Neuroethics & Law Blog

"Legal Interpretation as Coordination" by Bystranowski et al

Piotr Bystranowski (Interdisciplinary Centre for Ethics; Jagiellonian University), Ivar Hannikainen (Department of Philosophy I, University of Granada), and Kevin Tobia (Georgetown University Law Center, Georgetown University - Department of Philosophy) have published "Legal Interpretation as Coordination" on SSRN. Here is the abstract: 

Is legal interpretation fundamentally guided by a law’s text or purpose? This chapter revisits this classic debate with new empirical data from experimental jurisprudence. We present a coordination theory of legal interpretation. We propose legal interpretation is partly an exercise in coordination: judges seek to interpret rules to match interpretations of their peers, other legal officials, and society. Past research indicates that a statute’s plain meaning often constitutes a focal point around which different interpreters can coordinate. One proposed explanation of this effect is that law’s text is more univocal than its purpose. Moral and political disagreement leads to debate about what purpose laws should serve, but, typically, people can more easily reach an accord on the meaning of a law’s plain text. We test this hypothesis and the results do not support it. Our discussion outlines a different possible explanation of coordination around law’s text based on the publicity of text.

"Mental Privacy as Part of the Human Right to Freedom of Thought?" by Ligthart

Sjors Ligthart (Utrecht University, Tilburg University) has published "Mental Privacy as Part of the Human Right to Freedom of Thought?" on SSRN. Here is the abstract: 

It is generally accepted that the right to freedom of thought guarantees three different substantive freedoms: (1) that one is not compelled to reveal one’s thoughts, (2) that one’s thoughts are not impermissibly altered, and (3) that one is not sanctioned for one’s thoughts. According to the UN Special Rapporteur on Freedom of Religion or Belief, the first freedom implies that mental privacy is a ‘core attribute’ of freedom of thought. The present chapter explores the implications of this understanding of the right to freedom of thought from a legal point of view. With a focus on the ICCPR and ECHR, this chapter considers (1) the scope of the right to freedom of thought, (2) the absolute nature of the right, and (3) its relation to the right to privacy and the freedom of opinion and expression.

"Abolishing Juvenile Interrogation" by Buckingham

Samantha Buckingham (Loyola Law School - Center for Juvenile Law and Policy) has published "Abolishing Juvenile Interrogation" on SSRN. Here is the abstract: 

Rehabilitation is a paramount consideration in abolishing police interrogation of youth. Interrogation is one of the first interactions young people have with the criminal legal system. Unfortunately, the most common methods of interrogation are coercive rather than consensual. Youth are uniquely vulnerable to coercive methods, especially in conjunction with racial, socioeconomic, and ableist hierarchies. Youth vulnerability requires more protective legal standards than those applied to mature adults. Current police practices, permitted by the very structure of the law, harm youth at a critical stage of their development and legal socialization. Interrogation is a missed opportunity to consider how every legal actor can incentivize youth to respect and follow the law. Reforms and scholarly proposals focused on adjusting police behavior or changing the circumstances of youth interrogation fail to ameliorate harm to youth. This Article examines how police interrogation of a youthful suspect may undercut rehabilitation by damaging that young person’s sense of belonging and desire to behave as society hopes. This Article concludes that the most appropriate and practicable solution is a categorical ban on officer-initiated interrogation of youth.

"Elements of Blameworthiness in the Law of Homicide: Harmfulness, Wrongness, and Culpability" by Green

Stuart P. Green (Rutgers, The State University of New Jersey - Rutgers Law School) has published "Elements of Blameworthiness in the Law of Homicide: Harmfulness, Wrongness, and Culpability" on SSRN. Here is the abstract: 

The concept of blameworthiness plays a central role in the retributive theory of criminal law, in both its negative and positive forms. But what exactly makes conduct blameworthy? In this chapter, I seek to develop a framework for thinking systematically about that question. In particular, I identify a collection of three basic “elements” -- harmfulness, wrongness, and culpability -- to which the concept of blameworthiness can be reduced. All three terms appear widely in the literature of criminal law theory, but they have often been used inconsistently and without clear definition. What one theorist calls “culpability” another calls “wrongness,” and vice versa. Concepts that should be understood as analytically distinct are conflated. One or more key elements is left out. The relationship among the three concepts is insufficiently explained. Focusing particularly on the conduct that underlies the homicide offenses, I show what the three key concepts mean on their own, in relation to each other, and with respect to criminal law defences such as consent, duress, and necessity. Special attention is given to questions about which of these elements can exist in the absence of the others -- if harmfulness can exist without wrongness, wrongness without harmfulness, harmfulness without culpability, culpability without harmfulness, culpability without wrongness, and wrongness without culpability.

