Neuroethics & Law Blog

"What Do Law Professors Believe about Law and the Legal Academy? An Empirical Inquiry" by Martinez and Tobia

Eric Martinez (Massachusetts Institute of Technology (MIT)) and Kevin Tobia (Georgetown University Law Center, Georgetown University - Department of Philosophy) have published "What Do Law Professors Believe about Law and the Legal Academy? An Empirical Inquiry" on SSRN. Here is the abstract: 

Legal theorists seek to persuade other jurists of certain theories: Textualism or purposivism; formalism or realism; natural law theory or positivism; prison reform or abolition; universal or particular human rights? Despite voluminous literature about these debates, tremendous uncertainty remains about which views experts endorse. This Article presents the first-ever empirical study of American law professors about legal theory questions. A novel dataset of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding legal theory debates.

Law professors also debate questions about the nature of the legal academy. Descriptively, which subjects (e.g. constitutional law) and methods (e.g. law & economics) are most central within the legal academy today? And prescriptively, should today’s legal academy prioritize additional areas (e.g. legislation) or methods (e.g. critical race theory)? There is great interest in these questions but no empirical dataset of experts’ views; this results in uncertainty about which views experts endorse. This Article’s empirical study also clarifies these questions, documenting law professors’ evaluation of over one-hundred areas of law.

The legal theory and legal academy findings support implications for legal scholarship, education, and practice. Clearly, debates about law and the legal academy’s evolution should not be settled by a survey. Nevertheless, insofar as law professors are experts about these issues, it is instructive to discover and carefully examine what views those experts hold, so as to help determine which views are most likely to be true and how the legal academy ought to develop.

"AI and the Law: Can Law Help Us Maximize Paperclips While Minimizing Deaths?" by Diamantis et al

Mihailis Diamantis (University of Iowa - College of Law), Rebekah Cochran (University of Iowa), and Miranda Dam (University of Iowa, College of Law) have published "AI and the Law: Can Law Help Us Maximize Paperclips While Minimizing Deaths?" on SSRN. Here is the abstract: 

This Chapter provides a short undergraduate introduction to ethical and philosophical complexities surrounding the law’s attempt (or lack thereof) to regulate artificial intelligence.

Swedish philosopher Nick Bostrom proposed a simple thought experiment known as the paperclip maximizer. What would happen if a machine (the “PCM”) were given the sole goal of manufacturing as many paperclips as possible? It might learn how to transact money, source metal, or even build factories. The machine might also eventually realize that humans pose a threat. Humans could turn the machine off at any point, and then it wouldn’t be able to make as many paperclips as possible! Taken to the logical extreme, the result is quite grim—the PCM might even start using humans as raw material for paperclips.

The predicament only deepens once we realize that Bostrom’s thought experiment overlooks a key player. The PCM and algorithms like it do not arise spontaneously (at least, not yet). Most likely, some corporation—say, Office Corp.—designed, owns, and runs the PCM. The more paperclips the PCM manufactures, the more profits Office Corp. makes, even if that entails converting some humans (but preferably not customers!) into raw materials. Less dramatically, Office Corp. may also make more money when PCM engages in other socially sub-optimal behaviors that would otherwise violate the law, like money laundering, sourcing materials from endangered habitats, manipulating the market for steel, or colluding with competitors over prices. The consequences are predictable and dire. If Office Corp. isn’t held responsible, it will not stop with the PCM. Office Corp. would have every incentive to develop more maximizers—say for papers, pencils, and protractors .

This chapter issues a challenge for tech ethicists, social ontologists, and legal theorists: How can the law help mitigate algorithmic harms without overly compromising the potential that AI has to make us all healthier, wealthier, and wiser? The answer is far from straightforward.

"The Indeterminacy of Legal Rules" by Pi

Daniel Pi (University of Maine - School of Law) has published "The Indeterminacy of Legal Rules" on SSRN. Here is the abstract: 

This Article demonstrates that the rules of any legal system are necessarily indeterminate. The argument consists of two theorems. The first theorem proves that legal rules cannot be determined by ostension. The second theorem proves that legal rules cannot be determined by description. Taken together, the two indeterminacy theorems establish that legal rules cannot constrain the outcomes of legal disputes. Therefore, any apparent regularities observed in legal decision-making must have causal sources outside of law. Several possible sources of such regularities—economic efficiency and political power most conspicuously—are considered.

