize, force one to relinquish) property, not that its regulations must be fair, or promote a particular end,  be justified on a principle of social utility, or be narrowly tailored to the effectuation of a substantial state interest.  A principled and textually grounded basis for deciding the scope of property rights afforded by the constitution requires what the Supreme Court has yet to give: recognition that there are not one but three distinct provisions protecting property rights. The other two provisions besides the "Takings Clause" are the "Due Process" clauses of the Fifth and Fourteenth Amendments, both of which prohibit governments from depriving any person of "life, liberty, or property without due process of law." Only some of the considerations weighed by the Court in its takings adjudication are relevant to the Fifth Amendment "Takings Clause." Several can be grounded only in the due process clauses. Only by decoupling the takings and due process clauses and then identifying which of the clauses provides the anchor for each of the considerations the Court takes into account will the Courts' rulings on property rights be intellectually coherent. More importantly from a practical perspective, by properly linking each consideration to the appropriate textual provision we can remove some of the ambiguities in the principles and tests that Justices attempt to formulate based on these considerations. 

Hegel's Justification of Hereditary Monarchy, in History of Political Thought 12:481-496 (1991).
Online at PhilPapers; or Ingenta;or jstor.

Hegel claims hereditary monarchy is justified by 'the Concept'. Marx understands Hegel to mean by this that the institution has some metaphysical justification based on Hegel's speculative logic. But Hegel's justification can also be understood as nonfoundational, and as such it is a far more plausible defense of the institution then the defense Marx understands Hegel to give. By 'concept' Hegel sometimes means simply the principle or purpose of a thing. For Hegel the purpose of hereditary monarchy--its concept-- is to provide completely arbitrary final decisions in matters where there is no objective basis for deciding-- in such matters we need a groundless method. Given the limited role Hegel assigns the monarch, hereditary monarchy is justified by its concept (as opposed to 'the Concept'): by keeping the decision of who is monarch immune from factional struggles the unity of the state is preserved. It won't matter if the monarch isn't particularly qualified since in a rational modern state experts will do most of the decision making, leaving for the monarch the formal task of 'dotting the i's'. There is, then, a non-foundational, non-metaphysical interpretation of Hegel's justification of hereditary monarchy. Important evidence supporting this reading is found in recently available texts of Hegel's Rechtsphilosophie lectures.

Hegel's Political Philosophy (Princeton, NJ: Princeton University Press, 1992) (paperback version released 2014)

Hegel claims that punishment is the criminal's right and makes the criminal free. In critically examining Hegel's justification of legal punishment, the author takes us to the core of Hegel's political philosophy, offering an account of what Hegel means by right and freedom. Drawing on recently published but still untranslated lecture notes of Hegel's philosophy of right, which illuminate Hegel's notoriously difficult texts, the author rejects the commonly taken position that Hegel uncritically accepts existing practices. Acknowledging that Hegel opposes radical criticism of the sort later offered by Marx, the author argues that instead Hegel offers another type of criticism-- immanent criticism. Hegel uses the ideal he believes immanent in the practice of legal punishment, retribution, to criticize the actual practice when it diverges from this ideal. The author shows how Hegel defends specific features of the practice that accord with the retributive ideal, and criticizes other features that contradict it. He discusses Hegel's views on what acts should be made crimes, justified disobedience, criminal accountability, jury trial, sentencing, capital punishment, and plea-bargaining. This is the first book-length treatment in English that shows Hegel applying his ideals to a single concrete social practice. The work is addressed not merely to Hegel specialists, but also to those interested in the criminal law, the interpretation of legal institutions and social practices, and justification from an immanent standpoint.  


Punishment: Theory and Practice (Berkeley, CA: University of California Press, 1992), available online

Unlike other treatments of legal punishment, Punishment: Theory and Practice takes both an external approach, asking why we punish at all, and an internal approach, considering issues faced by those 'inside' the practice: For what actions should we punish? Should we allow plea-bargaining? the insanity defense? How should sentencing be determined? The two approaches are connected: To decide whether to punish someone who is 'insane', or who cops a plea, we need to ask whether doing so is consistent with our theory of why we punish at all. In connecting theory and practice, I draw on a broad range of thought: radical criticisms of punishment (Nietzsche, Foucault, Marxists), sociological theories (Durkheim, Girard), various philosophical traditions (utilitarian, German Idealism, modern liberalism), and the 'law and economics' movement. Against radical critics who argue we shouldn't punish at all, but who then leave us without an alternative for dealing with crime, I defend the practice, offering a version of retribution (which I distinguish from revenge and non-consequential theories) that holds we punish not to deter, reform, or otherwise augment social utility, but to mete out just deserts, vindicate right, and express society's condemnation of actions it deems blameworthy. I argue that this theory best accounts for how we do punish, and then use this theory to provide immanent criticism of certain features of our actual practice that don't accord with the retributive principle. 


