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MacArthur Foundation Research Network on Law and Neuroscience

Law and Neuroscience Bibliography

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Graph of the Cumulative Total of Law and Neuroscience Publications: 1984-2013

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Author (last name)YearTitleAuthor(s)CitationAbstract
Abrams 2010 Who's Afraid of Law and the Emotions? Kathryn Abrams & Hila Keren 94 Minn. L. Rev. 1997 Law and emotions scholarship has reached a critical moment in its trajectory. It has become a varied and dynamic body of work, mobilizing diverse disciplinary understandings, to analyze the range of emotions that implicate law and legal decisionmaking. Yet mainstream legal academics have often greeted it with ambivalence. They have not predictably viewed it as a resource for addressing questions within their substantive fields; it is often treated as a novel academic pastime rather than an instrument for addressing practical problems. This reception contrasts sharply with that accorded to two fields that have also challenged dominant notions of (legal) rationality: behavioral law and economics, and the emerging field of law and neuroscience. In this Article, we examine the ambivalent reception of this promising body of work. We conclude that it may reflect the persistence of a rationalist tendency in law, and an incomplete grasp of the benefits of understanding these essential constituents of human cognition and motivation. We contend that the best answer to such resurgent doubt is to demonstrate the pragmatic potential of this scholarship. Notwithstanding the breadth of its epistemological challenges, law and emotions scholarship can contribute to the familiar normative work of the law—revising and strengthening existing doctrine, improving decisionmaking, and informing new legal policies. Moreover, it can facilitate the less familiar but nevertheless valuable task of using law to improve people’s affective lives. We elaborate the pragmatic potential of law and emotions by identifying three dimensions of this scholarship: its capacity to illuminate the affective features of legal problems; its ability to investigate these features through interdisciplinary analysis; and its power to integrate that understanding into practical, normative proposals. In demonstrating the utility of law and emotions scholarship, we also respond to some of the explicit concerns that have been raised about purposive legal intervention in the emotions.
Adelsheim 2011 Functional Magnetic Resonance Detection of Deception: Great as Fundamental Research, Inadequate as Substantive Evidence Charles Adelsheim 62 Mercer L. Rev. 885 While fMRI detection of deception shows promise, and while excellent fundamental research is being conducted, fMRI is not yet ready for deployment in the courtroom. To explain this conclusion, this Article consists of four sections: (1) a discussion of the phenomena of deception and the difficulties attendant to detecting deception; (2) an accessible primer on MRI, fMRI, and BOLD fMRI technology; (3) a review and analysis of the existent research studies of fMRI detection of deception; and (4) an analysis of why, given the research to date, fMRI detection of deception should not be admitted as substantive evidence in a court of law.
Aggarwal 2013 The Neuroethics and Neurolaw of Brain Injury Neil K. Aggarwal & Elizabeth Ford Behav Sci Law. Neuroethics and neurolaw are fields of study that involve the interface of neuroscience with clinical and legal decision-making. The past two decades have seen increasing attention being paid to both fields, in large part because of the advances in neuroimaging techniques and improved ability to visualize and measure brain structure and function. Traumatic brain injury (TBI), along with its acute and chronic sequelae, has emerged as a focus of neuroethical issues, such as informed consent for treatment and research, diagnostic and prognostic uncertainties, and the subjectivity of interpretation of data. The law has also more frequently considered TBI in criminal settings for exculpation, mitigation and sentencing purposes and in tort and administrative law for personal injury, disability and worker's compensation cases. This article provides an overview of these topics with an emphasis on the current challenges that the neuroscience of TBI faces in the medicolegal arena.
Aggarwal 2009 Neuroimaging, Culture, and Forensic Psychiatry Neil K. Aggarwal 37 J. Am. Acad. Psychiatry L. 239 The spread of neuroimaging technologies around the world has led to diverse practices of forensic psychiatry and the emergence of neuroethics and neurolaw. This article surveys the neuroethics and neurolegal literature on the use of forensic neuroimaging within the courtroom. Next, the related literature within medical anthropology and science and technology studies is reviewed to show how debates about forensic neuroimaging reflect cultural tensions about attitudes regarding the self, mental illness, and medical expertise. Finally, recommendations are offered on how forensic psychiatrists can add to this research, given their professional interface between law and medicine. At stake are the fundamental concerns that surround changing conceptions of the self, sickness, and expectations of medicine.
