Neuroethics & Law Blog

"Bioethics, Reproduction, and Extending Life" by Cohen

I. Glenn Cohen (Harvard Law School) has published "Bioethics, Reproduction, and Extending Life" on SSRN. Here is the abstract: 

This chapter considers where law and bioethics intersect as to the 100-year life. It tackles two different issues. The first is an exploration of the bioethics of life extension and whether such extension is something that should be pursued. The second considers attempts to extend reproduction into the late period of life and the ethics thereof.

"Are Embryos or Fetuses Brain Dead? Implications for the Abortion Debate" by Donley

Greer Donley (University of Pittsburgh) has published "Are Embryos or Fetuses Brain Dead? Implications for the Abortion Debate" on SSRN. Here is the abstract: 

Most state abortion definitions exclude the removal of a dead fetus, attempting to distinguish miscarriage and abortion care. But what does "dead" mean at the earliest stages of potential life? There is a consensus at the end of life that death not only encompasses the cessation of cardiac activity, but also brain death. This symposium essay considers whether life can exist before brain life begins and how that might impact the abortion debate. The most rudimentary brain waves cannot be detected in an embryo before roughly the eighth week of pregnancy; the capacity for feeling and consciousness begin much later. If brain life starts at one of these points, one could argue that before that moment, terminating a pregnancy simply removes dead pregnancy tissue and is not an abortion according to state abortion definitions. This essay considers important critiques of this argument as a legal theory, including that the legal definition of brain death requires "irreversibility," that this strategy could exacerbate fetal personhood efforts, and that this fundamentally philosophical question cannot be resolved by science, particularly in a moment of scientific distrust. The essay concludes that though the concept of brain life has some moral and rhetorical salience, it should not be pursued as a legal strategy.

"Ways of Explaining Law" by Priel

Dan Priel (York University) has published "Ways of Explaining Law" on SSRN. Here is the abstract: 

It’s become commonplace to say that jurisprudence is at a “dead end.” This essay, which reviews Julie Dickson’s Elucidating Law attempt to argue that matters are not so dire, explains the sources of the decline and offers some alternatives. It begins by identifying a fundamental disagreement between two approaches to explaining the “nature” or “essence” of law, one (derived from Kelsen) that gives philosophy priority over (or independence from) social explanation, and another (derived from Hart) that considers philosophy as a method for explaining social practices. I show that the former approach has been rejected with respect to all other social practices and question why it should be adopted with respect for law. I then show that the ordinary-language philosophy Hart embraced was designed to be an anti-naturalistic form of social explanation. Though itself a poor method for explaining social practices, the latter opens up new ways for thinking about jurisprudence. I conclude with such proposals focusing on the possibility of seeing jurisprudence as offering (false) models of legal reality rather than a collection of necessary truths about it.

"Brain Science for Lawyers, Judges, and Policymakers" by Jones et al.

Owen D. Jones (Vanderbilt University), Jeffrey D. Schall (York University), Francis X. Shen (University of Minnesota Law School), Morris B. Hoffman (Second Judicial District Court Judge, State of Colorado), and Anthony D. Wagner (Stanford University) have published "Brain Science for Lawyers, Judges, and Policymakers" on SSRN. Here is the abstract: 

Brain science in the form of neuroscientific evidence now appears frequently in courtrooms and policy discussions alike. Many legal issues are at stake, such as how to separate the best uses of brain science information from those that are potentially biasing or misleading. It is crucial to evaluate brain science evidence in light of relevant legal standards (such as the Daubert and Frye rules).

Brain Science for Lawyers, Judges, and Policymakers responds to this rapidly changing legal landscape, providing a user-friendly introduction to the fundamentals of neuroscience for lawyers, advocates, judges, legal academics, and policymakers. It features detailed but clear illustrations, as well as a comprehensive and accessible overview of developments in legally relevant neuroscience. Readers will learn brain science terms, how to understand and discuss brain structure and function in legally relevant contexts, and how to avoid over- or under-interpreting neuroscience evidence.

