Neuroethics & Law Blog

"Algorithms and Human Freedom" by Sloan & Warner

Robert H. Sloan (University of Illinois at Chicago) and Richard Warner (Chicago-Kent College of Law) have published "Algorithms And Human Freedom" on SSRN. Here is the abstract:

Predictive analytics such as data mining, machine learning, and artificial intelligence drive algorithmic decision making. Its “all-encompassing scope already reaches the very heart of a functioning society”. Unfortunately, the legal system and its various tools developed around human decisionmakers cannot adequately administer accountability mechanisms for computer decision making. Antiquated approaches require modernization to bridge the gap between governing human decisionmaking and new technologies.

We divide the bridge-building task into three questions. First, what features of the use of predictive analytics significantly contribute to incorrect, unjustified, or unfair outcomes? Second, how should one regulate those features to make outcomes more acceptable? Third, how can one ensure that the use of predictive analytics sufficiently respects human freedom? We divide the bridge-building task into three questions. First, what features of the use of predictive analytics significantly contribute to “incorrect, unjustified, or unfair” outcomes? Second, how should one regulate those features to make outcomes more acceptable? Third, how can one ensure that the use of predictive analytics sufficiently respects human freedom? You are not free when you are subject to the arbitrary will another, and predictive analytics is no exception. It violates your freedom when it pushes you down an arbitrary and capricious path.

We answer the first question by “profiling” uses of predictive analytics. We adapt the idea of profiling people. A profile of a person is a summary of characteristics relevant to evaluating and predicting the person’s behavior. Our profile consists of five features that significantly affect the extent to which a system will yield “incorrect, unjustified, or unfair” decisions. We answer the second question by explaining how to control predictive systems by regulating the features the profile identifies. Along with others, we propose that a government agency regulate the use of predictive systems. The novel feature of our approach is the use of legal regulation to unify consumer demand in ways that create a type of norm extensive studied in game theory, a coordination norm.

"(Sub)Conscious Judging" by Thornburg

Elizabeth G. Thornburg (Southern Methodist University - Dedman School of Law) published "(Sub)Conscious Judging" on SSRN. Here is the abstract:

Fact inferences made by the trial judge during the pretrial period are the lynchpin of civil litigation. If inferences were a matter of universally held logical deductions, this would not be troubling. Inferences, however, are deeply contestable conclusions that vary from judge to judge. Subconscious psychological phenomena can lead to flawed reasoning, implicit bias, and culturally influenced perceptions. Inferences differ significantly, and they matter. Given the homogeneous makeup of the judiciary, this is a significant concern.

This article will demonstrate the ubiquity, importance, and variability of inferences by examining actual cases in which trial and appellate (or majority and dissenting) judges draw quite different inferences from the same record. It will then review the psychological literature to show ways in which judges are affected by subconscious forces. It concludes by suggesting reforms to judicial education, use of decision mechanisms that promote conscious deliberation, and civil procedure rule changes designed to increase information and decrease the impact of individual judges’ inferences.

"Ordinary Causation: A Study in Experimental Statutory Interpretation" by Macleod

James Macleod (Columbia Law School) has published "Ordinary Causation: A Study in Experimental Statutory Interpretation" on SSRN. Here is the abstract: 

In a series of recent split decisions interpreting criminal and tort-like legislation, the Supreme Court has purported to give statutory causation requirements their ordinary, plain meaning. Armed with dictionaries, examples from everyday speech, and commonsense intuitions, the Court’s majority has explained that statutory phrases like “because of” and “results from” entail but-for causation as a matter of ordinary usage. There’s just one problem: The Court’s majority (and the many state and federal courts following its lead) is wrong on the facts — specifically, the facts about how people ordinarily interpret, understand, and use causal language.

