Professor Adam Kolber Examines the Impact of Free Will and Moral Risk on the Law
Few legal scholars can elucidate the cognitive issues in law and public policy as compellingly as Professor Adam Kolber, who has made addressing difficult, complex topics such as free will, moral risk, and other thorny philosophical aspects of crime and punishment a hallmark of his teaching and research. Affiliated with the Law School’s Center for Health, Science, and Public Policy and the Center for Law, Language & Cognition, Kolber writes and teaches in the areas of health law, bioethics, criminal law, and neurolaw.
In 2004, the President’s Council on Bioethics released a report discussing research into pharmaceuticals that dampen recent traumatic memories. Kolber, who had recently become a law professor, was fascinated by the report. In response, he authored an article, “Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening,” 59 Vanderbilt Law Review 1561 (2006), discussing the implications of such drugs and criticizing the council’s overly fearful tone. He soon discovered a whole wave of new brain-related technologies that were starting to raise important questions for lawyers, judges, and scholars. Today, there is a substantial community of scholars focused on neurolaw.
In his recent article, “Supreme Judicial Bullshit,” forthcoming in the Arizona State Law Journal, Kolber discusses the many reasons that judges—particularly at the U.S. Supreme Court—use bullshit (as defined by noted American philosopher and Princeton University Professor Emeritus Harry Frankfurt) and how it reduces transparency and creates other potential problems.
“While we have come to expect bullshit from politicians, there is no shortage of judicial bullshit either,” he writes. “[W]e see judges bullshit for many reasons including the desire to keep precedents malleable, avoid line drawing, hide the arbitrariness of line drawing, sound important, be memorable, gloss over inconvenient facts, sound poetic, make it seem like their hands are tied, and appear to address profound questions without actually staking out provocative positions.” He has received widespread attention for his paper, which he presented at the Icahn School of Medicine at Mount Sinai, Stanford Law School, and Seton Hall Law School.
Kolber has been busy this spring presenting his work to colleagues in the field. At Oxford University, he delivered a talk on punishment theory, “The Time Frame Challenge to Retributivism.” His article “Punishment and Moral Risk,” which appears in the current issue of the Illinois Law Review, was the subject of an online symposium in April at the University of Illinois College of Law, where five law professors responded to the paper.
“Legal opinions would be much more transparent if judges directly addressed their uncertainty and explained its influence on their deliberations,” he argues in this article. Kolber believes all moral and legal theorists, like himself, also should more openly address moral uncertainty in their work and in scholarly exchanges, and he takes this approach in his teaching as well. He encourages students in his bioethics and public policy class to not only consider their views on an issue like abortion but also explore the “approximate probability that their views are wrong.”
“I want to show students the many dimensions of heated political debates,” he says.