Neuroethics & Law Blog

"Reliance Arguments, Democratic Law, and Inequity" by Shiffrin

Seana Shiffrin (University of California, Los Angeles (UCLA) - School of Law) has published "Reliance Arguments, Democratic Law, and Inequity" on SSRN. Here is the abstract: 

Reliance arguments, democratic law, and inequity

The reversal of Roe v. Wade has raised the prospect that legislatures and courts will revisit other due process guarantees upon which individuals have organized their lives, including the constitutional rights to same-sex intimacy and marriage. These potential upheavals in the hard-won legal infrastructure of basic social status call for a sustained look at the reliance argument for sustaining constitutional precedent. When does the reliance of people or groups on a previous judicial decision provide reason for a court to sustain a precedent in the face of serious doubts or convictions that the decision was seriously mistaken on the original merits?

In light of our commitments to democratic change, reliance arguments in the public law domain face distinctive challenges that do not burden reliance arguments in the private law domain. A persuasive reliance argument in the public law context must offer a merits-independent rationale identifying limited circumstances in which reliance on a prior decision would justify honoring a prior (mistaken) decision and honoring it prospectively, into the future. I offer a democratic account to identify when overturning a mistaken principle would impose an unfair and inequitable hardship and I explain why reliance on abortion, contraception, and same-sex intimacy rights warrant their continued affirmation but why reliance on other announced rights, including rights to gun ownership and freedom of contract do not.

"The Victim/Offender Overlap and Criminal System Reform" by Godsoe

Cynthia Godsoe (Brooklyn Law School) has published "The Victim/Offender Overlap and Criminal System Reform" on SSRN. Here is the abstract: 

Victimization makes people more likely to harm others, and vice versa. In short, “hurt people hurt people.” This victim/offender overlap is especially pronounced in sexual and violent offenses. Unfortunately, the criminal law continues to imagine victims and offenders in two different and mutually exclusive categories, each rigidly defined and morally laden. I first encountered this phenomenon while representing teenagers termed “crossover youth” due to their being both in the foster care system and the juvenile criminal system, and was surprised to find so little on this topic in the criminal law literature. Beginning to fill this gap is an important topic for this symposium on “The Role of the ‘Victim’ in the Criminal Legal System.

This blind spot, and the concomitant failure to address the root causes and cyclical nature of violence, perpetuates a racialized narrative of individual culpability and a stark moral binary between those who harm and those who are harmed, while also impeding meaningful change. In this article, I posit some explanations for the persistence of the legal construct of the victim/offender binary, before arguing that the overly reductionist, and arguably false, binary masks the complexity of violence, as well as its often cyclical nature. Recognizing the overlap exposes the normative and contingent nature of what is criminalized, complicates traditional rationales for punishment, including retribution and deterrence, and strengthens calls for a different approach to preventing and redressing harm.

"The Death of the Evolving Standards of Decency" by Ryan

Meghan J. Ryan (Southern Methodist University - Dedman School of Law) has published "The Death of the Evolving Standards of Decency" on SSRN. 

The Eighth Amendment Punishments Clause is in jeopardy. The constitutionality of punishments is usually judged according to the “evolving standards of decency that mark the progress of a maturing society.” And in evaluating these standards, the Court has traditionally looked to changing societal views on a punishment. This is a living constitution approach to interpretation, and the Eighth Amendment is the only area of law in which the Court has consistently and explicitly applied such an approach. But a living constitution approach is diametrically opposed to the current Court’s focus on originalism. This is the first originalist Court in history, and the Court has not been shy about wielding its originalist wand. Further, the current Court is quite willing to set aside decades worth of entrenched precedent, as it did in Dobbs—its recent abortion decision. The Court’s originalist approach, paired with its disrespect for precedent, puts the Eighth Amendment living constitution approach examining the evolving standards of decency on very shaky ground. Even though the Court has long adhered to this test, a willingness to set aside precedent and put an originalist approach in its place seems to be in the works. Such a turn toward originalism would push us back to the barbaric punishments available at the time of the Founding and reverse current Eighth Amendment bans that prevent states from executing juveniles and intellectually disabled people. Such a death of the evolving standards of decency would also render the Eighth Amendment a dead letter.