"Evidentiary Graded Punishment: A New Look at Criminal Liability for Failing to Report Criminal Activity" by Teichman

Doron Teichman (Hebrew University of Jerusalem - Faculty of Law) has published "Evidentiary Graded Punishment: A New Look at Criminal Liability for Failing to Report Criminal Activity" on SSRN. Here is the abstract: 

This Article presents a theory whereby criminal punishments are routinely distributed in proportion to the weight of the evidence mounted against the defendant. According to this theory, the law relaxes the stringent decision threshold in criminal trials—beyond a reasonable doubt—by creating easy-to-prove evidentiary offenses. These offenses, in turn, are associated with less severe sanctions, thus creating a de-facto proportional liability regime.

Against that backdrop, the Article examines the legal duty to report criminal activity to the authorities. As the analysis shows, while legal scholars analyzing such duties have focused on the paradigmatic case in which an innocent bystander, friend or family member is unwittingly exposed to information about a crime, in practice these duties are rarely used in such cases. Rather, reporting duties are used to prosecute suspected accomplices whose involvement in the commission of the actual crime is difficult to prove beyond a reasonable doubt. Thus, offenses imposing a reporting duty on criminal activity turn out to be part of the general framework of accomplice liability, and are used to apply less severe sanctions in cases of evidentiary uncertainty.

"Taming Dangerousness" by Baughman

Shima Baradaran Baughman (Brigham Young University - J. Reuben Clark Law School) has published "Taming Dangerousness" on SSRN. Here is the abstract: 

In every courtroom across the country each day, judges determine whether thousands of individuals are either released or held before trial. These speedy and seemingly minor decisions have profound impacts on an accused’s fate and on national incarceration rates. Indeed, over the last fifty years, these individual decisions have led to a four-hundred percent increase in pretrial detention in the United States. This increase in pretrial detention accounts for 99% of the jail growth in the last fifteen years, despite record decreases in arrest and crime rates. At the same time, the United States has witnessed three meaningful periods of bail reform in the 1960s, the 1980s and beginning in the 2010s. Despite the hundreds of statutory iterations attempting to improve pretrial reform, these three bail reform movements have collectively failed to improve pretrial detention rates and new legislation is making matters worse.

This Article argues that bail reform efforts and most of the scholarly literature have focused on dangerousness—or perceived government obligations to protect public safety—to the exclusion of explicating the key underlying rights to pretrial liberty. The scholarship on bail has neglected a rigorous focus on the underlying constitutional rights that dictate release. In failing to focus on liberty, the trend of pretrial commentary has inadvertently presumed detention as a default due to the supposed risk of danger posed by the accused. It has failed to provide judges the meaningful constitutional protections they are obligated to provide defendants in this early pretrial period. In reality, the interests of pretrial liberty and public safety do not conflict. Neglecting pretrial liberty rights has in fact led to the increased likelihood of crime and negative downstream effects on individuals and entire communities.

This Article recognizes and articulates a unique right to pretrial liberty. It asserts that at the root of contemporary judicial failure to protect constitutional rights is a lack of recognition of the precise individual rights recognized in this early period, leaving judges to overemphasize concerns about dangerousness of the accused. It seeks to remedy this deficiency by articulating four distinct rights that create a near universal right of pretrial liberty. It argues that in any given case the right to liberty is characteristically invoked to protect one of these complementary interests: the presumption of release; the right to prepare a vigorous defense; a prohibition of judicial fact-finding before trial; and the right to financial parity. The upshot is not a mechanical algorithm for producing correct criminal justice outcomes, but an illumination of the constitutional stakes at issue in any given pretrial determination. This Article aims to shift the focus of courts from the prevailing unfounded obsession with dangerousness to a deeper understanding of the doctrinal stakes underlying liberty.

