Neuroethics & Law Blog

"Legitimate Divergence between Moral and Criminal Blame" by Sarch

Alex F. Sarch (University of Surrey School of Law) has published "Legitimate Divergence between Moral and Criminal Blame" on SSRN. Here is the abstract: 

Legal moralists think the substantive rules of the criminal law should mirror morality, while acknowledging that they inevitably will not do so perfectly. Thus, Doug Husak suggests that “deviations [from the moral ideal] should be regarded as occasions for regret, as invitations to try to do better.” This is especially plausible where the divergences are isolated practical compromises due to efficiency or resource constraints. But is it always a matter of deep regret when the content of criminal law diverges from morality? Might this not also be justifiable based on our principled commitments? If so, perhaps divergence from morality isn’t always an invitation to do better. This chapter argues that there are principled reasons, not always consequentialist in nature, for the criminal law to come apart from morality.

Section I sketches an analytical framework that shows different ways to evaluate divergences between criminal law and morality within the legal moralist view. Section II sketches some core cases of plausibly legitimate divergence. Section III formulates several mid-level principles, not all of which are directly consequentialist in flavor, that can help justify divergences of this kind. Section IV applies the above framework and principles to the examples in Section II to reach provisional conclusions. Overall, the chapter aims not just to provide better tools for assessing overbroad criminal prohibitions, but more fundamentally seeks to dispel the idea that the criminal law’s divergences from morality always sacrifice our principles to the messy necessities of practice. Instead, criminal law’s divergence from morality can itself be a matter of principle.

"Neuroimaging Evidence in US Courts" by Moriarty

Jane Campbell Moriarty (Duquesne University - School of Law) has published "Neuroimaging Evidence in US Courts" on SSRN. Here is the abstract: 

This chapter provides a detailed consideration of neuroscience and neuroimaging evidence in federal and state courts of the United States. The chapter addresses evidence admitted in courts, analyzes where courts have excluded or limited certain types of evidence, and addresses problematic aspects of neuroscience evidence. It also considers the potential ways in which neuroscience has been affecting legal policy and evidentiary decisions.

The chapter first provides an overview of neuroimaging modalities that have been the subject of legal discussion. Additionally, it explains U.S. Evidence law, addressing the relevant rules of evidence and the critical cases that shape evidentiary policy. Substantively, it reviews a variety of criminal and, to a lesser extent, civil matters related to neuroscience and neuroimaging. With respect to criminal law, the chapter explores questions of legal competency, insanity and legal responsibility, sentencing, psychopathy, claims of ineffective assistance of counsel, and neuroscience lie detection. In addition, the chapter examines the special role that neuroscience has played in the development of juvenile sentencing law. The civil section addresses neuroimaging in relationship to traumatic brain injury. Throughout, the chapter considers some of the overarching concerns and potential promises about neuroimaging evidence.

"Thought Experiments in the Law" by Wright

R. George Wright (Indiana University Robert H. McKinney School of Law) has published "Thought Experiments in the Law" on SSRN. Here is the abstract: 

Our responses to thought experiments inform our understanding of, and our normative beliefs about, the law. Such thought experiments may involve, for example, the use of interrogational torture in the context of great public danger; desperately trapped amateur cave explorers; runaway trolleys, and other such scenarios. Law students and appellate advocates are invariably counseled, understandably, to accept, and thus not to fight, a posed hypothetical. As it turns out, though, for reasons explored herein, failing to intelligently fight the hypothetical at any point is generally a serious mistake.

