Here is the latest installment of Neurolaw-related Papers. If you have any suggestions of your own, please post them in the comment thread. In the meantime, happy reading!
Jones and Kurzban, "Intuitions of Punishment"
Abstract:
Recent work reveals, contrary to wide-spread assumptions, remarkably high levels of agreement about how to rank order, by blameworthiness, wrongs that involve physical harms, takings of property, or deception in exchanges. In The Origins of Shared Intuitions of Justice (http://ssrn.com/abstract=952726) we proposed a new explanation for these unexpectedly high levels of agreement.
Elsewhere in this issue, Professors Braman, Kahan, and Hoffman offer a critique of our views, to which we reply here. Our reply clarifies a number of important issues, such as the interconnected roles that culture, variation, and evolutionary processes play in generating intuitions of punishment.
Law, "Cherry-Picking Memories: fMRI-Based Lie Detection in the U.S. Courts"
Abstract:
U.S. courts have recently begun to consider accepting evidence whether a witness is lying in the form of scientific conclusions drawn on data gathered from functional magnetic resonance imaging (fMRI). This article discusses fundamental fMRI-based research techniques from a scientific basis and applies them to the current jurisprudence of U.S. federal courts. It argues that much of the generally-agreed knowledge in cognitive neuroscience pertinent to neuroimaging-based lie detection does not allow a court to reach the conclusion that evidence is more probative than prejudicial. First, a witness/test-taker can manipulate the outcome of the test using countermeasures. Second, the test administrator can manipulate the outcome of the test using tactical research decisions. Third, the ends of judicial efficiency are not served by allowing both proposing and opposing parties to present data that is scientifically equivocal, wasting the time of both courts and jurors.
In a second Part, this article proposes a systematic, scientific approach to the Daubert standard as interpreting Federal Rule of Evidence 702. This approach affords a thorough analysis of the phases of scientific research. Finally, we recommend that while fMRI-based lie detection is not yet ripe for adoption in the U.S. courts at the present time, such testimonial evidence may be admissible when the cognitive neuroscience of lie detection has reached the level of general acceptance such that the principles may be found in undergraduate textbooks.
Wagner von Papp, "Should We Be Free Not to Be Free to Ruin Ourselves?"
Abstract:
Willpower is bounded. In order to cope with bounded willpower, humans put up ‘self-paternalistic’ safeguards to shield themselves from diminished self-control when faced with temptations. Willpower is especially bounded where ‘addictions’ are concerned. This paper focuses on the legal treatment of one specific class of safeguards against limited self-control: Self-exclusion agreements between casinos and problem gamblers, in which the gambler vows not to return to the casino. The common denominator of all ‘self-paternalistic’ safeguards is that the actor tries to limit his or her future strategy space in order to maximise his or her perceived overall self-interest. The limitation of the future autonomy is itself autonomously chosen. This leads to the philosophical and legal question, to what degree (if at all) it is possible to limit one’s future autonomy.
The paper is divided into four parts. The first part will outline the dimensions of problem gambling and describe the mechanism of self-exclusion schemes (Chapter II). The second part will deal with the questions whether the law should allow the effective limitation of one’s future autonomy, whether it does allow it, and – if the answer to the latter question is in the affirmative – to what extent actors can limit their future strategy space (Chapters III-IV). The third part of the article addresses the question if there is a good reason to prefer the decision to self-exclude over the later decision to gamble (Chapter V). I will point to several studies which show that there are physiological dysfunctions suggesting that the gambler's decision to gamble is indeed arrived at by different neural processes than the decision to self-exclude. The fourth and final part (Chapters VI-VII) discusses several regulatory options, and scrutinizes the self-exclusion arrangements proposed by the Gambling Commission in the United Kingdom against the background of the experience gained in Germany and the United States. I conclude that the enforcement of self-exclusion agreements by private litigation is preferable to the exclusively public enforcement envisaged by he Gambling Commission.
Robinson, Kurzban, and Jones, "Realism, Punishment, and Reform"
Abstract:
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 attack is therefore misplaced, important disagreements may remain concerning: whether there is a meaningful difference between core and non-core cases; whether judgments about core cases are less malleable than judgments about non-core cases; and whether imposing punishments perceived to be unjust imposes, in turn, significant costs on the criminal justice system. Which of the disputed views is correct can have important implications for the administration of criminal justice. Far from being anti-reformists, as accused, we argue that Reform Realism is the most effective path to bringing about needed reforms.
Hallevy, "The Criminal Liability of Artificial Intelligence Entities"
Abstract:
In 1981, a 37-year-old Japanese employee of a motorcycle factory was killed by an artificial-intelligence robot working near him. The robot erroneously identified the employee as a threat to its mission, and calculated that the most efficient way to eliminate this threat was by pushing him into an adjacent operating machine. Using its very powerful hydraulic arm, the robot smashed the surprised worker into the operating machine, killing him instantly, and then resumed its duties with no one to interfere with its mission. Unfortunately, this is not science fiction, and the legal question is: Who is to be held liable for this killing?