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Abstract: Society uses law to encourage people to behave differently than they would behave in the absence of law. This fundamental purpose makes law highly dependent on sound understandings of the multiple causes of human behavior. The better those understandings, the better law can achieve social goals with legal tools. In this Article, Professors Jones and Goldsmith argue that many long held understandings about where behavior comes from are rapidly obsolescing as a consequence of developments in the various fields constituting behavioral biology. By helping to refine law's understandings of behavior's causes, they argue, behavioral biology can help to improve law's effectiveness and efficiency. Part I examines how and why law and behavioral biology are connected. Part II provides an introduction to key concepts in behavioral biology. Part III identifies, explores, and illustrates a wide variety of contexts in which behavioral biology can be useful to law. Part IV addresses concerns that sometimes arise when considering biological influences on human behavior.
Law, biology, behavior, behavioral biology, evolution, evolutionary analysis in law, behavioral economics, behavioral law and economics, psychology
Abstract: This article addresses new developments in neuroscience, and their implications for law. It explores, for example, the relationships between brain injury and violence, as well as the connections between mental disorders and criminal behaviors. It discusses a variety of issues surrounding brain fingerprinting, the use of brain scans for lie detection, and concerns about free will. It considers the possible uses for, and legal implications of, brain-imaging technology. And it also identifies six essential limits on the use of brain imaging in courtroom procedures.
law, neuroscience, neurolaw, brain, fMRI, brain-scanning, behavior, crime, criminal law, violence, neuroeconomics, behavioral biology, free will, law and biology, responsibility
Abstract: Contrary to the common wisdom among criminal law scholars, 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 these shared intuitions of justice, arising from the advantages that they provided, including stability, predictability, and the facilitation of beneficial exchange-the cornerstones to cooperative action and its accompanying survival benefits. Recent studies in animal behavior and brain science are consistent with this hypothesis, suggesting that moral judgment not only has biological underpinnings, but also reflects the effects of evolutionary processes on the distinctly human mind. Similarly, the child development literature provides evidence of predictable stages in the development of moral judgment within each individual, from infancy through adulthood, that are universal across all demographics and cultures. The current evidence does not preclude alternative explanations. Shared views of justice might arise, for example, through general social learning. However, a social learning explanation faces a variety of difficulties. It assumes that individuals will adopt norms good for the group at the expense of self-interest. It assumes an undemonstrated human capacity to assess extremely complex issues, such as what will be an efficient norm. It predicts that the significant variation in circumstances among different groups would give rise to commensurately different norms and variation in the effectiveness of teaching them. It is inconsistent with the developmental data that show intuitions of justice appearing early, before social learning of such complexity is possible. And, finally, a general social learning explanation predicts views of justice as accessible, reasoned knowledge, rather than the inaccessible, intuitive knowledge that we know them commonly to be. Whatever the correct explanation for the consensus puzzle, intuitions of justice seem to be an inherent part of being human and this, in turn, can have important implications for criminal law and criminal justice policy.
criminal law, law & society, psychology, empirical evidence, moral blameworthiness, biological underpinnings, evolutionary processes, development of moral judgment, views of justice, intuition
Abstract: This essay discusses the legal implications of bio-behavioral underpinnings to norms, morality, and economic order. It first discusses the recent book "The Great Disruption: Human Nature and the Reconstitution of Social Order," in which Francis Fukuyama explores the importance of evolved human nature to the reconstruction of social order and a thriving economy. It then addresses the extent to which we can usefully view law-relevant norms as products of evolutionary ? as well as economic ? processes.