"The Restatements as Law" by Schauer

Frederick Schauer (University of Virginia School of Law) has published "The Restatements as Law" on SSRN. Here is the abstract: 

A widespread view understands the Restatements as summaries of existing legal principles, coupled with largely interstitial recommendations as to how the existing law could be improved. That view, however, understates both the jurisprudential and empirical significance of the Restatements. As H.L.A. Hart and scores of his jurisprudential followers have established, what counts as a legal authority – and thus what counts as law – is based on the empirical determination of what sources judges and other legal officials take as authoritative in reaching their decisions. For Hart and those properly influenced by his analysis, there is no substantive constraint on what can count as law. All that matters for some source being law is that legal officials internalize it as authoritative and thus take it as a not-necessarily-conclusive reason for a decision. From this perspective, there is no reason that the Restatements, or at least parts of some of the Restatements, cannot be law. And empirically, American courts do treat some parts of some of the Restatements as authoritative. When this is so, those parts of those Restatements are more than summaries of the law and more than prescriptions of what the law should be. They are the law.

"The Coherence of Prison Law" by Dolovich

Sharon Dolovich (University of California, Los Angeles - School of Law) has published "The Coherence of Prison Law" on SSRN. Here is the abstract: 

In this essay, I explore the mechanisms by which, despite what is known about the reality on the ground in American prisons, courts hearing constitutional challenges brought by prisoners so persistently find in favor of the state. In terms of doctrine, I show that, especially during the Rehnquist Court, the Supreme Court systematically deployed a set of maneuvers to construct doctrinal standards for prison law cases that strongly incline courts to rule for defendants. Yet skewed doctrinal standards alone cannot explain prison law’s strong pro-state bent, since courts hearing prison law cases will often side with defendants even when plaintiffs’ claims are strong on the merits and even when defendants’ arguments strain credulity. To achieve this effect also requires a judicial readiness to see the state’s case through an especially sympathetic lens and to exhibit a studied indifference to plaintiffs’ constitutional rights and lived experience. As I show, the Court’s prison law opinions persistently exhibit this orientation, which I term dispositional favoritism. When federal courts hearing prison cases follow this lead, as they frequently do, they can wind up favoring defendant prison officials in any number of ways hard to square with either the record or the relevant legal rules. These dynamics, hidden in plain sight, had been present in the prison law doctrine for decades. Then came Covid-19. As this essay shows, the methods courts used to deny the COVID claims of incarcerated plaintiffs were the same that have been used for years to deflect prisoners’ constitutional claims more generally. COVID, in short, definitively confirmed the terrible coherence of prison law: it is consistently and predictably pro-state, highly deferential to prison officials’ decision-making, and largely insensitive to the harms people experience while incarcerated. These features collectively embody the plainly divergent normative inclinations the Supreme Court routinely displays toward the parties in prison law cases.

 

"Is the Principle of Desert Unprincipled in Practice?" by Mcleod

Marah Stith Mcleod (Notre Dame Law School) has published "Is the Principle of Desert Unprincipled in Practice?" on SSRN. Here is the abstract: 

Scholars have long debated whether criminal penalties should be based on what defendants deserve (as retributivists argue) or on the practical benefits that sanctions may achieve (as utilitarians believe). In practice, most states take a pluralistic approach: they treat both desert and utility as important to punishment, with desert operating, at least on paper, as a limiting principle.

Can desert, however, actually limit punishment? Critics answer no. They claim that desert is an indefinite and malleable notion, easily invoked to mask discrimination and rationalize draconian sanctions. Laws in America often emphasize desert, they observe, while feeding mass incarceration.

But the principle of desert is not to blame. A focus on punishing defendants no more than they deserve can constrain punitive impulses, as it has in the context of capital punishment. The real problem lies with our current procedures for judging desert, which sap its power as a limiting principle. These procedures allow sentencing authorities to consider desert and utility at the same time, which blurs two incommensurate concerns and prevents either from serving as a meaningful limit. Furthermore, they often allow judges to define desert without reference to legitimating community norms.

Desert can limit punishment if it is addressed in a more principled way. Sentencing should begin with desert, before any consideration of utility, so that the moral boundaries of punishment are clearly established. Lay juries, not judges, should assess desert, and should have the power to limit punishment based on it, even below statutory minimums. If states allowed defendants to waive this jury sentencing procedure, many might do so in exchange for more favorable plea deals. But the pleading process would become more fair, for prosecutors could no longer threaten statutory penalties no reasonable jury would deem deserved.

