Volume 2022, No. 3

Foreword: Willard Hurst’s Unpublished Manuscript on Law, Technology, and Regulation by BJ Ard & William J. Novak, Chapter Eight—Technology and the Law: The Automobile by James Willard Hurst

Articles: Plea Bargaining in the Shadow of a Retrial: Bargaining Away Innocence by
Keith A. Findley, Maria Camila Angulo Amaya, Gibson Hatch,
& John P. Smith, Bloody Lucre: Carceral Labor and Prison Profit by Laura I Appleman,
Neither Carrots nor Sticks: DOJ’s Unfulfilled Commitment to Corporate Health Care Compliance
by Jacob T. Elberg, The Constitutionalization of Medical Malpractice in the Seventh Circuit by Brad Taylor, The Return of the Jury: Conduct-Based Sentencing for Recidivism by Jennifer Lee Barrow

Demystifying Mindreading for the Law

A few summers ago, I was playing in the yard with my kids. I noticed my 3-year-old son pinching the tops off the red lilies we had planted, which were just starting to bloom. I told him to stop. He immediately froze and blurted out “it was an accident!” I surveyed the scene. There were eight decapitated lilies in a row. Eight. I pressed him. “So, you are saying it was an accident, eight times?” He looked down, and then off into the horizon. The jig was up. He furrowed his brow—wondering how I could possibly know it had been intentional. I told him that we generally do not repeat the same movement, accidentally, eight times. He was mystified that I could have known his private thoughts. I told him that he was already developing the ability to read other people’s minds, and it would improve as he got older. He looked at me in awe, as if I had some superpower. But it’s one of the most basic things we humans do. This sort of mindreading—where we look beyond the actual words spoken, to discern someone’s true thoughts through their eye gaze, affect, expressions, character, demeanor, and any other cues—is an essential part of our social lives. By aggregating lots of information about other people’s mental states, past behavior, character (and unfair stereotypes), we decide whether they should be praised, condemned, or forgiven.