The book begins with a survey of the kinds of litigation, legislation, and regulation where neuroscience is currently being used. It provides accessible descriptions of basic brain anatomy and brain function, as well as an overview of how modern technologies can reveal the brain structures and brain functions of individuals. It finishes with cautions and limitations, including timely and though-provoking observations about where the future of neurolaw might lead. Throughout, the authors offer clear and concise guidance on understanding both the promise and the limitations of using brain science in law and policymaking.

"Truth in Sentencing, Incentives and Recidivism" by Macdonald

David Macdonald (University of British Columbia Okanagan) has published "Truth in Sentencing, Incentives and Recidivism" on SSRN. Here is the abstract:

Truth in Sentencing laws eliminate discretion in prison release. This decreases the incentive for rehabilitative effort among prisoners. I use a regression discontinuity design to exploit a change in these incentives created by the introduction of TIS in Arizona. Before prison, I find that sentences were reduced by 20% for TIS offenders. Further, I find that rule infractions increased by 22% to 55% and education enrolment fell by 24%. After release, I find offenders were 4.8 p.p. more likely to reoffend. I further find that recidivism and infractions effects are largest among drug and violent offenders. Finally, I show that the reduction in sentences resulted in a broad equalization of time served at the cutoff, which indicates that the removal of early-release incentives by TIS was the main mechanism driving results.

"Predatory Decarceration" by Wade

Elenore Wade (Rutgers Law School) has published "Predatory Decarceration" on SSRN. Here is the abstract: 

This Essay critiques an emerging package of state and federal law reforms often broadly referred to as “bipartisan criminal justice reform,” describing the reforms at the level of political economy and referring to the emergent policy as one of predatory decarceration. Borrowing from Keeanga-Yamahtta Taylor’s description of the immediate post-redlining era of federal housing finance policy as predatory inclusion, I describe how these law reforms combine with increasing reallocation of criminal sentences from prisons into the community to create an environment where returning prisoners are coerced into low-wage jobs where they are less likely or able to challenge working conditions individually or collectively.

I analyze these reforms from a political economic perspective rather than with a narrow focus on mass incarceration, arguing incarceration is inseparable from a U.S. political economy with a severely underdeveloped welfare state, making it predisposed to respond to violence and disorder with severe and increasingly invasive and sophisticated penal controls. The predatory decarceration reform package reproduces rather than intervenes in this phenomenon because it subsumes a diverse array of critiques of increased carceral control into mere critiques of prisons. Although approaching the analysis at this level could make the problem of carceralism seem even more intractable and grim, I instead discuss how it opens possibilities for law reforms to support rather than frustrate the goals of the diverse abolitionist and other social movements whose calls for reform has been vastly oversimplified by the fleeting coalitions that produced predatory decarceration.

"Did Recreational Marijuana Legalization Increase Crime in the Long Run?" by Lee

Sunyoung Lee (Hanyang University) published "Did Recreational Marijuana Legalization Increase Crime in the Long Run?" on SSRN. Here is the abstract:

This study investigates the comprehensive effects including dynamic, time, and group effects of legalizing recreational marijuana on crime rates, focusing on states that enacted such legislation in 2012 and 2014. Utilizing the Difference-in-Differences design to account for staggered treatment adoption, the current study examines the long-term impact of recreational marijuana legalization in multiple treated states. The results indicate that the legalization of recreational marijuana is associated with substantial and sustained increases in both property crime rates and violent crimes over time. Particularly, instances of property crime, larceny, and burglary exhibited significant and immediate spikes following the implementation of RML, with these heightened tendencies persisting consistently over time. This research contributes to the ongoing discourse surrounding the societal implications of RML, providing valuable insights for policymakers and law enforcement agencies.