law and economics, norms, morality, economic order, biology, evolution
Abstract: A flood of recent scholarship explores legal implications of seemingly irrational behaviors by invoking cognitive psychology and notions of bounded rationality. In this article, I argue that advances in behavioral biology have largely overtaken existing notions of bounded rationality, revealing them to be misleadingly imprecise - and rooted in outdated assumptions that are not only demonstrably wrong, but also wrong in ways that have material implications for subsequent legal conclusions. This can be remedied. Specifically, I argue that behavioral biology offers three things of immediate use. First, behavioral biology can lay a foundation for both revising bounded rationality and fashioning a solid theoretical basis for understanding and predicting many human irrationalities. Second, a principle we may derive from the fundamentals of behavioral biology, which I term "time-shifted rationality," can help us to usefully disentangle things currently lumped together under the label of bounded rationality. Doing so suggests that some seeming irrationalities are not, in fact, the product of conventional bounded rationality but are instead the product of a very different phenomenon. As a consequence and by-product of this analysis, it is possible to reconcile some of the supposed irrationalities with an existing rationality framework in a new, more satisfying, and more useful way. Third, behavioral biology affords the raw material for deriving a new principle, which I term "the law of law's leverage," that can help us to better understand and predict the effects of law on human behavior. Specifically, it can help us to anticipate the comparative sensitivities of various human behaviors to legal changes in incentives. That is, it enables us to anticipate differences in the slopes of demand curves for various law-relevant behaviors. This law of law's leverage therefore can afford us new, coherent, and systematic power in predicting the comparative costs, to society, of attempting to change behaviors through legal means. And the principle also provides a new and powerful tool for explaining and predicting many of the existing and future architectures of legal systems.
Abstract: Recent work at the intersection of law and behavioral biology has suggested numerous contexts in which legal thinking could benefit by integrating knowledge from behavioral biology. In one of those contexts, behavioral biology may help to provide theoretical foundation for, and potentially increased predictive power concerning, various psychological traits relevant to law. This Article describes an experiment that explores that context. The paradoxical psychological bias known as the endowment effect puzzles economists, skews market behavior, impedes efficient exchange of goods and rights, and thereby poses important problems for law. Although the effect is known to vary widely, there are at present no satisfying explanations for why it manifests when and how it does. Drawing on evolutionary biology, this Article provides a new theory of the endowment effect. Briefly, we hypothesize that the endowment effect is an evolved propensity of humans and, further, that the degree to which an item is evolutionarily relevant will affect the strength of the endowment effect. The theory generates a novel combination of three predictions. These are: (1) the effect is likely to be observable in many other species, including close primate relatives; (2) the prevalence of the effect in other species is likely to vary across items; and (3) the prevalence of the endowment effect will increase or decrease, respectively, with the increasing or decreasing evolutionary salience of the item in question. The authors tested these predictions in a chimpanzee (Pan troglodytes) experiment, recently published in Current Biology. The data, further explored here, are consistent with each of the three predictions. Consequently, this theory may explain why the endowment effect exists in humans and other species. It may also help both to predict and to explain some of the variability in the effect when it does manifest. And, more broadly, the results of the experiment suggest that combining life science and social science perspectives could lead to a more coherent framework for understanding the wider variety of other cognitive heuristics and biases relevant to law.
endowment effect, behavioral economics, law, property, behavioral biology, evolutionary biology, evolutionary analysis in law, chimpanzees, prospect theory, economics
Abstract: This essay discusses several issues at the intersection of law and brain science. If focuses principally on ways in which an improved understanding of how evolutionary processes affect brain function and human behavior may improve law's ability to regulate behavior. It explores sample uses of such "evolutionary analysis in law" and also raises questions about how that analysis might be improved in the future. Among the discussed uses are: 1) clarifying cost-benefit analyses; 2) providing theoretical foundation and potential predictive power; 3) assessing comparative effectiveness of legal strategies; and 4) revealing deep patterns in legal architecture. Throughout, the essay emphasizes the extent to which effective law requires: 1) building effective behavioral models; 2) integrating life science perspectives with social science perspectives; 3) considering the effects of brain biology on behaviors that law seeks to regulate; and 4) examining the effects of evolutionary processes on brain design.
Law, evolution, brain, evolutionary analysis in law, behavior, biology, behavioral biology
Abstract: The article first compares economics and behavioral biology, examining the assumptions, core concepts, methodological tenets, and emphases of the two fields. Building on this, the article then compares the applied interdisciplinary fields of law and economics, on one hand, with law and behavioral biology, on the other - highlighting not only the most important similarities, but also the most important differences.
