Neuroethics & Law Blog

"Causation and the Silly Norm Effect" by Güver and Kneer

Levin Güver (University of Zurich, Faculty of Law) and Markus Kneer (Department of Philosophy, University of Zurich) have published "Causation and the Silly Norm Effect" on SSRN. Here is the abstract: 

In many spheres, the law takes the legal concept of causation to correspond to the folk concept (the correspondence assumption). Courts, including the US Supreme Court, tend to insist on the "common understanding" and that which is "natural to say" (Burrage v. United States) when it comes to expressions relating to causation, and frequently refuse to clarify the expression to juries. As recent work in psychology and experimental philosophy has uncovered, lay attributions of causation are susceptible to a great number of unexpected factors, some of which seem rather peripheral to causation. One of those is the norm effect (Knobe & Fraser, 2008): Agents who, in acting as they do, break a salient norm, are more likely to be considered as having caused a certain consequence than when they do not violate a norm. According to some (e.g., Alicke, 1992) this constitutes a bias. According to others (e.g., Sytsma, 2020), the folk concept of causation is sensitive to normative factors, and there’s nothing wrong with that. In this paper, we explore the question whether the norm effect should be considered a bias from the legal perspective on the one hand, and from the psychological perspective on the other. To do this, we test whether norms which are nonpertinent to the consequences or outright silly also impact causation judgements. The data from two preregistered experiments (total N=593) clearly show they do. This, we argue, makes the bias interpretation plausible from the psychological perspective, and both plausible and problematic from the legal perspective. It also shows that the law should abstain from unreflectively assuming conceptual correspondence between legal and ordinary language concepts.

"Review of Shaun Nichols, Rational Rules: Towards a Theory of Moral Learning" by Mikhail

John Mikhail (Georgetown University Law Center) has published "Review of Shaun Nichols, Rational Rules: Towards a Theory of Moral Learning" on SSRN. Here is the abstract: 

 

Shaun Nichols’ "Rational Rules" is the most creative and interesting response to moral nativism to appear since the naturalistic turn in moral psychology that began several decades ago. Nichols accepts the basic nativist observation that the moral rules children acquire are surprisingly rich and complex in relation to the relevant evidence, but he maintains that the acquisition process can be explained by statistical learning, rather than innate endowment. His key idea is that the same principles that underpin statistical learning in other domains can explain how children acquire their moral rules. After summarizing this fascinating book, this review raises some doubts and concerns about its main arguments. First, as Nichols admits, his empiricist learning theory does not explain how complex concepts like agent, intention, cause, and wrong are acquired on the basis of experience. Instead, it simply presupposes these concepts, along with the hypothesis space and statistical techniques on which it depends. Second, Nichols’ empiricism does not set out to explain the actual transition that occurs when children who initially do not possess rule-like elements of moral cognition acquire them on the basis of certain evidence. Instead, its aim is to show how that transition might occur by means of statistical learning. This explanation is weaker than it appears, however, because nativists typically argue that non-nativist learning theories are empirically improbable, not logically impossible, in light of the facts of moral development. Finally, Nichols’ account of the learning target in moral theory is far too crude and simplistic to do justice to the argument from the poverty of the stimulus. The moral grammars acquired by all normal children include (but are not limited to) prohibitions of familiar crimes and torts, such as murder, assault, theft, and fraud; principles of justification and excuse, such as self-defense, mistake of fact, duress, and provocation; and a variety of even more complex rules, standards, and principles, such as the duty to rescue, the prohibition of unreasonable risk (i.e. negligence), and the principle of double effect, all of which require comparing acts and omissions with their alternatives. Does Nichols' empiricist theory explain how any of these complex deontic rules could be learned by means of statistical inferences from examples in the child’s environment? A careful review of this book and the experiments on which it relies makes clear that it does not.

"Criminal Terms" by Roberts

Anna Roberts (St. John's University - School of Law) has published "Criminal Terms" on SSRN. Here is the abstract: 

Core terms used by criminal legal academics bolster the criminal system and ward off radical critique. They do this by conveying implicit messages of three types: that the criminal system is generally accurate, that it is necessary, and that it is well-intentioned and moving in the right direction. While recent legal scholarship has identified other subtle ways in which we send pro-carceral messages, it has not focused on vocabulary. We thus fall behind other entities, which have recently announced vocabulary change, in recognition of the harm that such messages can do. We too have influence, not just through scholarly and public conversations, but through our framing of the system for our students, who will help determine its future. We must thus explore the possibility of, and obstacles to, change in our criminal terms.

