This paper challenges the widespread view that the legal system's conception of causation is largely deterministic and token-level, that view stemming from the law's principal focus on assigning ex post responsibility for past acts. We argue, in opposition to this view, that the probabilistic,...

Oliver Wendell Holmes's dissenting opinion in Abrams v. United States is rightly celebrated for what Holmes said in his concluding paragraph about truth and the competition of the market. Earlier in his opinion, however, Holmes had described Abrams as an “unknown man” whose “silly...

Decisions about intervention can be understood as decisions about tolerance, because an act of tolerance is an act of nonintervention, and, conversely, an act of intervention can be understood as an act of intolerance. But decision to tolerate, typically performed under conditions of epistemic...

Constitutive rules, as prominently theorized by John Searle, create the very possibility of engaging in some form of behavior. This distinguishes constitutive rules from regulative rules, which seek to regulate antecedently extant and defined behavior. So although it is conceptually possible to...

The burgeoning debates about constitutional interpretation show no signs of abating. With surprisingly few exceptions, however, those debates involve a contrast between textualism understood as some form of originalism, on the one hand, and various varieties of less textually focused living...