This Article considers a novel approach to ordinary meaning statutory interpretation, using these recent causation cases as a proof of concept: To find how people would ordinarily construe statutory language in context, ask a lot of people to apply the disputed language, and observe what they do. In short, to find public meaning, ask the public. As a demonstration, the Article reports the results of a nationally representative survey of nearly 1500 jury-eligible laypeople. It tests the Supreme Court’s recent pronouncements about the ordinary meaning of causal language in Title VII, the Hate Crimes Prevention Act, the Controlled Substances Act, and jury instructions in similar criminal and statutory tort settings. The results reveal clear and consistent patterns of causal attribution and ordinary usage — patterns that squarely contradict the Court’s ordinary meaning determinations. The results also demonstrate that certain alternative causation standards, though rejected by the Court as inconsistent with ordinary linguistic, conceptual, and moral intuitions, come closer to tracking all three.

These discoveries raise serious concerns about the outcomes in recent criminal and tort causation cases, and possibly about ordinary and plain meaning interpretation more broadly. After discussing the implications for causation doctrine and statutory interpretation, the Article considers whether similar experimental methodologies might shed light on additional interpretation controversies in criminal and tort settings, on theories of common law doctrinal development, and on philosophical analyses of causation in criminal and tort theory.

"Legal & Ethical Implications of CRISPR Applications in Psychiatry" by Foulkes, Soda, Farrell, Giusti-Rodríguez, & Lázaro-Muñoz

Alexandra Foulkes (University of Houston, Law Center), Takahiro Soda (University of North Carolina (UNC) at Chapel Hill), Martilias Farrell (University of North Carolina (UNC) at Chapel Hill), Paola Giusti-Rodríguez (University of North Carolina (UNC) at Chapel Hill), and Gabriel Lázaro-Muñoz (Baylor College of Medicine) have published "Legal & Ethical Implications of CRISPR Applications in Psychiatry" on SSRN. Here is the abstract: 

Gene-environment interactions play a key role in how psychiatric disorders manifest and develop. Psychiatric genetics researchers are making progress in identifying genomic correlates of many disorders. And recently, the field of genetics has given rise to a technology that many claim will revolutionize the biological sciences and propel the field into a transformative phase: a powerful gene-editing tool known as CRISPR-Cas9. This contribution will illustrate which psychiatric conditions are likely to make an attractive target for CRISPR as the technology evolves and CRISPR therapies becomes a viable tool to manage or prevent disorders in a clinical setting. We examine the potential scientific and clinical challenges of applying CRISPR in the mental health context, along with the regulatory, ethical, and legal issues that might arise as a consequence of these applications.

"The Impact of Artificial Intelligence on Rules, Standards, and Judicial Discretion" by Levmore & Fagan

Saul Levmore (University of Chicago Law School) and Frank Fagan (EDHEC Business School) have published "The Impact of Artificial Intelligence on Rules, Standards, and Judicial Discretion" on SSRN. Here is the abstract: 

Artificial intelligence (AI), and machine learning in particular, promises lawmakers greater specificity and fewer errors. Algorithmic lawmaking and judging will leverage models built from large stores of data that permit the creation and application of finely tuned rules. AI is therefore regarded as something that will bring about a movement from standards to rules. Drawing on contemporary data science, this Article shows that machine learning is less impressive when the past is unlike the future, as it is whenever new variables appear over time. In the absence of regularities, machine learning loses its advantage and, as a result, looser standards can become superior to rules. We apply this insight to bail and sentencing decisions, as well as familiar corporate and contract law rules. More generally, we show that Human-AI teamwork can be superior to AI acting alone. Just as today’s judges overrule errors and outmoded precedent, tommorrow’s lawmakers will sensibly overrule AI in legal domains where the challenges of measurement are present. When measurement is straightforward and prediction is accurate, rules will prevail. When empirical limitations such as overfit, Simpson’s Paradox, and omitted variables make measurement difficult, AI should be trusted less and law should give way to standards.

