Neuroethics & Law Blog

"Legislative Intent and Acting Intentionally" by Tobia

Kevin Tobia (Georgetown University Law Center, Georgetown University - Department of Philosophy) has published "Legislative Intent and Acting Intentionally" on SSRN. Here is the abstract: 

An experiment reveals a distinction between ordinary judgment of what legislators did "intentionally" and ordinary judgment of "legislative intent." The former reflects the well-known side-effect effect: bad effects are deemed more intentional than good ones. However, this pattern disappears in judgments of legislative intent: bad outcomes are not evaluated as more legislatively intended than good ones. For ordinary people, a law's legislative intent is not simply what its drafters did intentionally.

"A Remedy for the Least Well-Off: The Case for Preliminary Damages" by Parchomovsky & Stein

Gideon Parchomovsky (University of Pennsylvania Carey Law School) and Alex Stein (Israel Supreme Court) have published "A Remedy for the Least Well-Off: The Case for Preliminary Damages" on SSRN. Here is the abstract:

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either forego suing altogether or accept unfavorable and unjust settlements to alleviate their financial plight. Aware of this reality, corporate defendants have an inherent incentive to break the law and then strategically drag on trials in order to force victims who lack the financial wherewithal into unfair settlements. As we show, preliminary damage awards will rectify these distortions. By providing poor victims the financial oxygen they badly need and by eliminating the incentive of rich wrongdoers to drag litigation unnecessarily, preliminary damage awards will not only level the litigation playfield, but will also free up considerable judicial resources.

"Crime and the Mythology of Police" by Baughman

Shima Baradaran Baughman (University of Utah - S.J. Quinney College of Law) has published "Crime and the Mythology of Police" on SSRN. Here is the abstract:

The legal policing literature has espoused one theory of policing after another in an effort to address the frayed relationship between police and the communities they serve. All have aimed to diagnose chronic policing problems in working towards structural police reform. The core principles emanating from these theoretical critiques is that the mistrust of police among communities of color results from maltreatment, illegitimacy and marginalization from the law and its enforcers. Remedies have included police training to encourage treating people with dignity, investing in body cameras and other technology, providing legal avenues to encourage constitutional action by police, and creating a voice for community members to express their needs. These preeminent policing theories do not fully address a core cause of police mistrust and disaffection of communities of color and the poor. To address these symptoms of policing failure requires a consideration of the purpose and function of police. Though at the core of police function is a misunderstanding of policing that this Article terms “the police myth.”

The police myth is the two-fold belief that a primary function of police is crime control and that police solve crimes with regularity. Reliance on the police myth may provide societal comfort but has made it difficult to address rudimentary policing failure. Without understanding what police actually do and their relationship with crime, it is impossible to reimagine policing. This Article seeks to understand the myth that in large part contributes to the anomie between police and communities of color, but also creates a structural dissonance regarding the nature and function of police and their role in a community. Dispelling this myth recasts the policing function and the underlying expectations of public security, while pointing towards a new instrumentalist approach to police reform.

"Theory-Induced Blindness in Legal Scholarship" by Fruehwald

Edwin S. Fruehwald has published "Theory-Induced Blindness in Legal Scholarship" on SSRN. Here is the abstract:

The truth matters, and, consequently, how scholars seek the truth also matters. Scholars use theory as a framework to help them attain the truth. Accordingly, a scholar's theoretical approach must be accurate; it must not be tainted in any way. Theory-induced blindness taints truth-seeking. Theory-induced blindness has contaminated legal scholarship in many ways.

This article will examine theory-induced blindness in legal scholarship and demonstrate how it has affected the truth of that scholarship on both ends of the ideological spectrum. Part II will introduce the basics of theory-induced blindness. Parts III-VII will present examples of theory-induced blindness in Classical Legal Thought, writing legal history, traditional law and economics, post-modern legal scholars' social constructionist arguments, and two professors' defense of learning style theory. Finally, the conclusion will discuss the best solution for avoiding theory-induced blindness--evaluating theories with critical thinking.

Are There Cross-Cultural Legal Principles? Modal Reasoning Uncovers Procedural Constraints on Law by Hannikainen et al.