"The Principle of Proportionality in Sentencing: A Dynamic Evolution and Multiplication of Conceptions" by Manikis

Marie Manikis (McGill University - Faculty of Law) has published "The Principle of Proportionality in Sentencing: A Dynamic Evolution and Multiplication of Conceptions" on SSRN. Here is the abstract: 

This article examines the theoretical foundations and developments of the concept of proportionality in common law sentencing. It traces its evolution within its two main underlying frameworks, desert-based and consequentialist theories of punishment. It specifically examines the Canadian context and illustrates the ways that this concept was mainly rooted in a desert-based framework but has increasingly been infused with consequentialist rationales. This multiplication of underpinnings has led to a conceptual muddling of proportionality, risking voiding the concept of its meaning and usefulness to decision-makers at sentencing. In light of this, this article proposes a nuanced framework, similar to the one in England and Wales, rooted in a dynamic understanding of just deserts that allows for the incorporation of relevant consequentialist aims in a principled fashion.

"Plea Bargaining’s Uncertainty Problem" by Bellin

Jeffrey Bellin (William & Mary Law School) has published "Plea Bargaining’s Uncertainty Problem" on SSRN. Here is the abstract: 

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself. Critics’ primary target is the “trial penalty.” But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt. And, as a new wave of “progressive prosecutors” is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity. Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is typically a reflection of these flaws, not their source.

Finding the traditional critiques lacking, this Article highlights uncertainty as the core problem with plea bargaining. It is easy to overlook uncertainty because analysis of plea bargains usually focuses on cases after they have been resolved. Yet from the perspective of someone accused of a crime who is deciding whether to plead guilty, uncertainty is key. And while some uncertainty is inevitable, in many scenarios, plea bargaining turns the defendant’s choice into something resembling a floor bet at a Las Vegas casino – a solemn spectacle of plea-bargaining roulette.

Identifying uncertainty as plea bargaining’s distinct contribution to American dysfunction is important for two reasons. First, it provides a realistic blueprint for improving the largely unregulated plea-bargaining process – this country’s dominant mechanism for resolving criminal cases. Second, by suggesting that plea bargaining is not the primary source of other important problems, like excess severity or wrongful convictions, the analysis helps to redirect reform efforts targeting those important problems to areas where they may be more effective.

"The Foundations of Criminal Law Epistemology" by Ross

Lewis Ross (London School of Economics & Political Science (LSE) - London School of Economics) has published "The Foundations of Criminal Law Epistemology" on SSRN. Here is the abstract: 

Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental commitments of legal epistemology and suggest a way to vindicate it.

"The Future of Law and Neuroscience" by Jones

Owen D. Jones (Vanderbilt University - Law School & Dept. of Biological Sciences) has published "The Future of Law and Neuroscience" on SSRN. Here is the abstract: 

I was asked to speculate about where the field of Law & Neuroscience may be ten years from now. In that spirit (and while recognizing that the future rarely complies with our predictions) I attempt here some extrapolations. I first consider potential advances in the technologies for monitoring and manipulating brain states, the techniques for analyzing brain data, and the efforts to further integrate relevant fields. I then consider potential neurolaw developments relevant to: (1) detecting things law cares about; (2) individualizing developmental states and brain states; (3) evidence-based legal reforms; (4) legal decision-making; and (5) brain-brain interfaces.

"Letting Offenders Choose Their Punishment?" by Grolleau et al

Gilles Grolleau (Montpellier SupAgro and Researcher at LAMETA), Murat C. Mungan (George Mason University - Antonin Scalia Law School, Faculty), and Naoufel Mzoughi (INRA Ecodéveloppement) have published "Letting Offenders Choose Their Punishment?" on SSRN. Here is the abstract: 

Punishment menus allow offenders to choose the punishment to which they will be subjected from a set of options. We present several behaviorally informed rationales for why punishment menus may serve as effective deterrents, notably by causing people to refrain from entering a calculative mindset; reducing their psychological reactance; causing them to reconsider the reputational impacts of punishment; and reducing suspicions about whether the act is enforced for rent-seeking purposes. We argue that punishment menus can outperform the traditional single punishment if these effects can be harnessed properly. Our observations thus constitute a challenge, based on behavioral arguments, to the conventional view that adding (possibly unexercised) punishment options to an existing punishment scheme is unlikely to increase deterrence or welfare. We explain how heterogeneities among individuals can pose problems to designing effective punishment menus and discuss potential solutions. After explaining how punishment menus, if designed and implemented benevolently, can serve socially desirable goals, we caution against their possible misuse by self-interested governments.

