Neuroethics & Law Blog

"The Common Law and Critical Theory" by Barzun

Charles L. Barzun (University of Virginia School of Law) has published "The Common Law and Critical Theory" on SSRN. Here is the abstract:

Because common-law doctrines have long served as targets for critical theorists, it would be easy to see the common law and critical theory as essentially antagonistic with each other. But that would be a mistake. In fact, both critical theory and the common law—or, at least, one interpretation of the common law—license a quite similar, and similarly holistic, form of reasoning. Specifically, they both draw normative inferences from explanatory claims and vice versa. This symposium essay uses a case study to illustrate this quite general point. Catharine MacKinnon’s revolutionary argument that sexual harassment constitutes sex discrimination under the Civil Rights Act of 1964 is a vivid example not only of critical theory but also of an holistic interpretation of the common law. Because common-law reasoning and critical theory are analytically compatible in this way, I conclude by suggesting that each tradition has something to learn from the other.

"What Is Normal" by Sunstein

Cass R. Sunstein (Harvard Law School, Harvard University - Harvard Kennedy School (HKS)) has published "What Is Normal" on SSRN. Here is the abstract:

Some of our judgments are unstable, in the sense that they are an artifact of, or endogenous to, what else we see. This is true of sensory perception: Whether an object counts as blue or purple depends on what other objects surround it. It is also true for ethical judgments: Whether conduct counts as unethical depends on what other conduct is on people’s viewscreens. There are plausible evolutionary explanations for these findings. As behavior in general regresses, actions that were previously seen as bad or as terrible may come to be seen as fine or mildly bad. Call this “opprobrium contraction.” As behavior in general improves, actions that were previously seen as fine or as mildly bad may come to seem bad or terrible. Call this “opprobrium expansion.” Because law has a signaling function, it can heighten or diminish these phenomena.

"Psychosis, Heat of Passion, and Diminished Responsibility" by Johnston & Leahey

Lea Johnson (University of Florida Levin College of Law) and Vincent Leahey (University of Florida, Levin College of Law, Student) have published "Psychosis, Heat of Passion, and Diminished Responsibility" on SSRN. Here is the abstract:

This Article calls for the creation of a generic partial excuse for diminished rationality from mental disability. Currently, most jurisdictions recognize only one partial excuse: the common law heat-of-passion defense. Empirical research demonstrates that populations with delusions experience similar impairments to decision-making capacities as people confronted with sudden, objectively adequate provocation. Yet, current law affords significant mitigation only to the latter group, which only applies in murder cases. Adoption of the Model Penal Code’s extreme mental or emotional disturbance (EMED) defense could extend mitigation to other forms of diminished responsibility. However, examination of jurisdictions’ adoption and utilization of the EMED defense shows that, of the few states that have adopted it, most have rejected its diminished responsibility potential. Instead, most retain key features of heat of passion such as requiring an external provoking event, rendering the defense inapplicable to many delusion-driven crimes.

A better solution would be to create a generic partial excuse for diminished rationality from mental pathology. Over the decades, several prominent scholars have offered proposals for generic partial excuses for partial responsibility, but, as of yet, none has inspired legislative action. This Article’s proposal differs from prior proposals in three key respects. First, this proposal is informed by contemporary understandings of the cognitive and emotional impairments to reasoning that often accompany psychotic disorders—the disorders often at issue in irresponsibility cases. Second and relatedly, this proposal is limited to rationality impairments stemming from mental disabilities, a traditionally recognized form of diminished blameworthiness. Third, to be workable and attractive to states, this proposal recommends that states draw definitions of partial responsibility from existing statutory frameworks, namely existing insanity or Guilty But Mentally Ill (GBMI) standards. Such an understanding of partial responsibility should carry greater local legitimacy, and the popularity of GBMI verdicts with legislatures and juries may mean that extending those statutes into the realm of partial responsibility would be more palatable to state legislatures than wholly new language. Because GBMI statutes typically do not reduce punishment or otherwise reflect diminished blameworthiness, those statutes yield few examples of sentencing, treatment, and post-sentence options to accompany a partial responsibility verdict. Statutes outside the U.S. may provide better models on that score, an issue that will be considered in a forthcoming work.

