Aspects of Deconstruction: Thought Control in Xanadu

Abstract:     
Nearly every case in nearly every legal system is a case where the factfinder – that is, the judge or jury – must decide what was going on in the minds of the litigants. For example, every criminal case turns on mens rea – a guess that the defendant harbored thoughts amounting to criminal intent. Tort cases involve the intention of the defendant, or at least his reckless indifference to risk. Estate cases require the probate court to assess the intent of the testator. Antitrust cases involve the question whether there was an intent to form a combination in restraint of trade. I can't think of a single case where the mental processes of one or both of the litigating parties – whatever the jury says those processes are – doesn't play a critical role in the outcome.

Number of Pages in PDF File: 8

Keywords: mens rea, thought control by statute, hunches in judicial decisions

JEL Classification: K10, K30, K40, K49

Accepted Paper Series