Copyright (c) 2009 All rights reserved. http://works.bepress.com/kenworthey_bilz Recent documents in Kenworthey Bilz en-us Sun, 31 May 2009 08:09:43 PDT 3600 http://works.bepress.com/kenworthey_bilz/7 http://works.bepress.com/kenworthey_bilz/7 Sun, 15 Feb 2009 12:59:48 PST This article challenges a fundamental tenet of the "narrative" model of legal judging, which argues that legal decision makers both do and should render legal judgments by assembling sensible stories out of evidence (as opposed to relying on Bayesian-type, linear models). This model is usually understood to demand that before we may judge a situation, we must give the parties the opportunity to tell their story fully, in a manner that invites empathy from the decisionmaker. I call this the "moral inclusionary approach" to the narrative model of judging. Using both hard evidence from empirical psychological research in emotions and perspective-taking, and the more intuitive techniques of literary criticism, I argue that the law in practice gives equal weight to a moral exclusionary approach. That is, in order to render sound, legitimate legal judgments, the law deliberately limits the sort of stories parties are allowed to tell--and it does so on moral grounds, not (only) because limiting the evidence would improve the "accuracy" of the legal judgment. That is, conventionally, as both a descriptive and normative matter, impoverished narratives can be better than enriched ones in leading decisionmakers to morally acceptable legal judgments. Kenworthey Bilz Criminal Law and Procedure Evidence Psychology and Psychiatry Public Law and Legal Theory http://works.bepress.com/kenworthey_bilz/6 http://works.bepress.com/kenworthey_bilz/6 Fri, 29 Aug 2008 14:15:42 PDT This article challenges a fundamental tenet of the "narrative" approach to legal judging, which I call the "moral inclusionary model," and which is most closely associated with law and literature. This model states that before we may morally judge an offender, we must give him the opportunity to tell his story fully. Using both hard evidence from empirical psychological research on emotions and perspective-taking, and the more intuitive techniques of literary criticism, I argue that the law both does and should give equal weight to a moral EXclusionary model. That is, in order to render sound, legitimate legal judgments, the law must deliberately limit the sort of mitigating stories offenders are allowed to tell--even when they are logically relevant. That is, conventionally, as both a descriptive and normative matter, we believe that evidence should lead us to particular moral evaluations. By contrast, I defend the position--again, both descriptively and normatively--that our moral evaluations often dictate what evidence is relevant in the first place. Kenworthey Bilz Criminal Law and Procedure Evidence Psychology and Psychiatry Public Law and Legal Theory http://works.bepress.com/kenworthey_bilz/5 http://works.bepress.com/kenworthey_bilz/5 Fri, 08 Aug 2008 09:23:25 PDT Confessions have historically been the most compelling evidence the state could offer at a criminal trial. However, improvements in forensic technologies have led to increased use of scientific evidence, such as DNA typing, pattern-recognition software, location tracking devices, and the like, with very impressive rates of reliability. The reliability of these methods has become so impressive, in fact, that it should lead to a reduced reliance on confessions (and other nonscientific evidence, such as eyewitness identifications) in criminal prosecutions. However, this does not mean that the doctrine of self-incrimination, which regulates the acquisition and use of confessions, will no longer be relevant. The same anxieties that animated the need for a doctrine limiting and regulating confessions, should now shape the development of the very evidence that replaces them. As such, while scientific evidence doctrine is fairly clear and straightforward today (with an almost exclusive focus on "reliability"), it is destined to become as complicated and indeterminate as self-incrimination doctrine ever was. This process (of first, the replacement of confessions with scientific evidence, and second, of the development of a doctrine for scientific evidence that aims to protect the same values that self-incrimination doctrine protects), while still in its infancy, has already begun. Kenworthey Bilz Criminal Law and Procedure Psychology Evidence Legal Theory http://works.bepress.com/kenworthey_bilz/4 http://works.bepress.com/kenworthey_bilz/4 Fri, 08 Aug 2008 09:19:53 PDT This book review-essay of Solan & Tiersma's SPEAKING OF CRIME argues that with the advent of new technologies such as improvements in DNA identification, fMRI 'lie detector' tests, and the like, courts will rely less and less on confessions altogether, rendering obsolete much of the doctrine that currently surrounds linguistic interpretation (and other markers) of consent and coercion. Kenworthey Bilz Criminal Law and Procedure Psychology Evidence Legal Theory http://works.bepress.com/kenworthey_bilz/3 http://works.bepress.com/kenworthey_bilz/3 Fri, 08 Aug 2008 09:07:16 PDT This paper argues that both consequentialist and retributivist punishment philosophies rest on similar analyses of the social value of punishable behavior; that is, they both rest on definitions of what counts as a "harm" of crime. The different outcomes the different philosophies produce stem from competing conclusions about which of those harms are empirically valid or morally legitimate. Once we have spelled out what counts as the harms of crime, however, retributivist and consequentialist philosophies add little to the equation. Alternative punishment regimes at their best are up front about offering a distinctive account of the harms of crime. When such regimes instead try to fit themselves into the mold of traditional punishment philosophies, their relative advantage is lost. We argue that restorative justice is at risk of going this route. Kenworthey Bilz Criminal Law and Procedure Economics Psychology Legal Theory http://works.bepress.com/kenworthey_bilz/2 http://works.bepress.com/kenworthey_bilz/2 Fri, 08 Aug 2008 08:59:53 PDT In a democratic society, law is an important means to express, manipulate, and enforce moral codes. Demonstrating empirically that law can achieve moral goals is difficult. Nevertheless, public interest groups spend considerable energy and resources to change the law with the goal of changing not only morally-laden behaviors, but also morally-laden cognitions and emotions. Additionally, even when there is little reason to believe that a change in law will lead to changes in behavior or attitudes, groups see the law as a form of moral capital that they wish to own, to make a statement about society. Examples include gay sodomy laws, abortion laws, and Prohibition. In this Chapter, we explore the possible mechanisms by which law can influence attitudes and behavior. To this end, we consider informational and group influence of law on attitudes, as well as the effects of salience, coordination, and social meaning on behavior, and the behavioral backlash that can result from a mismatch between law and community attitudes. Finally, we describe two lines of psychological research--symbolic politics and group identity--that can help explain how people use the law, or the legal system, to effect expressive goals. Kenworthey Bilz Economics Psychology Legal Theory http://works.bepress.com/kenworthey_bilz/1 http://works.bepress.com/kenworthey_bilz/1 Mon, 05 Mar 2007 04:41:04 PST Why should people ever be satisfied when a third party punishes in their name, as opposed to having the opportunity to exact revenge personally? When theories of delegated revenge are offered at all, they explain why a well-ordered society needs centralized punishment as a matter of practicality. But this doesn't adequately explain why they actually the public actually prefers it, and why they accept some forms of delegated agents more than others. Moreover, these theories do not have a good explanation for why or when delegated revenge will fail to satisfy victims, nor when the state will indulge this preference, as it often does. In this article, I offer a novel explanation for the phenomenon of delegated revenge. Namely, I argue that victims regard punishment as an important device for restoring the losses to their self-worth and social status they suffered as a direct result of their victimization. This approach not only explains why victims delegate their revenge, but also predicts when they won't. Finally, I use this theory to propose ways we can reestablish the government's monopoly on punishment when individuals or even whole communities balk at notion of the state as an appropriate agent of their revenge. Kenworthey Bilz Criminal Law and Procedure Economics Psychology Legal Theory