"Intentionally Harming Others Without Benefit to Oneself" by Westen

Peter K. Westen (University of Michigan Law School) has published "Intentionally Harming Others Without Benefit to Oneself" on SSRN. Here is the abstract: 

Is it wrong in itself to purposely harm others without any benefit to oneself? I examine this question through the lens of an enigmatic provision of the Model Penal Code, which proposes that it be an offense to purposefully obtain property of another “by threatening to inflict any harm that would not benefit the actor.” I argue that the act of inflicting harm without benefit to oneself is not inherently wrong because (i) in contrast to “prima facie torts,” which consist solely of unjustified harms, harms that do not benefit actors are not necessarily unjustified, given that they may justifiably benefit third parties, and (ii) contrary to the “abuse of rights” doctrine, any malice evidenced by inflicting harm without benefit to oneself does not transform justified harms into unjustified harms. Then, after considering and rejecting several reasons for thinking otherwise, I argue that a threat of harm without benefit to oneself is also not not itself a morally wrongful inducement to surrender property.

"Experimental Studies on the Normative Force of Law" by Cope

Kevin L. Cope (University of Virginia School of Law) has published "Experimental Studies on the Normative Force of Law" on SSRN. Here is the abstract: 

An important question in legal theory and policy is when people are willing to put aside their policy preferences to uphold higher-order legal values. That is, when does constitutional or international law have “normative force”? Around two dozen experimental studies have attempted to measure this question empirically, but their designs contain an inherent limitation. Subjects in the treatment group whose priors are strongly contrary to the treatment message on the legality of a policy are effectively “treatment resistant”: it is difficult to successfully treat them because their prior beliefs on the issue are entrenched. Where a significant portion of the treatment and/or control group is not successfully treated, the results will be biased towards a null finding. This article first formally models the mechanism underlying experiments on law's normative force. Using new data from a survey experiment conducted in the United States in spring 2022 among a representative sample of U.S. residents, I then demonstrate a solution to the problem of treatment resistance. The experimental design uses a post-treatment treatment uptake test, which allows me to use the experimental treatment as an instrumental variable, which in turn allows me to measure the effect of the real explanatory variable of interest: a person's true belief about a policy's higher-order lawfulness. My insight implies that the backfire effects documented by some studies do not reflect a negative response against the legal source per se, but instead result from an experimental research design relating to hot-button issues. These findings should lead us to re-evaluate both the existing body of experimental studies on law's normative force, and how we conduct future research in this domain.

"Triangulating Ordinary Meaning" by Tobia et al

Kevin Tobia (Georgetown University Law Center, Georgetown University - Department of Philosophy), Jesse Egbert (Northern Arizona University), and Thomas R. Lee (Brigham Young University - J. Reuben Clark Law School) have published "Triangulating Ordinary Meaning" on SSRN. Here is the abstract: 

Textualism claims to pave a clear path to the determinate “ordinary meaning” of statutory language. But textualist Justices disagree about the ordinary meaning of particular statutes. This essay proposes a new way forward: triangulating ordinary meaning with multiple empirical methods. Specifically, textualists who seek ordinary meaning should in some circumstances consider the possibility of complementing (i) traditional tools–like dictionaries, linguistic canons, and intuition–with newly available data from (ii) corpus linguistics and (iii) survey experiments. As a case study, we consider Pulsifer v. United States, concerning interpretation of the First Step Act. The Supreme Court will soon decide Pulsifer, a decision that likely turns on the Court’s conclusion about ordinary meaning. We present original corpus linguistic and experimental survey studies that bear on this issue. The essay’s conclusions have concrete implications for Pulsifer, a case which could impact the sentences of thousands of drug defendants. This proof of concept also has broader implications for statutory interpretation theory.

"Disobedience as Such" by Chiao and Harel

Vincent Chiao (University of Toronto - Faculty of Law) and Alon Harel (Hebrew University of Jerusalem - Faculty of Law) have published "Disobedience as Such" on SSRN. Here is the abstract: 

Legal philosophers often ask whether a person has a reason to obey the law simply because it is the law. We ask the contrary question: does a person have a reason to disobey the law simply because it is the law? Many philosophers who have considered the question of disobedience have focused on injustice; others have defended disobedience on libertarian or anarchist grounds. In contrast, we argue that there is a content-independent reason to disobey the law even when it is not unjust, illegitimate, or otherwise undesirable.

