Papers by Cosim Sayid

COSIM SAYID: PAPERS [Page under construction.]

All the latest hit papers by Cosim Sayid will appear here. Plus eventual classic oldies! 

Get Cosim's doctoral dissertation: Intention and Interpretation in Law.

I make extensive use of philosophy and philosophical methods – especially at the intersection of law and other disciplines, like cognitive science, economics, epistemology, or philosophy of language and linguistics. I use this to elucidate and resolve issues that arise in private law (especially torts and contracts) as well as the law of evidence. To my mind, this is a two-way street between law and philosophy, which functions as a proving ground for current philosophical accounts, and generates demands about what sorts of theories the law requires for future progress. This analytic discipline also addresses an agenda in legal theory, jurisprudence, and philosophy of law more generally, especially as respects topics in law and language – like the meaning of legal terms and texts. I am also interested in more foundational philosophical work, often with an eye towards potential moral, political, or social applications.

Accepted for Publication

'Law, Language, and Aboutness: United States v. Diaz as Case-Study' -- Mississippi Law Review (accepted)

Abstract: The Supreme Court’s recent decision in Diaz v. United States is a simple interpretive dispute concerning when expert testimony is ‘about’ a defendant’s possession of mens rea conducted by justices who are avowedly textualist and yet reached diametrically opposite conclusions. While the court reached the right result in permitting testimony concerning behavior of members of a class including the criminal defendant, the rationale it offered is at best incomplete and at worst incorrect.

This essay introduces into legal analysis the rigorous study of aboutness in analytic philosophy, which is used to augment, rather than attack, the textualist analyses offered by the justices. The essay develops the tools of aboutness in a straightforward way that should serve as a primer for those interested in the technique and its value – a group which should definitely include those interested in textualist interpretation. 

Taking aboutness seriously elegantly justifies the correct result in Diaz. The essay concludes on the speculative note that aboutness can be used to resolve other intra-textualist disputes, such as the thorny one in Bostock v. Clayton County. Thus, attending to aboutness allows us to cleanly explain the meaning of Federal Rule of Evidence 704, and it may lead to further cogent explanations where thorny disputes have pervaded the law even against the common ground of shared textualism.

Published

1.     ‘Knowledge-Norms in a Common-Law Crucible’ — Ratio; https://doi.org/10.1111/rati.12307.

Abstract:     Not only is the common‐law standard of proof of mere likelihood in ordinary civil cases justifiable, but its justifiability supports the conclusion that there is no general norm that one must assert that p only if p is known. An argument by Voltaire is formalized to show that the mere likelihood standard is rational. It is also shown that no applicable norm preempts the common‐law rule. An objection that takes the pertinent knowledge‐norm to be honoured in the breach is rejected by appeal to the absence of blameworthiness in alleged breaches of interest. An objection that takes civil verdicts to be manifestations of acceptance, rather than assertoric, is considered and rejected.

Penultimate draft: here.

In process 

Below you'll find descriptions of work-in-progress. Some work, noted as such, is joint with Yuval Abrams. Titles in [brackets] are tentative or a cloaking-device to try and preserve anonymity during peer-review.

• [ A paper on protecting reputation via the private law using defamation and false light torts, which uses liability-rules to promote more credible speech and to track culpability.]

Abstract: Defamatory harm can cause grievous, oft-irreparable, injury. Injury from defamatory harm runs via intrinsically reducing one’s agential well-being, by perpetrating testimonial injustice. I flesh the latter out using the notion of a game-theoretic cheap talk environment, where it is rational to wholly discount otherwise credible testimony about someone’s reputation. I show that there is a moral imperative to recover the good of generic credibility for reports on others’ reputations by imposing a mechanism to stop defamatory cheap talk and combat testimonial epistemic injustice. I also show that it is important to address defamatory harm that arises indirectly (as in false light portrayal), even though it is relatively neglected compared to defamation. The threat of cheap talk cannot be addressed unless both what’s strictly false about someone is handled by a mechanism as well as what’s implied about someone’s reputation; letting false light depiction alone while dealing exclusively with false assertion is not viable. 

I then consider a variety of ways inside and outside of tort law to address such defamatory cheap talk, from extralegal mechanisms and the criminal law to the actual malice regime propounded by the United States Supreme Court and a legal system that holds actors responsible for defamatory misfeasance. These are found wanting because they neither arrest cheap talk nor provide for victims’ dignity in making claims against those who hurt them.

I introduce the notion of a wrongfulness-tracking strict liability rule, which is used to deal with the worry that strict liability is too onerous when we are dealing with speech. Wrongfulness-tracking strict liability takes seriously both the mental state of the doer of a tortious deed as well as the tortious deed itself. While liability is without regard to fault (and thus strict), damages assessed are via a multiplier that tracks wrongfulness. For egregious conduct, (effectively) punitive damages are assessed, amounting to a multiplier greater than one. For defamatory harm that happened even after due diligence, a multiplier of less than one may be appropriate, including, perhaps, the possibility of merely nominal damages. A victim’s dignity is thereby addressed in that she’s able to claim against the party that caused her harm, but free expression is not excessively chilled, since well-nigh unavoidable damage is discounted. 

• [A paper on a kind of lie that potentially gives rise to an obligation to correct the record.]  

•    'Propositional Blueprints'

A major project I’m undertaking, which is an outgrowth of my doctoral dissertation but also a partial repudiation of it, takes laws to express propositional blueprints rather than propositions. This difference is crucial. Legal cases ask, e.g., is trading a gun for drugs using a gun in drug trafficking? 

Does a tariff on imported cakes apply to muffins? The traditional way of dealing with such disputes involves deciding which proposition a legal text expresses. There are many theoretical accounts of legal interpretation that cover how to do this. Purposivists say that the legislative purposes determine the proposition at issue. Textualists say that the proposition expressed by some provision is how the provision would have been understood by a reasonable reader at the time of the provision’s enactment. Intentionalists posit an author (an actual author that’s an agglomerate of key legislative figures or a hypothetical author who follows certain norms) and then their inquiry resolves which proposition is expressed.

On all of these disparate accounts, there is a fact of the matter that the interpreter tries to recover: the proposition that the law expresses. I am skeptical of this whole enterprise for two sets of reasons. 

First, there is a difficult, perhaps insoluble, metaphysical problem with the accounts that are author-based. There is a multiplicity of lawmakers and of legislative minds. Whose purposes, whose intentions, whose mental states count? How do we agglomerate many minds to say what ‘the legislative purpose’ or ‘the linguistic intention’ or etc. is? This criticism is not new, but it is worth revisiting how the best statements of the challenge, in the work of Ronald Dworkin, and by Jeremy Waldron, have not really been answered.

Second, assume (arguendo) that the first issue is resolved, and there is no issue arising from corporate intentionality and many minds. Perhaps this is because one opts of a textualist treatment or because one employed very fancy social ontology to answer the challenge just raised. 

Even so, there is a second set of concerns. All of these run in the same direction: they sow doubt about the very capacity to link sentences with particular propositions. 

This effort in the overall project is negative and ground-clearing; it’s meant to show the inadequacy of current interpretive paradigms, which run the gamut from intentionalism to purposivism to textualism.

• 'Only the Best Explanation Wins: Legal Proof, Explanation, and Probability' - joint work with Yuval Abrams

• [On the Justification of Market-Share Liability] - joint work with Yuval Abrams

• [More papers on law, language, and aboutness]