Neuroethics & Law Blog

"Moral Intuitions and Moral Nativism" by Mikhail

John Mikhail (Georgetown University Law Center) has published "Moral Intuitions and Moral Nativism" on SSRN. Here is the abstract:

Moral nativism is a theory of moral cognition which holds that significant elements of human moral psychology are innate. In this invited chapter for The Oxford Handbook of Moral Psychology, I first summarize the intuitive turn in recent moral psychology and explain its significance for moral nativism. Drawing on an analogy to language, I then outline two principal arguments for moral nativism: the argument for moral grammar and the argument from the poverty of the moral stimulus. After making some terminological clarifications and correcting some popular misconceptions, I then review some of the most significant research supporting moral nativism, including empirical studies of compassion, empathy, and altruistic motivation in humans and other primates; the intuitive jurisprudence of young children; the emergence of moral cognition in human infants and toddlers; the neurocognitive foundations of moral judgment; and human moral universals. The chapter concludes by locating moral nativism within a broader historical and scientific context, including ancient philosophy (e.g., Plato’s Meno), Enlightenment rationalism (e.g., Descartes’ Treatise on Man), evolutionary theory (e.g., Darwin’s Descent of Man), and the modern cognitive science of innate knowledge.

"Probabilism in Legal Interpretation" by Stein

Alex Stein (Israel Supreme Court) has published "Probabilism in Legal Interpretation" on SSRN. Here is the abstract:

This Article develops a novel theory of statutory and constitutional interpretation, conceptualized as probabilism. Probabilism views legal rules as a communication coming from the lawmaker. What this communication says is an empirical fact that judges need to uncover. To that end, judges must consider all relevant evidence, identify every plausible meaning of the underlying statutory or constitutional provision, determine the probability that the provision’s drafters have chosen its wording to communicate the meaning under consideration, and, finally, adopt the meaning most likely to be factually correct. By following this approach, judges will maximize the accuracy of their interpretive decisions and fulfill their mission as faithful agents of the legislature and the people. The Article explains how probabilism works, illustrates it by celebrated court decisions, including Bostock v. Clayton County, and outlines its advantages over textualism, intentionalism and other schools of legal interpretation.

"Decision Theory" by Taroni et al.

Franco Taroni (University of Lausanne), S. Bozza (Ca Foscari University of Venice - Dipartimento di Economia), and Alex Biedermann (University of Lausanne) have published "Decision Theory" on SSRN. Here is the abstract: 

Forensic scientists, lawyers and other participants of the legal process are routinely faced with problems of making decisions under circumstances of uncertainty. Uncertainty relates to propositions of interest that are not completely known by the decision-maker at the time when a decision needs to be made. Propositions may relate to the source or nature of forensic traces, marks and objects. For example, with friction ridge marks, propositions of interest may be ‘Does this fingermark come from the person of interest (POI) or from some unknown person?’. In forensic document examination, a scientist may ask ‘Is this a genuine document or has it been modified (e.g., page substitution)?’. In forensic anthropology the question ‘Are these human remains?’ may arise, and so on. Replying in one way or another to such questions may be perceived as uncomfortable since knowledge about the relevant underlying truth-state of the world is incomplete to some extent. For example, in typical real-world applications of forensic science it is not known with certainty, when deciding to consider a POI as the source of a particular fingermark, whether the POI is in fact the source of the fingermark. Similarly, at an advanced stage of the legal process, the question of whether to convict or acquit a POI (i.e. the verdict) needs to be made in the presence of incomplete knowledge about whether or not the POI truly is the offender. There are analogies between the above questions, in terms of their logical underpinnings, that can be studied, analysed and described using formal methods, such as decision theory, which is the main aim of this chapter.

"Liberal Property for Skeptics" by Dagan

Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) has published "Liberal Property for Skeptics" on SSRN. Here is the abstract:

This paper forms part of a book symposium on “A Liberal Theory of Property” hosted by the Law and Political Economy Project. It replies to reviews by David Singh Grewal & Jedediah Britton-Purdy, Nestor Davidson, Rashmi Dyal-Chand, Katharina Pistor, Ezra Rosser, and Lua Yuille. The response succinctly recaps the book’s core thesis and then addresses the reviewers’ two main challenges: whether liberal property is potentially self-destructive, and whether it might be a distracting utopia. These concerns are important and fair; and they help refine the mission and vision of “A Liberal Theory of Property” as well as the background regime which is crucial for liberal property’s actual success.

"Statutory Interpretation from the Outside" by Tobia et al.

Kevin Tobia (Georgetown University Law Center, Georgetown University - Department of Philosophy), Brian G. Slocum (University of the Pacific - McGeorge School of Law), and Victoria Nourse (Georgetown University Law Center) have published "Statutory Interpretation from the Outside" on SSRN. Here is the abstract: 

How should judges decide which linguistic canons to apply in interpreting statutes? One important answer looks to the inside of the legislative process: Follow the rules that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the rules that would guide an ordinary person’s understanding of the legal text. Empirical scholars have studied statutory interpretation from the inside — revealing what rules drafters follow — but never from the outside. This Article is the first empirical study of ordinary meaning as determined by ordinary people.

We first offer a novel framework for empirically testing interpretive canons. We argue that any empirical inquiry should test whether ordinary people implicitly invoke a canon in accordance with the circumstances that trigger its applicability. Implementing our framework, we recruited 4,500 people from the United States, as well as a sample of U.S. law students, to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The results reveal that many existing interpretive canons reflect how ordinary people evaluate rules, but some popular canons do not.

The empirical findings support several implications, even beyond providing crucial evidence about which traditional canons “ordinary meaning” actually supports. First, interpretive canons are not a closed set. We discovered new canons that are not yet reflected as legal canons, including one we term the “non-binary gender canon” and another the “quantifier domain restriction canon.” Second, the results support a new understanding of the ordinary meaning doctrine itself, as one focused on the ordinary interpretation of rules, as opposed to the traditional focus on “ordinary language” generally. Furthermore, ordinary people interpret rules with an intuitive anti-literalism. This finding in particular challenges textualist assumptions about ordinary meaning.

We hope the Article initiates a new research program in empirical legal interpretation. If ordinary meaning is relevant to legal interpretation, interpreters should look to evidence of how ordinary people actually understand legal rules. We see our experiments as a first step in that new direction.