Neuroethics & Law Blog

"May It Please the Bot?" by Dempsey and Teninbaum

Jameson Dempsey (Stanford Law School) and Gabriel H. Teninbaum (Suffolk University Law School) have published "May It Please the Bot?" on SSRN. Here is the abstract:

Imagine a system where appellate attorneys could be virtually assured of how a panel of judges would decide what otherwise appears to be a close case. Imagine how the work of an overburdened legal aid attorney could be lightened if she could accurately predict the exact amount of fees that a judge would award her client in an eviction case. Imagine the benefits to a law firm that could have paralegals write the first drafts of important motions, citing only the cases preferred by the local magistrate. Finally, imagine how the work of writing judicial opinions would become easier for a judge if she was able to recognize the framework the Supreme Court would use to decide whether her decision should be overturned. These are only some of the benefits we envision for re-thinking the ways that judges write judicial opinions and encouraging the adoption of methods that better utilize modern technologies.

The American judiciary plays an integral role in defining and upholding the law. For decades, the legal informatics community has sought to use information technology to search, analyze, and make predictions based on large corpora of judicial opinions. Unfortunately, while these data-driven technologies have made significant progress, they face a lingering limitation: the language and structure of the opinions themselves. Judicial opinions — particularly appellate decisions — lack common standards for language, structure, and conveying critical information about the decision. Some will see this as a feature, not a bug. However, because judicial decisions come in many forms and styles, it is up to lawyers and courts to tease out essential elements of past decisions: e.g., holdings, tests, relative weights of factors.

In this essay, we argue that judges should write opinions in anticipation of later machine processing, and that in doing so they can increase the efficiency and predictability of the legal system. Below, we lay out our theory for why this is within grasp, identify the challenges we expect along the way, and describe approaches we envision.

"Legal Decision-Making and the Abstract/Concrete Paradox" by Struchiner et al.

Noel Struchiner (PUC-Rio), Guilherme Almeida (Getulio Vargas Foundation (FGV) - FGV Law School Rio de Janeiro, Pontifical Catholic University of Rio de Janeiro (PUC-Rio) - Law), and Ivar Hannikainen. (University of Sheffield - Department of Philosophy, Pontifical Catholic University of Rio de Janeiro (PUC-Rio)) have published "Legal Decision-Making and the Abstract/Concrete Paradox" on SSRN. Here is the abstract:

Higher courts sometimes assess the constitutionality of law by working through a concrete case, other times by reasoning about the underlying question in a more abstract way. Prior research has found that the degree of concreteness or abstraction with which an issue is formulated can influence people’s prescriptive views: For instance, people often endorse punishment for concrete misdeeds that they would oppose if the circumstances were described abstractly. We sought to understand whether the so-called ‘abstract/concrete paradox’ also jeopardizes the consistency of judicial reasoning. In a series of experiments, both lay and professional judges sometimes reached opposite conclusions when reasoning about concrete cases versus the underlying issues formulated in abstract terms. This effect emerged whether participants reasoned with broad principles, such as human dignity, or narrow rules, and was largest among individuals high in trait empathy. Finally, to understand whether people reflectively endorse the discrepancy between abstract and concrete resolutions, we examined their reactions when evaluating both, either simultaneously or sequentially. These approaches revealed no single pattern across lay and expert populations, or exploratory and confirmatory studies. Taken together, our studies suggest that empathic concern plays a greater role in guiding the judicial resolution of concrete cases than in illuminating judges’ professed standards — which may result in concrete decisions in violation of their own abstract principles.

"The Content of Our Characters" by Brown

Teneille R. Brown (University of Utah - S.J. Quinney College of Law) has published "The Content of Our Characters" on SSRN. Here is the abstract:

In this article, I harness decades of research in philosophy, psychology and neuroscience to make the strongest argument yet for reforming the character evidence rules. Because the doctrine is so complicated, it is the most frequently litigated evidentiary issue as well as the most likely basis for reversal. Multiple studies demonstrate that the rule demands more of humans than we can possibly give, in part because it has become untethered from morality and the way jurors assess blame. It excludes conduct that is not likely to generate unfair inferences, while permitting many forms that do. The essence of the paper is this: morality drives character assessments; if the rule ignores this, then it is likely to be ignored. And the data are clear—we simply cannot *not* make character inferences. If we attempt to shield jurors from hearing about people’s past actions, they will rely solely on superficial racial, sex, and physical stereotypes to draw split-second inferences that are likely to be even more inaccurate and unfair. I therefore propose a new rule. My proposal creates a presumption against admissibility for immoral conduct only, which can be overcome if the evidence is substantially more probative than prejudicial. My proposal does not hinge on whether the evidence is used to draw propensity inferences, and thus will greatly reduce the widespread confusion this aspect of the rule generates. In addition to being more narrowly tailored and intellectually honest, my proposal better reflects how jurors automatically and subconsciously use evidence to predict how others will behave. In doing so, it re-anchors the character evidence inquiry to notions of probative value, prejudice, fairness, and morality, rather than to technical adherence to an incoherent rule.

