Law and Society Commons^™

Remodeling Criminal Insanity: Exploring Philosophical, Legal, And Medical Premises Of The Medical Model Used In Norwegian Law, Linda Gröning, Unn K. Haukvik, Stephen J. Morse, Susanna Radovic

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This paper clarifies the conceptual space of discussion of legal insanity by considering the virtues of the ‘medical model’ model that has been used in Norway for almost a century. The medical model identifies insanity exclusively with mental disorder, and especially with psychosis, without any requirement that the disorder causally influenced the commission of the crime. We explore the medical model from a transdisciplinary perspective and show how it can be utilised to systematise and reconsider the central philosophical, legal and medical premises involved in the insanity debate. A key concern is how recent transdiagnostic and dimensional approaches to psychosis …

Internal And External Challenges To Culpability, Stephen J. Morse

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This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law. It is forthcoming in Arizona State Law Journal Volume 53, Issue 2.

The thesis of this article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to …

Indoctrination And Social Influence As A Defense To Crime: Are We Responsible For Who We Are?, Paul H. Robinson, Lindsay Holcomb

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A patriotic POW is brainwashed by his North Korean captors into refusing repatriation and undertaking treasonous anti-American propaganda for the communist regime. Despite the general abhorrence of treason in time of war, the American public opposes criminal liability for such indoctrinated soldiers, yet existing criminal law provides no defense or mitigation because, at the time of the offense, the indoctrinated offender suffers no cognitive or control dysfunction, no mental or emotional impairment, and no external or internal compulsion. Rather, he was acting purely in the exercise of free of will, albeit based upon beliefs and values that he had not …

Fair Questions: A Call And Proposal For Using General Verdicts With Special Interrogatories To Prevent Biased And Unjust Convictions, Charles Eric Hintz

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Bias and other forms of logical corner-cutting are an unfortunate aspect of criminal jury deliberations. However, the preferred verdict system in the federal courts, the general verdict, does nothing to counter that. Rather, by forcing jurors into a simple binary choice — guilty or not guilty — the general verdict facilitates and encourages such flawed reasoning. Yet the federal courts continue to stick to the general verdict, ironically out of a concern that deviating from it will harm defendants by leading juries to convict.

This Essay calls for a change: expand the use of a special findings verdict, the general …

Is Executive Function The Universal Acid?, Stephen J. Morse

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This essay responds to Hirstein, Sifferd and Fagan’s book, Responsible Brains (MIT Press, 2018), which claims that executive function is the guiding mechanism that supports both responsible agency and the necessity for some excuses. In contrast, I suggest that executive function is not the universal acid and the neuroscience at present contributes almost nothing to the necessary psychological level of explanation and analysis. To the extent neuroscience can be useful, it is virtually entirely dependent on well-validated psychology to correlate with the neuroscientific variables under investigation. The essay considers what executive function is and what the neuroscience adds to our …

Mitigations: The Forgotten Side Of The Proportionality Principle, Paul H. Robinson

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In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment. Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment. Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime-control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering the …

Justifying Bad Deals, Tess Wilkinson-Ryan

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In the past decade, psychological and behavioral studies have found that individual commitment to contracts persists beyond personal relationships and traditional promises. Even take-it-or-leave it consumer contracts get substantial deference from consumers — even when the terms are unenforceable, even when the assent is procedurally compromised, and even when the drafter is an impersonal commercial actor. Indeed, there is mounting evidence that people import the morality of promise into situations that might otherwise be described as predatory, exploitative, or coercive. The purpose of this Article is to propose a framework for understanding what seems to be widespread acceptance of regulation …

Against The Received Wisdom: Why The Criminal Justice System Should Give Kids A Break, Stephen J. Morse

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Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break not because on average they have different capacities relevant to responsibility than adults, but because juveniles have little say about the criminal law, primarily because they do not have a vote. For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about …