"Time and Punishment: How the ACCA Unjustly Creates a 'One-Day Career Criminal"" by Bloom

Aliza Hochman Bloom (New England Law | Boston) has published "Time and Punishment: How the ACCA Unjustly Creates a 'One-Day Career Criminal"" on SSRN. Here is the abstract:

In 2017, Adam Longoria was sentenced pursuant to the Armed Career Criminal Act (ACCA) to a fifteen-year term of imprisonment. The ACCA imposes a fifteen-year mandatory minimum sentence for any defendant who knowingly possesses a firearm and has three previous convictions for a “violent felony,” “serious drug offense,” or both, “committed on occasions different from one another.” 18 U.S.C. § 924(e). In Mr. Longoria’s case, the ACCA enhancement was based upon two drug sales committed within the temporal span of a related drug conspiracy. In 2010, he pled guilty to these three interrelated counts in federal court and was sentenced in one judgment later that year. Six years later, his live-in girlfriend tried to sell a gun on Facebook, and Mr. Longoria was charged with constructive possession of a firearm. Because Mr. Longoria’s three interrelated counts from the 2010 drug conspiracy were counted as three serious drug offenses “committed on occasions different from one another,” he was sentenced pursuant to the ACCA’s fifteen-year mandatory minimum.

On appeal, Mr. Longoria argued that because the two 2010 sales occurred within the temporal span of the related drug conspiracy and arose out of one criminal episode, these three counts had not occurred on “occasions different from one another.” The Eleventh Circuit rejected his argument, deciding in 2017 that Mr. Longoria had admitted to sufficient facts during his 2010 guilty plea to conclude that these three counts were sufficiently distinct to be three qualifying ACCA predicate offenses. The Supreme Court declined review. Accordingly, Mr. Longoria will serve fifteen years in prison based on three drug counts for which he was sentenced on one day in 2010, comprised of two sales within a related ongoing conspiracy. The ACCA, intended by Congress as an enhancement for violent criminals, was imposed upon Mr. Longoria, a “one-day career criminal,” without any violent prior convictions.

As Mr. Longoria’ s case illustrates, the ACCA’ s “different occasions” analysis does not work when the predicate offense is conspiracy—an ongoing offense defined by the agreement between parties for an unlawful purpose. When deter- mining whether two offenses occurred on different occasions, the Courts of Appeal ask whether they were simultaneous or successive, and whether the de- fendant had an opportunity to desist from the lawful conduct of one act before pursuing the other. Conspiracy, by its nature, does not fit this framework. Nevertheless, conspiracy remains a common predicate offense for the ACCA. The Supreme Court has not provided guidance on how a sentencing court should con- duct the “different occasions” analysis for temporally overlapping offenses, such as a conspiracy and the substantive acts with which it is comprised.

"Broken Windows Policing and Crime: Evidence from 80 Colombian Cities" by Mejia et al.

Daniel Mejia (Universidad de los Andes, Colombia - Department of Economics), Ervyn Norza (Policía Nacional de Colombia), Santiago Tobon (Universidad EAFIT), and Martín Vangeas-Arias (Universidad EAFIT - School of Economics and Finance - Center for Research in Economic & Finance (CIEF)) have published "Broken Windows Policing and Crime: Evidence from 80 Colombian Cities" on SSRN. Here is the abstract:

We study the effects of broken windows policing on crime using geo-located crime and arrest reports for 80 Colombian cities. Broadly defined, broken windows policing consists of intensifying arrests—sometimes for minor offenses—to deter potential criminals. To estimate causal effects, we build grids of 200 × 200 meters over the urban perimeter of all cities and produce event studies to look at the effects of shocks in police activity in the periods to follow. We use spikes in the number of arrests with no warrant—which are more likely associated with unplanned police presence—as a proxy for shocks in broken windows policing. As expected, we observe an increase in crimes during the shock period, as each arrest implies at least one crime report. In the following periods, crimes decrease both in the place of the arrests and the surroundings. With many treated grids and many places exposed to spillovers, these effects add up. On aggregate, the crime reduction offsets the observed increase during the shock period. Direct effects are more immediate and precise at low crime grids, but beneficial spillovers seem more relevant at crime hot spots. The effects of broken windows policing circumscribe to cities with low or moderate organized crime, consistent with criminal organizations planning their activities more systematically than disorganized criminals.

