Neuroethics & Law Blog

"The Depths of Malice" by Bergelson

Vergan Bergelson (Rutgers Law School - Newark) has published "The Depths of Malice" on SSRN. Here is the abstract:

The Model Penal Code (“MPC”) revision of the traditional mens rea provisions has been almost uniformly recognized as an immense success. The MPC framework has been extremely influential: it has been adopted explicitly in more than a half of American jurisdictions, and it often guides judicial interpretation of mens rea in the remaining jurisdictions as well. However, the MPC may have lost some important insights in departing from the traditional mens rea criteria. In this paper, I suggest that, in its strive for simplification, rationality, and utility, the MPC has sacrificed some of the moral complexity of the traditional, common-law mens rea categories. Specifically, I argue that the common-law category of malice is doctrinally important and its abandonment affects the fairness and coherence of the entire body of criminal law.

"Can Constitutional Rights Be Weighed?" by Canale and Tuzet

Damiano Canale (Bocconi University - Department of Law) and Giovanni Tuzet (Bocconi University - Department of Law) have published "Can Constitutional Rights Be Weighed?" on SSRN. Here is the abstract:

Balancing is one of the main issues in current debates on legal argumentation and constitutional review. The discussion has polarized into two competing theses. On the one view, balancing is both irrational and subjective. When courts “weigh” conflicting constitutional rights, they actually make a preferential choice that cannot be rationally justified. On a different view, balancing is a rational form of argumentation grounded in the very structure of constitutional rights and principles.

In this paper we argue that none of these theses is true. By analyzing the inferential structure of balancing we show that it is composed by multiple inferential steps. One must consider what inferential commitments are undertaken in the balancing process, and under what conditions these commitments can be discursively satisfied in a given constitutional system. In particular, we address the problem of the external justification of balancing, namely the justification of its premises.

"Life Without Parole Sentencing" by Garrett et al.

Brandon L. Garrett (Duke University School of Law), Travis Seale Carlisle (Duke University School of Law), Karima Modjadidi (Duke University School of Law), and Kristen Renberg (Duke University School of Law, Duke University - Department of Political Science) have published "Life Without Parole Sentencing" on SSRN. Here is the abstract: 

What explains the puzzle of life without parole (LWOP) sentencing in the United States? In the past two decades, LWOP sentences have reached record highs, with over 50,000 prisoners serving LWOP. Yet during this same time period, homicide rates have steadily declined. The U.S. Supreme Court has limited the use of juvenile LWOP in Eighth Amendment rulings. Further, death sentences have steeply declined, reaching record lows. Although research has examined drivers of incarceration patterns for certain sentences, there has been little research on LWOP imposition. To shed light on what might explain the sudden rise of LWOP, we examine characteristics of the 1,662 cases in which LWOP was imposed from 1995 to 2017, in North Carolina, one of the states that imposes the largest numbers of these sentences. We begin by analyzing defendant race, crime, and sentence patterns by county. We associate LWOP with homicide rates, and examine interactions between homicide, victim race, and prior LWOP sentencing. This first empirical analysis of adult LWOP sentences finds important local variations in its imposition. We find that as the homicide rate increases within a county, we observe fewer LWOP sentences. We find that fewer LWOP sentences are predicted to occur as the number of black victim homicides increase in a county, but no such relationship is found when considering the number of white victim homicides. Finally, we find a strong path dependency and concentration of LWOP sentences in counties, where counties that have imposed LWOP sentences in the past are more likely to continue to do so. These findings have implications for efforts to reconsider the most severe sentences in the U.S., and they suggest that prosecutorial discretion in seeking long sentences will be important subjects for future research and policy.

"An Overview of Expert Psychological Testimony in False Confession Cases" by Cutler et al.

Brian L. Cutler (Ontario Tech University), Jeffrey Neuschatz (Department of Psychology), and Charles Honts (Department of Psychology) have published "An Overview of Expert Psychological Testimony in False Confession Cases" on SSRN. Here is the abstract: 

In this article we provide an overview of psychologists in false confession cases, including expert testimony on risk factors for false confession, psychological assessment, and the polygraph.

"Introduction to the Edward Elgar Research Handbook on Law and Emotion" by Bandes et al.