Political Identity and the Ties that Bind: Hegel's Practice Conception, In Beyond Liberalism and Communitarianism: Studies in Hegel's Philosophy of Right, ed. Robert Williams (Albany: SUNY Press, 2001)

Hegel thinks the state is so important to our identity that we should be willing to give our lives for it. He characterizes the state as our ethical "substance." It is sometimes inferred from this that he thinks members of a modern state form a tightly-knit, culturally and ethnically homogeneous community. A close reading of his texts shows, rather, that Hegel does not think they must be a "community," or of the same race or ethnicity, or speak the same language, or practice the same religion. I explore Hegel's view of the ties that bind members of a state, arguing that what he thinks members must share are social practices. I conclude by considering whether in his effort to forge a common identity Hegel resorts to ties too weak to justify the claims he makes about the state being our substance, something worth dying for.


Are there Natural Rights?--Hegel's Break with Kant In Hegel on the Modern World, ed. Ardis Collins (Albany, NY: SUNY Press, 1994)

Hegel criticizes Kant's categorical imperative and what he takes to be Kant's social contract theory of political obligation, but these criticisms miss the mark, for Kant is not really a consent theorist, nor is his categorical imperative empty. The most distinct break Hegel makes with Kant's philosophy of right is rather his rejection of a theory of natural rights, a theory central to Kant's Metaphysics of Morals. While Hegel offers a theory of natural right in some sense, he does not think individuals have natural rights.


Is Kant a Retributivist? History of Political Thought 17:60-78 (1996). Online at PhilPapers; or Ingenta.

Retributivists are often thought to give 'deontological' theories of punishment, arguing that we should punish not for the beneficial consequences of doing so such as deterrence or incapacitation, but purely because justice demands it. Kant is often regarded as the paradigmatic retributivist. In some passages Kant does appear to give a deontological theory of punishment. For example, Kant insists that on an island where all the people were to leave the next day, forever dissolving and dispersing the community, the last murderer in jail would have to have his execution carried out before the diaspora--justice demands it. In other passages, however, Kant defends punishment by appealing to its beneficial consequences.  For example, after supposing that one man on a life raft pushes the other off to save his own life, Kant says that the former man should not be legally punished "because that punishment would have to be death, and it would be an absurd law that threatened death to one who refuses to die voluntarily in a dangerous situation." In this passage Kant's reasoning is that state laws, by threatening us with sanctions, are intended to prevent us from violating rights--the point of these laws is to deter. A law that imposes a punishment that could not deter is an absurd law. I argue that while Kant rejects consequentialism in thinking about moral actions, he distinguishes law and morality, and in the sphere of law, an action we take is to be justified by appealing to the good it yields. The point of legal punishment is to deter violations of rights and protect us from a state of nature in which no one's freedom is assured. Kant's theory of legal (as opposed to moral) punishment is not deontological. Nevertheless we can characterize his consequentialist theory of legal punishment as retributive in some sense. The paper then considers how the passages about punishment in which Kant invokes consequentialist thinking can be reconciled with other passages where he insists on punishment regardless of the consequences.


The Moral Obligation to Obey Law, Journal of Social Philosophy 33:464-83 (Fall). Online at Blackwell; or PhilPaper

Is it always morally wrong to violate a law and in doing so does one necessarily act badly? I argue that whether in breaking a law one acts badly depends on considerations unique to the particular act of lawbreaking. The moral judgment in question is deeply contextual and cannot be settled by appeal to blanket moral rules such as that it is wrong to break (any) law. The argument is made by focusing on the example of a runner having to decide whether to disobey the law against trespass. If in trespassing one acts badly it is not because there is a prima facie moral obligation to obey law. Theories of political obligation which ground an obligation to obey law in the principles of fairness or gratitude or in consent all fail to provide a persuasive reason not to trespass given a particular fact situation. I argue that when it is morally wrong to trespass it is morally wrong not because one has broken the law, but because and insofar as one has violated reasonable expectations of privacy. Whether there is a reasonable expectation of privacy in one's property depends in part on the character of the property in question.


