A wrongful life suit is an unusual civil suit brought by a child (typically a congenitally disabled child)1 who seeks damages for burdens he suffers that result from his creation. Typically, the child charges that he has been born into an unwanted or miserable life.2 These suits offer the prospect of financial relief for some disabled or neglected children and have some theoretical advantages over alternative causes of action.3 But they have had only mixed, mostly negative, success.4 They have, however, spurred considerable philosophical interest.5 This attention, though, has been primarily focused on issues about the coherence of complaining about one’s existence or its essential conditions. These suits also raise important, but less well-probed, philosophical questions about the morality of procreation and, more generally, about the moral significance of imposed, but not consented to, conditions that deliver both significant harms and benefits.

Numerous legal theorists argue that corrective justice is distinct both conceptually and normatively from distributive justice. In particular, they contend that it is an error to view corrective justice as ancillary to distributive justice, necessary only to maintain or restore a preferred allocation of benefits and burdens. The specific arguments of these legal theorists are addressed and shown to be inconclusive in relation to what I term the Dependence Thesis. The Dependence Thesis holds that a normative account of the occasions of corrective justice is dependent on a larger theory of distributive justice. The nature of this dependence relation varies from theory to theory. The role of tort compensation schemes within libertarian, liberal egalitarian, and utilitarian theories of distributive justice is discussed. It is argued that such theories provide comprehensive and critical perspectives on historical corrective practices, neither simply endorsing nor invalidating them. An alternative normative account of the occasions of corrective justice, offered by legal theorists who support the autonomy of corrective justice from distributive justice, is also discussed.

This article seeks to parry Ronald Dworkin’s assaults on the legal-positivist thesis that the authoritative norms in any legal system are ascertained by reference to some overarching set of criteria that may or may not require the making of moral judgments. Four main lines of argument are presented. First, Dworkin does not establish that judges disagree with one another at a criterial level in easy cases; second, even if criterial disagreements are indeed present (at least subterraneously) in all cases, they will be quite sharply limited by the need for regularity at the level of outcomes in a functional legal system; third, Dworkin errs in thinking that legal conventions must be static, and he further errs in thinking that the adjudicative practices of American law can plausibly be portrayed as based solely on convictions and not on conventions. Finally, with his recent reflections on the metaphysics of morals, Dworkin helps to reveal the resilience of a doctrine (viz., soft or inclusive positivism) that he seeks to confute.

Critical Legal Studies (CLS) writers argue that judicial decision making is not politically neutral; rather, it is only a stylized version of political discourse. More pointedly, these writers argue that the belief in legal neutrality legitimates an unrepresentative political process, thereby benefiting the powerful to the detriment of the weaker. Accordingly, CLS writers consider the belief in legal neutrality to be ideological. Also, CLS writers consider judicial decision making itself (as opposed to beliefs about legal decision making) to be ideological in the sense that the outcomes of legal decision making are informed and influenced by conservative ideology.I use two senses of the term “ideology” in this essay. The ideological belief in legal neutrality is ideological in a pejorative sense. That is, it is a false belief that works to the detriment of its holder. The conservative ideology that informs legal decision making is ideological in a descriptive but not necessarily a pejorative sense. For a discussion of these and other distinctions between the possible meanings of the term “ideology,” see Raymond Geuss, The Idea Of A Critical Theory (1981), esp. ch. 1. Thus, a central project of the CLS movement is to unmask the ideological nature of law.For discussion of the premises that the liberal belief about law is ideological and that the function of CLS writers is to unmask this ideological nature, see David Kairys,Introduction to The Politics Of Law: A Progressive Critique 5 (David Kairys ed., 1990); Alan Hutchinson, Introduction to Critical Legal Studies 3 (Alan Hutchinson ed., 2d ed. 1989); Richard M. Fischl, Some Realism About Critical Legal Studies, 41 U. Miami L. Rev. 505, 524–25 (1987); and Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 Buff. L. Rev. 205 (1979).

We consider the implications of the definition of juror bias offered in Schwartz and SchwartzEdward P. Schwartz & Warren F. Schwartz, The Challenge of Peremptory Challenges. Paper presented at the annual meeting of the Public Choice Society, Long Beach, California, March 24–26, 1995. for optimal use of juror challenges to improve the accuracy of the jury process. For them, bias consists of a juror assinging more/less weight to the evidence for guilt than would be assigned by the median juror in a fully representative pool of jurors. When juror assessments of the evidence have a probabilistic component to them, we show that this notion of bias does not imply that we necessarily would wish to use challenges to eliminate the most biased jurors. We also explain how understanding juror verdict accuracy requires an analysis of the interaction between the threshold rule that the juror uses to determine what level of belief in the guilt of the defendant is sufficient for “guilt beyond a reasonable doubt” and the probative force of the evidence in the cases that the prosecution chooses to bring to trial. Whether we use the Schwartz and Schwartz definition or other more standard legal approaches to defining juror bias (and grounds for challenge for cause) we come away highly skeptical of the expanded voir dire and extended use of peremptories that, in a number of recent highly publicized criminal trials, have had the consequences of eliminating from the jury pool the most highly educated and the most knowledgeable jurors.