"The Interpretation of Law" by Tobia and Slocum

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

 

Courts increasingly presume that law should be interpreted according to what it communicates to an ordinary reader. Textualists view this as a strict requirement, creating a bright line between favored “textual” interpretive canons (reflecting objective linguistic principles) and suspect “substantive” canons (reflecting subjective normative values). This Article defends a novel thesis about this bright line. We argue that some substantive canons are also textual canons. This Article presents the first empirical study of whether ordinary people (N = 1,520) implicitly follow some substantive canons when interpreting legal rules. The study finds that some substantive canons track valid linguistic generalizations about how ordinary people understand rules’ meaning. For example, the presumption against retroactive application of statutes is usually justified by values like fairness, but it also reflects ordinary readers’ general understanding of the meaning of rules.

This empirically supported theory carries significant practical and theoretical implications, especially for textualists. For example, it offers a novel resolution to long-standing conflict between the famous Chevron doctrine and substantive canons. It also grounds a new critique of textualists’ reliance on non-linguistic canons. More broadly, the results support a call for a linguistic reorientation in legal interpretation. Laws’ words express rules, and text-committed interpreters should carefully consider how ordinary people understand rules, beyond the meanings of individual words or general communications. The “ordinary reader” is assumed to be interpreting law, and judicial interpretation committed to that reader should similarly reflect the interpretation of law.

"Youth Incarceration & Abolition" by Annamma and Morgan

Subini Annamma (Stanford University - Graduate School of Education) and Jamelia Morgan (Northwestern University - Northwestern Pritzker School of Law) have published "Youth Incarceration & Abolition" on SSRN. Here is the abstract: 

The COVID-19 pandemic has laid bare the dangers of the juvenile legal system; this should make it harder to look away from the societal inequities that are exacerbated by youth incarceration. Indeed, the current moment, including the unprecedented nationwide protests in response to the murders of George Floyd and Breonna Taylor in summer 2020, has illuminated the power of social movements working to abolish the prison industrial complex, and, as legal scholars have argued, lawyers and law professors should engage with these movements and their calls for abolition and transformative change. Yet conversations on abolition are mainly centered on adult prisons. While appreciating and supporting the call for abolishing adult prisons, the absence of youth incarceration from abolitionist movements and discourse is concerning given the violence and disparities that are reflected in youth incarceration. Furthermore, despite earlier calls to consider abolishing the juvenile legal system, a sustained engagement with abolitionist theory and the juvenile punishment system has not featured in the legal scholarship. This Article discusses the urgent need to abolish youth incarceration in the context of a global pandemic, surveys arguments for abolition generally, and sets forth an abolitionist critique of youth incarceration using Disability Critical Race Theory (DisCrit) as a lens for analysis. Applying a DisCrit lens, we discuss how COVID-19 demonstrates the urgency of addressing the harms facing incarcerated youth, particularly Youth of Color and disabled Youth of Color.

AI and the Law: Can Legal Systems 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 Legal Systems 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.

"Fast or Accurate? Governing Conflicting Goals in Highly Autonomous Vehicles" by Cooper and Levy

A. Feder Cooper (Cornell University - Department of Computer Science) and Karen Levy (Cornell University) have published "Fast or Accurate? Governing Conflicting Goals in Highly Autonomous Vehicles" on SSRN. Here is the abstract: 

