Neuroethics & Law Blog

"Legal Personhood" by Kurki

Visa Kurki (University of Helsinki) has published "Legal Personhood" on SSRN. Here is the abstract: 

This Element presents the notion of legal personhood, which is a foundational concept of Western law. It explores the theoretical and philosophical foundations of legal personhood, such as how legal personhood is defined and whether legal personhood is connected to personhood as a general notion. It also scrutinises particular categories of legal personhood. It first focuses on two classical categories: natural persons (human beings) and artificial persons (corporations). The discussions of natural persons also cover the developing legal status of children and individuals with disabilities. The Element also presents three emerging categories of legal personhood: animals, nature and natural objects, and AI systems. This title is also available as Open Access on Cambridge Core.

"Stereotypes as Evidence" by Bavli

Hillel J. Bavli (Southern Methodist University, Dedman School of Law) has published "Stereotypes as Evidence" on SSRN. Here is the abstract: 

Baserate evidence connects a defendant to an act through the defendant’s membership in a certain population. It includes evidence arising from forensic analysis, criminal profiling, statistical analysis, artificial intelligence, and many other common and emerging scientific methods. But while this evidence is prevalent in civil and criminal trials, it is poorly understood, and there is little predictability in how a court will decide its admissibility or even what standard the court will apply.

In this article, I show that although some forms of baserate evidence are desirable and even critical to achieving an accurate case outcome, a common form of baserate evidence called profile evidence constitutes unrecognized character evidence—evidence that a defendant acted in accordance with a certain character trait and that is prohibited by federal and state evidentiary rules. To show this, and to describe precisely the relationship between baserate evidence and character evidence, I draw on an area of statistics called Bayesian inference to define a new concept that I call population-propensity evidence. It describes a behavioral propensity of a population to suggest that an individual member of the population acted in accordance with this propensity. I show that this evidence—a form of baserate evidence that involves behavioral stereotyping—relies on impermissible character reasoning and therefore determines whether baserate evidence constitutes character evidence.

Finally, I discuss critical implications of my analysis. First, I show how an understanding of population-propensity evidence contributes descriptively to resolving longstanding confusion and inconsistency surrounding baserate evidence and profile evidence in particular. I then demonstrate that applying the rule against character evidence to determine the admissibility of profile evidence is essential to achieving correct and predictable evidentiary decisions, to minimizing the influence of implicit biases based on race and other personal characteristics of a defendant, and to reaching accurate verdicts.

"With No Reason: Allowing Courts to Decide Cases Without Explaining Their Decisions" by Zamir

Eyal Zamir (Hebrew University of Jerusalem) has published "With No Reason: Allowing Courts to Decide Cases Without Explaining Their Decisions" on SSRN. Here is the abstract:

There is broad consensus that there are features of adjudication from which no deviation should be allowed—the quintessential one being the requirement that judges provide reasons for their decisions, based on the pertinent legal norms. In fact, current rules of civil procedure do not permit the parties to agree otherwise, with or without the approval of the court. This article challenges the common wisdom and suggests that, subject to the court’s approval, the parties should be allowed to agree to a non-reasoned decision. Drawing in part on insights from jurisprudence, democratic theory, behavioral law and economics and empirical legal studies, the article first explores the pros and cons of judicial reason-giving. It then proposes a legal reform, according to which in civil disputes, courts will be allowed, with the consent of the litigants, to decide cases without citing reasons for their decisions. This alternative route of deciding cases is expected to ease the burden on overburdened courts. The article discusses ways to mitigate the downsides of non-reasoned decisions, including the restriction of this option to agreements made after the filing of the lawsuit (that is, excluding pre-litigation agreements). The article analyzes the expected effect of the proposed reform on the behavior of litigants, the content of judicial decisions, and the functioning of the court system (including appellate federal courts).

"Measuring Legal Concepts" by Martínez

Eric Martínez (Massachusetts Institute of Technology (MIT), Institute for Law & AI) has published "Measuring Legal Concepts" on SSRN. Here is the abstract: 

Concepts are said to be the building blocks of law, underlying the rules, standards and principles that comprise legal doctrine. Despite the acknowledged importance of legal concepts, it remains an open question which of all legal concepts are most fundamental to law.

This Article attempts to identify the core and penumbra of the legal concept space by developing a novel conceptual and methodological framework for measuring how fundamental a given concept is to law. The paper then implements that framework through one a series of three empirical studies featuring an analysis of: (a) every entry in Black’s Law Dictionary; (b) all federal statutes and regulations currently in force; (c) ~1 million judicial decisions; and (d) ~600,000 private contracts.

Analyses reveal that less than 2% of all legal concepts underlie the majority of the legal concept space and comprise the majority of references to legal concepts within legal doctrine. Comparing across sources of law reveals a strong correlation between how often a concept is invoked within codified legal instruments (“law in books”) and how often it is invoked within judicial decisions (“law in action”), as well as between a concept’s centrality within public legal instruments and its centrality within private legal instruments. Comparative analyses between legal sources as a whole and non-legal corpora—including the entirety of the Google Books corpus (n=300 billion words)—further reveal that the most fundamental legal concepts are disproportionately more likely than peripheral legal concepts to appear in ordinary written and spoken communication.

Taken together, these results suggest that legal doctrine is largely built upon a small core of foundational legal concepts, such as reasonable, personhood, and consent, which traverse multiple areas of law and more closely resemble ordinary concepts accessible to laypeople than specialized concepts requiring expert legal knowledge. Surrounded by this core is a massive penumbra of technical legal concepts, such as tortious interference, parol evidence, and fee simple determinable subject to executory interest, seldom encountered by jurists and laypeople alike. By illuminating the legal concept space, this Article provides a clearer view of the nature of legal doctrine that provides novel evidence for classic jurisprudential debates along with decision-relevant insights for legal practice and education.

"Brain-computer interfaces, venture capital, and the many challenges in law" by McCay, Pushpapathan, and Hamilton

Allan McCay (The University of Sydney Law School), Harikesh Pushpapathan (Stoic Venture Capital), and Tara Hamilton (University of Technology Sydney) have posted "Brain-computer interfaces, venture capital, and the many challenges in law" on SSRN. Here is the first paragraph: 

Elon Musk’s Neuralink recently livestreamed a video of Noland Arbaugh, the paralysed first recipient of a brain-implant developed by the company, playing chess on his laptop by thought alone. Whilst brain-computer interfaces are not new, Musk’s backing underscores the commercial potential many other investors now appreciate. Arbaugh has already discussed the capacity of the device to restore autonomy to himself and others, underscoring the very significant upside of neurotech. However, the technology’s human rights implications also need consideration and some countries have undertaken a legislative response or the beginnings of one.