Privacy in the face of new technologies of surveillancePublic Affairs Quarterly14:259-277 (July 2000). Online at jstor; or PhilPapers

This article addresses the question of whether an expectation of privacy is reasonable in the face of new  technologies of surveillance, by developing a principle that best fits our intuitions. A "no sense enhancement" principle which would rule out searches using technologically sophisticated devices is rejected. The paper instead argues for the "mischance principle," which proscribes uses of technology that reveal what could not plausibly be discovered accidentally without the technology, subject to the proviso that searches that serve a great public good that clearly outweighs minimal intrusions upon privacy are permissible. Justifications of the principle are discussed, including reasons why we should use the principle and not rely solely on a utilitarian balancing test. The principle is applied to uses of aerial photography and heat-detection devices.


Practices and Principles: Approaches to Ethical and Legal Judgment (Princeton, NJ: Princeton University Press, 1998 )(Paperback version published in 2000)

Are there universally valid moral principles that dictate what's right regardless of what the consensus is within a particular society? Or are moral judgments culturally relative, ultimately dictated by conventions and practices which vary among societies? Practices and Principles takes up the debate between cultural relativists and universalists, and the related debate in political philosophy between communitarians and liberals, each of which has roots in an earlier debate between Kant and Hegel. Rejecting uncritical deference to social practice, I acknowledge the need for standards for judging existing practices; but, I argue, the fact that there are principles we can use to criticize practices does not mean we can ignore social practice when making ethical and legal judgments. While defending principled criticism,I show the important role social practices have both in selecting and applying principles. I show precisely how both principles and practices interact through three case studies: promises, contract law, and the fourth amendment issue of whether an expectation of privacy is reasonable. When we turn to particular instances of ethical and legal judging we find that it is appropriate sometimes to appeal to principles that seem foreign to a culture to criticize aspects of that culture, sometimes to appeal to principles immanent in a culture and its practices, sometimes to defer to expectations arising from practices without subjecting the practices to critical scrutiny. I reject simplifying dichotomies that force us to choose between either practices or principles, universalism or relativism, and liberalism or communitarianism. 


Hegel on Justified DisobediencePolitical Theory , vol. 26, No. 4 (August 1998), 514-535. Online at jstor; or Philpaper.
Reprinted in Michael Salter, ed. Hegel and Law (Ashgate Publishing, 2002)

Hegel for the most part insists we support existing practices: they have endured, have socialized us, are our home. At times Hegel seems to demand conformity, to leave no room for dissent or disobedience.  Hegel gives great weight  to the authority of the state and of custom. But Hegel does not leave the individual confronted with an unjust state powerless. To Hegel, we are obligated to obey the law if we are at home in the state, if its practices, institutions and laws are rational, if the free will "comes into existence" in it. But on Hegel's view, if the practices, institutions and laws of the state are not rational, we are not obligated to comply with their demands. Few recognize that Hegel even allows for justified disobedience, let alone that he can tell us anything about the conditions under which disobedience is justified. This is partly attributable to the fact that important texts concerning Hegel's views have only recently been discovered and published.  For example, in a passage from one of these texts, a set of notes of Hegel's lectures on political philosophy, Hegel declares that if my free will does not come into existence in the state, I have no corresponding duty to the state. My purpose is to articulate a distinctive Hegelian theory of justified disobedience, show how it differs  both from the traditional understandings of Hegel's views and from contemporary approaches to the problem of justified disobedience, and briefly to point to some difficulties with Hegel's position that need to be worked out if it is to be a satisfactory alternative. 


The Scope of our Natural Duties, Journal of Social Philosophy 29:2 (Fall, 1998), 87-96. Online at PhilPapers; or Wiley

The natural duty theory holds that "we have a natural duty to support the laws and institutions of a just state" (Jeremy Waldron). We owe this not because we ever promised to support these laws and institutions, nor because fair play requires we support the cooperative ventures from which we receive benefits. The claim is that we have a general duty to promote institutions that do something justice requires wherever these institutions may be, a duty that does not depend on our having special ties to these institutions, special ties of the sort we have to the institutions of our own government. I argue that we do not need to appeal to the idea of a natural duty to justify compliance with many laws. For example, New Zealanders must not murder, rape, or steal while in France, not because they have a duty to obey laws of a just state, but because it is wrong to murder, rape, or steal. If the natural duty theory is taken to be a statement of the conditions necessary for an obligation to exist, it would wrongly conclude there is no duty to obey laws against murder or rape in a state whose institutions and laws are not just.  A second class of laws reflect not moral judgments but, rather, local conventions, conventions that are morally arbitrary but which may be useful in coordinating action. For example, New Zealanders visiting France must drive on the right side of the road, as dictated by French convention. Here, too, the natural duty theory fails to provide a suitable account of the relation noncitizens have to such laws. Our reasons for driving on the right side of the road when this is accepted convention have nothing to do with the justice of the institutions of the state. To flout this convention is not to undermine justice since there is  nothing just or unjust about driving on one side of the road or another. I question the advantages of the natural duty theory, especially in light of  important ambiguities in the theory. 