Susan A. Bandes (DePaul University - College of Law), Jody Lynee Madeira (Indiana University Maurer School of Law-Bloomington), Emily Kidd White (Osgoode Hall Law School, New York University School of Law), and Kathryn D. Temple (Georgetown University - Department of English) have published "Introduction to the Edward Elgar Research Handbook on Law and Emotion" on SSRN. Here is the abstract: 

This is the Introduction to the forthcoming volume THE EDWARD ELGAR RESEARCH HANDBOOK ON LAW AND EMOTION, edited by Susan A. Bandes, Jody Lynee Madeira, Kathryn D. Temple, and Emily Kidd White. The goals of this volume are threefold: to introduce the general reader to the burgeoning field of Law and Emotion; to bring together voices from a wide array of disciplines and methodologies on a broad range of topics; and to move the conversation forward while identifying important areas for further study. The Handbook contains thirty-six chapters by an international group of authors who draw on neuroscience, philosophy, literary theory, psychology, history, sociology, and other fields to examine the role of a wide range of emotions in a variety of legal contexts. The authors analyze what role emotions like disgust, anger, moral outrage, shame, remorse, loyalty, compassion, empathy and love play in the shaping of legal doctrines and the dynamics of legal institutions. They also consider less frequently discussed emotional states like “attachment” and “closure.” They move beyond traditionally “emotional” venues like the criminal law and the jury trial to encompass topics like contracts, property, bankruptcy, and international law, legal actors like judges and defense attorneys, and venues like the negotiation session and truth and reconciliation commissions. In addition to these chapters, all original to the volume, the HANDBOOK also includes three of the classic articles that helped introduce and define the field of Law and Emotion.

"Punishment, Rewards and the (Relative) Importance of Desert" by Beade

Gustavo A. Beade (University of Buenos Aires (UBA) has published "Punishment, Rewards and the (Relative) Importance of Desert" on SSRN. Here is the abstract:

Philosophers and legal theorists have long been interested in the idea of desert. In this work I intend to demonstrate that the importance of desert is, at times, overrated, leading thinkers to adopt rather extreme positions. I believe that the concept of desert is important in some cases, but desert is by no means central to our thinking of punishment and reward, nor should it be. Even though the concept of desert is generally addressed in matters regarding retribution, I will argue that this concept should not be the basis upon which we build our constructs of punishment and reward. Rather, we should consider the impact that luck has on our lives. If we do so, those considerations would change our perception of the concept of desert.

"Moral Innocence and the Criminal Law: Non-Mala Actions and Non-Culpable Agents" by Segev

Re'em Segev (Hebrew University of Jerusalem – Faculty of Law) has published "Moral Innocence and the Criminal Law: Non-Mala Actions and Non-Culpable Agents" on SSRN. Here is the abstract:

According to influential view, using the criminal law against innocent actions or agents is wrong. In this paper, I consider four related arguments against this view: a debunking argument that suggests that the intuitive appeal of this view may be due to a conflation of different ideas; a counterexamples argument that points out that there are many cases in which using the criminal law against innocent actions ("non mala" actions that are not even "mala prohibita") or agents is justified; a theoretical argument, according to which the force of the reasons for and against using the criminal law is a matter of degree and it is therefore implausible to hold that the latter always defeat the former; and an analogy argument, which holds that it is implausible to maintain that harming innocents is often justified in other contexts but (almost) never in the context of the criminal law.

"Penal Abolitionism and Criminal Law Minimalism: Here and There, Now and Then" by Langer

Maximo Langer (University of California, Los Angeles (UCLA) - School of Law) has published "Penal Abolitionism and Criminal Law Minimalism: Here and There, Now and Then" on SSRN. Here is the abstract: 

This paper — written by invitation by the Harvard Law Review to comment on Professor Dorothy Robert’s Abolition Constitutionalism, 133 HARV. L. REV. 1 (2019) — makes three contributions to debates about penal abolitionism in the United States and elsewhere.

First, it explains the origins and contours of European and Latin American penal abolitionism and compares it to penal abolitionism in the United States. In this context, the paper explains that European and Latin American penal abolitionism in the 1970s, 1980s and the early 1990s, was in conversation with and part of a broader set of critical ideas to humanize and reduce the scope of the penal system — that included critical criminology and “criminal law minimalism.” Criminal law minimalism states that the penal system still has a role to play in society, but a substantially reduced, re-imagined and redesigned role than the one it has played in the United States.

