Neuroethics & Law Blog

"Efficiency Criteria for Nudges and Norms" by Viscusi

W. Kip Viscusi (Vanderbilt University Law School) has published "Efficiency Criteria for Nudges and Norms" on SSRN. Here is the abstract:

This article outlines benefit-cost criteria for nudges and behavioral norms for a wide range of policy situations. The principal benefits from well-designed policies usually derive from promoting efficient behaviors, but there also may be counterpart costs generated by discouraging efficient behaviors. The distinguishing economic characteristic of nudges is not only that they are less intrusive interventions that nudge rather than mandate behavior, but that they exploit additional policy dimensions other than financial incentives. Policies utilizing financial incentives have a cost advantage over nudges to the extent that they involve financial transfers, which are not net social costs. Failure to understand this cost distinction has led to overestimation of the cost-effectiveness of nudges compared to financial incentives. Financial incentives are flexible and can be varied continuously on a single dimension. Nudges usually involve indivisible components, but their stringency sometimes can be varied by utilizing nudges on multiple policy dimensions.

"Legal Inconsistencies" by Donelson

Raff Donelson (Louisiana State University, Baton Rouge) has published "Legal Inconsistencies" on SSRN. Here is the abstract: 

It is a familiar thought from the rule of law literature and from everyday life that legal norms within a given jurisdiction ought to be consistent. However, little work has been done to explain this demand. This Article develops a theory of legal inconsistencies, both what they are and why legal systems ought to avoid them. In addition to contributing to a theoretical discussion of legal inconsistency, the Article also articulates a remedy under American law for those harmed by inconsistencies. The Article contends that legal inconsistencies violate Due Process.

"Unreasonable Revelations: God Told Me to Kill" by Meyer

Linda Ross Meyer (Quinnipiac University School of Law) has published "Unreasonable Revelations: God Told Me to Kill" on SSRN. Here is the abstract:

This article addresses the surprisingly many cases in which defendants claim that God commanded them to kill someone. This problem of “deific decree” murder is raised briefly in the Kadish et al. Criminal Law casebook, and one of the key cases, State v. Crenshaw, 98 Wash.2d 789 (1983), has become a familiar first-year puzzle in the context of insanity doctrine.

The article proposes a fundamentally different legal approach to deific decree murders. Standard criminal law doctrine (and most law review commentary) treats these cases as candidates for an insanity defense under an exception (or addendum) to the standard M’Naghten test, because God’s command either confused or countermanded the defendant’s “rational” sense of right and wrong, and rendered the defendant irresponsible. I argue that insanity is the wrong frame in which to consider these cases, because it too easily presumes that experiencing revelation is a sign of insanity, when much of the U.S. public believes, to the contrary, that revelation is both real and a better form of truth.

The legal questions above become a vehicle for a broader look at the way in which revelation challenges law – a timely and important problem in an era in which religious groups often deny the neutrality and ethics of established law and of legal institutions. I therefore organize the discussion of deific decree cases into a new taxonomy that attends to how courts confront the validity or authority of revelation. In explaining and exploring this taxonomy, the article dives deep into the philosophical and religious implications of deific decree murders, discovering that religious law, as well as secular law, struggles to evaluate such claims. In the end, I argue that neither secular nor religious forms of law can meaningfully adjudicate the authenticity of divine commands. The divine escapes jurisdiction.