The article subsequently explores ways that biological perspectives on human behavior may prove useful, by improving economic models and the behavioral insights they generate. The article concludes that although there are important differences between the two fields, the overlaps between economics and biology warrant even greater congress between these two disciplines, and expanded exchange between the legal thinkers interested in each of them.
law, economics, biology, evolutionary analysis in law, behavioral biology, evolution, behavior, evolutionary economics, game theory, bioeconomics, neuroeconomics, tastes, preferences
Abstract: For all that has been written about rape, its multiple causes remain insufficiently understood for law to deter it effectively. This follows, in part, from inadequately interdisciplinary study of rape causation. This Article argues that integrating life science and social science perspectives on sexual aggression can improve law's model of rape behavior, and further our efforts to reduce its incidence. The Article first explains biobehavioral theories of sexual aggression, and offers a guide to common but avoidable errors in assessing them. It then compares a number of those theories' predictions with existing data and demonstrates how knowledge of the effects of evolutionary processes on human behavioral predispositions may help us better understand - without justifying or excusing - psychological mechanisms that contribute to patterns of rape. Because increased knowledge of causal influences may afford law increased effectiveness in deterring rape, the author then explores ways in which biobehavioral theories could affect analysis of several current legal issues, from the debate over chemical castration to the meaning of motive in rape-relevant legislation.
Rape, Behavioral Biology, Sex, Culture, Evolution
Abstract: This Article provides an introduction to some of the key issues at the intersection of behavioral genetics and crime. It provides, among other things, an overview of the emerging points of consensus, scientifically, on what behavioral genetics can and cannot tell us about criminal behavior. It also discusses a variety of important implications (as well as complexities) of attempting to use insights of behavioral genetics in legal contexts.
genetics, behavioral genetics, DNA, neuroscience, law, crime, behavior, biology, evolution, violence, Landrigan, free will, responsibility, behavioral biology, parity principle, behavioral ecology, predispositions
Abstract: The place of the rational actor model in the analysis of individual and social behavior relevant to law remains unresolved. In recent years, scholars have sought frameworks to explain: a) disjunctions between seemingly rational behavior and seemingly irrational behavior; b) the origins of and influences on law-relevant preferences, and c) the nonrandom development of norms. This Article explains two components of an evolutionary framework that, building from accessible insights of behavioral biology, can encompass all three. The components are: "time-shifted rationality" and "the law of law's leverage."
Behavioral Law and Economics, Evolution, Evolutionary Analysis in Law, Irrationality, Rationality
Abstract: For contemporary biologists, behavior - like physical form - evolves. Although evolutionary processes do not dictate behavior in any inflexible sense, they nonetheless contribute significantly to the prevalence of various behavioral predispositions that, in turn, tend to yield observable patterns of behavior within every known species. This Article explores the implications for law of evolved behavioral predispositions in humans, urging both caution and optimism. Part I of the Article provides A Primer in Law-Relevant Evolutionary Biology, assuming no prior knowledge in the subject. Part II coins the term evolutionary analysis in law and proposes a model for conducting it. That part demonstrates how legal thinkers can locate, assess, and use knowledge about evolutionary influences on human behavior to further the pursuit of many existing social and legal goals. The Article illustrates the operation of that method by showing how it could aid ongoing efforts to understand and curb child abuse. Throughout, the emphasis is on how the evolutionary perspective on human behavior will typically and usefully supplement, rather than supplant, prevailing notions of the many influences on behavior and the complex interactions among them.