Legal philosophers generally agree that law claims peremptory authority, but they also generally agree that any duty to obey the law is substantially more limited. We argue that insofar as the law makes inflated claims to authority, it generates a content-independent reason to disobey. This anti-authoritarian principle is grounded in the virtue of clearly communicating one’s political commitments to others within a democratic society. By disobeying, one communicates one’s conviction that the law makes inflated claims to authority. We show how our account of disobedience as such is distinct from more familiar theories of anarchism and civil disobedience and argue that it is applicable whether one lives under conditions of justice or injustice.

"An empirical study of the use of neuroscience in sentencing in New South Wales, Australia” by Alimardani

Armin Alimardani (University of Wollongong - School of Law) has published "An empirical study of the use of neuroscience in sentencing in New South Wales, Australia” on SSRN. Here is the abstract: 

While neuroscience has been used in Australian courts for the past 40 years, no systematic empirical study has been conducted into how neuroscientific evidence is used in courts. This study provides a systematic review on how neuroscientific evidence is considered in sentencing decisions of New South Wales criminal courts. A comprehensive and systematic search was conducted on three databases. From this search, 331 relevant sentencing decisions before 2016 that discussed neuroscientific evidence were examined. The findings of this study suggest that neuroscientific evidence appeared to contribute to sentencing decisions in less than half of the cases examined; and in the majority of these, it supported a more lenient sentence.

"What Should ChatGPT Mean for Bioethics?" by Cohen

I. Glenn Cohen (Harvard Law School) has published "What Should ChatGPT Mean for Bioethics?" on SSRN. Here is the abstract: 

In the last several months, several major disciplines have started their initial reckoning with what ChatGPT and other Large Language Models (LLMs) mean for them -- law, medicine, business among other professions. With all of this Sturm und Drang in other professions, I was delighted when the journal asked me to offer some tentative thoughts on what ChatGPT might mean for bioethics. I want to emphasize my humility – the reported performance jump of ChatGPT-3 to 4 is quite remarkable and it is often said that while human beings are good at understanding linear growth, we are bad at correctly conceptualizing exponential growth of the kind that is more likely with these models.

I will first argue that many bioethics issues raised by ChatGPT are similar to those raised by current medical AI – built into devices, decision support tools, data analytics, etc. These include issues of data ownership, consent for data use, data representativeness and bias, and privacy. I describe how these familiar issues appear somewhat differently in the ChatGPT context, but much of the existing bioethical thinking on these issues provides a strong starting point.

There are, however, a few "new-ish" issues I highlight - by new-ish I mean issues that while perhaps not truly new seem much more important for it than other forms of medical AI. These include issues about informed consent and the right to know we are dealing with an AI, the problem of medical deepfakes, the risk of oligopoly and inequitable access related to foundational models, environmental effects, and on the positive side opportunities for the democratization of knowledge and empowering patients. I also discuss the way in which race dynamics (between large companies and between the U.S. and geopolitical rivals like China) risk sidelining ethics.

I end on a note of humility: so much has changed so fast in the development of LLMs and how people are using them that any assessment at the moment is very tentative.

"Consent and Disagreement" by Bagchi

Aditi Bagchi (Fordham University School of Law) has published "Consent and Disagreement" on SSRN. Here is the abstract: 

Contracts purport to settle rights and obligations between parties. The fact that parties have consented to a given set of terms seems to hold the promise of preempting conflict about those terms after the fact. But contract gives rise to disputes about consent itself. Many disputes about implied conditions, for example, are best understood as disagreements about the scope of consent.

This article identifies several moral ambiguities in the concept of concept. We not only disagree about the analytic merits of competing conceptions among ourselves but, even as individuals, we tend not to endorse and consistently apply a single version of the concept. Psychologists use the “availability heuristic” to describe how we rely on salient facts when making quick probabilistic judgments. Similarly, the availability of some facts but not others prompts us to default to the version of an ambiguous moral concept that we are in a position to operationalize. On the flip side, we discount understandings of consent that fail to guide us given the facts we know.

The distinct sets of facts available to the giver and receiver of consent, respectively, thus direct them to rely on different conceptions of consent, thereby driving a systematic wedge between how parties to exchange are likely to understand the bindingness of their agreement. Contract law privileges a single, potentially unifying conception of consent; but that conception must compete with the complex understanding of the concept that we each bring from our lives outside of contract. Without the benefit of clear legal rules, consent in other social contexts generates still more frequent and deeper disagreement.