"Delusions, Moral Incapacity, and the Case for Moral Wrongfulness" by Johnston

Lea Johnston (University of Florida Levin College of Law) has published "Delusions, Moral Incapacity, and the Case for Moral Wrongfulness" on SSRN. Here is the abstract:

Responsibility is a legal—not medical—construct. However, science can be useful in exposing faulty assumptions underlying current doctrine or practice, illuminating changes in practice or evidentiary standards to better effectuate the law’s animating purpose, and even suggesting updates to legal standards to account for modern understandings of functionalities of concern. This Article uses the science of delusions to assess the law regarding, and practice of establishing, criminal irresponsibility for defendants with psychosis. Over the last two decades, researchers from the cognitive sciences have compiled strong evidence that a host of cognitive and emotional impairments contribute to the origin and maintenance of delusions by impairing decision-making. This Article uses insights from those literatures to make three contributions. First, it analyzes current insanity standards and demonstrates their intimate relationship with rationality. It then argues that courts should consider evidence of any significant reasoning impairment, whether cognitive or emotional, as probative to sanity. Second, and more controversially, the Article explains how the reasoning impairments associated with delusions could bear upon a defendant’s incapacity to know, or her ignorance of, the wrongfulness of her criminal act. In assessing the latter, the Article argues that scientific research exposes as misguided the narrow test of actual knowledge currently employed in nine jurisdictions across the United States. Courts in these jurisdictions hold that a delusional defendant lacked knowledge of her act’s wrongfulness only if her delusion, had it been true, would have justified or excused her act. Instead, the science of persecutory delusions exposes the legal wrongfulness standard as inappropriate for populations with delusions and suggests that courts should consider excusing defendants whose delusions fall within the broad contours of a legal defense.

"Brains Without Money: Poverty as Disabling" by Murphy

Emily R. Murphy (UC Hastings Law) has published "Brains Without Money: Poverty as Disabling" on SSRN. Here is the abstract:

The United States has long treated poverty and disability as separate legal categories, a division grounded in widespread assumptions about the “deserving” and “undeserving” poor. In the case of disability, individuals are generally not thought to be morally responsible for their disadvantage, whereas in the case of poverty, disadvantage is assumed to be the fault of the individual, who is therefore less deserving of aid. This Article argues, however, that recent advances in brain and behavioral science undermine the factual basis for those assumptions. Poverty inhibits brain development during childhood and, later in life, adversely affects cognitive capacities that are key to decision-making and long-term planning. The science of scarcity is complex and ongoing, but its most basic finding is quickly approaching consensus: poverty’s effects in the brain can be disabling.

This Article argues that understanding poverty as disabling has potentially significant implications for policy and doctrine. Viewing poverty as disabling would provide support for poverty programs with less sludge and more money: proposals such as universal basic income, negative income tax, child grants, and greatly simplified benefits determinations. It also reanimates insertion of social welfare concerns into the dominant civil rights framework for disability policy, and could resolve longstanding tensions between disjointed federal disability laws. In addition, brain and behavioral science may support litigation strategies to compel accessibility to existing systems and potentially help promote a new public understanding of the causes of poverty.

The Article concludes by considering the potential (and significant) downsides of using the lens of science in service of policy: backlash, misunderstanding, and the fragility of relying on nascent science to support fundamentally normative policy goals. One necessary mitigation strategy involves the careful translation of science, including its limitations and residual uncertainties, into legal scholarship, an approach this Article attempts to both model and articulate.

"Attitude Theories of the Law" by Katz

Ori Katz (Hebrew University of Jerusalem, School of Law, Students) has published "Attitude Theories of the Law" on SSRN. Here is the abstract:

In any legal field, numerous normative dilemmas and conflicts arise as to what the legal rules should be. Attitudes toward these conflicts shape legal policy and decision-making. Thus, studying legal attitudes is essential for predicting legal actors’ decisions and understanding the underlying reasons for existing legal doctrines and judgments. To date, many studies have focused on the links between political and cultural attitudes and judicial decision-making. However, only few scholars have attempted to provide a complete descriptive account for the basic conflicts that divide people over distinctively legal issues.