 

"Artificial Intelligence in the Medical System: Four Roles for Potential Transformation" by Price

W. Nicholson Price (University of Michigan Law School) has published "Artificial Intelligence in the Medical System: Four Roles for Potential Transformation" on SSRN. Here is the abstract: 

Artificial intelligence (AI) looks to transform the practice of medicine. As academics and policymakers alike turn to legal questions, including how to ensure high-quality performance by medical AI, a threshold issue involves what role AI will play in the larger medical system. This Article argues that AI can play at least four distinct roles in the medical system, each potentially transformative: pushing the frontiers of medical knowledge to increase the limits of medical performance, democratizing medical expertise by making specialist skills more available to non-specialists, automating drudgery within the medical system, and allocating scarce medical resources. Each role raises its own challenges, and an understanding of the four roles is necessary to identify and address major hurdles to the responsible development and deployment of medical AI.

"Addiction as Disease" by Brown

Teneille R. Brown (University of Utah) has published "Addiction as Disease" on SSRN. Here is the abstract:

The opioid addiction epidemic is the most overwhelming public health crisis our country has faced. It is now creating a legal crisis, as the its poisonous fruits spill over into the criminal, tort, and family courts. The epidemic costs the U.S. economy about $500 billion every year, and the pressure is crippling our legal systems. This Article is an attempt to relieve some of that pressure, by advocating for a comprehensive public health campaign based upon a new model of addiction. Research shows that the prevalent “moral choice” model of addiction has facilitated stigma and discouraged treatment, by viewing affected individuals as blameworthy, different in kind, and hopeless. Even when programs are accessible, which they often are not, individuals will not seek treatment because they fear adopting the label of “addict.” In this Article, I affirmatively reject the moral choice model, identifying it as an obstacle to mitigating the opioid epidemic. In its place, I offer a model of addiction that more closely tracks its complex disease etiology, while humanizing people with addiction, removing stigma, and encouraging treatment. I refer to this model as the “integrated disease model,” or IDM, as it explains addiction as a neuro-genetic phenomenon, but does not locate addiction entirely in the brain. Rather, it places addiction on equal footing with other chronic diseases, such as lung cancer or diabetes, each of which has significant genetic, behavioral, and environmental causes. This Article will explain 1) how the moral choice model leads to no treatment and poor treatment, 2) how the law has furthered stigma through the criminalization of addiction, 3) and why we need to fund a comprehensive public health campaign based upon findings from neuro-genetics and public health. The IDM emphasizes the biological continuum of genetic risk factors to which we are all susceptible, the neurological networks that are impaired once the addiction has taken hold, and finally, the incredible power of evidence-based treatments. Explaining addiction in this way – as a treatable, complex disease — has been shown to reduce stigma and encourage treatment.

"The Law of Emerging Adults" by Ryan

Clare Ryan (Yale University, Law School) has published "The Law of Emerging Adults"  on SSRN. Here is the abstract:

Law tends to divide people into two groups based on age: children and adults. The age of majority provides a bright line between two quite different legal regimes. Minority is characterized by dependency, parental control, incapacity, and diminished responsibility. Adulthood is characterized by autonomy, capacity, and financial and legal responsibility. Over the course of the 20th century, evolving understandings of adolescence in law and culture led to the replacement of uniform legal treatment for minors with a staged process of increasing liberty up to the age of majority. After eighteen, however, the presumption of adulthood remains strong.

Today, a combination of psychological and social factors has extended the process of becoming an adult well into legal adulthood. Psychologists call this life phase “emerging adulthood” and have identified it as a crucial transition period between adolescence and adult life. Emerging adults differ both from children and adults with regard to their roles in three keys relationships: the parent-child; the individual and the market; and the individual and the state.

This article argues that emerging adulthood should be treated as a distinct legal category and offers a framework for how to do that. Emerging adults face unique developmental and economic challenges that make a sharp binary between childhood and adulthood inapt. A broader array of legal tools could afford greater autonomy than exists during minority, but greater protection than adulthood typically provides. Such tools include staging responsibilities and entitlements over time, requiring licensing or consultation, or extending state and parental obligations toward emerging adults.