Aharoni 2013 Neuroprediction of Future Rearrest Eyal Aharoni, Gina M. Vincent, Carla L. Harenski, Vince D. Calhoun, Walter Sinnott-Armstrong, Michael S. Gazzaniga, Kent A. Kiehl 110(15) PNAS 6223 Identification of factors that predict recurrent antisocial behavior is integral to the social sciences, criminal justice procedures, and the effective treatment of high-risk individuals. Here we show that error-related brain activity elicited during performance of an inhibitory task prospectively predicted subsequent rearrest among adult offenders within 4 y of release (N = 96). The odds that an offender with relatively low anterior cingulate activity would be rearrested were approximately double that of an offender with high activity in this region, holding constant other observed risk factors. These results suggest a potential neurocognitive biomarker for persistent antisocial behavior.
Aharoni 2012 Can Psychopathic Offenders Discern Moral Wrongs? A New Look at the Moral/Conventional Distinction Eyal Aharoni, Walter Sinnott-Armstrong & Kent A. Kiehl 121(2) J. Abnormal Psychol. 484 A prominent view of psychopathic moral reasoning suggests that psychopathic individuals cannot properly distinguish between moral wrongs and other types of wrongs. The present study evaluated this view by examining the extent to which 109 incarcerated offenders with varying degrees of psychopathy could distinguish between moral and conventional transgressions relative to each other and to nonincarcerated healthy controls. Using a modified version of the classic Moral/Conventional Transgressions task that uses a forced-choice format to minimize strategic responding, the present study found that total psychopathy score did not predict performance on the task. Task performance was explained by some individual subfacets of psychopathy and by other variables unrelated to psychopathy, such as IQ. The authors conclude that, contrary to earlier claims, insufficient data exist to infer that psychopathic individuals cannot know what is morally wrong.
Aharoni 2008 Can Neurological Evidence Help Courts Assess Criminal Responsibility? Lessons from Law and Neuroscience Eyal Aharoni, Chadd Funk, Walter Sinnott-Armstrong & Michael Gazzaniga 1124 Ann. N.Y. Acad. Sci. 145 Can neurological evidence help courts assess criminal responsibility? To answer this question, we must first specify legal criteria for criminal responsibility and then ask how neurological findings can be used to determine whether particular defendants meet those criteria. Cognitive neuroscience may speak to at least two familiar conditions of criminal responsibility: intention and sanity. Functional neuroimaging studies in motor planning, awareness of actions, agency, social contract reasoning, and theory of mind, among others, have recently targeted a small assortment of brain networks thought to be instrumental in such determinations. Advances in each of these areas bring specificity to the problems underlying the application of neuroscience to criminal law.
Alces 2013 Naturalistic Contract Peter A. Alces in Commercial Contract Law: Transatlantic Perspectives (Cambridge University Press, Larry A. DiMatteo, Qi Zhou, Severine Saintier, Keith Rowley eds., 2013) The theoretical bases of contract generally are dependent on either deontological or consequentialist normative commitments, or some combination of the two. Contract doctrine should instantiate (or at least not frustrate) the operation of the normative calculus. The chapter assesses whether contract doctrine is deficient in forwarding such normative commitments. At the least, the normative inquiry is opaque as it relates to contract doctrine. The chapter describes the normative impotence of contract by focusing on the two foundations of consensual liability: allocation of risk and formation of agreement. The material on mistake, impracticability, and the modification of contract doctrine depicts how risks are allocated. The chapter draws from the most recent United States Supreme Court arbitration decisions to illustrate the failure of the agreement principle. The chapter suggests that contract law doctrine can only make sense if we take account of the fundamental bases of the normative considerations we actually bring to the resolution of a contract controversy. Those bases are best revealed in recent neuroethical and evolutionary inquiries into the constitution of the human agent’s normative commitments. Finally, the chapter describes the apposite contract doctrine and surveys, summarily, the commentary that reveals the normative quandaries. It engages primarily apposite consequentialist theory but also suggests the limits of a deontological perspective that is subject to the same deficiencies as utilitarian analyses. From those premises apposite neuroscience findings are considered to see what, if anything, a more sophisticated sense of human agency can do to refine either the formation or application of doctrine. Ultimately, the chapter concludes that contract doctrine fails, at least in crucial ways and at crucial junctures, in relation to the preceding normative commitments.