"Algorithm vs. Algorithm" by Coglianese and Lai

Cary Coglianese (University of Pennsylvania Carey Law School) and Alicia Lai (University of Pennsylvania Law School , U.S. Courts of Appeals) have published "Algorithm vs. Algorithm"

Critics raise alarm bells about governmental use of digital algorithms, charging that they are too complex, inscrutable, and prone to bias. A realistic assessment of digital algorithms, though, must acknowledge that government is already driven by algorithms of arguably greater complexity and potential for abuse: the algorithms implicit in human decision-making. The human brain operates algorithmically through complex neural networks. And when humans make collective decisions, they operate via algorithms too—those reflected in legislative, judicial, and administrative processes. Yet these human algorithms undeniably fail and are far from transparent. On an individual level, human decision-making suffers from memory limitations, fatigue, cognitive biases, and racial prejudices, among other problems. On an organizational level, humans succumb to groupthink and free-riding, along with other collective dysfunctionalities. As a result, human decisions will in some cases prove far more problematic than their digital counterparts. Digital algorithms, such as machine learning, can improve governmental performance by facilitating outcomes that are more accurate, timely, and consistent. Still, when deciding whether to deploy digital algorithms to perform tasks currently completed by humans, public officials should proceed with care on a case-by-case basis. They should consider both whether a particular use would satisfy the basic preconditions for successful machine learning and whether it would in fact lead to demonstrable improvements over the status quo. The question about the future of public administration is not whether digital algorithms are perfect. Rather, it is a question about what will work better: human algorithms or digital ones.

"Fitting the Model Penal Code Into a Reasons Responsiveness Account of Culpability" by Antill

Gregory Antill (Yale Law School) has published "Fitting the Model Penal Code Into a Reasons Responsiveness Account of Culpability" on SSRN. Here is the abstract: 

This paper compares the Purpose, Knowledge, Recklessness, and Negligence (PKRN) mens rea regime laid out in the Model Penal Code (MPC) and dominant in American criminal law with the “reasons-responsiveness” conception of culpability widespread among contemporary philosophers and criminal law theorists. Whereas a PKRN picture of culpability sorts an agent’s culpability for an action according to whether the action was performed purposefully, knowingly, recklessly, or negligently, the reasons-responsiveness picture locates an agent’s culpability in the responsiveness of the agent’s reasoning capacities, which their actions evince. While many criminal law theorists are cognizant of these different conceptions of culpability, most have assumed that the two pictures of culpability generally converge when it comes to the relative culpability judgements of actions performed purposefully, knowingly, recklessly, or negligently, so that even for those who reject an underlying PKRN conception of culpability in favor of an alternative reasons-responsiveness conception, a PKRN mens rea regime can still provide a roughly adequate system of culpability proxies.

In contrast, this paper argues that criminal law theory has deeply underestimated the degree to which these conceptions are in tension with one another. If the reasons-responsiveness picture of culpability is correct, we should expect frequent cases of inter-hierarchical disagreement between the reasons-responsiveness picture and the MPC grading regime. That is, we should expect frequent cases where, for example, an agent who acts purposefully is less culpable than an agent who performs that same action recklessly or negligently. This result has both important normative and empirical consequences for the practice and study of substantive criminal law. In particular, this paper argues that if the reasons-responsiveness account of culpability is correct, then the MPC’s grading system will often fail to track offenders’ relative culpability and result in predictably disproportionate punishments not merely within but also across grades of crimes.

