Biologically Biased Beneficence

2016, Past Issues, Print, Volume 48 (2016) Issue 4 (Winter)
Jeffrey Evans Stake After death and after taxes, the laws relating to wills, trusts, and intestate succession determine what to do with a decedent’s assets. Much of that body of law is built upon the assumption that the law should help the decedent reach her goals if she has expressed them, or mimic her probable goals if she has not. As put by Daniel Kelly, “The organizing principle of succession law is testamentary freedom.” While the wishes of decedents are certainly relevant, as a normative matter there are other concerns deserving attention. This Paper discusses some biological reasons to worry about the behavior of benefactors. Various potential bio-biases in the hearts of donors will be identified, followed in each case by ideas for reforming the law. My main message is…
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Evolution, Norms, and the Social Contract

2016, Past Issues, Print, Volume 48 (2016) Issue 4 (Winter)
Brian Skyrms I think of the social contract not as some monolithic unitary pact, but as an assemblage of norms. Norms are conventions that are backed by sanctions. Sometimes the sanctions are codified in the law and enforced by government. Sometimes norms are not explicit, but rather implicit in practice, and sanctions take the form of some type of social pressure. Full Article
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Law and Neuroscience 2.0

2016, Past Issues, Print, Volume 48 (2016) Issue 4 (Winter)
Francis X. Shen Law and neuroscience is approaching an inflection point. It has been roughly ten years since the New York Times Magazine put neurolaw on its cover, since Stanford neuroscientist Robert Sapolsky wrote his seminal article, “The Frontal Cortex and the Criminal Justice System”; and since law professor Adam Kolber taught the first law and neuroscience course. The MacArthur Foundation Research Network on Law and Neuroscience, which has been one of the epicenters of the field over this same period, will wind down its primary research projects soon. So what comes next? In this Article, I sketch out a vision for “Law and Neuroscience 2.0.” Full Article
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#FREESPEECH

2016, Past Issues, Print, Volume 48 (2016) Issue 4 (Winter)
Julie Seaman & David Sloan Wilson [T]he first amendment is not only protective of but exercised by human beings who are subject to all the vagaries of human nature and their emotions, motivations, limitations, integrity, insight and intelligence. “It’s true, I read it on the Internet!” – five people in a one-mile radius while you read this sentence. Full Article
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The Long-term Promise of Evolutionary Psychology for the Law

2016, Past Issues, Print, Volume 48 (2016) Issue 4 (Winter)
Carlton J. Patrick While serving as Secretary of Defense under George W. Bush, Donald Rumsfeld once responded to a reporter’s question by famously dividing knowledge into three categories: known knowns (the things we know we know), known unknowns (the things we know that we don’t know), and unknown unknowns (the things we don’t know we don’t know). Though he was criticized for his quip, Rumsfeld’s division contains much insight, particularly as it pertains to the scientific enterprise, which is concerned with identifying natural phenomena and then methodically investigating and cataloging the properties of the phenomena into working bodies of knowledge. In other words, science is frequently the process by which unknown unknowns are systematically converted into known knowns. Full Article
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KEYNOTE: Law and the Brain—Past, Present, and Future

2016, Past Issues, Print, Volume 48 (2016) Issue 4 (Winter)
Owen D. Jones Law has two problems. Step back far enough from the particulate nature of law as we daily experience it—from the contracts, courtrooms, and codes, from the policies, patents, and police—and then the nationally and locally and topically idiosyncratic features of this uniquely elaborate activity of our species gradually blends into a homogenized cloud of effort, surrounding the first of these problems, at the core. The problem of human behavior. For were it not for the stubborn refusal of everyone (else) to behave the way we wanted, there would be no need for law. Seen at this scale, law is an effort to contain and guide the chaos that results when many different people have many different goals. Law’s second problem is that the first—human behavior—is so poorly…
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Checks, Balances, and Nuclear Waste

2016, Past Issues, Print, Volume 48 (2016) Issue 4 (Winter)
Bruce R. Huber Systems of political checks and balances, so prominently featured in the U.S. Constitution, are also commonly installed in statutory and regulatory regimes. Although such systems diffuse political authority and may facilitate participation and accountability, they come with a price. If exercised, political checks—even those that appear trivial—can obstruct statutory processes and saddle a policy system with an unintended default policy outcome. Policies that are neither debated nor chosen, but that emerge as unbidden defaults, exhibit the very democratic deficits that checks and balances are intended to remedy. This is precisely the situation of nuclear waste policy in the United States. The Nuclear Waste Policy Act of 1982 established a process for siting and constructing repositories for nuclear waste. When Nevada’s Yucca Mountain emerged as a likely repository…
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Vagueness Principles

2016, Past Issues, Print, Volume 48 (2016) Issue 4 (Winter)
Carissa Byrne Hessick Courts have construed the right to due process to prohibit vague criminal statutes. Vague statutes fail to give sufficient notice, lead to arbitrary and discriminatory enforcement, and represent an unwarranted delegation to law enforcement. But these concerns are hardly limited to prosecutions under vague statutes. The modern expansion of criminal codes and broad deference to prosecutorial discretion imperil the same principles that the vagueness doctrine was designed to protect. As this Essay explains, there is no reason to limit the protection of these principles to vague statutes. Courts should instead revisit current doctrines which regularly permit insufficient notice, arbitrary and discriminatory enforcement, and unwarranted delegations in the enforcement of non-vague criminal laws. Full Article
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Evolutionary Analysis an Law: On Disclosure Regulation

2016, Past Issues, Print, Volume 48 (2016) Issue 4 (Winter)
Michael D. Guttentag This article, a contribution to a symposium celebrating the twentieth anniversary of the Society for Evolutionary Analysis in Law, applies evolutionary analysis to the study of disclosure regulation. I consider how an evolutionary perspective can improve our understanding of when and how to use disclosure requirements to regulate social activity. I. INTRODUCTION Evolutionary analysis in law offers both promise and peril. The promise comes from its unique ability to answer “Why?” questions about human behavior. If we can explain why a behavior occurs, then it should be easier to predict and explore the contours and intensity of that behavior and, perhaps, better understand how to modify that behavior, if need be. This is the promise of evolutionary analysis in law. Full Article
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PTSD, Biomarkers, and Rape Prosecutions

2016, Past Issues, Print, Volume 48 (2016) Issue 4 (Winter)
Betsy J. Grey Courts traditionally have been reluctant to admit PTSD evidence in rape cases. Prosecutors often attempt to introduce such evidence to establish that the victim did not consent to the sexual contact, but courts have been concerned that the jury will improperly use the evidence for other purposes, such as proof that the rape occurred. This essay questions whether judicial hostility to PTSD evidence should be reconsidered, given how science is developing biological markers, or objective physiological measures, of PTSD. It concludes that, even with these scientific developments, courts should remain skeptical about admitting PTSD evidence. The main concern persists that PTSD evidence may be overly persuasive in suggesting that rape was the stressor that caused the psychiatric disorder. Nor does use of biomarkers eliminate the vouching problem…
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