"Modern Sentencing Mitigation" by Meixner

John B. Meixner Jr. (University of Georgia School of Law) has published "Modern Sentencing Mitigation" on SSRN. Here is abstract: 

Sentencing has become the most important part of a criminal case. Over the past century, criminal trials have given way almost entirely to pleas. Once a case is charged, it almost always ends up at sentencing. And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have significant discretion in sentencing decisions. Thus, sentencing is the primary opportunity for the defense to affect the outcome of the case by presenting mitigation: reasons why the nature of the offense or characteristics of the defendant warrant a lower sentence. It is surprising, then, that relatively little scholarship in criminal law focuses on mitigation at sentencing. Fundamental questions have not been explored: Do the Sentencing Guidelines—which largely limit the relevance of mitigating evidence—make mitigation unimportant? Does the extent or type of mitigation offered have any relationship with the sentence imposed?

This Article fills that gap by examining a previously unexplored data set: sentencing memoranda filed by defense attorneys in federal felony cases. By systematically parsing categories of mitigating evidence and quantitatively coding the evidence, I show that mitigation is a central predictor of sentencing outcomes and that judges approach mitigation in a modern way: rather than adhering to the strict, offense-centric structure that has dominated sentencing since the advent of the Sentencing Guidelines in the 1980s, judges individualize sentences in ways that consider the personal characteristics of each defendant, beyond what the Guidelines anticipate. And particular types of mitigation, such as science-based arguments about mental and physical health, appear especially persuasive.

The results have significant implications for criminal justice policy: while my data show that mitigation is critical to judges’ sentencing decisions, both the Guidelines and procedural rules minimize mitigation, failing to encourage both defense attorneys and prosecutors to investigate and consider it. I suggest reforms to make sentencing more equitable, such as requiring the investigation and presentation of mitigation to constitute effective assistance of counsel, easing the barriers to obtaining relevant information on mental and physical health mitigation, and encouraging prosecutors to consider mitigation in charging decisions and sentencing recommendations.

"The Right to Defy Criminal Demands" by Volokh

Eugene Volokh (University of California, Los Angeles (UCLA) - School of Law) has published "The Right to Defy Criminal Demands" on SSRN. Here is the abstract: 

Craig is trying to force Danielle to do something, by explicitly or implicitly threatening to criminally retaliate if she doesn’t go along—and if Craig makes good on the threats, third-party bystanders might suffer. Should the legal system require Danielle to comply with the demands, on pain of civil liability or even of criminal punishment? Or should Danielle be allowed to defy Craig’s demands, even if this means a higher risk to bystanders?

These questions can arise in many different situations: negligence law, nuisance law, the heckler’s veto, disturbing the peace law more generally, the duty to retreat, the duty to comply with negative demands, and more. And they can arise with regard to many different criminal demands, whether political (e.g., terrorist threats aimed at abortion clinics, bookstores, and the like) or personal. This Article surveys all these areas, and suggests that, generally speaking, the law should protect defiance of criminal demands against legal liability, even when such defiance can increase the risk that the criminal will harm third parties.

"Sex Exceptionalism in Criminal Law" by Gruber

Aya Gruber (University of Colorado Law School) has published "Sex Exceptionalism in Criminal Law" on SSRN. Here is the abstract: 

Sex crimes are the worst crimes. People widely believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work. Criminal codes create a dedicated category for sex offenses, uniting under its umbrella conduct as different as violent attacks and consensual commercial transactions. This exceptionalist treatment of sex as categorically different rarely evokes discussion, much less debate. However, sex exceptionalism is not natural or neutral, and its political history should give us pause. This Article is the first to trace, catalogue, and analyze sex exceptionalism in criminal law. Through a genealogical examination of sex-crime law from the late eighteenth century to today, it makes several novel contributions to the debate over how criminal law should regulate sex.