Does Privacy Undermine Community? Journal of Value Inquiry 35:517-34 (December 2001). Online at Philpapers; or Springer

Does privacy--the condition of being invisible to public scrutiny--in so emphasizing individual rights, undermine community? One objection to privacy is that it is a license to engage in antisocial activity that undermines social norms. Another objection is that privacy encourages isolation and anonymity, also undermining community. Drawing on the political theory of Hegel, I argue that privacy can promote community. Some invasions of privacy can undermine a sort of autonomy essential for maintaining a community. I also discuss what we need to know before establishing whether privacy empirically promotes or undermines community.


John Stuart Mill and Unassimilated Subjects, Political Studies 53 (4), 833-48 (December 2005).
Available online at Sage; or Wiley (free).
Recipient of the Harrison Prize for best paper published in Political Studies in 2005 

Mill's harm principle declares that one's liberty of action may be interfered with by the state only if one has caused harm to others. Cases of culture clash involve unassimilated subjects, be they citizens, aliens, immigrants or national minorities, who violate the law while engaging in a practice that is a prevalent and legitimate part of their native culture or religion and which they do not regard as harmful. A Millian approach to the punishment of unassimilated subjects is explored by examining Mill's views on whether there is an objective standard of harm and Mill's discussions of free will, moral responsibility and the respect due to native cultures. 


'Can culture excuse crime?--evaluating the inability thesis'Punishment and Society 6:395-409 (October 2004), Online at Sage; or Philpapers

The inability thesis holds that one’s culture determines behavior and can make one unable to comply with the law and therefore less deserving of punishment. Opponents of the thesis reject the view that humans are made physically unable to act certain ways by their cultural upbringing. The article seeks to help evaluate the inability thesis by pointing to a literature in cultural psychology and anthropology presenting empirical evidence of the influence of culture on behavior, and offering conceptual analysis of the concept of determinism and its connection to moral culpability. Without conceding that culture never determines behavior, I argue that opponents of the inability thesis err in drawing a moral implication from this premise. What matters in formulating moral judgments about punishment are not the possibility but the reasonability of complying with the law. Cultural influences may make an action reasonable that without similar cultural influences would be unreasonable.


Tolerant Imperialism: John Stuart Mill's Defense of British Rule in India, Review of Politics 68(4):586-611(Fall 2006).
Online at Cambridge Journals; or PhilPapers; or jstor

Some critics of Mill understand him to advocate the forced assimilation of people he regards as uncivilized, and to defend toleration and the principle of liberty only for civilized people of the West. Examination of Mill’s social and political writings and practice while serving the British East India Company shows, instead, that Mill is a ‘tolerant imperialist’: Mill defends interference in India to promote the protection of legal rights, respect and toleration for conflicting viewpoints, and a commercial society that can cope with natural threats. He does not think the principle of liberty is waived for the uncivilized, or that the West should forcibly reshape them in its own monistic image. Mill’s tolerant imperialism reflects a tension between liberty and moral development that surfaces also when Mill thinks about the scope of government in civilized societies.

Efficiency, Practices, and the Moral Point of View: Limits of Economic Interpretations of Law," in Mark White, ed., Theoretical Foundations of Law and Economics (NY: Cambridge University Press, 2009). Online at PhilPapers

This paper points to some limitations of law and economics as both an explanative and a normative theory. In explaining law as the result of efficiency promoting decisions, law and economics theorists often dismiss the reasons actors in the legal system give for their behavior. Recognizing that sometimes actors may be unaware of why institutions evolve as they do, I argue that the case for dismissing reasons for action is weaker when those reasons make reference to rules of practices that constitute the meaning of actions within those practices, or when they have otherwise been given well-considered defenses. In criticizing law and economics as a normative theory, I acknowledge that economic considerations are often important in deciding how to act in the personal sphere and how government should allocate its scarce resources. I argue that while the use of institutions to promote our ideals forces us to take their costs into account, it is a mistake to infer from this that the question of determining social policy is a purely economic problem, and that we should acknowledge the non-utilitarian moral ideals our law and practices promote. This is the basis of both an internal criticism--law and economics theorists have not sufficiently evaluated and weighed the value of fairness and other ideals in their utility calculations--and an external criticism-- these ideals are important in ways that can not be measured in utiles.

