Neuroethics & Law Blog

"Diminished Criminal Responsibility: A Multinational Comparative Review" by Johnston et al

E. Lea Johnston (University of Florida Levin College of Law), Kendall Runyan (University of Florida, Levin College of Law, Students), Fernando Jose Silva (Universidade Autónoma de Lisboa), and Francisco Maldonado Fuentes (Universidad de Talca, Chile) have published "Diminished Criminal Responsibility: A Multinational Comparative Review" on SSRN. Here is the abstract: 

This article reviews the legal frameworks of diminished criminal responsibility in eighteen civil law jurisdictions across the globe—Brazil, Chile, China, the Czech Republic, Finland, France, Germany, Greece, Italy, Japan, Luxembourg, Poland, Portugal, Russia, Spain, Switzerland, Taiwan, and Turkey. Specifically, it reports the legal standards and main features of partial responsibility, associated penalty reductions, and potential dispositions following a partial responsibility finding. It also surveys empirical data on the prevalence of diminished responsibility as compared to criminal nonresponsibility. This article, which reflects contemporary penal codes and draws from both English and non-English sources, is the only known existing source to compile these partial responsibility standards or to delineate their precise sentencing consequences. It is also the only known source in English to describe Portugal’s and Chile’s treatment of diminished responsibility. Providing a comparative overview of graduated responsibility in nearly twenty countries invites global discussion on whether and how society should recognize partial responsibility, as well as the punitive and therapeutic consequences that should attend this finding.

"How to Think About Freedom of Thought (and Opinion) in the Age of Artificial Intelligence" by Teo

Sue Anne Teo (University of Copenhagen, Raoul Wallenberg Institute of Human Rights and Humanitarian Law) has published "How to Think About Freedom of Thought (and Opinion) in the Age of Artificial Intelligence" on SSRN. Here is the abstract: 

How to think about freedom of thought (and opinion) in the age of AIThe freedoms of thought (and opinion) are considered as absolute rights within the human rights law framework. Though found in separate provisions within the human rights instruments, the content and contours of these freedoms are largely interchangeable and overlap. The freedom of thought (and opinion) consists of three elements, namely, that thoughts and opinions can be kept private; thoughts cannot be manipulated with; and that one should not be punished for one’s own thoughts. However, artificial intelligence (AI) driven systems increasingly deployed within online platforms facilitate the granular targeting and tailoring of choice architectures to the particularities of each individual, according to what is revealed or inferred by the AI system. This can enable platforms to shape the horizons of possibilities at scale for many individuals at once, enabling the power to modulate thoughts, expressions and actions. Drawing from literature on moral ethics and specifically the nascent field of the ethics of online manipulation, the aim of the article is to theorise the concept of manipulation and punishment in the context of the affordances of AI systems and examine when and how it impacts or breaches the freedoms of thought and opinion. The article argues that manipulation has to be conceived of as an objective concept, without hinging upon the eventuation of subjective effects on individuals, in order for the right to have practical meaning and import in the age of AI. Further, the term punishment has to be re-conceptualised to go beyond state sanctioned actions to include harms to autonomy conditions. This engages the fundamental concept of human dignity that lies as the normative foundation of the human rights framework. As novel material affordances increasingly structure and modulate the conditions for human interaction and communication, the focus of human rights protection has to shift from negative to positive obligations in order to ensure that conditions of possibilities for the freedoms of thought and opinion can take hold and be exercised in the first place. It concludes by proposing three steps that can be taken in order to afford autonomy conditions in line with the respect for these freedoms.

"The Modern Way to Write a Statute Is to Tell a Story" by Neumann

Richard K. Neumann (Hofstra University - School of Law) has published "The Modern Way to Write a Statute Is to Tell a Story" on SSRN. Here is the abstract: 

Except for the United States, the English-speaking world has been moving toward writing statutes as stories with characters and plot tensions. British statutes are the most advanced in this respect.

To illustrate the British method, the key statutes in the Mar-a-Lago Indictment are redrafted in this article to resemble the form they would take if recently enacted by Parliament. l compare the statutes and the redrafts side-by-side. And I do the same thing with two sections of the Electoral Count Act, which governs what Congress does on every January 6 following a presidential election year.

