•  116
    Unintentional Punishment
    Legal Theory 18 (1): 1-29. 2012.
    Criminal law theorists overwhelmingly agree that for some conduct to constitute punishment, it must be imposed intentionally. Some retributivists have argued that because punishment consists only of intentional inflictions, theories of punishment can ignore the merely foreseen hardships of prison, such as the mental and emotional distress inmates experience. Though such distress is foreseen, it is not intended, and so it is technically not punishment. In this essay, I explain why theories of pun…Read more
  •  82
    Mental Statism and the Experience Machine
    Bard Journal of Social Sciences 3 10-17. 1994.
    According to Robert Nozick's famous "experience machine" argument, we would not choose to spend our lives with our brains connected to a machine that could deliver any set of experiences we desire. Because most of us would decline to live any variant of life in "The Matrix," so to speak, the thought experiment purportedly demonstrates that we value aspects of life other than just subjective experiences. I argue that while most would not connect to the experience machine, many would not disconnec…Read more
  •  72
    The Organ Conscription Trolley Problem
    American Journal of Bioethics 9 (8): 13-14. 2009.
    No abstract
  •  66
    A Limited Defense of Clinical Placebo Deception
    Yale Law & Policy Review 26 75-134. 2007.
    Placebo treatments, like sugar pills and saline injections, are effective in treating pain and perhaps a host of other conditions. To use placebos most effectively, however, doctors must mislead patients into believing that they are receiving active medications. While placebo deception is surprisingly common, its legality has rarely been tested. In November 2006, the American Medical Association (AMA) adopted a new ethics provision categorically prohibiting doctors from using placebos deceptivel…Read more
  •  65
    Freedom of memory today
    Neuroethics 1 (2): 145-148. 2008.
    Emerging technologies raise the possibility that we may be able to treat trauma victims by pharmaceutically dampening factual or emotional aspects of their memories. Such technologies raise a panoply of legal and ethical issues. While many of these issues remain off in the distance, some have already arisen. In this brief commentary, I discuss a real-life case of memory erasure. The case reveals why the contours of our freedom of memory—our limited bundle of rights to control our memories and be…Read more
  •  48
    The Subjective Experience of Punishment
    Columbia Law Review 109 182. 2009.
    Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences. I make two central claims: First, a successful justification of punishment must take accoun…Read more
  •  38
    Will There Be a Neurolaw Revolution?
    Indiana Law Journal 89 807-845. 2014.
    The central debate in the field of neurolaw has focused on two claims. Joshua Greene and Jonathan Cohen argue that we do not have free will and that advances in neuroscience will eventually lead us to stop blaming people for their actions. Stephen Morse, by contrast, argues that we have free will and that the kind of advances Greene and Cohen envision will not and should not affect the law. I argue that neither side has persuasively made the case for or against a revolution in the way the law tr…Read more
  •  37
    Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening
    Vanderbilt Law Review 59 (5): 1561-1626. 2006.
    Neuroscientists have made significant advances in identifying drugs to dampen the intensity of traumatic memories. Such drugs hold promise for victims of terrorism, military conflict, assault, car accidents, and natural disasters who might otherwise suffer for many years from intense, painful memories. In 2003, the President's Council on Bioethics released a report entitled Beyond Therapy: Biotechnology and the Pursuit of Happiness, which analyzed memory dampening in some detail. While the Counc…Read more
  •  35
    How to improve empirical desert
    Brooklyn Law Review 75 (2): 433-461. 2009.
    According to empirical desert advocates, lay moral intuitions are consistent with retributive approaches to punishment, and policymakers can increase compliance with criminal justice policies by punishing in accord with those intuitions. I offer three challenges to empirical desert intended ultimately to strengthen its theoretical underpinnings: First, advocates have cherry-picked certain moral intuitions, while ignoring others. Second, they have yet to demonstrate the weight to assign the com…Read more
  •  27
    The limited right to alter memory
    Journal of Medical Ethics 40 (10): 658-659. 2014.
    We like to think we own our memories: if technology someday enables us to alter our memories, we should have certain rights to do so. But our freedom of memory has limits. Some memories are simply too valuable to society to allow individuals the unfettered right to change them. Suppose a patient regains consciousness in the middle of surgery. While traumatized by the experience and incapable of speaking, he coincidentally overhears two surgeons make plans to set fire to the hospital. Assuming th…Read more
  •  27
    Smooth and Bumpy Laws
    California Law Review 102 655-690. 2014.
    Modest differences in conduct can lead to wildly different legal outcomes. A person deemed slightly negligent when harming another may owe millions of dollars. Had the person been just a bit more cautious, he would owe nothing. Similarly, when self-defense is deemed slightly negligent, a person may spend several years in prison. Had the person been just a bit more cautious, he would have no criminal liability at all. Though the law must draw difficult lines, the lines need not have such startlin…Read more
  •  25
    Pain Detection and the Privacy of Subjective Experience
    American Journal of Law & Medicine 33 (2&3): 433-456. 2007.
    Pain is a fundamentally subjective experience. We have uniquely direct access to our own pain but can only make rough inferences about the pain of others. Nevertheless, such inferences are made all the time by doctors, insurers, judges, juries, and administrative agencies. Advances in brain imaging may someday improve our pain assessments by bolstering the claims of those genuinely experiencing pain while impugning the claims of those who are faking or exaggerating symptoms. These possibilities …Read more
  •  24
    The Comparative Nature of Punishment
    Boston University Law Review 89 (5): 1565-1608. 2009.