The Need for Walls: Privacy, Community and Freedom in The Dispossessed,  in Laurence Davis and Peter Stillman, eds. The New Utopian Politics of Ursula K. Le Guin’s The Dispossessed (Lanham, MD: Lexington Books, 2005), pp. 129-148. Online at PhilPapers.

I address the rich and complex ways in which Le Guin critically explores the anarchist ideal of tearing down walls for the sake of freedom, and in particular, the relationships between walls, privacy, freedom and community. Annares has but one boundary wall, and in some ways little privacy, in contrast to Urras, with its “massive walls of stone and glass,” prisons, private possessions and possessiveness. Shevek wants to unbuild walls. But, as Takver notes, without walls “it may get pretty drafty.” Certain walls may be needed to preserve privacy and individuality; but too many walls may undermine the value of community cherished on Annares. I consider whether the ‘ambiguous utopia’ Le Guin is said to portray is best characterized as an unambiguous treatment of the tensions between the anarchist ideal of freedom without law and authority, and another Annaresti ideal, of community (as distinguished from ‘collectivity’). Community itself may require the preservation of individual autonomy, and the building of some walls, without creating a state of possessive individualism as seems to exist on Urras. The analysis of the concepts of privacy, freedom and community as treated in The Dispossessed is supported by some brief references to a few key political theorists, including Hegel.

Hegel's Nonfoundationalism: A Phenomenological Account of the Structure of Philosophy of Right, History of Philosophy Quarterly 11:317-338 (1994). Online at PhilPapers; or jstor

In the Phenomenology Hegel insists there are no presupposed standards of truth: standards are internal. "Consciousness provides its own criterion from within itself, so that the investigation becomes a comparison of consciousness with itself"(PhdG 84). We need only contemplate "the matter in hand as it is in and for itself"(PhdG 84). The Phenomenology is a characterisation of consciousness taking on increasingly adequate forms, testing its own internal standards against experience. The Philosophy of Right is a search for right, not, as in the Phenomenology, for the reality of cognition; but one of the methods Hegel adopts and which helps make sense of the structure of Philosophy of Right is the method he uses in the Phenomenology. This paper offers an alternative, though not necessarily conflicting, interpretation to that given in recent accounts of Philosophy of Right that emphasize its "logical spirit."  While the phenomenological account is not necessarily incompatible with these others, it will point to a nonfoundational interpretation of Hegel's phenomenological method that is.

Privacy in Public Places: Does GPS Surveillance Provide a Plain View?
Social Theory and Practice
 35(4):597-622 (October 2009). Online at jstor; or Philpapers

New technologies of surveillance such as Global Positioning Systems (GPS) are increasingly used as convenient substitutes for conventional means of observation. Recent court decisions hold that the government may, without a warrant, use a GPS to track a vehicle’s movements in public places without violating the 4th Amendment, as the vehicle is in plain view and no reasonable expectation of privacy is violated. This emerging consensus of opinions fails to distinguish the unreasonable expectation that we not be seen in public, from the reasonable expectation that we not be followed. Drawing on a critical discussion of the plain view doctrine, analysis of privacy interests in public places, and distinguishing privacy from property interests, the article contends that government use of GPS to track our movements should require a warrant.

Hegel's Claim about Democracy and his Philosophy of History
In Will Dudley, ed. Hegel and History (Albany, NY: SUNY Press, 2009)

Hegel claims democracy is inappropriate for a modern state and offers two justifications: an empirical one focusing on the failure of existing democracies; and a metaphysical one focusing on the inappropriateness for the modern state of the ideal of individual sovereignty that Hegel associates with democracy. This paper shows how Hegel’s discussion of democracy is relevant to the broader interpretive questions of whether Hegel’s understanding of history and of the development of political institutions is truly empirical and whether Hegel accepts the relativist implications of an empirical approach.