First, the Article casts doubt on the conventional account that rape law’s history is solely one of sexist tolerance—an account that undergirds contemporary calls for broader criminal regulations and higher sentences. In fact, early law established rape as the most heinous crime and a fate worse than death, but it did so to preserve female chastity, marital morality, and racial supremacy. Sex-crime laws were not underenforced but selectively enforced to entrench hierarchies and further oppressive regimes, from slavery to social purity. Second, this history suggests that it is past time to critically examine whether sex crimes should be exceptional. Indeed, in the 1960s and 70s, the enlightened liberal position was that rape law should be less exceptional and harmonized with the law governing “ordinary” assault.

Third, the Article spotlights the invisible but powerful influence sex exceptionalism exerts on scholarship and advocacy. Despite the liberal critique, sex exceptionalism flourished, and today it is adopted without hesitation. Sex dazzles theorists of all types. For sex crimes, retributivists accept exorbitant sentences, and utilitarians tolerate ineffective ones. Critics of mass incarceration selectively abandon their principled stance against expanding the penal state. Denaturalizing sex exceptionalism and excavating its troubling origins forces analysts to confront a detrimental frame underlying society’s perpetual enthusiasm for punitive sex regulation.

"How To Read a Corporation's Mind" by Diamantis

Mihailis Diamantis (University of Iowa - College of Law) has published "How To Read a Corporation's Mind" on SSRN. Here is the abstract: 

To hold corporations liable for most significant harms, the law needs some mechanism for attributing mental states like purpose and knowledge. These mental states serve as proxies for fault that help to distinguish, for example, an unavoidable death from criminal homicide. The traditional policy puzzle has been to say where corporate mental states arise within the corporate structure. This Chapter argues that any such effort is inherently limiting and proposes a paradigm shift for attributing corporate mental states that abandons location as a relevant consideration.

Current law typically places corporate cognition in the heads of individual employees--the corporation thinks what its employees think. Most commentators agree that this approach is too limited because it overlooks emergent psychological phenomena—like cultural dispositions and collective knowledge—that arise from interactions between multiple employees. Some theorists would expand current law to allow that corporate mental states can arise in stable corporate systems and policies as well. Yet even this "systems" approach is too limiting. Like current law, it tries to specify where corporate mental states reside (albeit acknowledging an expanded set of possibilities). Any such account will necessarily overlook corporate fault that arises elsewhere within the corporate structure.

Rather than asking WHERE corporate mental states are, this Chapter argues we should instead ask how we can can INFER what mental state a corporation has. Drawing on the cognitive science of mental state attribution, the Chapter proposes that relevant evidence for judges and juries should include any corporate behavior, whatever its causal source: an individual employee, a corporate system, or something else entirely. Location becomes irrelevant. This "Inference Theory" approach tracks intuitive notions of corporate fault and can identify corporate fault wherever it arises.

"Programming Languages and Law" by Grimmelmann

James Grimmelmann (Cornell Law School, Cornell Tech) has published "Programming Languages and Law" on SSRN. Here is the abstract: 

If code is law, then the language of law is a programming language. Lawyers and legal scholars can learn about law by studying programming-language theory, and programming-language tools can be usefully applied to legal problems. This article surveys the history of research on programming languages and law and presents ten promising avenues for future efforts. Its goals are to explain how the combination of programming languages and law is distinctive within the broader field of computer science and law, and to demonstrate with concrete examples the remarkable power of programming-language concepts in this new domain.

"Carceral Intent" by Jefferis

Danielle C. Jefferis (University of Nebraska at Lincoln - College of Law) has published "Carceral Intent" on SSRN. Here is the abstract: 

For decades, scholars across disciplines have examined the stark injustice of American carceralism. Among that body of work are analyses of the various intent requirements embedded in the constitutional doctrine that governs the state’s power to incarcerate. These intent requirements include the “deliberate indifference” standard of the Eighth Amendment, which regulates prison conditions, and the “punitive intent” standard of due process jurisprudence, which regulates the scope of confinement. This Article coins the term “carceral intent” to refer collectively to those legal intent requirements and examines critically the role of carceral intent in shaping and maintaining the deep-rooted structural racism and sweeping harms of America’s system of confinement.

