Free Will and Neuroscience
Alfred Mele
William H. and Lucyle T. Werkmeister Professor of Philosophy, Florida State University
Have neuroscientists shown that free will is an illusion? Some people say yes. I say no. One line of argument for the illusion thesis features the claim that certain experiments show that our decisions are made unconsciously and that conscious intentions are never among the causes of corresponding actions. I will discuss three important problems with alleged neuroscientific evidence for this claim.
Paper Presentations
The Neuropsychology of Justifications and Excuses:
Some Problematic Cases of Self-Defense, Duress, and Provocation
Theodore Y. Blumoff
Professor of Law, Mercer University
Can recent research in neuroscience, and especially the dual-processing interpretation of the VMPFC lesion data of Joshua Green et al., account for some of the perplexing cases on the border of excuse and justifications? Building in part on work done by Professors Antonio Damasio, Joshua Greene, Robert Frank, Claire Finkelstein and others, I will suggest that the confusion in the marginal cases is the natural outcome of the justification/excuse distinction in certain well studied circumstances because the distinction is not always supported by how our brains process threatening information in these borderline cases – that is, there is an appreciable disconnect between our intuitions and the way our brains actually operate, and we should simply cognizance of it. In these cases, two different areas of the brain – one largely concerned with cognition, the other largely with emotion – are operating almost simultaneously to resolve certain moral/legal dilemmas. In just those cases, the distinction breaks down.
The Structure and Complexity of the United States Code
Michael J. Bommarito II
PhD Pre-Candidate, University of Michigan , Department of Political Science and IGERT-NSF Fellow, Center for the Study of Complex Systems
Can the complexity of the United States Code be measured? The United States Code is the substantively important body of documents that collectively constitutes the federal statutory law of the United States . While claims regarding complexity of the Code, in particular the Tax Code, are consistently part of the public discourse, few comprehensive or comparative investigations of the entire United States Code have been undertaken. Employing a wide variety of approaches including techniques drawn from information theory, computer science, linguistics and applied graph theory, we develop and apply a series of distinct measures for the structural and linguistic complexity of the Code. While we recognize other composite measures for size and complexity could legitimately be offered, we believe our interdisciplinary approach represents a significant advance and provides much needed rigor to questions of code complexity.
Comparative Law, Behavioral Economics, and Contemporary Evolutionary Functionalism
Bart Du Laing
Postdoctoral Fellow of the Research Foundation – Flanders (FWO), Ghent University , Department of Legal Theory and Legal History
How can we reconnect functionalism in comparative law with contemporary evolutionary approaches to human behavior and evolutionarily informed behavioral economics in order to possibly refute some criticisms directed at the functional method? In comparative legal theory, functionalists start from a belief that certain aspects of human behavior and human societies are universal and that societies thus have to solve basically the same problems, while difference theorists and critical comparatists start from a belief that all aspects of human behavior and human societies are fundamentally culture-dependent and that each legal system thus is a unique cultural product – neither of them, however, seemingly showing much interest for empirical support for their respective convictions. In an attempt to save at least some of the scientific aspirations of comparative law, we argue that contemporary evolutionary approaches to human behavior and evolutionary informed behavioral economics could prove to be of service in this respect in at least two ways. First , evolutionarily informed behavioral (law and) economics could help in our search for a legally sufficiently neutral and empirically better validated standard of comparison that at the same time is inherently variable itself; secondly , but admittedly more tentatively, contemporary evolutionary approaches to human behavior could prove useful in rehabilitating some sort of evolutionary functionalism in comparative law, by incorporating cultural transmission mechanisms into its theoretical framework.
The Voodoo That You Do
Barry Goldman
Adjunct Faculty, Wayne State University Law School and Scheinman Institute for Dispute Resolution, Cornell University
Does Alternative Dispute Resolution, like alternative medicine, work because of the placebo effect? All of the many, very different kinds of mediation produce the same rate of settlement. This can be explained if settlement comes about not because of the nature of the intervention, but as a result of the natural history of the conflict, regression to the mean, and the placebo effect.