"A Dynamic Theory of Deterrence and Compliance" by Bekar

Cliff Bekar (Lewis & Clark College) has published "A Dynamic Theory of Deterrence and Compliance" on SSRN. Here is the abstract: 

Classical thinkers like Bentham saw deterrence as a dynamic process in which the punishment of violators today helped deter potential violators in the future by increasing their subjective probability of apprehension. Modern deterrence theory took a different path, analyzing deterrence as a static equilibrium framework in which the subjective and objective probabilities of apprehension are equal. We follow Bentham’s lead, assuming that the subjective probability is determined by the recent history of violations and apprehensions. Further, we assume that the objective probability is increasing in the quantity of enforcement resources and decreasing in the number of violations. Together these assumptions imply that deterrence is a dynamic stochastic process with the potential for disruptive positive feedback. We use simulation techniques to explore deterrence policy in a parameterized version of the more general process. We find that managing the dynamics of positive feedback is the core problem in developing and implementing effective deterrence policy. Our dynamic theoretical framework helps clarify and unify aspects of the research on optimal deterrence capacity, crime waves, and the efficacy of crackdowns and hot spot policing strategies.

"Bad Habits" by Brown

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

Addiction is a puzzle. Depending on whom you ask, you might be told it is a physical brain disease, a response to trauma, a disability, a behavioral compulsion, a mental illness, the result of bad personal choices, or some combination of these. Addiction has defied easy classification because it straddles many binaries. It is physical and mental, behavioral and psychological, genetic and environmental, external and internal. There are aspects that involve personal choices and aspects that do not. Historically, addiction has been viewed largely as a moral failing. Only in the last few decades have advances in genetics, neuroscience, and the social determinants of health greatly complicated the story we tell about the causes of addiction--revealing many of the above binaries to be false. The more we learn, the more we realize that developing severe addiction has much less to do with moral fortitude, and much more to do with factors outside of our control.

But this paper is only peripherally about the causes of addiction. Rather, it uses addiction to expose the cracks and inconsistencies in our evidence rules. Parties in civil and criminal trials in the United States frequently seek to introduce evidence that a party has an addiction. Given how stigmatized addiction is, whether this evidence is admitted can have a huge impact on the outcome of the trial. Unfortunately, the party's success in getting this admitted depends primarily on whether the judge views addiction as 1) a character trait, 2) a psychiatric diagnosis, 3) a physical trait, or 4) a habit. And which is the correct framing, exactly? It turns out, addiction is all of these things. While it was traditionally considered quintessential character evidence, courts are warming to the idea of it being a habit, a psychiatric diagnosis, and maybe one day even ordinary physical evidence. In this article I explore how the complex causes of addiction reveal false dichotomies in our evidentiary rules, and the overlap between types of evidence that are meant to be distinct. Additionally, I will argue that the blurring together of these categories of evidence is made possible by our untethering the rules from their moral roots, as well as advances in our understanding of the causes of human behavior.

Many of the common law rules developed hundreds of years ago, when the science of human behavior was simplistic. We held exaggerated views of individual agency and ignored the powerful effects of trauma and biology. This article is part of a larger project of advocating for revisions to our rules of evidence, so that they better reflect the modern understanding of human behavior, with all of its inevitable complexity.

"Criminal Law & Psychological Blame" by Nadler

Janice Nadler (Northwestern University - School of Law, American Bar Foundation) has published "Criminal Law & Psychological Blame" on SSRN. Here is the abstract: 

Blame and punishment doctrines within Anglo-American criminal law track in many ways psychological intuitions about blame and punishment, but there are variations as well. This chapter explains the legal doctrine and explores some of the ways in which criminal and psychological blame converge and diverge. The focus in this chapter is chiefly on intended but incomplete conduct, unintended outcomes, and questions about awareness of risk.

"Police Policing Police" by Kaufman

Zachary D. Kaufman (Washington University in St. Louis - School of Law, University of Houston Law Center, Boston University - School of Law, Yale University - Law School, Stanford Law School, Harvard University - Harvard Kennedy School (HKS)) has published "Police Policing Police" on SSRN. Here is the abstract: 

Police killings of George Floyd and at least 1,930 other Black Americans since 2015 amplified a racial reckoning and intensified demands for meaningful, overdue police reform. This Article is the first legal scholarship to argue that Congress and state legislatures across the United States should enact criminal laws creating a law enforcement officer duty to intervene in their colleagues’ misuse of force. These federal and state statutes should be bolstered by law enforcement agencies’ internal policies mandating the same obligation. Introducing criminal liability for inaction could prod officers to stop their peers’ serious misconduct and would promote accountability for those officers who remain bystanders. This Article presents a model statute for this officer duty to intervene and rebuts counterarguments, drawing on a case study of Derek Chauvin murdering Floyd for illustrations.