The Aesthetics Of Disability, Jasmine E. Harris

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The foundational faith of disability law is the proposition that we can reduce disability discrimination if we can foster interactions between disabled and nondisabled people. This central faith, which is rooted in contact theory, has encouraged integration of people with and without disabilities, with the expectation that contact will reduce preju­dicial atti­tudes and shift societal norms. However, neither the scholarship nor disa­bility law sufficiently accounts for what this Article calls the “aesthetics of disability,” the proposition that our interaction with dis­ability is medi­ated by an affective process that inclines us to like, dislike, be attracted to, or be repulsed by …

A General Mitigation For Disturbance-Driven Crimes?: Psychic State, Personal Choice, And Normative Inquiries, Paul H. Robinson

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It is argued here that the narrow provoked “heat of passion” mitigation available under current law ought to be significantly expanded to include not just murder but all felonies and not just “heat of passion” but potentially all mental or emotional disturbances, whenever the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness for the violation. In determining eligibility for mitigation, the jury should take into account (a) the extent to which the offender was acting under the influence of mental or emotional disturbance (the psychic state inquiry), (b) given the offender’s situation and capacities, the extent to which one …

The Poverty Of The Neuroscience Of Poverty: Policy Payoff Or False Promise?, Amy L. Wax

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A recent body of work in neuroscience examines the brains of people suffering from social and economic disadvantage. This article assesses claims that this research can help generate more effective strategies for addressing these social conditions and their effects. It concludes that the so-called neuroscience of deprivation has no unique practical payoff, and that scientists, journalists, and policy-makers should stop claiming otherwise. Because this research does not, and generally cannot, distinguish between innate versus environmental causes of brain characteristics, it cannot predict whether neurological and behavioral deficits can be addressed by reducing social deprivation. Also, knowledge of brain mechanisms yields …

From Promise To Form: How Contracting Online Changes Consumers, David A. Hoffman

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I hypothesize that different experiences with online contracting have led some consumers to see contracts—both online and offline—in distinctive ways. Experimenting on a large, nationally representative sample, this paper provides evidence of age-based and experience-based differences in views of consumer contract formation and breach. I show that younger subjects who have entered into more online contracts are likelier than older ones to think that contracts can be formed online, that digital contracts are legitimate while oral contracts are not, and that contract law is unforgiving of breach.

I argue that such individual differences in views of contract formation and enforceability …

Intuitive Formalism In Contract, Tess Wilkinson-Ryan

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This Article starts with the proposition that most American contracting is consumer contracting, posits that consumer contracting has particular and even peculiar doctrinal features, and concludes that these features dominate the lay understanding of contract law. Contracts of adhesion constitute the bulk of consumer experience with contract law. It is not hard to see that someone discerning the nature of contract law from a sample composed almost entirely of boilerplate terms and conditions would come quickly to the conclusion that contract law is highly formal.

Within the realm of potentially enforceable deals (i.e., those that are supported by consideration and …

Neuroprediction: New Technology, Old Problems, Stephen J. Morse

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Neuroprediction is the use of structural or functional brain or nervous system variables to make any type of prediction, including medical prognoses and behavioral forecasts, such as an indicator of future dangerous behavior. This commentary will focus on behavioral predictions, but the analysis applies to any context. The general thesis is that using neurovariables for prediction is a new technology, but that it raises no new ethical issues, at least for now. Only if neuroscience achieves the ability to “read” mental content will genuinely new ethical issues be raised, but that is not possible at present.

The Common Sense Of Contract Formation, Tess Wilkinson-Ryan, David A. Hoffman

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What parties know and think they know about contract law affects their obligations under the law and their intuitive obligations toward one another. Drawing on a series of new experimental questionnaire studies, this Article makes two contributions.First, it lays out what information and beliefs ordinary individuals have about how to form contracts with one another. We find that the colloquial understanding of contract law is almost entirely focused on formalization rather than actual assent, though the modern doctrine of contract formation takes the opposite stance. The second Part of the Article tries to get at whether this misunderstanding matters. Is …