Ivar Hannikainen, Kevin Tobia, Guilherme Almeida, Raff Donelson, Filius Dranseika, Markus Kneer, Strohmeier Niek, Piotr Bystranowski, Kristina Dolinina, Bartosz Janik, Sophie Keo, Egle Lauraityte, Alice Liefgreen, Maciej Próchnicki, Alejandro Rosas Martinez, and Noel Struchiner have published Are There Cross-Cultural Legal Principles? Modal Reasoning Uncovers Procedural Constraints on Law on SSRN. Here is the abstract:

Despite pervasive variation in the content of laws, legal theorists and anthropologists have often argued that laws share certain abstract features and even speculated that law may be a human universal. In the present report, we contribute cross-cultural data to this debate: Are there cross-cultural principles of law? Participants in eleven different countries (N = 3054) were asked whether there could be laws that violate certain procedural principles (e.g., laws applied retrospectively or unintelligible laws), and also whether there are any such laws—in a between-subjects design. Confirming our pre-registered prediction, people reported that such laws cannot exist, but also (paradoxically) that there are such laws. These results document cross-culturally and –linguistically robust beliefs about the nature of law which defy people’s conception of how legal systems function in practice.

Reasonableness on the Clapham Omnibus: Exploring the outcome-sensitive folk concept of reasonable by Kneer

Markus Kneer (Department of Philosophy, University of Zurich) has published Reasonableness on the Clapham Omnibus: Exploring the outcome-sensitive folk concept of reasonable on SSRN. Here is the abstract:

This paper presents a series of studies (total N=579) which demonstrate that folk judgments concerning the reasonableness of decisions and actions depend strongly on whether they engender positive or negative consequences. A particular decision is deemed more reasonable in retrospect when it produces beneficial consequences than when it produces harmful consequences, even if the situation in which the decision was taken and the epistemic circumstances of the agent are held fixed across conditions. This finding is worrisome for the law, where the reasonable person standard plays a prominent role. The legal concept of reasonableness is outcome-insensitive: whether the defendant acted in a reasonable fashion or not depends exclusively on her context of action, no matter how things play out. Folk judgments of reasonableness are thus inconsistent with the legal concept of reasonableness. Problematically, in common law jurisdictions, the decision whether a defendant’s behavior was reasonable or not is frequently (though not necessarily) delegated to a lay jury.

 

"Inconspicuous Victims" by Ravid

Itay Ravid (Villanova University - School of Law, Stanford University, School of Law) has published "Inconspicuous Victims" on SSRN. Here is the abstract:

Recent debates on racial inequalities in the criminal justice system focus on offenders while neglecting the other side of the criminal equation—victims of crime. Such scholarly oversight is surprising given the similarly deep racial disparities in the treatment of victims, manifested in different stages of the criminal justice system. Delving into the underexplored territory of racialized victimization, this project bridges that gap and exposes the roots of the disparate treatment of Black victims in the American criminal justice system. These unprecedented times of the COVID-19 pandemic and racial tensions bring to the fore questions about governmental allocation of resources and emphasize, maybe more than ever, the importance of going back to the roots of such a systematic institutional neglect. Through the ideal victim framework, I argue that from the early days of the victims’ rights movement to the present, Black victims have been considered non-ideal victims and, as such, unworthy of institutional and legal recognition. I further claim that the media has had an important role in such a social construction of the ideal white victim. I utilize a novel dataset spanning 10 years of media coverage on homicide cases contrasted with federal and state level crime statistics from Virginia, Washington, D.C., and Maryland to offer empirical support for this claim. I find first that, on local news stories about white homicide victims are indeed more salient than stories about Black homicide victims, and second, that Black victims are systematically underrepresented while white victims are overrepresented compared to true victimization rates. This Article thus exposes yet another dimension through which Black homicide victims are excised from the public’s consciousness as equal participants in the criminal process. More broadly, this Article calls for a discussion of the tight connections between the patterns through which we think about race and crime and offers directions to advance conversations on how to allow counter-narratives to enter the social discourse.

"How Does Restorative Justice Work? A Qualitative Metatsynthesis" by Suzuki & Yuan

Masahiro (Central Queensland University) and Xiaoyu Yuan have published "How Does Restorative Justice Work? A Qualitative Metatsynthesis" on SSRN. Here is the abstract:

A systematic effort to answer in what ways and contexts the claims of restorative justice (RJ) prove persuasive is lacking. We address this gap through a metasynthesis of qualitative studies. Drawing on 26 studies identified through the systematic literature search, we identified three overarching themes to understand “how RJ works”: (1) opportunities for humanization, learning, and putting emotions of victims and individuals who committed a crime at the center of conflict-solving, (2) support networks and mechanisms for communication, and (3) life-changing journey enshrined in healing. We develop a line of argument showing how the micro-, meso-, and macro-elements of RJ interact with each other. While offering reflections on the limitations of existing literature around this key issue, we conclude with implications for advancing research of RJ.