This Article begins by tracing the origins of American carceralism, focusing on the modern prison’s relationship to white supremacy and the post-Emancipation period in U.S. history. The Article then turns to the constitutional doctrine of incarceration, synthesizing and categorizing the law of carceral intent. Then, drawing upon critical race scholarship that examines anti-discrimination doctrine and the concept of “white innocence,” the Article compares the law’s reliance on carceral intent with the law’s reliance on discriminatory intent in equal protection jurisprudence. Critical race theorists have long critiqued the intent-focused anti-discrimination doctrine as incapable of remedying structural racism and inequities. The same can be said of the doctrine of incarceration. The law’s preoccupation with an alleged wrongdoer’s “bad intent” in challenges to the scope and conditions of incarceration makes it ill-suited to remedying the U.S. prison system’s profoundly unjust and harmful features. A curative approach, this Article asserts, is one in which the law focuses on carceral effect rather than carceral intent, as others have argued in the context of equal protection.

"Criminal Acts and Basic Moral Equality" by Humbach

John A. Humbach (Pace University School of Law) has published "Criminal Acts and Basic Moral Equality" on SSRN. Here is the abstract: 

Modern criminal justice presupposes that persons are not morally equal. On the contrary, those who do wrong are viewed by the law as less worthy of respect, concern and decent treatment: Offenders, it is said, “deserve” to suffer for their misdeeds. Yet, there is scant logical or empirical basis for the law’s supposition that offenders are morally inferior. The usual reasoning is that persons who intentionally or knowingly do wrong are the authors and initiators of their acts and, as such, are morally responsible for them. But this reasoning rests on the assumption that a person’s mental states, such as intentions, can cause physical effects (bodily movements)—a factual assumption that is at odds with the evidence of neuroscience and whose only empirical support rests on a fallacious logical inference (post hoc ergo propter hoc). There is, in fact, no evidence that mental states like intentions have anything to do with causing the bodily movements that constitute behavior. Nonetheless, the mental-cause basis for moral responsibility, though it rests on a false factual inference, has enormous implications for criminal justice policy.

While society must obviously protect itself from dangerous people, it does not have to torment them. The imperative to punish, a dominant theme of criminal justice policy, is not supported by evidence or logic, and it violates basic moral equality.

 

"Punishment Menus and Their Deterrent Effects: An Exploratory Analysis" by Grolleau et al

Gilles Grolleau (Montpellier SupAgro and Researcher at LAMETA), Murat C. Mungan (George Mason University - Antonin Scalia Law School, Faculty), and Naoefel Mzoughi (INRA Ecodéveloppement) have published "Punishment Menus and Their Deterrent Effects: An Exploratory Analysis" on SSRN. Here is the abstract: 

Conventional wisdom suggests that allowing offenders to choose alternative sanctions to a previously existing punishment cannot enhance deterrence, because offenders can simply select the least costly option available. We experimentally test whether people may perceive punishment menus as more deterrent than stand-alone sanctions available within the same menu. Our results suggest that this is possible, and that changes in people’s perceptions are often mediated by the mindset (e.g., calculative, ethical) they adopt to evaluate punishment schemes as well as their impressions of the seriousness of the illegal act.

"Retributivism" by Berman

Mitchell N. Berman (University of Pennsylvania Carey Law School) has published "Retributivism" on SSRN. Here is the abstract: 

Retributivism is a family of theories that purport to justify criminal punishment by reference to a wrongdoer’s negative desert. Individual members of the family differ from one another on many issues, including what it is that wrongdoers deserve and what is the character and force of the fact that they deserve it. This chapter lays out one retributive theory and sketches defenses of that theory against prominent anti-retributivist objections, including objections grounded in determinism. According to the theory this chapter dubs 'prospect retributivism', culpable wrongdoers deserve to experience their wrongdoing as personally costly to them, and the state assumes a pro tanto duty to cause wrongdoers to experience those costs in virtue of barring retaliation by victims and their surrogates.