Micro-Symposium On Orin Kerr's 'A Theory Of Law', Laura Appleman, Shawn Bayern, Adam D. Chandler, Robert Cheren, Miriam A. Cherry, Ross E. Davies, Lee Anne Fennell, Paul A. Gowder, Caitlin Hartsell, Kieran Healy, Robert A. James, Jeffrey H. Kahn, Orin S. Kerr, Jacob T. Levy, Jeffrey M. Lipshaw, Orly Lobel, Geoffrey A. Manne, Chad M. Oldfather, Ronak Patel, Jeffrey A. Pojanowski, Alexandra J. Roberts, Kent Scheidegger, Arthur Stock, Anders Walker

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For more than a century, careful readers of the Green Bag have known that “[t]here is nothing sacred in a theory of law...which has outlived its usefulness or which was radically wrong from the beginning...The question is What is the law and what is the true public policy?” Professor Orin Kerr bravely, creatively, and eloquently answered that question in his article, “A Theory of Law,” in the Autumn 2012 issue of the Green Bag. Uniquely among all theories of law that I know of, Kerr’s answer to the fundamental question of law and true public policy enables all scholars to …

Changing Minds: The Work Of Mediators And Empirical Studies Of Persuasion, James H. Stark, Douglas N. Frenkel

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The use of mediation has grown exponentially in recent years in courts, agencies, and community settings. Yet the field of mediation still operates to a considerable extent on folklore and opinion, rather than reliable knowledge. Mediator attempts at persuasion are pervasive in a wide variety of mediation contexts, yet “persuasion” is, for some, a pejorative word and a contested norm in the field. Perhaps as a result, there has been little, if any, evidence-based writing about what kinds of persuasive appeals might be effective in mediation, how they might operate, and how they might be experienced by disputants. In an …

"They Saw A Protest": Cognitive Illiberalism And The Speech-Conduct Distinction, Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans, Jeffrey J. Rachlinski

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“Cultural cognition” refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military’s “don’t ask, don’t tell” policy outside a campus recruitment facility. Subjects of opposing cultural outlooks who were assigned to the same experimental condition …

Extralegal Punishment Factors: A Study Of Forgiveness, Hardship, Good-Deeds, Apology, Remorse, And Other Such Discretionary Factors In Assessing Criminal Punishment, Paul H. Robinson, Sean Jackowitz, Daniel M. Bartels

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The criminal law's formal criteria for assessing punishment are typically contained in criminal codes, the rules of which fix an offender's liability and the grade of the offense. A look at how the punishment decision-making process actually works, however, suggests that courts and other decisionmakers frequently go beyond the formal legal factors and take account of what might be called "extralegal punishment factors" (XPFs).

XPFs, the subject of this Article, include matters as diverse as an offender's apology, remorse, history of good or bad deeds, public acknowledgment of guilt, special talents, old age, extralegal suffering from the offense, as well …

Realism, Punishment & Reform [A Reply To Braman, Kahan, And Hoffman, "Some Realism About Punishment Naturalism”], Paul H. Robinson, Owen D. Jones, Robert O. Kurzban

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Professors Donald Braman, Dan Kahan, and David Hoffman, in their article "Some Realism About Punishment Naturalism," to be published in an upcoming issue of the University of Chicago Law Review, critique a series of our articles: Concordance and Conflict in Intuitions of Justice (http://ssrn.com/abstract=932067), The Origins of Shared Intuitions of Justice (http://.ssrn.com/abstract=952726), and Intuitions of Justice: Implications for Criminal Law and Justice Policy (http://.ssrn.com/abstract=976026). Our reply, here, follows their article in that coming issue. As we demonstrate, they have misunderstood our views on, and thus the implications of, widespread agreement about punishing the "core" of wrongdoing. Although much of their …

The Distortionary Effect Of Evidence On Primary Behavior, Gideon Parchomovsky, Alex Stein

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In this Essay, we analyze how evidentiary concerns dominate actors’ behavior. Our findings offer an important refinement to the conventional wisdom in law and economics literature, which assumes that legal rules can always be fashioned to achieve socially optimal outcomes. We show that evidentiary motivations will often lead actors to engage in socially suboptimal behavior when doing so is likely to increase their likelihood of prevailing in court. Because adjudicators must base decisions on observable and verifiable information—or, in short, evidence—rational actors will always strive to generate evidence that can later be presented in court and increase their chances of …

