Nyefrankcourtcase

The Court issued a per curiam opinion. Given the Pennsylvania Supreme Court's answer to the United States Supreme Court's certified question, retroactivity was no longer an issue. The Court held long ago that the Fourteenth Amendment's Due Process Clause requires a State to prove each element of a crime beyond a reasonable doubt before convicting a defendant of a crime. Here, failing to possess a permit was a basic element of the crime as it existed at the time of Fiore's conviction. The "parties agree that the Commonwealth presented no evidence whatsoever to prove that basic element." In fact, Pennsylvania conceded that Fiore had a permit. "The simple, inevitable conclusion is that Fiore's conviction fails to satisfy the Federal Constitution's demands."

Page 1 929 DIALOGUE Cognitive Processes Shaped by the Impulse to Blame Joshua Knobe † In his incisive and thought-provoking paper "Cognitive Foundations of the Impulse to Blame," Lawrence Solan points to a surprising fact about the cognitive processes underlying attributions of blame. 1 This surprising fact is that almost all of the processes that we use when trying to determine whether or not a person is blameworthy are also ones that we sometimes use even when we are not even considering the issue of blame. 2 Only a very small amount of processing is used exclusively when we are interested in questions of blame. This point can be made vivid with a simple example. Suppose that we witness a terrible accident and then assign an investigator to answer the question: "Why did this accident occur?" This investigator spends many months gathering evidence, formulating hypotheses, and considering arguments of various types. Finally, he comes back with a definite answer. And now suppose we tell him that we also want an answer to a second question, namely: "Was anyone to blame for this accident?" The investigator probably won't have to spend another few months answering this new question. It appears that almost all of the work has already been done; the investigator can simply take the results he has already obtained, do a little extra thinking, and come up with an answer. † Princeton University. I am grateful to Lawrence Solan and Gilbert Harman for helpful comments on an earlier draft. 1 Lawrence M. Solan, Cognitive Foundations of the Impulse of Blame, 68 B ROOK . L. R EV . 1003 (2003). 2 Id. at 1004. Page 2 930 BROOKLYN LAW REVIEW [Vol. 71:2 Solan provides support for this initial intuition through a sophisticated analysis of the cognitive processes that underlie attributions of blame. Specifically, he shows that attributions of blame rely in a crucial way on judgments about mental states and about causal relations. 3 He then shows that we would have made

Page 1 929 DIALOGUE Cognitive Processes Shaped by the Impulse to Blame Joshua Knobe † In his incisive and thought-provoking paper "Cognitive Foundations of the Impulse to Blame," Lawrence Solan points to a surprising fact about the cognitive processes underlying attributions of blame. 1 This surprising fact is that almost all of the processes that we use when trying to determine whether or not a person is blameworthy are also ones that we sometimes use even when we are not even considering the issue of blame. 2 Only a very small amount of processing is used exclusively when we are interested in questions of blame. This point can be made vivid with a simple example. Suppose that we witness a terrible accident and then assign an investigator to answer the question: "Why did this accident occur?" This investigator spends many months gathering evidence, formulating hypotheses, and considering arguments of various types. Finally, he comes back with a definite answer. And now suppose we tell him that we also want an answer to a second question, namely: "Was anyone to blame for this accident?" The investigator probably won't have to spend another few months answering this new question. It appears that almost all of the work has already been done; the investigator can simply take the results he has already obtained, do a little extra thinking, and come up with an answer. † Princeton University. I am grateful to Lawrence Solan and Gilbert Harman for helpful comments on an earlier draft. 1 Lawrence M. Solan, Cognitive Foundations of the Impulse of Blame, 68 B ROOK . L. R EV . 1003 (2003). 2 Id. at 1004. Page 2 930 BROOKLYN LAW REVIEW [Vol. 71:2 Solan provides support for this initial intuition through a sophisticated analysis of the cognitive processes that underlie attributions of blame. Specifically, he shows that attributions of blame rely in a crucial way on judgments about mental states and about causal relations. 3 He then shows that we would have made