"Reasonableness from an Experimental Jurisprudence Perspective" by Jaeger

Christopher Brett Jaeger (Baylor Law School) has published "Reasonableness from an Experimental Jurisprudence Perspective" on SSRN. Here is the abstract: 

Legal outcomes often depend on whether conduct is reasonable. But how do we judge what is reasonable? What are the relevant criteria?

Legal theorists have long debated these questions. This Chapter outlines some of the leading theories. It then describes recent experimental work probing lay judgments of what is reasonable, examining how these findings align, or do not align, with legal theory. The experimental findings indicate that the lay concept of reasonableness is hybrid: what lay people judge to be reasonable depends on multiple considerations, some of which comport with prominent legal theories and some of which do not. Building on the idea that reasonableness is a hybrid concept, this Chapter raises important additional questions about reasonableness—questions that experimental jurisprudence is well-suited to explore.

"Legal Ambiguities: What Can Psycholinguistics Tell Us?" by Randall and Solan

Janet Randall (Linguistics Program & English Department) and Lawrence M. Solan (Brooklyn Law School) have published "Legal Ambiguities: What Can Psycholinguistics Tell Us?"  on SSRN. Here is the abstract: 

Legal language is often ambiguous. Consider a parking regulation: Only cars and trucks with permits are allowed. Does the prepositional phrase (PP) modifier [with permits]have “wide scope” ( over both nouns, [cars and trucks]) or “narrow scope” (over only [trucks])? To decide, judges look for the “ordinary” interpretation, or how most people would understand the phrase. To back up their decision, they often reference a canon of interpretation called the ‘Last Antecedent Rule’, which prescribes narrow scope. For some cases, however, they choose a wide-scope interpretation, aligning with a different–and conflicting–canon, the ‘Series Qualifier Canon’. With this kind of flux, we, as psycholinguists, set out to find evidence for how “most people”, those without practice reading legal texts, interpret PP modifiers. In our first two experiments, which focused on conjoined nouns, we found (a) a strong wide-scope preference when the PP is unbiased, as in [cars and trucks with permits], which (b) decreases significantly when the PP is semantically biased toward the last conjunct [cars and trucks without trailers] but strikingly (c) does not decrease at all when the bias is toward the first conjunct [trucks and cars without trailers]. In that case, a syntactic principle prevents the semantic bias from having an effect, and the wide-scope preference persists. Our third experiment focused on PPs that modify verbs as in [people may park cars and trucks on weekends]. Here we found even stronger evidence for a wide-scope interpretation, suggesting that VP modifiers are correctly interpreted as modifying the verb [park], not mistakenly interpreted as modifying the nouns [(cars and) trucks]. Our three experiments together show that psycholinguistic evidence can be extremely valuable in our efforts to understand legal language as the drafters intended it.

"Is Artificial Intelligence Capable of Writing a Law Journal Article?" by Yankovskiy

Roman M. Yankovskiy (Higher School of Economics) has published "Is Artificial Intelligence Capable of Writing a Law Journal Article?" on SSRN. Here is the abstract: 

In this article, we explore the potential of artificial intelligence (AI), in particular, ChatGPT based on GPT 4.0 model, to create articles in the field of legal studies. We analyze the pros and cons of employing AI in jurisprudence, specifically focusing on its capacity to adapt to intricate legal terminology, evolving legislation, and nuanced argumentation. The primary emphasis is placed on potential inaccuracies that may emerge in AI-generated text, as well as the underlying causes and subsequent ramifications. Furthermore, we discuss the copyright implications for works created via AI and propose possible solutions. In conclusion, we outline the current limitations and future prospects for leveraging AI in both legal practice and scholarly research. A substantial portion of the article is entirely generated by AI.

"Formalism, Legality, and the Rule of Law" by Miller

Paul B. Miller (Notre Dame Law School) has published "Formalism, Legality, and the Rule of Law" on SSRN. Here is the abstract: 

This chapter examines the relationship between formalist interpretive methodology and ideals of legality and the rule of law. In other work, I have argued that the structural formality of law and deliberatively formalistic legal reasoning are closely associated with legality and the rule of law. Here, I make the case that association is both conceptual and normative. The very ideas of legality, and of the rule of law, are such as to imply the formality of law and the necessity of deliberatively formalistic engagement with the guidance it supplies. In turn, a limited set of values that belong per se to legality and the rule of law attach by implication to legal form and legal formalism. Should a case need to be made for the law’s reliance on form, for its expectation of deliberative formalism, and/or for sophisticated scholarly formalism, one can build it through appeal to the values advanced by the achievement of legality in comportment with rule of law baselines.