The article explains how the British drafting process differs from Congress’s as well as why and how the British have gradually been abandoning statute-writing customs that still prevail in the United States. The article also explains how a writer can tell a story in a statute: sequencing events, blocking to set up a scene, and managing action and dialog.

"Two Kinds of Desert" by Brink

David O. Brink (University of California, San Diego, University of San Diego School of Law) has published "Two Kinds of Desert" on SSRN. Here is the abstract: 

The concept of desert figures centrally in our reactive attitudes and practices in both morality and law. A philosophical tradition that includes Butler, Price, Kant, and Ross focuses on aretaic desert, which claims that people deserve rewards and sanctions commensurate with their overall aggregate levels of virtue and vice. By contrast, accountability desert assesses the praise or blame agents deserve for particular actions. An important special case of accountability desert is retributive desert, which insists that culpable wrongdoing is the desert basis of blame and punishment.

These desert contexts display both unity and diversity. On the one hand, these different desert contexts are all regulated by a conception of moral agency and responsibility that is grounded in a conception of accountability in which responsible agents are conceived as reasons-responsive agents who have the fair opportunity to exercise their normative capacities. Desert is a matter of fitting responses, positive or negative, to conduct for which the agent is accountable. On the other hand, there are also important differences between aretaic and accountability desert concerning the focus, scope, and valence of desert. Crucially, whereas accountability desert has an atomic focus on individual actions, aretaic desert has a holistic focus on aggregate virtue and vice.

If so, one cannot assume that what is true of aretaic desert is true of accountability desert, and vice versa. A case in point is the critique of retributive conceptions of punishment that appeals to assumptions about aretaic desert. The problems that would result from combining retributivism with aggregate lifetime desert are not a good reason to reject retributive conceptions of blame and punishment, which operate with an accountability focus on atomic desert.

This defense of the retributive focus on accountability desert is compatible with a wide-ranging conception of the factors that are potentially relevant to sentencing and sanctions. On the one hand, we can sensibly deny the relevance of aretaic desert to sentencing and sanctions, insisting that aggravating and mitigating factors must be specified in relation to the particular wrong for which the agent is accountable. On the other hand, even if we conceded the legitimacy of appealing to aretaic desert at decisions about sentencing and sanctions, it would not be part of the retributivist desert basis for proportionate punishment, which is accountability desert. Rather, it would stand as a factor external to retributive desert.

"Moral Judgments and Knowledge about Felony Murder in Colorado: An Empirical Study" by Farrell

Ian P. Farrell (The University of Denver Sturm College of Law) has published "Moral Judgments and Knowledge about Felony Murder in Colorado: An Empirical Study" on SSRN. Here is the abstract: 

With funds provided by a Hughes Pilot grant, I conducted a survey of 523 Colorado residents to determine their knowledge of and moral attitudes towards the felony murder rule. The survey showed that only a very small fraction of the participants knew that unintended killings in the course of predicate felonies was murder punishable at the time by life without the possibility of parole. Similarly, only a very small fraction of survey participants believed that persons who committed unintended killings in the course of predicate felonies deserved a murder conviction or sentence of mandatory life without the possibility of parole. Rather, the mean sentence that survey participants considered just for felony murder was just over six years in prison. These results substantially undercut the two main justifications given for felony murder, namely deterrence and retribution.

"Optimistic Overconfidence: A Study of Law Student Academic Predictions" by Barder and Robbennolt

Sam Barder (University of Illinois at Urbana-Champaign, Students) and Jennifer K. Robbennolt (University of Illinois College of Law) have published "Optimistic Overconfidence: A Study of Law Student Academic Predictions" on SSRN. Here is the abstract: 

This paper explores optimistic overconfidence among law students. We surveyed more than 600 law students at the beginning of their first year of law school, asking for their predictions about how they would perform relative to their peers in their first year. We found that students were overconfident. On average, students thought that they would finish their first year of law school ahead of nearly 75% of their peers. Almost all students (95%) predicted that they would finish their first year in the top half of the class and more than two-thirds of students believed they would finish in the top 30%. The degree of overconfidence is particularly substantial for those who find themselves at the bottom of the class. Indeed, just 5% of students predicted that they would finish below the median. Thus, the vast majority of the students who end up in the bottom half of the class did not expect to find themselves there when they started law school. In addition, students’ predictions were unrelated to their actual first-year performance.