"Paying for a Clean Record" by Kimpel

Amy Kimpel (University of Alabama - School of Law) has published "Paying for a Clean Record" on SSRN. Here is the abstract:

One in every three adults in the United States has a criminal record — the result of decades of overly harsh criminal laws and policies which caused mass incarceration and mass criminalization. In the policy world, diversion and expungement are being turned to with increasing frequency as ways to address the American criminal record problem. These policy and legislative efforts have produced a patchwork of diversion and expungement systems operating in each state. And it’s not clear whether these efforts are mitigating or contributing further to the “New Jim Crow” described by Michelle Alexander in her landmark book.

Prosecutors and courts charge a premium for the ability to avoid or expunge a criminal conviction — costs including program application fees, court costs, diversion fees, fines, restitution, and filing fees for expungement petitions. Defendants who are willing and able — who tend to be predominantly white — can often pay for a clean record, while the indigent who are unable to pay — who are disproportionally Black and brown — are saddled with the stigma of a criminal record. As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record creates barriers to employment and the creation of wealth. If economic barriers to diversion and expungement persist, this has the potential to further calcify race and class divides. This article looks at the promises and pitfalls of diversion and expungement as a means to combat the problem of mass criminalization. It explores legal challenges to the current schemes and explains why allowing defendants to pay for a clean record is just bad policy.

"Against Neorehabilitation" by Eaglin

Jessica Eaglin (Indiana University Maurer School of Law) has published "Against Neorehabilitation" on SSRN.  Here is the abstract:

In the face of severe budget constraints, bipartisan calls for reform, dropping crime rates, and judicial interventions, states are seriously considering and implementing criminal justice reform to manage state prison populations for the first time in three decades. Scholars agree that states need a guiding theory to transform emergency and short-term reforms into a long-term shift in policy and practice away from mass incarceration. Numerous scholars advocate for a return to an improved theory of rehabilitation to guide the states in implementing such reform. This return—through neorehabilitation, or the rehabilitation of rehabilitation—centers on the use of evidence-based programming and predictive tools to create a rehabilitative model that "works."

Despite the intriguing nature of this new rehabilitative model, this Article challenges this general shift in scholarly and practice reform. It argues that the problem of mass incarceration cannot be resolved through a return to this particular form of rehabilitation, no matter how "improved" it may be. To that end, this Article demonstrates that current rehabilitation-guided sentencing reforms—with their emphasis on evidence-based programming and the use of predictive tools—have several inherent flaws that will limit the effort to downsize prison populations beyond mere budget-cut crises. Specifically, the neorehabilitative model stands to institutionalize a focus on the wrong offenders, exacerbate racial disparities, and distort our perception of justice. Moreover, this new rehabilitation model fails to provide a sufficiently different theory of reform from total incapacitation, which grew out of the desire to improve rehabilitation. For these reasons, this Article argues that the neorehabilitative model is a dangerous theory of reform as states shift toward broader and long-term sentencing policies.

"Against Neorehabilitation" by Eaglin

Jessica Eaglin (Indiana University Maurer School of Law) has published "Against Neorehabilitation" on SSRN.  Here is the abstract:

In the face of severe budget constraints, bipartisan calls for reform, dropping crime rates, and judicial interventions, states are seriously considering and implementing criminal justice reform to manage state prison populations for the first time in three decades. Scholars agree that states need a guiding theory to transform emergency and short-term reforms into a long-term shift in policy and practice away from mass incarceration. Numerous scholars advocate for a return to an improved theory of rehabilitation to guide the states in implementing such reform. This return—through neorehabilitation, or the rehabilitation of rehabilitation—centers on the use of evidence-based programming and predictive tools to create a rehabilitative model that "works."

Despite the intriguing nature of this new rehabilitative model, this Article challenges this general shift in scholarly and practice reform. It argues that the problem of mass incarceration cannot be resolved through a return to this particular form of rehabilitation, no matter how "improved" it may be. To that end, this Article demonstrates that current rehabilitation-guided sentencing reforms—with their emphasis on evidence-based programming and the use of predictive tools—have several inherent flaws that will limit the effort to downsize prison populations beyond mere budget-cut crises. Specifically, the neorehabilitative model stands to institutionalize a focus on the wrong offenders, exacerbate racial disparities, and distort our perception of justice. Moreover, this new rehabilitation model fails to provide a sufficiently different theory of reform from total incapacitation, which grew out of the desire to improve rehabilitation. For these reasons, this Article argues that the neorehabilitative model is a dangerous theory of reform as states shift toward broader and long-term sentencing policies.

"Evidence Law and Empirical Psychology" by Sevier

Justin Sevier (Florida State University - College of Law) has published "Evidence Law and Empirical Psychology" on SSRN. Here is the abstract:

This chapter presents a brief historical account of the relationship between the field of empirical psychology and the law of evidence. It highlights some (but not all) of the major contributions that psychologists have made to our understanding of evidence law, while also highlighting recent, cutting-edge research. The article also offers suggestions for how future research can assist in maintaining psychology's relevance to sound evidential policy.