Entrapment and Retributive Theory.
In Mark White, ed. Retributivism: Essays on Theory and Policy (NY: Oxford UP, 2011)
Online at PhilPapers

I address the question, ‘Should a retributivist support an entrapment defense and if so, under what circumstances?’, by considering the culpability of entrapped defendants. An entrapment defense is invoked by defendants who claim they violated the law because they were enticed to crime by the police and would not otherwise have committed the crime. There are different rationales for the defense: people who are normally law abiding, and who are not predisposed to commit crimes, do not commit crimes merely when the opportunity is presented, without further coaxing—only criminals do—and so spending resources to entice and then punish such “false criminals” is wasteful from a utilitarian perspective. Several theorists assume retributivists must oppose the defense: entrapped defendants have broken the law and, according to one version of retributivism (Mabbott), this itself might warrant punishment; they are still culpable although they were enticed, because succumbing to temptation is no defense—there is no ‘private entrapment defense’; and to not punish the non-predisposed who are enticed to crime by government, while punishing those who are predisposed, is wrongly to assert that a person’s culpability hinges on their predisposition and wrongly to punish someone not for their present conduct but for their character or past actions. I explore some reasons why a retributivist can support an entrapment defense. First, entrapped defendants may be less culpable than the privately enticed insofar as they do not cause harm. As police control the situation, no actual harm is caused, and whether one actually causes harm may bear on one’s culpability; and if one’s predisposition was weak and required substantial police coaxing to be triggered, we might say that the police action and not the defendant caused the crime in the relevant sense. Second, applying Robert Nozick’s account of coercion in a novel way, I consider the argument that entrapped defendants may be less culpable insofar as their action was not fully voluntary, in that unlike in private enticement cases, they necessarily underestimate the probability of being caught before making their choice.

Privacy and Punishment, Social Theory and Practice 39(4):643-68 (Oct. 2013),
Online at pcdnet; or PhilPaper; or jstor | Article Proof

Philosophers have focused on why privacy is of value to innocent people with nothing to hide. I argue that for people who do have something to hide, such as a past crime, or bad behavior in a public place, informational privacy can be important for avoiding undeserved or disproportionate non-legal punishment. Against the objection that one cannot expect privacy in public facts, I argue that I might have a legitimate privacy interest in public facts that are not readily accessible, or in details of a public fact that implicate my dignity, or in not having a public fact memorialized and spread to more people than I willingly exposed myself to.


John Locke and the Right to Bear ArmsHistory of Political Thought 35(1):50-69 (2014),
Online at PhilPapers; or Ingenta.

Recent legal opinions and scholarly works invoke the political philosophy of John Locke, and his claim that there is a natural right of self-defense, to support the view that the 2nd Amendment’s right to bear arms is so fundamental that no state may disarm the people.  I challenge this use of Locke. For Locke, we have a right of self-defense in a state of nature. But once we join society we no longer may take whatever measures that seem reasonable to us to defend ourselves: we are bound to the law duly enacted according to the original Constitution to which we consented. For Locke, how best to avoid dissolution of government and preserve individual liberty is for the people to judge collectively, unconstrained by natural proscriptions on gun regulations, limited only by the demands that government not be arbitrary and that it serve the public good. 

Hegel and the Consecrated State, in Hegel on Religion and Politics, ed. Angelica Nuzzo 
(Albany, NY: SUNY Press, 2013).

Edmund Burke characterizes the state as consecrated, or sacred. There is a sense in which Hegel, too, consecrates the state: Hegel says the state is based on religion and that to preserve the state, religion “must be carried into it, in buckets and bushels.” This paper discusses the sense in which Hegel’s state is consecrated by juxtaposing his views with Burke’s. Both Burke and Hegel reject the theory of the divine right of kings, while recognizing religion’s ability to connect people to a totality transcending their particular lives. But the similarities nearly end there. Burke sees religion as a tie that binds people and helps create an ethical community, at least in England; for Hegel religion does not have that function in a modern state. Where Burke thinks commitment to religion is a stabilizing influence, Hegel worries that religion can lead to fanaticism and destroy a state. Consequently, where Burke supports an establishment of religion, Hegel thinks church and state must remain separate. Both Burke and Hegel think the state must tolerate the free exercise of different religions, but Burke is unwilling for the state to tolerate atheists, who he regards as outlaws of the human race. But as Hegel sees the function of religion in a modern state as providing an answer to the existential question of how one’s existence has meaning given that it is inevitably extinguished, and if philosophy can also provide an answer to that question, Hegel’s consecrated state could be a home for atheists. The paper draws on, among other works, Hegel’s Rechtsphilosophie, Philosophy of Religion, Philosophy of History, early theological writings, and for Hegel’s views on state-sponsored religious education, the Nürnberg School Addresses and letters to Niethammer.

