Abstract:

Recent research in psychology, especially that called "The New Unconscious", is discovering strange and unintuitive phenomena, some of which raise interesting challenges for the law. This paper discusses some of these challenges. For example, if much of our mental life occurs out of our awareness and control, and yet is subject to easy external manipulation, what implications does this have for holding defendants responsible for their deeds? For that matter, what implications does this have for trusting judges to judge and act as they should, and would, if their own mental processes were fully conscious and controlled? Some provocative ideas are suggested, such as how to make prison terms shorter and more deterring at the same time; assisting judges in overcoming inconsistency and biases; etc.

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