"Artificially Intelligent Law" by Solum

Lawrence B. Solum (LAWRENCE B. SOLUM, ) has published "Artificially Intelligent Law" on SSRN. Here is the abstract: 

This paper explores a series of thought experiments that postulate the existence of “artificially intelligent law.” An artificially-intelligent legal system is defined as one with three functional capacities: 1. The system has the capacity to generate legal norms. 2. The system has the capacity to apply the legal norms that it generates. 3. The system has the capacity to use deep learning to modify the legal norms that it generates. The paper then considers the question whether such a system would be desirable as a matter of legitimacy and justice. The core idea of the paper is that the key to the evaluation of artificially intelligent law is to focus on the functional capacities of the system in comparison to comparable human systems, such as regulatory agencies.

"When Souls Shudder: A Brief History of Disgust and the Law" by Patrick

Carlton Patrick (University of Central Florida) has published "When Souls Shudder: A Brief History of Disgust and the Law" on SSRN. Here is the abstract:

This chapter takes a look back at the past three decades of disgust and the law. Reviewing many of the empirical findings of the behavioral sciences as well as the normative scholarship of legal scholars and other social scientists, it attempts to provide a bird’s eye view of the links between disgust, morality, and jurisprudence, and of the debates that emanate from those links.

"Memory Experts’ Beliefs about Repressed Memory" by Patihis, Ho, Loftus, and Herera

Lawrence Patihis (University of Southern Mississippi), Lavina Ho (Pennsylvania State University - Department of Behaviorial Sciences & Education), Elizabeth F. Loftus (University of California, Irvine - Department of Psychology and Social Behavior, University of California, Irvine School of Law), and Mario E. Herrera (University of Southern Mississippi) have published "Memory Experts’ Beliefs about Repressed Memory" on SSRN. Here is the abstract:

What we believe about how memory works affects the decisions we make in many aspects of life. In Patihis, Ho et al. [Patihis, L., Ho, L. Y., Tingen, I. W., Lilienfeld, S. O., & Loftus, E. F. (2014). Are the “memory wars” over? A scientist–practitioner gap in beliefs about repressed memory. Psychological Science, 25, 519–530.], we documented several group’s beliefs on repressed memories and other aspects of how memory works. Here, we present previously unreported data on the beliefs of perhaps the most credible minority in our dataset: memory experts. We provide the statistics and written responses of the beliefs for 17 memory experts. Although memory experts held similarly sceptical beliefs about repressed memory as other researchfocused groups, they were significantly more sceptical about repressed memory compared to practitioners, students and the public. Although a minority of memory experts wrote that they maintained an open mind about repressed memories – citing research such as retrieval inhibition – all of the memory experts emphasised the dangers of memory distortion.

"Neuroscience and the Personalization of Criminal Law" by Denno

Deborah W. Denno (Fordham University School of Law) has published  "Neuroscience and the Personalization of Criminal Law" on SSRN. Here is the abstract: 

While objective standards of reasonableness permeate most legal disciplines, criminal law has trended toward personalization since the 1960s, when the Model Penal Code introduced conceptions of mental states based on Freudian psychoanalytic theory. Today, advancements in neuroscience offer previously inconceivable insights into living brain structures and damage. This Essay contends that a criminal justice system that uses personalizing neuroscientific evidence will yield better outcomes. This Essay contributes two unique tools to the personalized law debate. First are the results of my two-decade-long Neuroscience Study, in which I have compiled eight hundred criminal cases that addressed neuroscientific evidence in any capacity. The data gathered from these cases suggest that simplistic views that regard neuroscience as either entirely exculpatory or solely indicative of future dangerousness are misinformed. Second, this Essay posits a probabilistic theory of analyzing evidence based on Bayes’s Theorem. Bayes’s Theorem offers a compelling model of human reasoning that comports with the process of assessing a defendant’s culpability in legal settings. Neuroscientific evidence can thus be understood as a means of modifying initial beliefs and mitigating implicit biases in criminal contexts. Employing these tools, I analyze the impact of personalized evidence on criminal defenses, which I argue are strongly motivated by probabilistic determinations of a defendant’s culpability. These determinations have significant impacts beyond individual cases and can contribute to trends in litigation funding. This Essay systematically argues that personalization, fueled by neuroscientific evidence, can provide gains in fairness and efficiency, especially when admitted in the context of criminal defenses, due to their emphasis on probabilistic determinations of culpability.