"Alignment as Jurisprudence" by Caputo

Nicholas Caputo (Harvard Law School) has published "Alignment as Jurisprudence" on SSRN. Here is the abstract: 

The fields of jurisprudence and the alignment of artificial intelligence have similar structures and confront similar problems. This paper puts them into conversation by illustrating those similarities across two important theories of jurisprudence, Dworkin's interpretivism and Sunstein's arguments for analogical reasoning, and two leading approaches to alignment, Constitutional AI and case-based reasoning. In particular, I argue that a conversation between these two fields will help each overcome core problems with representativeness or democratic accountability and scaling oversight, suggesting that progress on these issues might come from the development and articulation of meta-principles that make how new cases will be decided by judges and new outputs generated by AI models more predictable and controllable.

"The Imperialism of Desert" by Malcai and Segev

Ofer Malcai (Hebrew University of Jerusalem) and Re'em Segev (Hebrew University of Jerusalem) have published "The Imperialism of Desert" on SSRN. Here is the abstract: 

What is the relation between desert and other values such as equality, priority for the worse off, and utility? According to the common view, desert and these other values reflect distinct concerns: some are about distributive justice, some about retributive justice, and some (most clearly, utility) are not concerned with justice at all. However, another view holds that while desert is a basic value, other values are merely derived from it. This controversy is relevant, for instance, to allocative decisions and criminal punishment, where we need to know if other values should be balanced against desert. Yet, despite its theoretical significance and practical importance, this topic is underexplored. Aiming to fill this gap, we consider the arguments for and against the competing views.

"Unpunishment Purposes" by Esser

Meredith Esser (University of Wyoming College of Law) has published "Unpunishment Purposes" on SSRN. Here is the abstract: 

Sentencing scholarship often begins by exploring the traditional purposes of punishment: deterrence, retribution, incapacitation, and rehabilitation. However, little scholarship exists addressing how these four punishment purposes apply in the post-sentencing or resentencing context. Further, abstract theories of sentencing can often seem sterile and disconnected from the realities of how violent, disproportionate, and dehumanizing the actual experience of incarceration is for many people, and they tend to downplay the impact of incarceration on the families and communities of those who are incarcerated. Drawing on abolitionist principles centered around harm reduction, this Article reimagines the punishment purposes in a new way, with a decarcerative valence.

This Article attempts to reconceptualize the traditional purposes of punishment in order to meet the current historical moment, and it does so through an abolitionist lens. For example, within the past decade, a number of state and federal retroactive relief mechanisms have allowed incarcerated people to petition courts for sentence reductions based on various legal theories. But guidance provided to courts and other decisionmakers about how to exercise their discretionary decarceration authority is lacking. Accordingly, this Article addresses head-on the need to develop a theory of resentencing and asks whether the four purposes of punishment require revision or augmentation to account for the sentence reduction context.

Further, this Article uses the federal second look context as a means to interrogate why blind adherence to the four punishment purposes has persisted despite their clear shortcomings. In so doing, this Article seeks to shape second look advocacy and decision-making efforts, as well as the way in which sentencing is approached in the first instance, by both shifting away from the default of incarceration as punishment for crimes and utilizing a sentencing framework that looks at societal harm more expansively.

This Article argues that, by incorporating an abolition-based theory of harm prevention or reduction into the punishment purposes, judges may have more incentive to revisit old sentencing determinations and release more people from prison. More than that, however, incorporating such a theory into a prospective sentencing may lead judges to rethink their reflexive reliance on the punishment purposes in the first instance, resulting in less punishment altogether.

"Is there a duty to apply immoral laws?" by Engelmann et al.

Neele Engelmann (Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Human Development), Guilherme Almeida (Insper), Felipe Oliveira de Sousa (University of Edinburgh), Karolina Prochownik (Ruhr University of Bochum), Ivar Hannikainen (University of Granada), Noel Struchiner (PUC-Rio), and Stefan Magen (University of Bochum) have published "Is there a duty to apply immoral laws?" on SSRN. Here is the abstract: 

What should judges do when faced with immoral laws? Should they apply them without exception, since “the law is the law”? Or can exceptions be made for grossly immoral laws, such as historically, Nazi law? Surveying laypeople (N = 167) and people with some legal training (N = 141) on these matters, we find a surprisingly strong, monotonic relationship between people’s subjective moral evaluation of laws and their judgments that these laws should be applied in concrete cases.