The main objective of this article is to introduce a method for studying the richness of people’s legal attitudes. Building on previous studies of attitudes and the law, and on methods developed in other spheres for constructing, testing, and applying attitude theories, this article advocates the development of attitude theories of the law, that would map the key-conflicts in any legal field. Specifically, it provides a description of what constitutes a legal attitude theory and how such theories could be utilized; sets the criteria for evaluating such theories; and proposes an empirical methodology for testing these theories and for assessing the legal attitudes of individuals.

"Giving Reasons as a Means to Enhance Compliance with Legal Norms" by Lewinsohn-Zamir, et al.

Daphna Lewinsohn-Zamir (Hebrew University - Faculty of Law), Eyal Zamir (Hebrew University of Jerusalem - Faculty of Law), and Ori Katz (Hebrew University of Jerusalem, School of Law, Students) have published "Giving Reasons as a Means to Enhance Compliance with Legal Norms" on SSRN. Here is the abstract:

The threat of sanctions is often insufficient to ensure compliance with legal norms. Recently, much attention has been given to nudges as a means to influence behavior without sanctions; but nudges are often ineffective and controversial. This Article explores the provision of information about the reasons underlying legal norms, as a means to enhance compliance.

While the idea that legal norms should be accompanied by explanatory preambles, to complement the law’s threat of sanctions with persuasion, goes back to Plato, this technique is not commonly used nowadays, and scholars have failed to systematically consider this possibility. The article argues that reason-giving can enhance compliance and reduce the need for costly enforcement mechanisms. The theoretical part of the article first describes the mechanisms through which reasons may influence people’s behavior. It then distinguishes between reason giving as a means to enhance compliance and as a means to attain other goals, and between reason giving and related means to enhance compliance. Finally, it discusses various policy and pragmatic considerations that bear on the use of reason giving. Following the theoretical discussion, the empirical part of the article uses vignette studies to demonstrate the feasibility and efficacy of the reason-giving technique.

"Monitoring Police with Body-Worn Cameras: Evidence from Chicago" by Ferrazares

Toshio Ferrazares (University of California, Santa Barbara) has published "Monitoring Police with Body-Worn Cameras: Evidence from Chicago" on SSRN. Here is the abstract:

Using data from the Chicago Police Department on complaints filed by civilians, and reports of force by officers, this paper estimates the effect of body-worn cameras (BWCs) of officer and civilian behavior. Utilizing a two-way fixed effects design with a staggered adoption of body-worn cameras across 22 policing districts to almost 12,000 officers, I find an estimated 33% reduction in use-of-force complaints following the usage of body-worn cameras. This effect is driven in large part by a reduction in white officer-black civilian use-of-force complaints. Additionally, I find a corresponding 42% reduction in officers reporting striking a civilian and a large though less significant reduction in firearm usage, potential mechanisms for the reduction in complaints. Importantly, these reductions are not associated with an increase in injury to officers or any increase in force from civilians. However, I find that officers make fewer arrests for narcotics and cannabis possession following BWC adoption, evidence that body-worn cameras lead to de-policing. Taken together, this suggests that body-worn cameras are an effective technology at deterring unnecessary force but need to considered holistically before discerning whether their benefits outweigh their costs.

"Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk" by Slobogin

Christopher Slobogin (Vanderbilt University - Law School) has published "Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk" on SSRN. Here is the abstract:

Statistically-derived algorithms, adopted by many jurisdictions in an effort to identify the risk of reoffending posed by criminal defendants, have been lambasted as racist, de-humanizing, and antithetical to the foundational tenets of criminal justice. Just Algorithms argues that these attacks are misguided and that, properly regulated, risk assessment tools can be a crucial means of safely and humanely dismantling our massive jail and prison complex. The book explains how risk algorithms work, the types of legal questions they should answer, and the criteria for judging whether they do so in a way that minimizes bias and respects human dignity. It also shows how risk assessment instruments can provide leverage for curtailing draconian prison sentences and the plea-bargaining system that produces them. The ultimate goal of the book is to develop the principles that should govern, in both the pretrial and sentencing settings, the criminal justice system's consideration of risk. Table of Contents and Preface are provided, as well as a recent article that tracks closely two of the book's chapters.

