Tag: Jurisprudence

The Past

(1) How did you get into philosophy in the first place?

It’s an unusual story. The short version is: Philosophy was a better job than DJing.

Here’s the longer version. When I was an undergraduate at Rutgers, I worked various part-time jobs, including mailroom and cleaning services for a government building, tutoring, research assistant (RA) work in a psychology lab, and DJing at college bars. Steve Stich, of Rutgers Philosophy, was recruiting an undergraduate RA to research demographic differences in philosophical intuitions. The job sounded fascinating, so I cut back on the DJing and joined Steve’s project. That turned out to be a terrific decision. At the time, I didn’t fully appreciate the world-class philosophy program at Rutgers and Steve’s brilliance and reputation. But I was hooked by experimental philosophy and fortunate to be in one of the best places to pursue it. I’m forever grateful to Steve for hiring me, mentoring me, and setting me down this path.

(2) And how did you end up doing experimental philosophy?

My entire introduction to philosophy was through experimental philosophy. In the 2010s, when I was starting, there were these little meetups (“MERG”) of experimental philosophers in the New York area. Hearing incredible philosophical discoveries from people like Josh Knobe, Jesse Prinz, Nina Strohminger, and Shaun Nichols inspired me to pursue graduate study, in Oxford on the BPhil, and later at Yale. I worked on X-Phi of various different areas: personal identity and the self, the identity of collectives (like bands), and essentialism.

Later I focused on experimental legal philosophy, or experimental jurisprudence (“X-Jur”), which formed the basis of my philosophy dissertation, Essays in Experimental Jurisprudence (2019). It’s an exciting time in “X-Jur,” with many new and fascinating studies concerning questions of general jurisprudence (e.g. what is the concept of law; are evil laws really law?) and particular jurisprudence (e.g. who is the reasonable person of tort law; how does causation in law differ from causation outside of law; does deception vitiate consent?). There are too many amazing scholars to list here, but for those interested in some of these recent discussions, I’d check out the projects of people including: Guilherme Almeida, Piotr Bystranowski, Raff Donelson, Vilius Dranseika, Brian Flanagan, Ivar Hannikainen, Felipe Jiménez (critiques), Josh Knobe, Markus Kneer, Jamie Macleod, Karolina Prochownik, Roseanna Sommers, Niek Strohmaier, and Noel Struchiner. The field has been introduced and summarized in a few places: here, here, here.

Experimental jurisprudence goes back earlier – Larry Solum noted the possibility, Tom Nadelhoffer and others have earlier legal x-phi papers, and much earlier law and psychology scholarship covers similar territory, especially related to criminal law. So the field is not new, but it has been growing especially rapidly over the past ten years.

(3) Which teachers or authors have influenced you the most on your philosophy journey – and how?

Steve Stich and Josh Knobe are two of the most influential. I was fortunate to have such brilliant and generous advisors. Larry Solan, a model of wisdom, kindness, and humility, was another major influence on my work in law and language. The ideas of all three have shaped my thinking about philosophy, law, and language. All three also share admirable commitments to interdisciplinarity, collaboration, and mentorship.

The Present

(4) Why do you consider experimental philosophy in its present form important?

Let me take one smaller part of this question: What is important about experimental jurisprudence or experimental legal philosophy?

Traditional legal philosophy regularly makes claims about how “we” all understand law and legal concepts; law is replete with concepts that resemble ordinary ones (such as cause, intent, and reasonableness); ordinary judgments directly inform law (e.g. juries deciding mixed questions); and various legal rules and theories offer empirical claims related to ordinary language or understanding (e.g. textualist judges’ interpretive claim to interpret law from the perspective of an ordinary reader). Law, legal judgments and concepts, and legal language are connected in complex ways to ordinary practices, ordinary judgments and concepts, and ordinary language. Understanding these relationships helps elucidate law itself and strikes me as a worthwhile philosophical project, which X-Jur helps advance.

For a more concrete and practical example, consider legal interpretation in the United States. An influential version of “textualism” holds that judges should interpret legal texts as they would be understood by an “ordinary reader.” To do this, judges consult dictionaries or their own intuitions about hypothetical examples. But X-Jur methods can help evaluate conclusions about this “ordinary reader.” A recent Supreme Court (dissenting) opinion cited an X-Jur study on how ordinary readers understand negated conjunctions. As far as I know, this is the first time the Court has referred to such surveys in interpretation. Justice Stephen Breyer’s recent book also draws on experimental jurisprudence research, such as Struchiner, Hannikainen, and Almeida’s findings that people’s rule violation judgments are influenced by both a rule’s text and purpose. For those interested in pursuing philosophy of law and language with concrete practical implications, the Court’s discussion of “the ordinary reader” is an area in which philosophers and experimental philosophers can make unique contributions.

(5) Do you have any critical points to make about experimental philosophy in its current state?

A critique to consider for any field is: Is the field thinking critically about its methods, including innovation and improvement? I ask that question about traditional legal philosophy in “methodology and innovation in jurisprudence.” Traditional jurisprudence and X-Jur share some methodological challenges. For example, when a legal philosopher offers an intuition to a thought experiment, does that philosopher’s intuition replicate the intuitions of others? Robert Cummins lamented that philosophers who did not share certain intuitions were not “invited to the games.” So, when traditional philosophy appeals to shared intuitions, it’s important to critically question whether those intuitions would replicate outside the seminar room.