This tendency is most pronounced among individuals who endorse Natural Law (i.e., the legal-philosophical view that immoral laws are not valid laws at all), and is attenuated when disagreement about the moral status of a law is considered reasonable. The relationship is equally strong for laypeople and for those with legal training. We situate our findings within the broader context of morality’s influence on legal reasoning that experimental jurisprudence has uncovered in recent years, and consider normative implications.

"The Moral Status of Input and Output Discrimination" by Segev

Re'em Segev (Hebrew University of Jerusalem) has published "The Moral Status of Input and Output Discrimination" on SSRN. Here is the abstract: 

A salient concern regarding artificial intelligence (AI) systems is that they may involve objectionable forms of discrimination. This concern is usually associated with the possibility that the input and, as a result, the output of such systems may be inaccurate. However, the concern is sometimes also present when the input and output are accurate (or when they reflect the best available evidence). The paper considers when this concern is warranted and what should be the response to it. It submits that while there may be reasons against actions that rely on accurate input and output, these reasons are not always present, and when there are, they may not be decisive. Therefore, discrimination in the relevant senses should not always be avoided. The argument for this conclusion is thus based on two premises: that discrimination should be avoided only when it is wrong (or bad) overall as opposed to when it is merely pro tanto wrong (or bad); and that discrimination in the senses that are often considered in the AI context is not necessarily (and thus not always) wrong (or bad) overall.

"Victims as Fact-Finders" by Spottswood

Emily Spottswood (Penn State Dickinson Law, Florida State University College of Law) has published "Victims as Fact-Finders" on SSRN. Here is the abstract: 

This article critiques the common practice of excluding crime victims from serving as jurors in criminal cases. Although systematic data on the voir dire process are hard to come by, both case research and empirical evidence suggest that judges routinely permit questioning of potential jurors regarding their victimization status, and that high percentages of both judges and attorneys consider victimization status a proper basis for exclusion.

The practice of victim-exclusion causes serious harms. Excluding victims undermines the jury’s legitimacy as an institution and sends corrosive social messages regarding the status of victims in our society. Nor are these harms offset by any increase in accuracy we might obtain by avoiding supposedly biased jurors. Rather, victims’ unfortunate experiences can sharpen their ability to delineate true from false accusations. Finally, there is no sound justification for assuming that victims’ degree of empathy for other victims is improper, relative to people who have not been victimized. Instead, victims’ participation should offset the troubling reluctance of people without such experiences to credit victims’ testimony and hold abusers to account.

My New Book: Punishment for the Greater Good

My new book, Punishment for the Greater Good, provides support for a consequentialist approach to punishment over a retributive one. Here are some book-related links: OUP site here (discount code: ALAUTHC4); Oxford Academic access here;  library request form here (ISBN: 9780197672778); review copy request form here.

 

"Does Nothing Stop a Bullet Like a Job? The Effects of Income on Crime" by Ludwig and Schnepel

Jens Ludwig (Georgetown University) and Kevin Schnepel (Simon Fraser University) have published "Does Nothing Stop a Bullet Like a Job? The Effects of Income on Crime" on SSRN. Here is the abstract: 

Do jobs and income-transfer programs affect crime? The answer depends on why one is asking the question, which shapes what one means by “crime.” Many studies focus on understanding why overall crime rates vary across people, places, and time; since 80% of all crimes are property offenses, that’s what this type of research typically explains. But if the goal is to understand what to do about the crime problem, the focus will instead be on serious violent crimes, which account for the majority of the social costs of crime. The best available evidence suggests that policies that reduce economic desperation reduce property crime (and hence overall crime rates) but have little systematic relationship to violent crime. The difference in impacts surely stems in large part from the fact that most violent crimes, including murder, are not crimes of profit but rather crimes of passion – including rage. Policies to alleviate material hardship, as important and useful as those are for improving people’s lives and well-being, are not by themselves sufficient to also substantially alleviate the burden of crime on society.