This article’s second set of contributions consist of articulating three of the most important challenges for penal abolitionism. The first challenge has to do with harmful behavior. These types of harms do not always or necessarily require police intervention, prison or punishment responses from society. But fully discarding police intervention, prison or other potential punishments as a possible response to these situations — as penal abolitionists who advocate for “abolishing the police”, “a society without prisons” or “a society without punishment” do — can itself be unfair and inhumane, deprive the weak of protection against the powerful, harm the communities and individuals affected by these situations (including communities of color), and enable more of these harmful situations in the future.

Another challenge for penal abolitionists is that even assuming that police and prisons could one day be abolished, power relations and regimes could not. Every society has to structure power relations and regimes somehow. Since the range of possible power relations and regimes is endless, the question is which power relations and regimes are more just than other alternatives. In this regard, it is not clear to me that any of the many possible variations of societies without any prisons — including the ones suggested by various penal abolitionists — would necessarily be more just than a set of societies that would still give to law enforcement, prisons or other forms of punishment a role in addressing harmful behavior.

Another challenge for prison or penal abolitionists is that, for reasons discussed, it is not clear that a fair society would be a society without punishment.

These challenges explain why, despite sharing the goal of eliminating inhumane, unnecessary, unfair and discriminatory penal laws and practices, I would consider myself closer to “criminal law minimalism”, rather than to penal abolitionism.

This piece’s final set of contributions will be discussing the notion of “abolition constitutionalism” that constitutes Prof. Roberts’ article’s main, original and important contribution. After explaining the rich potential of this concept and why I agree with its critique of Flowers v. Mississippi and the Batson doctrine, I will articulate the concept of minimal criminal law constitutionalism and make three points that put it in conversation with abolition constitutionalism. First, Prof. Roberts’ critique of Flowers v. Mississippi is consistent with both abolition constitutionalism and minimal criminal law constitutionalism and could be powerfully applied to other doctrines besides jury selection such as prosecutorial discretion and plea bargaining — doctrines that arguably affect many more cases subjected to the penal system than jury selection regulations. Second, I will suggest that a strong and renewed principle of criminal law as “ultima ratio” or last resort — which has not been considered a constitutional principle in the United States but is well-known in other legal systems — should be part of minimal criminal law constitutionalism and could supplement the strong anti-subordination principle that animates Prof. Roberts’ analysis. Finally, I will suggest that if implementing penal abolitionism’s and minimalist criminal law’s visions would demand not only a substantial reduction of incarceration and an elimination of arbitrary, discriminatory and violent policing, prisons and punishment, but also a more just society, “abolition constitutionalism” and “minimalist criminal law constitutionalism” would require a constitution and a social pact that include, among others, the right to education, health care, food, work and economic safety, housing, and a healthy environment. Various constitutions around the world have included these rights.

"Judging Corpus Linguistics" by Slocum and Gries

Brian G. Slocum (University of the Pacific - McGeorge School of Law) and Stefan Gries (UC Santa Barbara - Department of Linguistics) has published "Judging Corpus Linguistics" on SSRN. Here is the abstract:

The practice of legal interpretation has long sought legitimization through devices that seek to distance interpretations from the personal predilections of judges. Most notably, with the rise of textualism, courts have habitually relied on dictionary definitions to provide word meanings that are external to a judge’s own intuitions. Similarly, some scholars and judges have recently argued that corpus linguistics can provide especially powerful and objective information to judges about the ordinary meanings of statutory and constitutional texts. For instance, in their influential article, Judging Ordinary Meaning, Thomas R. Lee and Stephen Mouritsen argue that courts should “import” into the law of interpretation computer-aided means (primarily, corpus analysis) of determining “the sense of a word or phrase that is most likely implicated in a given linguistic context.” In the view of Lee and Mouritsen, statutory interpretation is an “empirical question” (the authors assert this more than forty times), which makes it natural that courts should rely on scientifically-based interpretive sources such as corpus linguistics.