An Evolutionary War-of-attrition Model of Civil Litigation
F.E. Guerra-Pujol
Barry University School of Law
Why do some forms of civil litigation resemble a costly “war of attrition”? Civil litigation often produces protracted and costly stalemates that neither side prefers, a negative-sum situation often referred to as a “war of attrition” by evolutionary game theorists. Since such conflicts are counter-productive and collectively irrational, they pose a difficult puzzle: what is the underlying logic of these conflicts; why do such conflicts occur with regularity in the real world; and what role should law and legal institutions play, if any, in these types of situations? To answer these questions, I will present a two-player as well as an n-player evolutionary war-of-attrition model of civil litigation and will discuss this model's possible application beyond civil litigation.
Evolutionary Perspectives on the Endowment Effect: Some Recent Experimental Results
Owen D. Jones
Prof. of Law, Prof. of Biology, Co-Director, MacArthur Foundation Law and Neuroscience Project, Vanderbilt University Law School
How may experimental work in non-human primates, informed by evolutionary perspectives, contribute to our understanding of various law-relevant psychological phenomena in humans, such as the Endowment Effect? I have proposed in past work (Time-Shifted Rationality and the Law of Law’s Leverage) that various law-relevant cognitive heuristics and biases may reflect specific effects of evolutionary processes on the brain. Sarah Brosnan and I, along with numerous other colleagues, have conducted psychological experiments with chimpanzees and orangutans -- to test predictions about the Endowment Effect using exchange tasks. This talk will discuss recent experiments that extend the work begun in our prior publications (in Current Biology and the William and Mary Law Review).
Reproduction of Hierarchy? A Social Network Analysis of the American Law Professoriate
Daniel Martin Katz, J.D., M.P.P.
Fellow in Empirical Legal Studies, Michigan Law School PhD Candidate, Political Science and Public Policy IGERT Fellow, Center for the Study of Complex Systems University of Michigan - Ann Arbor
How does law school faculty hiring operate as an idea diffusion network? In their position as both repositories and distributors of legal information, we believe the social structure of the American law professoriate is an important piece of a broader model of American common law development. Leveraging advances in network science and drawing from available information on the more than 7,200 tenure-track professors employed by an ABA accredited institution, we explore the topology of the legal academy including the relative distribution of authority among its institutions. Drawing from social epidemiology literature, and using our empirically generated network, we provide a computational model for intellectual diffusion across the broader academy. The model parsimoniously displays the trade off between "idea infectiousness" and structural position within the network. While our model employs a number of simplifying assumptions, we hope our initial foray will, at a minimum, motivate future scholarship.
The Origin of Law
Charles N. W. Keckler
Visiting Assistant Professor, Dickinson School of Law The Pennsylvania State University
What do advances in evolutionary and neurobiological legal analysis tell us about the origins of law? The origin of law, once a topic of intense interest and, more recently, widely ignored, has renewed relevance given advances in evolutionary and neurobiological legal analysis. In this paper, I approach the first law as a hominid adaptive dilemma involving the cognitive capacity to recognize the advantages of normative regulation, but with responses constrained by the political dynamics of preliterate societies. Through the analysis of several “trouble cases” in higher primates and human foragers, some with “law” clearly present, some where it is absent, and some in marginal circumstances, I identify several key preconditions for legal enforcement. Evolutionary analysis of law's origin casts a critical perspective on widely-held assumptions about law's basis in a sovereign, its distinctiveness from a vengeance system, and whether early law is best characterized as crime or tort; it also aids in productively recasting legal definitions in non-essentialist terms.
Sex, Drugs, and Moral Goals: Reproductive Strategies & Views About Recreational Drugs
Robert Kurzban
Department of Psychology, University of Pennsylvania
Why are drugs illegal? The present work addresses the question of why (some) people think that other people should not use drugs for non-medical (i.e., recreational) purposes, and be punished if they do so. To address this question, we use variation across individuals in two subject populations to try to understand the causal antecedents of opposition to drug use. The popular “symbolic politics” view suggests that the source of individuals’ opinions are their abstract commitments to higher level liberal-conservative ideology, values, religious views, and other abstract factors. In contrast, our view is that opposition to drug use is driven by differences in reproductive strategies; those who stand to benefit from constraining others’ promiscuity oppose drugs because of the links between the two. We find that in both our samples – one undergraduate and one from the internet – there are, unsurprisingly, strong relationships among abstract political items, opposition to drug use, and sexual items (e.g., sociosexuality). Crucially, however, we find that the partial correlations between sexual items and drug attitudes are not substantially diminished when controlling for abstract political views; but, partial correlations between abstract items and drug attitudes are reduced almost to zero when controlling for sexual items. These findings are at odds with the “symbolic politics” view, but consistent with the reproductive strategies model. We suggest that people’s opposition to drugs might be understood as the expression of a psychology that is designed to constrain others’ sexuality.