"Not Guilty by Reason of CTE: The Imminent Rise of Football's Foil as a Criminal Defense" by Spivak

Russel Spivak (WilmerHale) has published "Not Guilty by Reason of CTE: The Imminent Rise of Football's Foil as a Criminal Defense" on SSRN. Here is the abstract: 

Upon his suicide, former NFL player and convicted murderer Aaron Hernandez was found to have Chronic Traumatic Encephalopathy (CTE). Some were prompted to ask whether his actions were caused by his disease, creating an argument that Hernandez was not guilty by reason of insanity. This article explains CTE in greater depth as well as the current criminal insanity defense frameworks and tests. Thereafter, it theorizes the applicable of CTE to said tests to determine whether CTE could ever provide the foundation to an insanity defense.

"Younger and Older Adults' Lie-Detection and Credibility Judgments of Children's Coached Reports" by OConnor, Lyon, and Evans

Angela Mary OConnor, Thomas D. Lyon (University of Southern California - Gould School of Law, University of Southern California - Department of Psychology), and Angela Evans (Brock University Psychology Department) have published "Younger and Older Adults' Lie-Detection and Credibility Judgments of Children's Coached Reports" on SSRN. Here is the abstract:

Previous research has examined young and middle-aged adults’ perceptions of child witnesses; however, no research to date has examined how potential older adult jurors may perceive a child witness. The present investigation examined younger (18-30 years, N = 100) and older adults’ (66-89 years, N = 100) lie-detection and credibility judgments when viewing children’s truthful and dishonest reports. Participants viewed eight child interview videos where children (9 to 11 years of age) either provided a truthful report or a coached fabricated report to conceal a transgression. Participants provided lie-detection judgments following all eight videos and credibility assessments following the first two videos. Participants completed a General Lifespan Credibility questionnaire to assess credibility evaluations across various witness ages. Lie-detection results indicated that older adults had significantly lower discrimination scores, a stronger truth bias, and greater confidence compared to younger adults. Older adults also rated children as more competent to testify in court, credible, honest, believable, and likeable than younger adults. Participants with greater differences in their credibility evaluations for truth and lie-tellers were significantly more accurate at detecting lies. Responses to the Lifespan Credibility questionnaire revealed significant differences in younger and older adults’ credibility evaluations across the lifespan.

"Free Will and the Law: New Perspectives (Applied Legal Philosophy)" by McCay and Sevel

Allan McCay and Michael Sevel have published a book "Free Will and the Law: New Perspectives (Applied Legal Philosophy)" https://www.amazon.com/Free-Will-Law-Perspectives-Philosophy/dp/1472481445. Here is the abstract: 

This volume brings together many of the world’s leading theorists of free will and philosophers of law to critically discuss the ground-breaking contribution of David Hodgson’s libertarianism and its application to philosophy of law. 

The book begins with a comprehensive introduction, providing an overview of the intersection of theories of free will and philosophy of law over the last fifty years. The eleven chapters collected together divide into two groups: the first five address libertarianism within the free will debate, with particular attention to Hodgson’s theory, and in Part II, six contributors discuss Hodgson’s libertarianism in relation to issues not often pursued by free will scholars, such as mitigation of punishment, the responsibility of judges, the nature of judicial reasoning and the criminal law process more generally. Thus the volume’s importance lies not only in examining Hodgson’s distinctive libertarian theory from within the free will literature, but also in considering new directions for research in applying that theory to enduring questions about legal responsibility and punishment.