Dissertation
My dissertation project, “A Theory of Gamesmanship,” analyzes the normativity of formal rules and questions their centrality in traditional accounts of procedural justice and legitimacy. It asks whether some uses of rules—specifically, exploiting loopholes, playing hardball, or otherwise gaming the system—might be procedurally unjust or illegitimate despite complying with the procedures of a justifiable social practice. Folk morality holds that the “letter” of rules can be used to subvert their “spirit,” but the meaning of this proverb is ambiguous, as are its upshots for the ethics of rule-regulated competition. Sometimes gamesmanship feels like de facto cheating, while other times it appears to be nothing more than clever strategy. Conventional wisdom among political and legal philosophers is similarly ambivalent. Rule formalism, which might justify gamesmanship, can be used to defend grave substantive injustices, and pushed to its limits it becomes conceptually incoherent. And yet, proceduralism and the rule of law are foundational to liberal political theory and practice.
I attempt to square this circle by offering a procedural critique of gamesmanship based on a conception of gamesmanship as institutional manipulation. I argue that an institution is manipulated when its formal decisionmaking procedures are used in violation of the regulative ideals that govern the “reasoning” capacity of the institution. I identify two universal regulative ideals—efficiency and fairness—and show how strategies that undermine them can be reasonably rejected by other participants regardless of the strategies’ formal compliance with the rules. This insight has wide-ranging implications for ethics, democracy, and law. It means that common sharp tactics in business, politics, and the law are not just immoral, but also illegitimate in much the same way as cheating. This requires us to rethink how we design our institutions; interpret and enforce our laws; and conduct ourselves as professionals, citizens, and statesmen. Ultimately, the project delivers both a code of applied ethics for political actors who value winning with democratic legitimacy, as well as a set of maxims for institutional design to make them more robust against exploitation by opportunistic actors.
Working Papers
Gamesmanship: A Conceptual and Moral Analysis
Sometimes it is possible to “game the system”—to use the form of the rules to circumvent or subvert their force. This raises two important puzzles. First, what distinguishes gaming the system from cheating on the one hand and ordinary strategic play on the other? Second, what is the moral status of gamesmanship? Is it impermissible, like cheating? Or does circumventing the rules (as opposed to breaking them) also circumvent the moral objections to cheating? My analysis finds the solution to both puzzles in a conception of gamesmanship as institutional manipulation. I argue that an institution is manipulated when its decisionmaking procedures are used in violation of the regulative ideals that govern the “reasoning” capacity of the institution. I identify three such ideals—efficiency, excellence, and fairness—and show how strategies that undermine them can be reasonably rejected by other participants regardless of the strategies’ formal compliance with the rules. The theoretical tools developed here have important implications for our understanding of the normativity of rules and where we draw the line between political skill and political manipulation. [Draft available upon request.]
The Architecture of Impeachment: Making Impeachment “Political in the Right Way”
This paper analyzes the design decisions embodied in the U.S. Constitution’s procedure for impeachment. In particular, the paper explores how our present institutional architecture influences the types of reasons that are brought to bear on the impeachment process, both for good and for ill. I argue that impeachment’s political purposes are best served when it is “political in the right way,” which requires that “public,” but not “private,” political reasons influence the decision-making process. I use this standard to consider whether the procedures we have today are reasonably successful at achieving the goals we ought to have, or whether we could plausibly do better by rethinking our impeachment procedures. The intended takeaways from my argument and institutional analysis are modest: first, I hope to show the pressing need for normative institutional analysis of the impeachment process; second, to show why the primary evaluative criterion for that analysis ought to be the kinds of reasons the process permits to influence the impeachment process; and third, to suggest that impermissible private reasons are a greater threat to the impeachment process today than they were when it was conceived in 1787. [Draft available upon request.]
In Progress
Beyond Mercy: Arguments for Allowing (Some) Wrongdoing to Go Unpunished
Advances in surveillance technology and machine learning have opened up new possibilities for the accurate, cheap, and thorough enforcement of rules.
- Traffic cameras can detect and punish driving violations on a scale that human officers could never achieve.
- Machine learning algorithms can help detect fraudulent financial transactions.
- CCTV and facial recognition can make it nearly impossible to hide from justice for long.
It is natural to assume that more efficient enforcement of fair rules is a good thing, and often it is–unpunished violations can threaten the stability, fairness, and legitimacy of a system of rules. Even so, I argue that there are underappreciated costs to a more efficient enforcement regime, costs that go beyond worries about biased algorithms or privacy rights. Drawing on the work of neo-republican theorists of freedom as non-domination, as well as Susan Wolf’s critique of “moral saints,” I argue that there are compelling moral reasons to allow some detectable wrongdoing to go unpunished. Freedom, fairness, and the legitimacy of rule-based decisionmaking itself are potentially threatened by the expansion of rule enforcement capacity.
The Problem of Clean Hands
Under certain circumstances, citizens of a democracy can be responsible for actions done “in their name.” Normally this observation is used to urge citizens to get involved in politics because it is their conscience on the line. However, this paper explores the potential sources and content of a democratic duty to shield citizens from responsibility for public actions with which they disagree. I argue that the reasons for favoring such a principle are weighty, but traditional accounts of conscientious objector status, religious accommodation, etc. lack a compelling public conception of complicity. This leads to disagreements about what is necessary to satisfactorily shield objectors, as witnessed in the battle over the Affordable Care Act’s “contraceptive mandate” in Little Sisters of the Poor v. Burwell.
I contend that a public conception of complicity is possible, but the demands of public reason significantly constrain the degree of accommodation it can justify. On the flip side, I conclude that this gives us reason to doubt the depth of citizens’ responsibility for public actions in the first place.