"Recent Work on the Proof Paradox" by Ross

Lewis Ross (London School of Economics & Political Science (LSE) - London School of Economics) has published "Recent Work on the Proof Paradox" on SSRN. Here is the abstract: 

Recent years have seen fresh impetus brought to debates about the proper role of
statistical evidence in the law. Recent work largely centres on a set of puzzles known as
the ‘proof paradox’. While these puzzles may initially seem academic, they have
important ramifications for the law: raising key conceptual questions about legal proof,
and practical questions about DNA evidence. This article introduces the proof paradox,
why we should care about it, and new work attempting to resolve it.

"Legal Proof and Statistical Conjunctions" by Ross

Lewis Ross (London School of Economics & Political Science (LSE) - London School of Economics) has published "Legal Proof and Statistical Conjunctions" on SSRN. Here is the abstract: 

A question, long discussed by legal scholars, has recently provoked a considerable amount of philosophical attention: ‘Is it ever appropriate to base a legal verdict on statistical evidence alone?’ Many philosophers who have considered this question reject legal reliance on bare statistics, even when the odds of error are extremely low. This paper develops a puzzle for the dominant theories concerning why we should eschew bare statistics. Namely, there seem to be compelling scenarios in which there are multiple sources of incriminating statistical evidence. As we conjoin together different types of statistical evidence, it becomes increasingly incredible to suppose that a positive verdict would be impermissible. I suggest that none of the dominant views in the literature can easily accommodate such cases, and close by offering a diagnosis of my own.

"Toward A Neuroscientifically Informed “Reasonable Person” Test" by Zhang et al.

Zhihao Zhang (University of California, Berkeley - Haas School of Business), Maxwell Good (University of California, Berkeley - University of California, Berkeley), Vera Kulikov (University of California, Berkeley - University of California, Berkeley), Femke Van Horen (VU University Amsterdam), Andrew Kayser (University of California, San Francisco (UCSF)), and Ming Hsu (University of California, Berkeley - Haas School of Business) have published "Toward A Neuroscientifically Informed “Reasonable Person” Test" on SSRN. Here is the abstract:

Legal tests invoking the viewpoint of a so-called reasonable person play an important role in many domains of the law, ranging from intellectual property to free speech. In such cases, a central question involves determining how a hypothetical individual with “an ordinary or average level of care, prudence, or knowledge” would respond. Despite the seemingly commonsensical nature of these tests, their judicial application can be controversial due to concerns about subjectivity and vulnerability to explicit or implicit biases. Here we take a step toward addressing these concerns by using neuroscientific tools to observe, without the use of self-report, the nature of mental representations central to a set of disputes invoking the reasonable person. Specifically, using an fMRI-based measure, repetition suppression, to generate a neural index of subjective visual similarity, we sought to inform the application of the reasonable person test to a class of intellectual property law that evaluates whether a trademark is so similar to another as to generate consumer confusion. We show that, by leveraging well-established neuroscientific knowledge about visual processing, it is possible to construct a parsimonious neural index of subjective similarity using signals from object-sensitive brain regions identified a priori. Moreover, this neural index, aggregated across multiple participants, is sufficiently precise to detect instances of experimenter-induced bias in behavioral reports. Together these findings shed light on the potential evidentiary value of neuroscientific data to inform questions involving the reasonable person and suggest a novel domain for the use of neuroscience in law.

"Regulation as Punishment" by Noorda

Hadassa Noorda (University of Amsterdam, New York University School of Law) has published "Regulation as Punishment" on SSRN. Here is the abstract: 

Theorists of criminal law widely agree that state punishment involves harsh treatment and stigma and that states must therefore provide protections for targeted individuals. But certain regulatory measures can also be used to impose harsh treatment and stigma. This paper addresses the stigmatic impact of harsh regulatory measures. It argues that harsh regulatory measures that label targeted individuals as risky impose a stigma that has the potential to significantly affect these individual’s personal and professional relationships. Such measures include area restrictions applied to alleged terrorists and registration requirements for convicted sex offenders. I recommend ways of implementing legal safeguards for targeted individuals against the stigma involved in the employment of such measures.