The tremendous excitement around the deployment of autonomous vehicles (AVs) comes from their purported promise. In addition to decreasing accidents, AVs are projected to usher in a new era of equity in human autonomy by providing affordable, accessible, and widespread mobility for disabled, elderly, and low-income populations. However, to realize this promise, it is necessary to ensure that AVs are safe for deployment, and to contend with the risks AV technology poses, which threaten to eclipse its benefits. In this Article, we focus on an aspect of AV engineering currently unexamined in the legal literature, but with critical implications for safety, accountability, liability, and power. Specifically, we explain how understanding the fundamental engineering trade-off between accuracy and speed in AVs is critical for policymakers to regulate the uncertainty and risk inherent in AV systems. We discuss how understanding the trade-off will help create tools that will enable policymakers to assess how the trade-off is being implemented. Such tools will facilitate opportunities for developing concrete, ex ante AV safety standards and conclusive mechanisms for ex post determination of accountability after accidents occur. This will shift the balance of power from manufacturers to the public by facilitating effective regulation, reducing barriers to tort recovery, and ensuring that public values like safety and accountability are appropriately balanced.

"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.

Do People Learn from Not Being Caught? An Experimental Investigation of an 'Occurrence Bias'" by Zur

Tom Zur (Harvard Law School) has published Do People Learn from Not Being Caught? An Experimental Investigation of an 'Occurrence Bias'" on SSRN. Here is the abstract: 

The law and economics literature has long theorized that one of the goals of law enforcement is specific deterrence, which relies on the conjecture that imperfectly informed offenders learn about the probability of apprehension from their prior interactions with law enforcement agencies. Surprisingly, however, no empirical study has rigorously tried to identify the learning process that underlies the theory of specific deterrence and, more specifically, whether potential repeat offenders learn from getting caught in the same way as they learn from not getting caught. This paper presents novel evidence from a pre-registered randomized controlled trial that sheds new light on these questions. In each of the two stages of the experiment, participants could cheat for an increased monetary payoff at the risk of paying a fine, in the face of an uncertain chance of being audited. Using an incentive-compatible procedure, participants’ beliefs regarding the probability of being audited were rigorously elicited both before and after they were either audited or not audited, allowing us to establish the unique rational-Bayesian benchmark and any deviation thereof for each participant. We find that being audited induces a stronger adjustment in one’s estimate compared to the adjustment induced by not being audited, providing novel evidence for what we call an “occurrence bias.” We show that this occurrence bias reduces the specific deterrence effect. It also reduces the marginal benefit from investing in enforcement and thus lowers the optimal investment level.

"Felony Murder Liability for Homicides by Police Officers: Too Unfair & Too Much to Bear" by Kolar

Maria T. Kolar (Oklahoma City University School of Law) has published "Felony Murder Liability for Homicides by Police Officers: Too Unfair & Too Much to Bear"  on SSRN. Here is the abstract: 

On November 23, 2020, a fifteen-year-old boy was gunned down by five Oklahoma City police officers, after he exited a convenience store and dropped the gun that he and a sixteen-year-old partner had earlier used to rob the store’s owner. Initially, the boy’s non-present partner was charged with first-degree (felony) murder for this killing. But after months of efforts by the boy's mother and local activists, the district attorney also charged five officers with first-degree manslaughter.

This case raises the question of whether Oklahoma—or any American state—can convict a defendant of felony murder based upon a killing that was a criminal homicide by a police officer. More broadly, it raises the question of whether a felony “participant” can be convicted of felony murder based upon a killing by a “nonparticipant,” who killed while resisting the underlying felony. Killings by “nonparticipants” include killings by responding police officers, as well as by bystanders and victims of the original felony.

This is the first Article to address felony murder liability for homicides by nonparticipants. This Article presents a fifty-state survey of American law that determines which states maintain a traditional approach to felony murder (not requiring any culpable mens rea regarding a killing arising from a covered felony), which states are “agency states” (that limit felony murder to killings by participants), which are “proximate cause states” (that allow felony murder convictions for killings by nonparticipants), and which proximate cause states would potentially allow felony murder liability for a criminal homicide by a police officer, bystander, or victim.

This Article maintains that even states that have adopted a broad proximate cause approach to felony murder should prevent such liability for killings by nonparticipants that are chargeable homicides and proposes some statutory and doctrinal approaches for doing so in a principled way.