Why are Legal Systems Complex and Adaptive?
James Rutherford
Grant Hospital , Columbus Ohio
What to medical ethics tell us about why and how legal systems complex and adaptive? Max Weber described kinship/descent, charismatic, and legally based societies, all of which have been to some degree adaptive and responsive to the interaction between the society and its environment or ecology. Legal systems are complex and adaptive primarily because human nature is complex and multidimensional and ecology changes. Medical ethics, like the primary moral concept of equality in our constitutional democracy, are based on a respect for human dignity and worth and they also understand human nature to be multidimensional. Medical ethics thus have a lot to offer to the changing ecology of what has become a pluralistic global community with access to weapons of mass destruction.
The "Enlightened Barbarity" of Inclusive Fitness: Integrating Kin Selection Theory and Corrective Justice
Ryan Shannon
Law Student, University of Michigan Law School
Should the principles of inclusive fitness inform our calculation of damages in wrongful death suits? Wrongful death laws should permit and encourage courts and juries to consider the survivors’ investment in decedents when determining wrongful death damages, given biological justifications for this theory of loss. The investment theory of damages, which permits an award of damages based on the investment of financial resources relatives make in one another, originated in Michigan’s courts in the early 1960s, but as of present day has been largely abrogated. In the context of modern understandings of evolutionary biology, including kin selection theory and evolutionary psychology, the investment theory of recovery accords with the goals of corrective justice as it restores plaintiffs to the resource state they were in prior to making an investment in the decedent and enables plaintiffs to reinvest those same resources in other relatives to recoup lost fitness.
Public Perceptions of Just Compensation
Jeffrey E. Stake
Robert A. Lucas Chair of Law, Indiana University Maurer School of Law
Should just compensation include endowment effects? In the past I've argued the connection between bird studies, endowment effects, and "just compensation". I now have early results of my web survey, showing that people seem to think that just compensation should be graduated in some of the same ways that the bird studies suggest. I'm eager to gather SEALants' ideas on variations to be explored and how to control for potential bias in the responses.
Modes of Thought and Patent Law's Mental Steps Doctrine
Andrew W. Torrance
Associate Professor of Law and Research Associate, Biodiversity Institute, University of Kansas
If thought is to constitute patentable subject matter, should thought significantly subject to “executive control” be treated differently by patent law from reflexive “default” thought not significantly subject to executive control? This presentation reviews the history of the Mental Steps Doctrine and the renewed interest that courts, including, most notably, the United States Supreme Court, have shown in patents claiming thoughts or aspects thereof. Furthermore, it suggests several implications that neurobiology may hold for setting coherent and defensible boundaries on the patenting of “thought.” In particular, this paper explores the implications for patent law of (1) thought that is significantly subject to “executive control”; and (2) reflexive “default” thought, not significantly subject to executive control.
Evolution of Language and Evolution of Law
Dennis P. Waters
Chairman, GenomeWebLLC
How can work on language evolution illuminate our understanding of law's functions and origins? In recent years, thanks to scholars like Steven Pinker and Derek Bickerton, evolutionary thinking has begun to find new acceptance within the field of linguistics, much as it has within the fields of law and psychology. Studying language in an evolutionary context requires a focus on its biological functions which, as C.H. Waddington and others have noted, include its ability to constrain or harness the behavior of other people. Constraining the behavior of others is also a key function of law, which raises the dual questions of how the evolution of language and of law are related and how studying language evolution can illuminate our understanding of law's functions and origins.
Bedrooms and Boardrooms
Deborah M. Weiss
Research Fellow, Center for Law, Business and Economics, University of Texas Law School
Should Title VII evidentiary frameworks presume sex equality in the workplace as the most likely outcome in the absence of discrimination? Significant scientific evidence supports the view that genetic factors do lead to somewhat different distributions of personality traits between men and women, but these differences are complex, incompletely understood, and of unclear relevance to occupational outcomes. Enough evidence of differences exists to suggest caution in using numerical benchmarks, but the nature of these differences does not clearly explain the relative paucity of women in high positions, and should not assuage concerns about the continued existence of discrimination.