An X-Phi variant of this concern is the “replication crisis,” which has impacted many empirical fields. In short, some empirical findings have failed to replicate when the same studies are conducted again. On that front, there have been many positive developments in X-Phi: Florian Cova led a team of experimental philosophers to attempt to replicate representative sample studies; many in X-Phi have adopted Open Science practices; there is less emphasis from X-Phi on empirical results that are “surprising.” Generally that all seems to be moving in the right direction.

(6) Which philosophical tradition, group, or individual do you think is most underrated by present-day philosophy?

Philosophy has become highly professionalized, and some today would still equate “doing philosophy” with being part of an academic program (e.g., a professor, postdoc, or enrolled student of philosophy). Of course, a professorship has not always been a requirement to philosophize, and I would love for that understanding of philosophy to return. Take the idea of “public philosophy.” Some of the most successful public philosophers today are working creatively outside of universities. ContraPoints has been enormously successful in bringing philosophy to the public and to issues of our time. Philosophy-through-law is another example. Many talented philosophers come to law school to refine their skills to pursue philosophically informed law and policy work. I would love to see a greater appreciation from academic philosophy for non-university forms of philosophizing (whether in public philosophy, entertainment, journalism, law, policy, advocacy, etc.).

This relates to a critical challenge for the discipline: the changing job prospects of philosophy graduate students. I won’t pretend to have all the answers here, but unless the academic market changes or programs take fewer students, programs should train graduate students to do philosophy through non-academic jobs.

The Future

(7) How do you think philosophy as a whole will develop in the future?

Academic philosophy’s culture has improved in recent years, and I hope this will continue. When I was a graduate student at Oxford, a decade ago, there was a sense that certain philosophical areas and questions were “deeper,” while others were superficial or peripheral – including those that took a perspectival approach, interrogated practical or applied issues, or adopted empirical methods. There were few of us in the feminist philosophy seminar and there was nothing on offer related to philosophy of race, while metaphysics and epistemology were consistently oversubscribed (these areas also used to be described as “core” philosophy). Applied legal-philosophical topics like mass incarceration were often treated as soft or non-philosophical. Things were even more extreme on the empirical front: There was even an effort from one faculty member to ban graduate students from writing experimental philosophy papers! This is obviously one ridiculous example, and there were many other wonderful and supportive faculty at Oxford, but it exemplifies the occasional extreme hostility to certain philosophical approaches that used to exist.

My sense is that in many places this has changed dramatically. Most of all, I hope philosophy will continue to develop in this direction: Welcoming (rather than shaming or banning) new or different perspectives, topics, questions, and methods strengthens the discipline.

(8) What do you wish for the future of experimental philosophy?

Much excitement around the growth of X-Phi and X-Jur came from doing something new: employing different methods, challenging old assumptions, asking fresh questions, unearthing new discoveries to inform philosophical debate. So my wish for the long term would be to find the future of (experimental) philosophy novel. The most disappointing future would be one that rehashes the same debates, in essentially the same ways, ad infinitum.

I’m optimistic about this future. The next generation of philosophers has been pursuing a broad range of questions, including philosophical questions of practical importance. The projects that I’ve advised over the past year exemplify that flourishing range of questions. One student (Zoë Moore) explored lay judgment of responsibility for using brain–computer interface (“BCI”) devices; another (Lindsay Jenkins) is studying attitudes related to technology, autonomy, and decisional privacy concerning abortion access post-Dobbs; another (Natasha Sarna) is studying judgments about privacy and the reasonableness of employer searches in the workplace; another (Nicole Steitz) is analyzing the evolving nature of “textualism” in American legal interpretation.

(9) Do you have any interesting upcoming projects?

I’m finishing a short book for Cambridge’s Elements series that introduces and defends experimental jurisprudence. And for a deeper dive, a large handbook will be released in the next year, The Cambridge Handbook of Experimental Jurisprudence, which offers forty chapters from eighty-four scholars on a range of X-Jur topics.

Another line of projects is inspired by a common objection to experimental jurisprudence. This is the “expertise defense”: X-Jur studies should examine the judgments of legal experts, not laypeople. There is terrific philosophical debate about that question, but the expertise defense also highlights the importance of studying other populations. Eric Martínez led a recent study that surveyed American law professors about what they believe about legal theory questions. There are some interesting findings: for example, the well-known Bourget and Chalmers study finds legal positivism divisive among philosophers, but the law professor study finds positivism is more strongly supported among law professors. This empirical work doesn’t resolve the underlying philosophical debate. But it gives us new and useful material to consider, both concerning positivism and the nature of legal-philosophical expertise (it also raises new questions like: which of these two groups is the experts?).

A final line of work is inspired by another important response to X-Jur: Many studies recruit English-speaking Americans, but are the findings generalizable across other languages and cultures? (Here again, this is also an important question to ask about the intuitions offered in traditional (non-experimental) philosophy). In X-Jur there have been some efforts to address this question. Ivar Hannnikainen and collaborators tested various experimental jurisprudence findings in different languages and cultures, including findings about legal interpretation and the inner morality of law. I’m especially excited to discover more about these questions related to language, culture, and legal philosophy.