"Your Money or Your Liberty: Clarifying Military Contingent Confinement" by Kuersten

Andreas Kuersten (Georgetown University - Center for Clinical Bioethics) has published "Your Money or Your Liberty: Clarifying Military Contingent Confinement" on SSRN. Here is the abstract:

Your money or your liberty? Barring certain limitations, monetary penalty or incarceration awaits service members who have fines and contingent confinement — i.e., sentence conditions allowing for the imposition of confinement if an individual fails to pay a punitive fine — adjudged against them under the military justice system. This is the case despite recent significant changes to the Manual for Courts-Martial (MCM) and Rules for Courts-Martial (RCM) and contrary interpretations of how to implement contingent confinement. The RCM outlines military fine enforcement through contingent confinement in Rule 1003(b)(3), which states that sentences including fines “may be accompanied by a provision” providing “that, in the event the fine is not paid,” the convicted individual may be “confined until a fixed period considered an equivalent punishment to the fine has expired.” Although another rule addressing this punishment was removed from the RCM by Executive Order 13825 in 2018 — Rule 1113(e)(3), which described contingent confinement as replacing any associated fine and the manner in which this substitution must take place — Rule 1003(b)(3) was left unchanged. Both courts and scholars, however, have stumbled in interpreting this Rule, creating confusion as to its true legal effect and viability for achieving certain penological outcomes. In light of the aforementioned recent removal of Rule 1113(e)(3) from the RCM and inaccurate scholarly and judicial presentations, this article clarifies the law of military fine enforcement through contingent confinement and offers recommendations for its use.

"The Modern Common Law of Crime" by Leider

Robert Leider (George Mason University - Antonin Scalia Law School, Faculty) has published "The Modern Common Law of Crime" on SSRN. Here is the abstract:

Two visions of American criminal law have emerged. The first vision is that criminal law is statutory and posits that legislatures, not courts, draft substantive criminal law. The second vision, like the first, begins with legislative supremacy, but it ends with democratic dysfunction. On this view, while contemporary American criminal law is statutory in theory, in practice, American legislatures badly draft and maintain criminal codes. This effectively delegates the “real” drafting of criminal law to prosecutors, who form the law through their charging decisions.

This Article offers a third vision: that modern American criminal law is primarily “conventional” in the British Commonwealth sense of that term. That is, much of our criminal law is defined by unwritten common-law-like norms that are widely acknowledged and generally respected, and yet are not recognized as formal law enforceable in courts. This Article makes three contributions. First, it argues that criminal law conventions exist. Second, it explains how non-legal checks on prosecutorial power bring about criminal law conventions. Third, it provides an account for how legislatures and courts should respond to a criminal law heavily comprised of norms that rely primarily on non-legal sanctions for their enforcement.

"Reducing Mass Incarceration Through Cost Salience: Why Juries Should Be Told the Cost of Incarceration" by Conklin

Michael Conklin (Angelo State University) has published "Reducing Mass Incarceration Through Cost Salience: Why Juries Should Be Told the Cost of Incarceration" on SSRN. Here is the abstract:

The practice in Missouri of informing judges of incarceration costs resulted in reductions to both mass incarceration and recidivism. States that allow jury sentencing are ideal for allowing jurors to also consider incarceration costs. The need for such common-sense reform is timely. COVID-19 has drastically reduced state budgets and there is widespread agreement that the criminal justice system over-punishes. This results in rare, bipartisan support for criminal justice reform. Jury incarceration-cost salience is also a more palatable method for reform among politicians who fear being labeled “soft on crime.”

This Article presents the findings of a first-of-its-kind study, the results of which strongly support juror incarceration-cost salience. This Article also includes analysis of the arguments for and against the practice. Such consideration results in a clear preference for juror incarceration-cost salience. It would save valuable state resources that could then be invested into more productive programs, lead to a reduction in crime rates due to the criminogenic effect of incarceration, and would benefit not only incarcerated individuals but also their families and communities. These benefits, combined with the promising results of this study and the near-perfect converging of political interests in favor of prison reform, all point to a climate that is ripe for such social change.