    In tort and contract law, we calculate the harm a defendant caused a plaintiff by examining the plaintiff’s condition after an injury relative to his baseline condition. When we consider the severity of prison sentences, however, we usually ignore offenders’ baseline conditions. We deem inmates as receiving equal punishments when they are incarcerated for the same period of time under the same conditions, even though incarceration does not change their situations equally (unless they started out…Read more
  •  17
    Thousands die each year in the United States alone due to a severe shortage of organs available for transplantation. In this article, I propose that we encourage people to register to donate organs upon death by offering them some priority to receive an organ should they need one during life. Such an incentive would save lives by encouraging many more people to donate, yet would not violate federal laws that prohibit organ donors from receiving financial compensation. In addition, I describe how…Read more
  •  16
    The law typically treats great apes and other non-humans as property and not as persons. This is so, even though great apes have cognitive abilities that exceed those of some mentally-deficient humans. Nevertheless, these humans are entitled to the full range of personhood rights, while apes are entitled to none of them. Without attempting to resolve this discrepancy, I suggest more modestly that those rights we do extend to apes under the Animal Welfare Act might be more easily safeguarded if w…Read more
  •  16
    Alternative Burdens on Freedom of Conscience
    San Diego Law Review 47 919-934. 2010.
    We sometimes exempt people from generally applicable laws when compliance would violate their rights of conscience. In “The Significance of Conscience,” Kent Greenawalt discusses a variety of issues about the proper scope and subject matter of claims of conscience. He argues that we should generally give nonreligious claims comparable treatment to religious claims but argues further that there are special reasons to accommodate religious claims that ought to factor into our deliberations. In t…Read more
  •  15
    Clarifying the debate over therapeutic forgetting
    American Journal of Bioethics 7 (9). 2007.
    No abstract
  •  14
    Blackjack players who “count cards” keep track of cards that have already been played and use this knowledge to turn the probability of winning in their favor. Though casinos try to eject card counters or otherwise make their task more difficult, card counting is perfectly legal. So long as card counters rely on their own memory and computational skills, they have violated no laws and can make sizable profits. By contrast, if players use a “device” to help them count cards, like a calculator or …Read more
  •  14
    Against Proportional Punishment
    Vanderbilt Law Review 66 1141. 2013.
    The Supreme Court has held that pretrial detainees are presumed innocent and that their detention does not constitute punishment. If convicted, however, detainees usually receive credit at sentencing for the time they spent in detention. We reduce their punishment by time spent unpunished. Crediting time served conflicts with the commonly held view that punishment should be proportional to blame. Offenders who deserve to be punished by a year in prison but spend a year in pretrial detention may …Read more
  •  13
    Give Memory-Altering Drugs a Chance
    Nature 475 (7360): 275-276. 2011.
    Several studies suggest that memories can be pharmaceutically dampened. For example, researchers recently showed that a drug called ZIP causes cocaine-addicted rats to forget the locations where they had regularly been receiving cocaine. Other drugs, already tested in humans, may ease the emotional pain associated with memories of traumatic events. Many are alarmed by the prospect of pharmaceutical memory manipulation. In this brief comment, I argue that these fears are overblown. Thoughtful r…Read more
  •  11
    The Experiential Future of the Law
    Emory Law Journal 60 585-652. 2011.
    Pain, suffering, anxiety, and other experiences are fundamentally important to civil and criminal law. Despite their importance, we have limited ability to measure experiences, even though legal proceedings turn on such measurements every day. Fortunately, technological advances in neuroscience are improving our ability to measure experiences and will do so more dramatically in what I call “the experiential future.” In this article, I describe how new technologies will improve our assessments …Read more
  •  9
    How Placebo Deception Can Infringe Autonomy
    American Journal of Bioethics 9 (12): 25-26. 2009.
    No abstract
  •  4
    The End of Liberty
    Criminal Law and Philosophy 15 (3): 407-424. 2021.
    Theorists treat liberty as a great equalizer. We can’t easily distribute equal welfare, but we can purport to distribute equal liberty. In fact, however, nothing about “equal liberty” is meaningfully equal. To demonstrate, I turn not to familiar cases of distributing positive goods but to the distribution of a negative good, namely carceral punishment. Many theorists believe we should impose proportional punishment by depriving offenders of liberty in proportion to their blameworthiness. In this…Read more
  •  3
    The Subjectivist Critique of Proportionality
    In Larry Alexander & Kimberly Kessler Ferzan (eds.), The Palgrave Handbook of Applied Ethics and the Criminal Law, Springer Verlag. pp. 571-595. 2019.
    Offenders vary in their sensitivity to punishment. In recent years, this observation has formed the basis of a critique of retributivism. According to the subjectivist critique, retributivists must choose between two bad options. If they ignore variation in how offenders experience punishment and are worsened by it, they will fail to justify punishment practices, such as incarceration, that inevitably inflict experiential harms and worsen offenders to varying degrees. Even if these harms do not …Read more
  •  3
    Line Drawing in the Dark
    Theoretical Inquiries in Law 22 (1): 111-136. 2021.
    The law inevitably draws lines. These lines distinguish, for example, whether certain conduct reflects ordinary recklessness constituting manslaughter or more extreme recklessness constituting murder. There is no way to meaningfully draw such lines, however, absent shared ways of representing amounts of recklessness or at least knowledge of the consequences of drawing lines in particular places. Yet legal actors frequently draw lines in the dark, establishing cutoffs along a spectrum with little…Read more