That said, all varieties of formalism engage with extant law and its posited morality. As a matter of methodological choice, sophisticated scholarly formalists focus on interpreting the law as found, and on the public justification(s) given for posited law by lawmakers. This means that one must be mindful of taking the bad with the good. The practical reasonableness of our laws, and of the reasons given in public justification for them, is a contingent thing. It turns on more than the law’s responsiveness to the values of legality and the rule of law. One ought to be aware of the moral limits of legal form as well as the moral and methodological limits of legal formalism. I argue that the moral limits of legal form can be discerned only if due attention is paid to the values of practical reason, of moral right and duty, of political morality, of justice, and of the good. And I suggest that the methodological limits of scholarly formalism are (a) implied by awareness of the moral limits (relative to the moral promise) of legal form; and (b) recognition of the ways in which assessment of the soundness of law points beyond the juridical to normative moral and political theory, and to empirical examination of the likely or actual effectiveness of the normative guidance supplied by law.

"Juror Number Six: Implicit Bias and the Future of Jury Trials" by McGowan

David McGowan (University of San Diego School of Law) has published "Juror Number Six: Implicit Bias and the Future of Jury Trials" on SSRN. Here is the abstract: 

Implicit bias concepts are increasingly influential in the law. Washington and California have adopted jury selection rules that use implicit bias ideas to reduce the showing needed to reject a peremptory challenge. Under Washington's rule, a prima facie showing of bias may be made by showing that an objective observer, who is deemed to know that implicit (unconscious) bias has resulted in the unfair exclusion of jurors, could view race or ethnicity as a factor in the challenge. Once such a showing is made, the challenge is denied.

In two important cases, the Washington Supreme Court has applied implicit bias concepts from the peremptory challenge context to post-verdict challenges that argued that a verdict was tainted by bias. Under the rule in these cases, if a prima facie showing of bias is made the burden shifts to the prevailing party to prove that the verdict was not tainted by bias. The premises Washington has constructed from implicit bias reasoning are so strong that the burden of proof will likely be decisive in such cases. There is no non-arbitrary way to use such premises to distinguish cases in which conduct is problematic from those in which it is not.

The first case, State v. Berhe, led to an extraordinary hearing in which jurors were sworn and examined about their conduct during deliberations. This article uses the transcript of that hearing to assess whether implicit bias concepts will prove useful in such post-verdict challenges. It argues that at least IAT-style association data will not prove useful in assessing post-verdict challenges because such challenges pose a problem of attribution, not association. The question is whether to attribute a juror's conduct to their disposition or to other factors, such as the trial record. Implicit bias reasoning may skew such analysis by encouraging judges to favor dispositional explanations over contextual explanations.

"The Rule of Law" by King

Jeff King (University College London - Faculty of Laws) has published "The Rule of Law" on SSRN. Here is the abstract: 

The rule of law is a normative political ideal. This essay presents two approaches to understanding it. The first is the legal essentialist approach, which derives an account of the rule of law from an account of the essence of legality and legal systems. The second is the limited government approach, which derives an account from a normative theory proposing a role for law in opposing and negating the arbitrary power of persons over others. The chapter contends that the latter approach is more persuasive than the former. However, and despite recent refinements, the approach has a legacy of libertarian thinking and has not acknowledged what the author of this essay refers to as a regulatory conception of the rule of law which has a prominent social dimension. The social dimension entails a duty founded upon the rule of law ideal to legally regulate private arbitrary powers whose exercise allows some to impose coercion as well as non-consensual exploitation on others. The regulatory conception and its social dimension help us understand the appropriate relationship between the rule of law and human rights, the welfare state, and democracy.