Evolutionary Analysis in Law, Behavioral Biology, Evolution, Child Abuse
Abstract: Human behavior is not always consistent with standard rational choice predictions. The much-investigated variety of apparent deviations from rational choice predictions provides a promising arena for the merger of economics and biology. Although little is known about the extent to which other species also exhibit these seemingly irrational patterns of human decision-making and choice behavior, similarities across species would suggest a common evolutionary root to the phenomena. The present study investigated whether chimpanzees exhibit an endowment effect, a seemingly paradoxical behavior in which humans tend to value a good they have just come to possess more than they would have only a moment before. We show the first evidence that chimpanzees do exhibit an endowment effect, favoring items they just received more than items they prefer that could be acquired through exchange. Moreover, we demonstrate that - as predicted - the effect is far stronger for food than for less evolutionarily salient objects, perhaps due to historically greater risks associated with keeping a valuable item versus attempting to exchange it for another. These findings suggest that the larger set of seeming deviations from rational choice predictions may be common to humans and chimpanzees, and that the evaluation of these through a lens of evolutionary relevance may yield further insights in both humans and other species.
endowment effect, behavioral economics, law, property, behavioral biology, evolutionary biology, evolutionary analysis in law, chimpanzees, prospect theory, rationality, irrationality, economics
Abstract: This Article explores ways in which social science perspectives on behavior can be combined with life science perspectives on behavior to the advantage of law. It emphasizes both values of and techniques for integration, using child abuse as an example. The Article builds, in part, upon a foundation laid in Owen D. Jones, Evolutionary Analysis in Law: An Introduction and Application to Child Abuse, 75 N. C. L. Rev. 1117 (1997).
Evolutionary Analysis in Law, Behavioral Biology, Human Behavior
Abstract: This review essay discusses the book A Natural History of Rape: Biological Bases of Sexual Coercion, by Randy Thornhill and Craig Palmer (MIT Press, 2000). The essay builds on work previously appearing in Owen D. Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 Cal. L. Rev. 827 (1999) and Owen D. Jones, Law and the Biology of Rape: Reflections on Transitions, 11 Hastings Women's Law Journal 151 (2000).
Rape, Biology, Behavioral Biology, Evolution, Evolutionary Analysis in Law
Abstract: This Article serves is a sequel to a previous Article: Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 Cal. L. Rev. 827 (1999). Part I briefly considers the threshold question: why consider the behavioral biology of sexual aggression at all? Part II proposes that the first step in transitioning to a more accurate and more useful model of rape behavior is to avoid a number of common definitional ambiguities that plague most rape discussions. Because those ambiguities are particularly likely to foster misunderstandings about biobehavioral perspectives, Part II also clarifies the scope of what biobehavioral theories address. Part III proposes that the commonly tangled realm of rape theory be divided into two distinct (though in some contexts overlapping) realms: one of theories about the meanings of rape, and the other of theories about the causes of rape. Part IV proposes that causes of rape, in turn, be sorted into two kinds, the precise and necessary inter-relationship of which can be understood in a way that provides important and continuing utility for the ongoing research in both social science and life science perspectives on sexual aggression. Part V offers thoughts on two complexities arising from the transition to an integrated model of rape behavior.
Rape, Biology, Evolutionary Analysis in Law, Behavioral Biology, Sexual Aggression
Abstract: This Article appears in a special issue of the Brooklyn Law Review on DNA: Lessons from the Past - Problems for the Future. It first addresses why law needs insights from behavioral biology, and then identifies and responds to a variety of structural and conceptual barriers to such evolutionary analysis in law.
Evolutionary Analysis in Law, Evolution, Behavioral Biology
Abstract: This Article explores several advantages of incorporating into law various insights from behavioral biology about how and why the brain works as it does. In particular, the Article explores the ways in which those insights can help illuminate the deep structure of human legal systems. That effort is termed "biolegal history."
Evolutionary analysis in law, behavioral biology, biology, evolution, brain, mind, biolegal history
Abstract: This symposium essay briefly addresses the controversy surrounding the biology of sex differences. In particular, it considers the remarks by Lawrence Summers, then-President of Harvard University, and the heated aftermath that followed.
behavioral biology, feminism, sexism, science, law, Harvard, discrimination, Summers, women in science, gender, bias, biology, sex differences, intelligence
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