The history of the treatment of mental illness in the United States is anything but simple. While both social and scientific understanding of mental illness have developed tremendously in recent decades, there remain significant barriers to implementing effective treatment and rehabilitation programs for people with mental illness. Inherent in this intersection of law and mental health is the delicate balance between preserving liberty and autonomy interests on the one hand, and providing for individual and societal safety on the other. This balance is not easily achieved and remains the core debate surrounding much of today’s mental health legislation.

In Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Jürgen Habermas describes a challenge to modern democracies and a procedure for adapting to this challenge. The challenge is that in the absence of natural law, or any other universally accepted moral or ethical code, no common framework informs people about what kinds of laws are, and are not, legitimate. Hence, if laws are to be accepted by, and hence binding on, the populations for whom they are intended to apply, an alternate legitimating mechanism is required.

Habermas describes communicative procedures that have the potential to provide legitimacy to collective decisions. In this ideal discourse (“ID”), as we describe it, all citizens have an equal right to speak and an obligation to listen. If deliberations culminate in agreement on the validity of socially relevant moral, ethical, or technical propositions, then the propositions serve as substantive foundations for subsequent legislative decisions and bureaucratic actions.

In this Article we build on neuroscience evidence to model belief formation and study decisionmaking by judges and juries. We show that physiological constraints generate posterior beliefs with properties that are qualitatively different from traditional Bayesian theory. In particular, decisionmakers will tend to reinforce their prior beliefs and to hold posteriors influenced by their preferences. We study the implications of the theory for decisions rendered by judges and juries. We show that early cases in judges’ careers may affect their decisions later on, and that early evidence produced in a trial may matter more than late evidence. In the case of juries, we show that the well-known polarization effect is a direct consequence of physiological constraints. It is more likely to be observed when information is mixed, as behavioral evidence suggests, and when prior beliefs and preferences are initially more divergent across jurors.

There are moments when the law is not enough.

In Virginia v. Black, a normally silent Justice Clarence Thomas interjected with what one commentator called a “Luke-I-am-you-father” voice. The case involved a First Amendment challenge to a Virginia law that prohibited cross burning. During a deputy U.S. solicitor general’s oral argument in favor of the law, Justice Thomas condemned him for not going far enough. Justice Thomas, who grew up in the segregated South and was the only black Justice on the bench, posed a very potent question: “Aren’t you understating the . . . effects of . . . the burning cross” given that crosses were “symbol[s] of [a] reign of terror” during the “100 years of lynching . . . in the South?” He continued, “I think that what you’re attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish.”

Similarly, during the Senate Judiciary Committee hearing on the nomination of then-nominee, now-Justice Sonia Sotomayor, Senator Jeff Sessions challenged her prior representations that she could be an impartial judge by quoting remarks she made the day before: “You have repeatedly made this statement: ‘I accept the proposition that a difference there will be by the presence of women and people of color on the bench, and that my experiences affect the facts I choose to see as a judge.’” Without hesitation, Sotomayor responded, “the point that I was making was that our life experiences do permit us to see some facts and understand them more easily than others.” Ultimately, Senator Sessions made his stance clear that empathy and judicial decisionmaking can and should be mutually exclusive, saying, “Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not law. In truth, it is more akin to politics, and politics has no place in the courtroom.”

The field of psychiatry has identified a problem with the law, its source, and suggested a solution. The problem is “legislators . . . us[ing] psychiatric commitment [of sex offenders] to effect nonmedical societal ends.” The source is U.S. Supreme Court decisions allowing legislatures to use definitions of mental illness that have no basis in psychiatry: “As a consequence of U.S. Supreme Court decisions that are written ambiguously and tentatively, the bright line separating . . . [the legal conception of] mental disorder [(for the purposes of civilly committing sex offenders under sexually violent predator statutes)] from ordinary criminal behavior is difficult to draw and tests a no-man’s land between psychiatry and the law.”

The solution is “[g]reater clarity and standardization . . . com[ing] from both sides: the legalists who interpret the law and the clinicians who apply and work under it.” A close analysis of the psychiatric critique of these statutes that allow for the civil commitment of sex offenders reveals psychiatry’s own imprecision within the bounds of psychiatry and in the domain of the overlap between psychiatry and the law.

In California, adolescents convicted of special circumstance first-degree murder are presumptively sentenced to life without the possibility of parole (“LWOP”) pursuant to section 190.5 of the California Penal Code. To date, California has sentenced more than 250 adolescents to die behind bars. Recent studies in psychology and neuroscience challenge this status quo. These disciplines suggest that adolescents are biophysically determined to suffer from poor decisionmaking capacities and behavior control. This Note argues that adolescent culpability is mitigated by currently valued standards, informed by science’s conception of the adolescent, and that adolescent crimes consequently warrant the lesser punishment of twenty-five years to life.

In Gonzales v. Carhart, the Supreme Court upheld the Partial-Birth Abortion Ban Act. In so doing, the Court used the prospect of regret to justify limiting choice. Relying on empirical evidence documenting the four ways in which regret actually operates, this Article argues that the Court’s analysis reflects a fundamental misunderstanding of the psychology of regret. By exposing the Court’s misunderstanding of this emotion, this Article seeks to minimize the most significant risk posed by the Carhart decision: that states will use the prospect of regret to justify additional constraints not only on the abortion right but also on other rights protected by the Constitution.