"Wrongful Incarceration Causes Substantial Bodily Harm: Why Lawyers Should be Allowed to Breach Confidentiality to Help Exonerate the Innocent" by Smith

Vania M. Smith (Catholic University of America (CUA) - Columbus School of Law) has published "Wrongful Incarceration Causes Substantial Bodily Harm: Why Lawyers Should be Allowed to Breach Confidentiality to Help Exonerate the Innocent" on SSRN. Here is the abstract: 

The Model Rules of Professional Conduct (MRPC) governs the conduct of lawyers and provides the framework for how individual states and territories craft their rules. Rules regarding confidentiality have been central through the many iterations of these rules since their inception. Client confidentiality protections are critical to establishing and maintaining the public trust in the profession. Rule 1.6 of the MRPC gives a lawyer the opportunity to divulge a client confidence under varying circumstances, including the prevention of “substantial bodily harm”. To date, this has not resulted in a wide interpretation that this exception includes wrongful incarceration. This article seeks to advance the scholarship that has illuminated the physical and mental harm uniquely linked to wrongful incarceration and quantify this harm as substantial in accordance with the rule. The article further aims to parse the rule in an effort to prove that the language of Rule 1.6, in its current state, provides adequate protection for a lawyer breaching client confidentiality in an effort to prevent the substantial bodily harm of wrongful incarceration.

"Science and the Eighth Amendment" by Ryan

Meghan J. Ryan (Southern Methodist University - Dedman School of Law) has published "Science and the Eighth Amendment" on SSRN. Here is the abstract: 

As time hurtles forward, new science constantly emerges, and many scientific fields can shed light on whether a punishment is unconstitutionally cruel and unusual, or even on whether bail or fines are unconstitutionally excessive under the Eighth Amendment. In fact, in recent years, science has played an increasingly important role in the Court’s Eighth Amendment jurisprudence. From the development of an offender’s brain, to the composition of lethal injection drugs, even to measurements of pain, knowledge of various scientific fields is becoming central to understanding whether a punishment is unconstitutionally cruel and unusual. There are a number of limits to how the Court can weave science into its decisions, though. For example, relevant data are difficult to come by, as ethical limitations prevent a wide swath of focused research that could be useful in this arena. Further, the Justices’ understandings of the complicated science that can help inform their Eighth Amendment decisions are limited. This chapter examines the relevance and limitations of science—both physical and social—in Eighth Amendment analyses.

"Mathematics, Psychology, and Law: The Legal Ramifications of the Exponential Growth Bias" by Zamir & Teichman

Eyal Zamir (Hebrew University of Jerusalem - Faculty of Law) and Doron Teichman (Hebrew University of Jerusalem - Faculty of Law) have published "Mathematics, Psychology, and Law: The Legal Ramifications of the Exponential Growth Bias" on SSRN. Here is the abstract:

Many human decisions, ranging from the taking of loans with compound interest to fighting deadly pandemics, involve phenomena that entail exponential growth. Yet a wide and robust body of empirical studies demonstrates that people systematically underestimate exponential growth. This phenomenon, dubbed the exponential growth bias (EGB), has been documented in numerous contexts, across different populations, using both experimental and observational methods.

Despite its centrality to human decision making, legal scholarship has thus far failed to account for the EGB. This Article presents the first comprehensive study of EGB and the law. Incorporating the EGB into legal analysis sheds new light on legal measures that are already in use, and highlights new solutions to numerous problems that the law strives to solve. More concretely, the EGB calls for the introduction of new disclosure duties that would assist people grasp the long-term implications of their choices; the imposition of new mandatory rules that would minimize the exploitation of the EGB by savvy profit-maximizing entrepreneurs; and the adoption of new debiasing techniques that could improve policymakers’ decisions.

"Mathematics, Psychology, and Law: The Legal Ramifications of the Exponential Growth Bias" by Zamir & Teichman

Eyal Zamir (Hebrew University of Jerusalem - Faculty of Law) and Doron Teichman (Hebrew University of Jerusalem - Faculty of Law) have published "Mathematics, Psychology, and Law: The Legal Ramifications of the Exponential Growth Bias" on SSRN. Here is the abstract:

Many human decisions, ranging from the taking of loans with compound interest to fighting deadly pandemics, involve phenomena that entail exponential growth. Yet a wide and robust body of empirical studies demonstrates that people systematically underestimate exponential growth. This phenomenon, dubbed the exponential growth bias (EGB), has been documented in numerous contexts, across different populations, using both experimental and observational methods.

Despite its centrality to human decision making, legal scholarship has thus far failed to account for the EGB. This Article presents the first comprehensive study of EGB and the law. Incorporating the EGB into legal analysis sheds new light on legal measures that are already in use, and highlights new solutions to numerous problems that the law strives to solve. More concretely, the EGB calls for the introduction of new disclosure duties that would assist people grasp the long-term implications of their choices; the imposition of new mandatory rules that would minimize the exploitation of the EGB by savvy profit-maximizing entrepreneurs; and the adoption of new debiasing techniques that could improve policymakers’ decisions.