Reality Television and the Entrapment of Predators, in Law and Justice on the Small Screen, ed. Robson and Silbey (Hart Publishing, 2012) Online at PhilPapers

Dateline NBC’s “To Catch a Predator”(2006-08) involved NBC staff working with police and a watchdog group called “Perverted Justice” to televise “special intensity” arrests of men who were lured into meeting adult decoys posing as young children, presumably for a sexual encounter. As reality television, “To Catch a Predator” facilitates public shaming of those caught in front of the cameras, which distinguishes it from fictional representations. In one case, a Texas District Attorney, Louis Conradt, shot himself on film, unable to bear the public humiliation of cameras airing his arrest. The show engenders conflicting responses: Did the show fulfill a public service by informing the public about real dangers and deterring potential predators, or was it an insensitive effort to garner ratings by taking advantage of human weaknesses? Is the sort of public shaming it imposes an appropriate form of punishment given the legitimate purposes of punishment? Did the show portray justice, or did it entrap victims? How did NBC’s working relationship with local police bear on the answer to that question? This paper addresses these questions and develops three objections to the show: that NBC in effect metes out unjust punishment; that it invades privacy; and that it entraps. .


'Should We Aim for a Unified and Coherent Theory of Punishment?'--Review of Thom Brooks, Punishment, Criminal Law and Philosophy (May 2014), DOI 10.1007/s11572-014-9314-5.
Online at Springer; or Philpapers

Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting to capture the complex set of rules and behaviors that constitute the practice of legal punishment cannot persuasively be unified and coherent: legitimate features of the practice advance goals and promote values that in some cases conflict.

Balancing Privacy and Free Speech: Unwanted Attention in the Age of Social Media (New York and London: Routledge, 2015), available as open access e-book

In an age of smartphones, Facebook and You Tube, privacy may seem to be a norm of the past. This book addresses ethical and legal questions that arise when media technologies are used to give individuals unwanted attention. Drawing from a broad range of cases within the US, UK, Australia, Europe, and elsewhere, I ask whether privacy interests can ever be weightier than society’s interest in free speech and access to information. Taking a comparative and interdisciplinary approach, and drawing on the work of political theorist Jeremy Waldron concerning toleration, the book argues that we can still have a legitimate interest in controlling the extent to which information about us is disseminated. The book begins by exploring why privacy and free speech are valuable, before developing a framework for weighing these conflicting values. By taking up key cases in the US and Europe, and the debate about a ‘right to be forgotten’, I discuss the potential costs of limiting free speech, and point to legal remedies and other ways to develop new social attitudes to privacy in an age of instant information sharing.

Regulating Public Access to Body Camera Footage: Response to Iesha S. Nunes, "Hands Up, Don't Shoot", Florida Law Review Forum 67:143-150 (March 2016). Online at UF Law Review

Iesha Nunes argues that police should be required to wear body cameras. Use of body cameras would provide judges or juries proof of abusive police practices, and may even deter police misconduct from occurring. For many criminal cases the only available evidence is eyewitness testimony, which can be unreliable. Nunes proposes that in order for states to receive certain federal funds, police use of body cameras should be required, and recommends that an unbiased group create uniform guidelines for their use. There is no denying that police use of body cameras could substantially strengthen our ability to protect civil rights and avoid abuses of police power. But as Nunes acknowledges, the widespread use of body cameras must be regulated. In developing policies regarding their use, not only must we keep in mind the obvious advantages they would have in the sorts of cases that have made the national news, but we must consider the implications of their widespread use to record the vast majority of police-citizen encounters.

Brain Privacy and the Case of Cannibal CopRes Publica 23(2):179-96 (2017),
Online at Springer; or PhilPaper 

In light of technology that may reveal the content of a person’s innermost thoughts, I address the question of whether there is a right to ‘brain privacy’—a right not to have one’s inner thoughts revealed to others--even if exposing these thoughts might be beneficial to society. I draw on a conception of privacy as the ability to control who has access to information about oneself and to an account that connects one’s interest in privacy to one’s interests in (1) autonomy and associated reputational interests, and (2) preserving one’s dignity. Focusing on the controversial case of Gilberto Valle, known as the ‘cannibal cop’, who faced legal punishment and moral reproach for deeply disturbing thoughts of doing violence to women, thoughts he claimed were mere fantasies, I argue that Valle has a right to brain privacy if he has a legitimate privacy interest that is not outweighed by competing societal interests in avoiding harm. Our weighing of competing privacy and societal interests will depend on the magnitude of the privacy interests in autonomy and dignity, and on how reliable the technology used to expose inner thoughts is in predicting future harmful behavior and identifying true threats.