"Stated Culpability Requirements" by England

Scott England (University of New Mexico - School of Law) has published "Stated Culpability Requirements" on SSRN. Here is the abstract:

For more than half a century, the Model Penal Code has had an outsized impact on American criminal law. The Code has influenced the law most significantly through its culpability provisions, which have been adopted at least in part in twenty-five states. The Model Penal Code’s stated-culpability provision, section 2.02(4), plays a central role in the Code’s celebrated culpability scheme. Section 2.02(4) helps enforce the Code’s norm of requiring culpability for each offense element by clarifying that a prescribed mental state generally applies to every element. Because state criminal codes routinely prescribe culpability requirements for multiple elements at a time, section 2.02(4) has significant ramifications for hundreds if not thousands of criminal offenses across the United States.

Unfortunately, section 2.02(4) is deeply flawed. Section 2.02(4) itself is unclear about when and how it applies, and the MPC’s commentary reveals the drafters’ own confusion about the provision’s role in the Code’s culpability scheme. Reviewing the law in the 25 states with culpability provisions influenced by the Code, this Article finds that state courts have also struggled in applying stated-culpability provisions, often exploiting their weaknesses in ways that undermine the Code’s vision for criminal liability. The Article concludes by recommending new culpability rules that improve on section 2.02(4), prevent the problems experienced in Model Penal Code states, and better enforce the Code’s norm of requiring culpability for each offense element.

"The Fat Prisoners’ Dilemma: Slow Violence, Intersectionality, and a Disability Rights Framework for the Future" by Belt

Rabia Belt (Stanford Law School) has published "The Fat Prisoners’ Dilemma: Slow Violence, Intersectionality, and a Disability Rights Framework for the Future" on SSRN. Here is the abstract:

Law has ignored the problems of fatness in prisons and jails and regularly fails to address much-needed accommodations for fat incarcerated people due to flaws in incarceration law and applications of disability law.

The dilemma of fat incarcerated people extends beyond litigation difficulties, however. It is a heuristic that illustrates the depth of the harm of mass incarceration and the need to take disability seriously—and how complicated taking disability seriously is. Attention to the social inequities that produce and maintain the population of fat people in prisons exposes a profound tension in disability scholarship and activism. Typically, disability scholarship and advocacy seek to unite a disability community of people with varying bodily impairments by focusing on stigma and stereotyping. While people’s bodies are different, all disabled people experience ableism. This Article contends that disability scholars and advocates can and should augment their focus on stigma and stereo- typing to emphasize the social inequities such as environmental poisoning, racism, poverty, and violence that produce many debilitating impairments. This proposal is an uncomfortable proposition for disability scholarship and advocacy wary of eugenic treatment and “cures.” Reducing social inequities would reduce the population of disabled people, and advocacy to improve the environmental predecessors to impairment could be viewed as a condemnation of the state of disability itself.

However, proper attention to intersectional injustice in conjunction with respect for disabled people requires thoughtful consideration of the production of impairments. Although not all disabilities are the result of social injustice, knitting together social inequality and disability would reorient the field on those who are most marginalized, redirect it toward a greater reliance on intersectional principles, and link it to other political and legal campaigns that challenge injustice.

"Rotten Social Background and Mass Incarceration: Who Is a Victim?" by Zeidman

Steven Zeidman (CUNY School of Law) has published "Rotten Social Background and Mass Incarceration: Who Is a Victim?" on SSRN. Here is the abstract: 

Despite the theoretical right to be heard at different junctures in the criminal legal system, in practice, the right is unsecured for many accused and convicted of various offenses. Criminal defendants are rarely heard at trial, upon sentencing, or at parole board interviews to determine eligibility for release. Consequently, these individuals are not able to offer explanations for their behavior. This is particularly harmful given the role that “severe environmental deprivation” or, sometimes controversially referred to as “rotten social background,” plays in criminal behavior. Research now indicates that societal shortcomings, including a lack of healthcare, education, and employment opportunities, combined with hyperaggressive policing and draconian sentencing for law violations, play a significant role in criminality. In other words, individual traits are not the driver of criminal behavior. Yet, the inability of those involved in the system to share evidence of their social background, and the refusal of actors in the system to view these factors as significantly mitigating, if not excusing, means that the problem is only swept under the rug. This essay aims to expose the explicit and implicit silencing of criminal defendants and the concomitant erasure of societal fault in criminal behavior and thus, in mass incarceration.