Neuroethics & Law Blog

"Law and Neuroscience" by Jones et al.

Owen D. Jones (Vanderbilt University - Law School & Dept. of Biological Sciences), Jeffrey D. Schall (Vanderbilt University - Department of Psychology, Vanderbilt University - Center for Integrative and Cognitive Neuroscience), and Francis X. Shen (University of Minnesota Law School) have published "Law and Neuroscience" on SSRN. Here is the abstract:

This provides the Table of Contents and Chapter 1 of the 2nd edition our coursebook “Law and Neuroscience” (2020, from Aspen Publishing). The book provides user-friendly introductions to, as well as detailed explorations of, the many current and emerging issues at the intersection of law and neuroscience.

More specifically, the book lays general foundations by exploring the relationships between law and science generally, and by comparing the views from law and from neuroscience regarding behavior and responsibility. It also explains for a legal audience the basics of brain structure and function, the methods for investigating each, and both the promise and the limitations of modern neuroscience technologies. Core themes include new law/neuroscience issues pertaining to: brain injuries, pain and distress, memory, emotions, lie detection, judging, adolescence, addiction, the aging brain, and brain death. Closing units explore current and coming legal issues surrounding cognitive enhancement, brain-machine interfaces, and artificial intelligence. Given the scope and nature of coverage, the book is designed to serve both as a course-book (in graduate as well as undergraduate departments) and as a reference text for judges, practicing attorneys, and scholars interested in law and neuroscience.

"Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak" by Sarah

Alex F. Sarch (University of Surrey School of Law) has published "Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak" on SSRN. Here is the abstract:

In "Ignorance of Law," Doug Husak defends a version of legal moralism on which “we should recognize a presumption that the criminal law should derive from, be based on, conform to, or mirror critical morality.” He thinks “we should regret…retreats from our ideal and do our best to find ways to avoid them,” even while agreeing “retreat is almost certainly needed.”

In this paper, however, I ask whether this claim about regret true across the board. I argue that criminal law departures from the moral ideal need not always be regretted. Instead, I explore whether the substantive rules of the criminal law should mirror not moral blameworthiness, but a distinct legal notion of criminal culpability—akin to moral blameworthiness, but which is cleaned up to be deployed in legal systems. Rather than relegating institutional design considerations to a secondary position reached only after the moral ideal has been mapped, I suggest that they should be built into the criminal law theorist’s inquiry from the outset.

This methodological gambit pays practical dividends as well. Distinguishing criminal culpability from moral blameworthiness opens up alternatives to Husak’s central conclusions about the exculpatory force of normative ignorance. There are good reasons for the criminal law to make certain charitable presumptions about citizens as competent agents, which morality needn’t similarly make, and this calls into question a key premise in Husak’s argument for the claim that normative ignorance exculpates. As a result, we would be able to preserve the traditional view that ignorance of law is no excuse at least with respect to core mala in se behaviors.

"On Blame and Punishment: Respect and Responsibility for Forming a Self" by Walen

Alec D. Walen (Rutgers School of Law, Rutgers, The State University of New Jersey - Department of Philosophy) has published "On Blame and Punishment: Respect and Responsibility for Forming a Self" on SSRN. Here is the abstract:

Accounts of punitive blame — blame that is the proper basis for punishment — tend to fall into two camps: those that focus on choices (understood broadly to include options that could have been chosen even if not considered) and those that focus on quality of will or character. Doug Husak argues in favor of a reason-responsive view of choice, according to which the paradigm of blameworthy choice is taking oneself to have sufficient reason not to do something but being too weak willed not to do it. This view implies that negligent behavior, in which an agent should be but is not aware of reasons not to do what she does, is not blameworthy. I argue here that this account of blame is internally inconsistent. I offer in its place an Aristotelian account of becoming responsible for the kind of person one is as a precondition for blame. This is a different kind of choice view according to which an agent who acts wrongly is not blamed for the kind of person she is; she is blamed for her wrongful choices, but only insofar as she had a fair opportunity to become the kind of person she is rather than the kind who would not make them.