"Tort Law Decision-Making: Psychological and Legal Perspectives" by Hans and Robbennolt

Valerie P. Hans (Cornell University - School of Law) and Jennifer K. Robbennolt (University of Illinois College of Law) have published "Tort Law Decision-Making: Psychological and Legal Perspectives" on SSRN. Here is the abstract: 

This chapter takes a psychological perspective on tort law decision-making, drawing on psychological theory, empirical research, and legal practices in tort litigation to assess the state of knowledge about decision-making in tort cases. It examines how plaintiffs decide to bring a lawsuit, how defendants respond, and the process of dispute resolution in tort cases. Most tort cases do not go to trial, but trial decisions remain significant as a framework for negotiations. The chapter also draws on psychological theory and research to describe how the judge and the jury as decision makers resolve legal issues and reach liability verdicts and damage awards in tort cases. Psychological heuristics, biases, and other psychological phenomena affect decision-making in intentional tort, negligence, and strict liability cases, and judgments about liability and damages. The chapter closes with suggestions for further investigations of understudied topics in tort law decision-making.

"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.

"Surveys and Experiments in Statutory Interpretation" by Macleod

James Macleod (Brooklyn Law School) has published "Surveys and Experiments in Statutory Interpretation" on SSRN. Here is the abstract: 

The U.S. Supreme Court routinely purports to resolve statutory interpretation disputes by deferring to the “ordinary,” “public” meaning of the statute’s terms (their “OPM”). In recent years, scholars have begun using surveys and experiments to test judges’ claims about OPM in individual cases, and to critique or refine modern textualist theory and practice more generally. This chapter advances two main arguments.

First, surveys and experiments can provide highly probative evidence of OPM. Drawing on the handful of survey-experimental efforts to date, along with scholarly criticisms of them, the chapter considers four potential concerns about the probative value of survey-experimental results: whether the right questions were asked; whether the right information was provided; whether participant biases distorted the results; and whether coherent meaning can be derived from responses to individual cases. The chapter suggests that while these concerns are valid, they primarily highlight preexisting ambiguities implicit in textualist decisionmakers’ claims about OPM, not survey experiments’ inability to generate probative evidence of OPM.

Second, the chapter suggests that if textualist decisionmakers were to spell out their conception of OPM with enough precision to render it theoretically capable of resolving the hard cases they routinely claim it resolves, then survey-experimental data might reveal that the theory produces disappointing results—not just in discrete cases, but systematically. Specifically, the data might reveal that textualism frequently favors unwieldy standards rather than clear-cut rules, and that in hard cases OPM is rarely clear enough to support modern textualists’ signature move of declaring it dispositive.

"Law and Order: The Timing of Mitigating Evidence Affects Punishment Decisions" by Conder et al

Emily Conder (Vanderbilt University), Christopher Brett Jaeger (Baylor Law School), and Jonathan Lane (Vanderbilt University) have published "Law and Order: The Timing of Mitigating Evidence Affects Punishment Decisions" on SSRN. Here is the abstract: 

When we hear about a transgression, we may consider whether the perpetrator’s individual circumstances make their transgression more understandable or excusable. Mitigating circumstances may reduce the severity of punishment that is deemed appropriate, both intuitively and legally. But importantly, in courts of public opinion and of law, mitigating information is typically presented only after information about a perpetrator’s transgression. We explore whether this sequence influences the force of mitigating evidence. Specifically, in two studies, we examined whether presenting evidence about a perpetrator’s background before or after evidence of their violation influenced how severely U.S. participants punished perpetrators. In Study 1 (N=132), evidence about the perpetrator’s mitigating circumstances reduced punishment only when it was presented before evidence about the perpetrator’s violation. Study 2 (N=316) additionally revealed this moderating effect of presentation order across a variety of premeditated and impulsive violations. These findings are consistent with person-centered theories of punishment and with the Story Model of adjudication.

"If You Can’t Beat Them, Join Them: Richard Posner and Behavioral Law and Economics" by Teichman et al

Doron Teichman (Hebrew University of Jerusalem - Faculty of Law), Avishalom Tor (Notre Dam Law School), and Eyal Zamir (Hebrew University of Jerusalem - Faculty of Law) have published "If You Can’t Beat Them, Join Them: Richard Posner and Behavioral Law and Economics" on SSRN. Here is the abstract: 

Since its publication in 1973, Economic Analysis of Law (the Treatise) by Richard Posner has been recognized as the canonical treatise in the field. Given this status, observing changes over time in the different editions of the book can highlight substantial and methodological shifts in the area. On this backdrop, this brief essay highlights Posner’s change of attitude towards behavioral analysis of law over the years, culminating with the incorporation of behavioral insights into the last edition of his book, published in 2014.