Law Commons^™

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 …

Actions Speak Louder Than Images: The Use Of Neuroscientific Evidence In Criminal Cases, Stephen J. Morse

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This invited commentary for Journal of Law & the Biosciences considers four empirical studies previously published in the journal of the reception of neuroscientific evidence in criminal cases in the United States, Canada, England and Wales, and the Netherlands. There are conceded methodological problems with all, but the data are nonetheless instructive and suggestive. The thesis of the comment is that the courts are committing the same errors that have bedeviled the reception of psychiatric and psychological evidence. There is insufficient caution about the state of the science, and more importantly, there is insufficient understanding of the relevance of the …

Criminal Law And Common Sense: An Essay On The Perils And Promise Of Neuroscience, Stephen J. Morse

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This article is based on the author’s Barrock Lecture in Criminal Law presented at the Marquette University Law School. The central thesis is that the folk psychology that underpins criminal responsibility is correct and that our commonsense understanding of agency and responsibility and the legitimacy of criminal justice generally are not imperiled by contemporary discoveries in the various sciences, including neuroscience and genetics. These sciences will not revolutionize criminal law, at least not anytime soon, and at most they may make modest contributions to legal doctrine, practice, and policy. Until there are conceptual or scientific breakthroughs, this is my story …

The American Criminal Code: General Defenses, Paul H. Robinson, Matthew Kussmaul, Camber Stoddard, Ilya Rudyak, Andreas Kuersten

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There are fifty-two bodies of criminal law in the United States. Each stakes out often diverse positions on a range of issues. This article defines the “American rule” for each of the issues relating to general defenses, a first contribution towards creating an “American Criminal Code.”

The article is the result of a several-year research project examining every issue relating to justification, excuse, and non-exculpatory defenses. It determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects that majority rule. The article also compares and contrasts the majority position to significant minority …

Neuroscience, Free Will, And Criminal Responsibility, Stephen J. Morse

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This chapter argues that the folk-psychological model of the person and responsibility is not challenged by determinism in general or by neurodeterminism in particular. Until science conclusively demonstrates that human beings cannot be guided by reasons and that mental states play no role in explaining behavior, the folk-psychological model of responsibility is justified. This chapter discusses the motivations to turn to science to solve the hard normative problems the law addresses, as well as the law's psychology and its concepts of the person and responsibility. Then it considers the general relation of neuroscience to law, which I characterize as the …

Four Distinctions That Glanville Williams Did Not Make: The Practical Benefits Of Examining The Interrelation Among Criminal Law Doctrines, Paul H. Robinson

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While Glanville Williams was a pioneer in his time, he remained quite mainstream when it came to the framework for organizing criminal law doctrines. His books were influential and he could have helped reshaped that framework but was content to leave it as essentially that which evolved at common law, even though many improvements could have be made. For example, he was well aware of the justification-excuse distinction but rejected it as an organizing principle, not because he did not see the distinction as rational, but because he did not see it as having practical value.

This essay attempts to …

Genetics And Criminal Responsibility, Stephen J. Morse

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Some believe that genetics threatens privacy and autonomy and will eviscerate the concept of human nature. Despite the astonishing research advances, however, none of these dire predictions and no radical transformation of the law have occurred.

Severe Environmental Deprivation (Aka Rsb): A Tragedy, Not A Defense, Stephen J. Morse

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This article is a contribution to a symposium issue of the Alabama Civil Rights & Civil Liberties Law Review devoted to whether severe environmental deprivation, sometimes termed rotten social background, should be a defense to crime and why it has not been adopted. I begin by presenting the framework I apply for thinking about such problems. I then identify the main theses Professors Richard Delgado and Andrew Taslitz present and consider their merits. Next, I turn to the arguments of the other papers by Professors Paul Robinson, Erik Luna and Angela Harris. I make two general arguments: first, that SED …

The Non-Problem Of Free Will In Forensic Psychiatry And Psychology, Stephen J. Morse

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This article demonstrates that there is no free will problem in forensic psychiatry by showing that free will or its lack is not a criterion for any legal doctrine and it is not an underlying general foundation for legal responsibility doctrines and practices. There is a genuine metaphysical free will problem, but the article explains why it is not relevant to forensic practice. Forensic practitioners are urged to avoid all usage of free will in their forensic thinking and work product because it is irrelevant and spawns confusion.

Justification And Excuse, Law And Morality, Mitchell N. Berman

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Anglo-American theorists of the criminal law have concentrated on-one is tempted to say "obsessed over"-the distinction between justification and excuse for a good quarter-century and the scholarly attention has purchased unusually widespread agreement. Justification defenses are said to apply when the actor's conduct was not morally wrongful; excuse defenses lie when the actor did engage in wrongful conduct but is not morally blameworthy. A near consensus thus achieved, theorists have turned to subordinate matters, joining issue most notably on the question of whether justifications are "subjective"-turning upon the actor's reasons for acting-or "objective"-involving only facts independent of the actor's beliefs …

Justice, Liability, And Blame: Community Views And The Criminal Law, Paul H. Robinson, John M. Darley

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This book reports empirical studies on 18 different areas of substantive criminal law in which the study results showing ordinary people’s judgments of justice are compared to the governing legal doctrine to highlight points of agreement and disagreement. The book also identifies trends and patterns in agreement and disagreement and discusses the implications for the formulation of criminal law. The chapters include:

Chapter 1. Community Views and the Criminal Law (Introduction; An Overview; Why Community Views Should Matter; Research Methods)

Chapter 2. Doctrines of Criminalization: What Conduct Should Be Criminal? (Objective Requirements of Attempt (Study 1); Creating a Criminal Risk …