VOLUME 169, ISSUE 1 December 2020


What if the widely used Model Penal Code (MPC) assumes a distinction between mental states that doesn’t actually exist? The MPC assumes, for instance, that there is a real distinction in real people between the mental states it defines as “knowing” and “reckless.” But is there? If there are such psychological differences, there must also be brain differences. Consequently, the moral legitimacy of the Model Penal Code’s taxonomy of culpable mental states – which punishes those in defined mental states differently – depends on whether those mental states actually correspond to different brain states in the way the MPC categorization assumes. We combined advanced functional brain-imaging technology with new artificial intelligence tools to see if the brain activities during knowing and reckless states of mind can ever be reliably distinguished. As our experiment indicates, the answer is Yes. So here we provide an overview of our brain-scanning experiment, discuss important implications, and detail several necessary precautions, so our results won’t be over- or mis-interpreted.


Public lands and private enterprise exist in an uncomfortable equilibrium. Since their founding, the national parks have embraced some forms of private enterprise, including privately-run accommodations, to bring members of the public to the parks to enjoy and appreciate their beauty. Corporations have provided financial support to the national parks through philanthropy. And private firms have benefitted from marketing their associations with the parks. Marketing campaigns that call on the feeling of being in the woods and philanthropy to the parks that may benefit corporations by association do not deplete resources or ruin aesthetic experiences like a strip mine would. Yet they nonetheless in some fashion dilute the essential publicness of the national parks. In debates over the purpose of public lands and the proper role of private enterprise within them, relationships between private firms and public lands in which the firms neither extract commodities from the parks nor physically harm them have not received sufficient attention. This Article makes three claims. First, as a descriptive matter, it identifies a set of non-extractive relationships between private firms and national parks as a distinct phenomenon. Second, as a normative matter, the Article argues that these relationships deserve greater attention in both policy and scholarship because they shed light on important questions about the significance of the public in national parks. Finally, as a prescriptive matter, the Article concludes that these non-extractive relationships between private firms and the national parks warrant clearer restrictions in government policy to preserve the essential publicness of these lands.
Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from ‘aiding’ or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps to explain a striking fact about the Founding era that the no-aid theory has largely ignored—the pervasive funding of religious schools by both the federal government and the recently disestablished states. But it also has important implications for modern law. Most significantly, it suggests that where a funding program serves a public good and does not treat the religious aspect of a beneficiary’s conduct as a basis for funding, it is not an establishment of religion.
In the past decade, psychological and behavioral studies have found that individual commitment to contracts persists beyond personal relationships and traditional promises. Even take-it-or-leave it consumer contracts get substantial deference from consumers—even when the terms are unenforceable, even when the assent is procedurally compromised, and even when the drafter is an impersonal commercial actor. Indeed, there is mounting evidence that people import the morality of promise into situations that might otherwise be described as predatory, exploitative, or coercive. The purpose of this Article is to propose a framework for understanding what seems to be widespread acceptance of regulation via unread terms. I refer to this phenomenon as “term deference”—the finding that people defer to the term, even when the assent is perfunctory, and even when the term is unfair. The framework I propose is a motivated reasoning explanation: when it feels better to believe that contracts are fair and that assent is reliable, people are more likely to hold those beliefs. In order to predict when contractual fairness will be especially psychologically urgent, I draw on an extensive body of psychological literature on the preference for believing in a just world, or for being satisfied with the status quo. When a phenomenon or a system appears implacable and unavoidable, it is psychologically less stressful to believe that the system is good. “System justification” is a well-documented psychological phenomenon that predicts when individuals will be motivated to hold beliefs that support the status quo, even when the status quo redounds to their own disadvantage. The two studies reported here manipulate the pressure to support the status quo—to believe that firms are reasonable and contract law is fair—by varying the term’s enforceability, its consequences, and its history. The findings show the predicted patterns, that increased psychological pressure to support the status quo increases beliefs that the status quo is good and fair. These results also align with the prediction that pressure to justify the status quo is not only a psychological state, but also a trait. That trait, highly associated with political conservatism, is reflected in the results suggesting a stronger motivation to justify the status quo among subjects who report that they are more politically conservative. The results here have implications not only for contract and consumer law, but also for how we understand self-interest in legal decisionmaking, and for the legal understandings of consent and compliance.


Federal courts across the country have heard numerous lawsuits about the legality of “sanctuary cities,” which limit cooperation with the federal government’s immigration enforcement efforts. For example, a sanctuary city might reject detainer requests issued by federal immigration officials or limit the amount of information state or local officials provide to federal immigration agents. To curb this kind of noncooperation, several decades ago, Congress enacted 8 U.S.C. § 1373 (§ 1373), which makes it unlawful for state and local government officials to “prohibit, or in any way restrict, any government entity or official from sending [information] to, or receiving [it] from” federal immigration officials. Although § 1373 was unsuccessfully challenged shortly after its enactment, in recent years the statute has gained renewed attention as the federal government attempted to enforce its terms by threatening to withdraw federal policing funding from noncompliant jurisdictions. Cities and states have been remarkably successful in these recent lawsuits, as district courts across the country have found the federal efforts to enforce § 1373 by withdrawing federal grant funding to be unlawful under both administrative law and constitutional grounds. And some district courts have found the statute itself to be unconstitutional and in violation of the anticommandeering rule, which prohibits the federal government from instructing states and cities to enact federal policies.
There is currently no uniform set of federal rules governing MDL proceedings. But this could soon change. In November 2017, the Advisory Committee on Civil Rules first addressed the possibility of creating new rules specifically for MDL. In the three years since then, the Advisory Committee has appointed a Subcommittee to seriously study the need for MDL-specific rules, and the Subcommittee has narrowed its focus to rulemaking in three areas: early vetting to weed out meritless claims, opportunities for interlocutory appellate review, and settlement review. Although some of these topics are more appropriate for rulemaking than others, this Comment argues that the Subcommittee should decline to move forward with any rule proposal. MDL-specific rules cannot be squared with either the purposes of § 1407 or the twin aims of the Federal Rules of Civil Procedure—efficiency and fairness—and should therefore not be adopted.
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