"Virtual Assault" by Ligon

Nicole Ligon (Duke University School of Law) has published "Virtual Assault" on SSRN. Here is the abstract:

The vast majority of gifs, memes, and other internet content constitute speech protected by the First Amendment. As a general rule, aesthetic decisions concerning that speech – such as the usage of certain colors, background graphics, or font size – are expressive elements that warrant full constitutional protection. But a recent cyberattack against Twitter followers of the Epilepsy Foundation blurred that line. In November 2019, internet hackers sent a series of videos and flashing images to thousands of individuals affiliated with the Epilepsy Foundation. The transmission of that content was intended to trigger seizures in those with epilepsy. This begs the question: did the hackers’ messages containing strobe gifs constitute free speech protected under the First Amendment? Arguments have been waged on both sides, though no court has yet to address the question. This article answers with an emphatic no. Messages calibrated to inflict physical harm on the recipient are “virtual assaults” and are not entitled to First Amendment protection. This article defines a new cause of action for “virtual assault” and, in arguing that such an action would be constitutionally permissible, concludes that senders engaged in such conduct should not be permitted to skirt tort and criminal liability by hiding behind the right of free speech.

"Preferences Change & Behavioral Ethics: Can States Create Ethical People?" by Feldman and Kaplan

Yuval Feldman (Bar-Ilan University - Faculty of Law) and Yotam Kaplan (Bar-Ilan University - Faculty of Law) have published "Preferences Change & Behavioral Ethics: Can States Create Ethical People?" on SSRN. Here is the abstract:

Law and economics scholarship suggests that, in appropriate cases, the law can improve people’s behavior by changing their preferences. For instance, the law can curb discriminatory hiring practices by providing employers with information that might change their preferences towards discriminatory hiring. Supposedly, if employers no longer prefer one class of employees to another, they will simply stop discriminating, with no need for further legal intervention. The current paper adds some depth to this familiar analysis by introducing the insights of behavioral ethics into the law and economics literature on preference change. Behavioral ethics research shows that wrongdoing often originates with semi-deliberative or non-deliberative cognitive processes. These findings suggest that the process of preference change, through the use of the law, is markedly more complicated and nuanced than previously appreciated. Thus, for instance, even if an employer’s explicit discriminatory stance is changed, and the employer no longer consciously prefers one class of employees over another, discriminatory behavior might still surface if it originates with semi-conscious, habitual, or non-deliberative decision-making mechanisms. Therefore, actual change in behavior might necessitate a close engagement with people’s level of moral awareness. We discuss the institutional and normative implications of these insights and evaluate their significance for the attempt to improve preferences through the different functions of the legal system.

"The Law and Science of Eyewitness Evidence" by Albright and Garrett

Thomas Albright (Salk Institute for Biological Studies) and Brandon L. Garrett (Duke University School of Law) have published "The Law and Science of Eyewitness Evidence" on SSRN. Here is the abstract:

Eyewitness evidence, used in tens of thousands of criminal cases each year, crucially depends on eyewitness memory, which is quite fallible. The potential inaccuracy of eyewitness memory has been long demonstrated by examples of mis-identifications, including in cases of wrongful conviction. Eyewitness identification procedures, which are themselves experiments, lend themselves to scientific research as do few others in law. Today, decades of scientific research on visual perception and memory have identified key causes of error and methods for improving eyewitness performance. As a result, eyewitness evidence has become a testing ground for the use of science to inform the law. This Article examines how legal actors — state and federal courts, state lawmakers, and police agencies — have responded to this body of research. While U.S. Supreme Court rulings set a constitutional floor, we find that it largely does not inform eyewitness evidence law. State courts have increasingly incorporated eyewitness memory science, as we describe in a detailed fifty-state survey of rulings. Second, we explore how state lawmakers have done still more, in an analysis of twenty-four state statutes that regulate eyewitness identification procedure. Third, policing agencies have most eagerly embraced revised identification practices to take account of scientific research. We describe a sea change in police practice, including through model policy adopted in twenty-nine states. Based on these findings, we call into question top-down, stare-decisis-bound, and federal court-centric accounts that dominate constitutional criminal procedure. Further, we describe how research continues to progress; a new generation of research promises to further improve accuracy of eyewitness procedures. While constitutional criminal procedure is unlikely to change in the near future, we expect that local actors will harness research developments. We conclude by asking why, in the eyewitness area, criminal investigation and procedure have been so receptive to research. We suggest that rather than adopting a legal precedent-based system, police practices and statutes employ a scientific framework that can incorporate new discoveries. This account of dissemination and adoption of research points towards a dynamic framework for the use of science in the legal system.