Neuroethics & Law Blog

University of Akron Symposium: Videos and Summary

The videos from the University of Akron School of Law's Neuroscience, Law, and Government Symposium have been posted online.  Hank Greely does a great job of summarizing the proceedings from this top-notch event.

"On Justifying Punishment: The Discrepancy between Words and Actions"

Kevin Carlsmith (Colgate, Psychology) has posted "On Justifying Punishment: The Discrepancy between Words and Actions," Social Justice Research, Vol. 21, pp. 119-137, 2008, to SSRN.   Here is the abstract:

This article reveals a discrepancy between the actual and stated motives for punishment. Two studies conducted with nationally representative samples reveal that people support laws designed on the utilitarian principle of deterrence in the abstract, yet reject the consequences of these same laws when they are applied. Study 1 (N = 133) found that participants assigned punishment to criminals in a manner consistent with a retributive theory of justice rather than deterrence. The verbal justifications for punishment given by these same respondents, however, failed to correlate with their actual retributive behavior. Study 2 (N = 125) again found that people have favorable attitudes towards utilitarian laws and rate them as "fair" in the abstract, but frequently reject these same laws when they are instantiated in ways that support utilitarian theories. These studies reveal people's inability to know their own motivations, and show that one consequence of this ignorance is to generate support for laws that they ultimately find unjust.

"Uncertainty Revisited: Legal Prediction and Legal Postdiction"

The following article sounds quite interesting.  It was recently posted to SSRN:

"Uncertainty Revisited: Legal Prediction and Legal Postdiction"

Michigan Law Review, Forthcoming

EHUD GUTTEL, Duke Law School, Hebrew University of Jerusalem - Felt Center for Legal Studies
ALON HAREL, Hebrew University of Jerusalem - Felt Center for Legal Studies
Legal scholarship, following rational-choice theory, has traditionally treated uncertainty as a single category. A large body of experimental studies, however, has established that individuals treat guesses concerning the future differently than guesses concerning the past. Even where objective probabilities and payoffs are identical, individuals are much more willing to predict a future event (and are more confident in the accuracy of their predictions) than they are willing to postdict a past event (and are also less confident in the accuracy of their postdiction). For example, individuals are more willing to bet on the results of a future die toss than they are willing to bet on the results of a past toss.

After presenting the robust psychological and experimental-economic literature, this Article demonstrates the relevance of the behavioral differences concerning past and future uncertainties to legal policy. It shows that the prediction-postdiction findings are important for the design of legal norms, the choice among competing law-enforcement strategies, and the application of various sentencing practices. This Article shows that the making of legal norms, the detection of violators, and the infliction of sanctions may generate different types of uncertainty involving predictions and postdictions that policymakers can exploit to provide optimal incentives.