Larry Solum links to a provocative paper, The Source of Blackstone's Intuition: Why We Think it Better to Free the Guilty than to Convict the Innocent, by Samson Vermont. The gist of the argument is that our intuition that it is better to let 10 guilty persons (or even n guilty men) go free than convict one innocent person is partly irrational because it is based on a "psychological quirk" — the greater mental accessibility of a false conviction than a false acquittal. I've just skimmed the paper, and it's pretty interesting. The problem, I think, is that there are lots of quite rational reasons to agree with the intuition. Samson acknowledges some of them in footnote 9, but there are others, such as the uncertainty of whether the theories of punishment work in a particular case. Without knowing the relative significance of the rational and irrational as an empirical matter, it's hard to assess Samson's argument. Nonetheless, it's an interesting paper.