A Core Of Agreement, Donald Braman, Dan M. Kahan, David A. Hoffman

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In this short comment, we respond to papers by Robinson, Kurzban, and Jones (RKJ) and by Darley, who replied to our paper, Punishment Naturalism. We align ourselves wholeheartedly with Darley’s argument that intuitions of criminal wrongdoing, while mediated by cognitive mechanisms that are largely universal, consist in evaluations that vary significantly across cultural groups. RKJ defend their finding of “universal” intuitions of “core” of criminal wrongdoing. They acknowledge, however, that their method for identifying the core excludes by design factors that predictably generate cultural variance in what behavior counts as murder, rape, theft and other “core” offenses. On this basis, …

Some Realism About Punishment Naturalism, Donald Braman, Dan M. Kahan, David A. Hoffman

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In this paper we critique the increasingly prominent claims of punishment naturalism – the notion that highly nuanced intuitions about most forms of crime and punishment are broadly shared, and that this agreement is best explained by a particular form of evolutionary psychology. While the core claims of punishment naturalism are deeply attractive and intuitive, they are contradicted by a broad array of studies and depend on a number of logical missteps. The most obvious shortcoming of punishment naturalism is that it ignores empirical research demonstrating deep disagreements over what constitutes a wrongful act and just how wrongful it should …

Whose Eyes Are You Going To Believe? Scott V. Harris And The Perils Of Cognitive Illiberalism, Dan M. Kahan, David A. Hoffman, Donald Braman

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This paper accepts the unusual invitation to see for yourself issued by the Supreme Court in Scott v. Harris, 127 S. Ct. 1769 (2007). Scott held that a police officer did not violate the Fourth Amendment when he deliberately rammed his car into that of a fleeing motorist who refused to pull over for speeding and instead attempted to evade the police in a high-speed chase. The majority did not attempt to rebut the arguments of the single Justice who disagreed with its conclusion that no reasonable juror could find the fleeing driver did not pose a deadly risk …

Stereotype Threat: A Case Of Overclaim Syndrome?, Amy L. Wax

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The theory of Stereotype Threat (ST) predicts that, when widely accepted stereotypes allege a group’s intellectual inferiority, fears of confirming these stereotypes cause individuals in the group to underperform relative to their true ability and knowledge. There are now hundreds of published studies purporting to document an impact for ST on the performance of women and racial minorities in a range of situations. This article reviews the literature on stereotype threat, focusing especially on studies investigating the influence of ST in the context of gender. It concludes that there is currently no justification for concluding that ST explains women’s underperformance …

Against Financial Literacy Education, Lauren E. Willis

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The dominant model of regulation in the United States for consumer credit, insurance, and investment products is disclosure and unfettered choice. As these products have become increasingly complex, consumers’ inability to understand them has become increasingly apparent, and the consequences of this inability more dire. In response, policymakers have embraced financial literacy education as a necessary corollary to the disclosure model of regulation. This education is widely believed to turn consumers into “responsible” and “empowered” market players, motivated and competent to make financial decisions that increase their own welfare. The vision is of educated consumers handling their own credit, insurance, …

The Origins Of Shared Intuitions Of Justice, Paul H. Robinson, Robert O. Kurzban, Owen D. Jones

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Contrary to the common wisdom among criminal law scholars, the empirical evidence reveals that people's intuitions of justice are often specific, nuanced, and widely shared. Indeed, with regard to the core harms and evils to which criminal law addresses itself – physical aggression, takings without consent, and deception in transactions – the shared intuitions are stunningly consistent, across cultures as well as demographics. It is puzzling that judgments of moral blameworthiness, which seem so complex and subjective, reflect such a remarkable consensus. What could explain this striking result? The authors theorize that one explanation may be an evolved predisposition toward …

Admitting Mental Health Evidence To Impeach The Credibility Of A Sexual Assault Complainant, Tess Wilkinson-Ryan

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No abstract provided.

The Inefficiency Of Mens Rea, Claire Oakes Finkelstein

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No abstract provided.

Crazy Reasons, Stephen J. Morse

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No abstract provided.