Legal Commentary

Greetings, and thanks to PrawfsBlawg for having me back for another go at the cyber-soapbox.  Last time, as I recall, I talked mostly about white collar crime.   This time, I plan to range a bit more widely.

One of the most intriguing books I?ve read in recent months is Kwame Anthony Appiah?s Experiments in Ethics, an engagingly-written exploration of how new findings in empirical psychology and neuroscience can illuminate age-old problems in moral philosophy.  Appiah?s writing is so good that he manages to breathe new life even into that old war-horse, the trolley problem ? the thought experiment in which subjects are asked to decide whether it is morally permissibly (or even required) to flip a switch which would cause an out-of-control trolley heading toward five people tied to a track to change course and run down a different track with the result that just one person would be killed.  I have always been skeptical about the notion that we could learn anything interesting about the trolley problem by looking at MRI scans of experimental subjects thinking about it.  Appiah hasn?t necessarily convinced me otherwise, but he does do an excellent job of showing, more generally, how moral theorists can benefit from getting out of their armchairs and into the lab.  (Christopher Columbus Langdell notwithstanding, I suppose the same thing might be said about getting law professors out of the library.)

I?ve been thinking about what Appiah has to say in connection with a book I myself am writing, on the theory of theft law.  The book offers an argument as to why the mid-20th century consolidation of the various traditional common law offenses of larceny, false pretenses, embezzlement, extortion, receiving, finding, and the like, into a single undifferentiated offense of ?theft? is misguided, in part because it fails to reflect the kind of moral distinctions that people intuitively make in their everyday lives.  Most of the book will consist of normative theorizing and policy arguments.  But, partly as a result of reading Appiah?s work, I?m also hoping to incorporate some empirical data on how real people (assuming undergraduate psychology majors qualify as such) would rate the relative seriousness of various theft scenarios.  To that end, I?ve been working with Kevin Grobman, a social psychologist here at LSU, to design a study that will test people?s intuitions about the wrongfulness of various forms of theft.  I?m also hoping to organize an AALS Criminal Justice Section mid-year meeting panel titled something like ?Experiments in Criminal Justice Ethics.? I?d be interested in hearing about any new work of this sort that blog readers know about.