The potential judicial adoption of interdisciplinary knowledge and techniques from fields such as linguistics is intriguing, and the resulting discussions from such proposals will enhance both the theory and practice of legal interpretation. Nevertheless, anyone advocating for the judicial adoption of a significant and novel interpretive source bears the burden of offering a compelling explication of the interpretive source and its role within the structure of interpretation. This demonstration should establish that the new interpretive source offers some comparative advantage to existing interpretive sources and is feasible in the sense that judges can competently use it. The advocate must therefore offer a compelling theory of how the interpretive source fits into existing processes of interpretation and explain whether the new interpretive source requires a new way of viewing those processes. With corpus linguistics, some of the issues that should be addressed therefore include:

(1) how corpus linguistic analysis is relevant to some objective of interpretation currently identified by judges, such as the determination of ordinary meaning;

(2) whether corpus linguistics should displace long-standing interpretive sources, such as dictionaries and textual canons;

(3) the extent to which corpus linguistics can take account of the relevant context of a statutory provision;

(4) to what extent determining statutory meaning is an empirical endeavor (with or without corpus linguistics); and

(5) whether judges have both the technical ability to conduct competent corpus analyses and sufficient linguistic expertise to evaluate the raw data and make judgments of the kind made by trained linguists.

In this short essay, in the spirit of offering general concerns about corpus analysis and legal interpretation, we largely focus on Lee and Mouritsen’s efforts in addressing the above issues. We argue that Lee and Mouritsen’s conceptualization of the potential role for corpus linguistics within legal interpretation is inadequate and underestimates the difficulty of judicial adoption of corpus analysis methods. Corpus analysis can provide useful information about the functioning of language, but it is crucial to neither understate the role of context in determining statutory meaning nor overstate the potential contribution of corpus analysis to legal interpretation.

"The Distinction Between Private Law and Public Law" by Dagan and Zipursky

Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) and Benjamin C. Zipursky (Fordham University School of Law) has published "The Distinction Between Private Law and Public Law" on SSRN. Here is the abstract:

Twentieth Century legal theorists – especially the American legal realists – provided vigorous critiques of the putative distinction between private law and public law, persuading jurists that the distinction relied upon legal formalism. In the latter third of the Twentieth Century, the law and economics school constituted a focused and dominant version of the legal realist capture of private law theory. By the 1990s, however, new forms of private law research developed, many of which we characterize as instances of “neo-realism.” And philosophical theorists brought private law theory full circle, re-embracing the distinction between private law and public law. These views are depicted here as forms of “neo-conceptualism,” and they are in many ways the polar opposite of neo-Realism. In this Chapter, Dagan and Zipursky each defends a view of the private/public distinction that falls in between the neo-realists and the neo-conceptualists. Dagan’s relational justice theory is a form of neo-realism highly receptive to the deontological concerns of the neo-conceptualists. Zipursky’s pragmatic conceptualism is a form of neo-conceptualism sensitive to the pragmatic and modernist concerns of legal realism.

"Law’s Sentiments" by West

Robin L. West (Georgetown University Law Center) has published "Law’s Sentiments"  on SSRN. Here is the abstract:

The chapter argues that law and the Rule of Law do not displace moral sentiments, but rather require them, and sometimes produce them. Law gives us some sense of physical security and thereby makes possible the fellow feeling and empathy that are the root of moral action. The chapter seeks to make this claim plausible by looking at fiction that describes various dystopian lawless states, including the hierarchy of the Church, which law has been loath to enter, badly policed neighborhoods, nineteenth century American slavery, and early twentieth century patriarchal marriages. One lesson of much of this fiction is that these lawless dystopias not only leave their inhabitants with nasty, brutish and short lives, but also truncate their capacities for empathy and community.

"Default Culpability Requirements: The Model Penal Code and Beyond" by England

Scott England (University of New Mexico - School of Law) has published "Default Culpability Requirements: The Model Penal Code and Beyond" on SSRN. Here is the abstract:

The Model Penal Code’s default culpability provision, Section 2.02(3), plays a central but often overlooked role in the Code’s celebrated culpability scheme. Section 2.02(3) “reads in” a requirement of recklessness when an offense is silent about the mental state required for an offense element. The provision has profound implications for criminal law because thousands of state offenses fail to prescribe culpability requirements. Without a default culpability rule like Section 2.02(3), courts often interpret an offense’s silence to impose strict liability.

Section 2.02(3) has had little effect to date, but not because courts have ignored it. Rather, Section 2.02(3) has yet to be fully adopted even in Model Penal Code states. Reviewing the law in the 25 states with culpability provisions influenced by the Code, this Article finds that the overwhelming majority of jurisdictions have deviated from Section 2.02(3) in ways that undermine the Code’s culpability scheme. The Article concludes by recommending new default culpability rules that improve on Section 2.02(3), prevent the problems experienced in Model Penal Code states, and establish a strong presumption of recklessness that works for real-world statutes.