This study adds to the breadth of research on human overconfidence. The optimistic overconfidence displayed by students has the potential to be both an asset and an obstacle. Some measure of optimism and confidence (even overconfidence) may serve these students well in their careers. But so too will the ability to predict problems, make objective projections, and engage in accurate self-evaluation. Law school provides an opportunity for students to develop the capacity to draw on their optimism when it is useful while cultivating skills that allow them to be realistic when necessary.

"The Dissociative Theory of Punishment" by Bakhshay

Shirin Bakhshay (UCLA School of Law) has published "The Dissociative Theory of Punishment" on SSRN. Here is the abstract: 

The American public has complex views on criminal punishment. They are driven primarily by retributive motivations. But they have other justice considerations, such as restoration and rehabilitation, that can be activated in different ways. Laypersons are also motivated to psychologically distance and dissociate from those they perceive to be criminal “others” and to see punishment itself as a kind of dissociation, embodied by the prison form. The psychological processes that produce these beliefs lead to an insistence on prison as a necessary criminal justice outcome, despite reservations about its effectiveness and concerns about the state of mass incarceration and punitive penal policy more generally.

This Article builds on the psychology of punishment literature to offer a deeper understanding of the dissociative theory of punishment and how it produces the belief in the necessity of prison. Drawing on original, qualitative focus group data and analysis, this Article identifies the specific psychological mechanisms that motivate dissociation, explains the role of the belief in retributive justice as part of this process, and offers nuanced insights into the contours of the dissociative theory and the way people psychologically reason about criminal punishment.

"Schrödinger’s Dissent: The Hybrid Authority of a Dissenting Opinion" by Frohock

Christina Frohock (University of Miami - School of Law) has published "Schrödinger’s Dissent: The Hybrid Authority of a Dissenting Opinion" on SSRN. Here is the abstract: 

A dissenting opinion is the Schrödinger’s cat of authorities: both the law and not the law simultaneously. Courts and scholars often clarify that a dissenting opinion is persuasive rather than binding, presuming that a dissent persuades as primary authority. Emerging from the pen of a judge wearing a black robe and acting in an official capacity, a dissenting opinion exhibits the form of the law. Yet, beneath that lofty sheen, a dissent exhibits the substance of secondary authority. A dissenting judge opines on the case at hand for the inherent purpose of undercutting the law, providing a case law coda. This Article describes the traditional categories of authority, primary and secondary, and identifies the writer as a distinguishing feature. The Article then describes various types of judicial opinion as primary authority and argues that a dissenting opinion inhabits a hybrid category. With exceptional status comes exceptional opportunity. As primary authority, a dissent enjoys the same rhetorical leeway as other opinions; as secondary authority, a dissent is an untethered critique of the law. Over the years, dissenting opinions from the Supreme Court provide enduring examples of a dissent’s mix of primary and secondary authority.

"Why Americans Are a People of Exceptional Violence" by Tonry

Michael Tonry (Max Planck Institute for the Study of Crime, Security and Law) has published "Why Americans Are a People of Exceptional Violence" on SSRN. Here is the abstract: 

Among Western countries, the United States is an exceptionally violent place. Serious intentional violence—homicides, other violent gun crimes, mass killings, and police killings of civilians—is dramatically more common. Many American laws—self defense retreat doctrines, stand your ground laws, permissive or minimal regulation of access to handguns and semi-automatic weapons, corporal punishment of children—are much more tolerant of behaviors that inherently present increased risks of violent behavior and victimization. American laws governing sentencing are unique among those of Western countries in both the absolute severity of the punishments they prescribe and allow and in the absence of viable legal mechanisms for challenging sentences on the basis either that their absolute severity violates minimum human rights standards or that they are disproportionately severe in relation to the seriousness of the wrongdoing for which they are imposed (in either case a form of unjustifiable state violence).