Texting, Suicide, and the Law: the case against punishing Michelle Carter (New York and London: Routledge, 2019): e-book on google play | on amazon kindle

In 2014, Conrad Roy committed suicide following encouragement from his long-distance girlfriend, Michelle Carter, in what has become known as the Texting Suicide case. The case has attracted much attention, largely focusing on the First Amendment free speech issue. This book takes the view that the issue is intertwined with several others, some of which have received less attention but help explain why the case is so captivating and important, issues concerning privacy, accountability, coercion, punishment, and assisted suicide. The book is laid out as a case against punishing Ms. Carter, but it is less important that we agree with that conclusion than that we reach our conclusions not just through our instincts and intuitions but by thinking about these fundamental issues.

State Authority, Parental Authority, and the Rights of Mature Minors, Journal of Ethics (https://doi.org/10.1007/s10892-021-09379-x), 1-23; online.
When mature minors face a decision with important consequences, such as whether to undergo a risky but potentially life-saving medical procedure, who should decide? Relying on liberal political theory’s account of the importance of decisional autonomy for adults, and given the scalar nature of the capacities needed to exercise decisional autonomy, I argue that mature minors with the requisite capacities and commitments have a right to decisional autonomy though they are not yet 18. I argue for this right using a ‘balancing of interest’ account of rights: the interest mature minors have in decisional autonomy outweighs their parents’ interest in shaping their children as a means of ‘creative self-extension’. But I propose two limitations on this right: requests for waivers of the rule that one must be at least 18 to decide cannot be so numerous as to make adjudication impractical; and though a competent adult’s voluntary decision to refuse medical treatment should generally be respected, the state may reject a mature minor’s decision upon review by an indifferent judge of the minor’s capacities and reasons. The judge reviews not the substantive merits or prudence of the decision, but whether the decision promotes the interest in decisional autonomy, by asking among other things whether the decision is the minor’s own, is tethered to core commitments rather than based on arbitrary preferences, and could be regarded as reasonable to the minor’s ‘future self’.

Religious Freedom and Toleration: A Liberal Pluralist Approach to Conflicts over Religious Displays, Journal of Church and State (2022),  online.
A liberal pluralist state recognizes that its members exercise a variety of religions or hold diverse comprehensive doctrines, and strives for neutrality so that none is favored. Neutrality can come into tension with the demands of individuals to express their religion in public spaces. I focus on a display of a “finals tree,” that many regard as a Christmas tree, on the campus of a public university, a display objected to by a small minority of non-Christian faculty and students who claim it makes them ‘outsiders’ and should be removed. While display of a Christmas tree doesn’t violate the First Amendment because the Court has ruled it is a secular symbol, resolving that legal issue doesn’t resolve the ethical issue of which side should accommodate the other. To address that, I turn to traditional theories of Kant and Mill, who would side with the tree displayers, who are causing no harm and restricting no one else’s liberty. Finding this resolution wanting, I develop a modified version of Jeremy Waldron’s ‘adequacy’ principle, which has us be sensitive to the aims of others when our actions keep them from adequately pursuing their legitimate aims, so long as accommodating them does not keep us from adequately pursuing our own. I depart from Waldron in arguing that in assessing each side’s claims we should sometimes conduct a limited inquiry into the sincerity of one’s religious reasons, and this inquiry would not be incompatible with liberal pluralism’s requirement that we appeal to public reason.

John Stuart Mill's Passage on Pimps and the Limits on Free Speech, Utilitas (2022), online
Mill didn't resolve this puzzle: if prostitution must be tolerated according to his principle of liberty as it doesn't non-consensually harm others, why punish the accessory – the pimp? Yet in On Liberty's passage on pimps (CW 18:296–7) Mill seriously considers restricting pimps’ speech for reasons other than preventing harm: pimps’ speech undermines decisional autonomy for purposes the state regards as immoral, and in response the state may use coercion to counteract such immoral influences. In light of this, I argue that we need to rethink the standard view that Mill opposes restrictions on speech that does not harm others.