Alexander 2010 Criminal and Moral Responsibility and the Libet Experiments Larry Alexander Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). This chapter analyzes how Libet's experiments bear on criminal and moral responsibility. More specifically, it addresses the question of whether Libet has demonstrated that the consciously willed bodily movement, the centerpiece of our notions of criminal and moral responsibility, is an illusion. It suggests that the gatekeeper role for conscious will, which Libet allows, does not require any revision of traditional notions of moral and criminal responsibility.
Alexander 2006 Functional Magnetic Resonance Imaging Lie Detection: Is a “Brainstorm” Heading Toward the “Gatekeeper”? Archie A. Alexander 7 Hous. J. Health L. & Pol'y 1 Members of civilized societies always want to distinguish deceivers from the truth tellers. Although governments and their institutions see deception detection as vital to their interests, their legal systems and citizens may not approve of their torture machines or other tactics. They frequently turn to their scientists to invent more humane deception detection devices, and functional magnetic resonance imaging (fMRI) may be the newest deception detector. Even if fMRI fulfills this role, fMRI may not pass our legal system and its admissibility standards for novel scientific evidence. This article reviews the basic physics of fMRI and the magnetic properties of blood that enable fMRI imagers to use blood oxygen level dependent (“BOLD”) effects and cerebral blood flow to indirectly detect and image neuronal metabolism. It also examines how past courts have treated detection devices as novel scientific evidence under the general acceptance standard of Frye and the flexible review for reliability (Rule 702) according to Daubert and its progeny. It then follows with an analysis of recent fMRI deception detection experiments and how gatekeepers might treat fMRI results or testimony in both Frye and Daubert jurisdictions. Although this article concludes by casting doubts on the admissibility of this evidence, it may assist readers with their understanding of how the neuroscience and technology of fMRI may impact its admissibility under either Frye or Daubert in the future.
Allen 2007 Law Firm Leadership on the Neuro Frontier Stephanie W. Allen 26 No. 2 Of Counsel 10
Amirian 2013 Weighing the Admissibility of fMRI Technology under FRE 403: For the Law, fMIR Changes Everything -- and Nothing Justin Amirian 41 Fordham Urb. L.J. 715
Ananthaswamy 2011 AI Lie Detection Could Help Crack Terror Cells Anil Ananthaswamy NewScientist, Mar. 14
Anderson 1999 Impairment of Social and Moral Behavior Related to Early Damage in Human Prefrontal Cortex Steven W. Anderson, Antoine Bechara, Hanna Damasio, Daniel Tranel, Antonio R. Damasio 2(11) Nature 1032 The long-term consequences of early prefrontal cortex lesions occurring before 16 months were investigated in two adults. As is the case when such damage occurs in adulthood, the two early-onset patients had severely impaired social behavior despite normal basic cognitive abilities, and showed insensitivity to future consequences of decisions, defective autonomic responses to punishment contingencies and failure to respond to behavioral interventions. Unlike adult-onset patients, however, the two patients had defective social and moral reasoning, suggesting that the acquisition of complex social conventions and moral rules had been impaired. Thus early-onset prefrontal damage resulted in a syndrome resembling psychopathy.
Andorno 2012 Do Our Moral Judgements Need To Be Guided By Principles? Roberto Andorno 21(4) Cambridge Quarterly of Healthcare 457 This paper argues that, although principles play a key role in our moral judgments, these latter cannot be reduced to the result of purely deductive reasoning, since they previously require another kind of rationality: instead of being purely deductive, our moral decisions appear to be the result of a combined inductive-deductive process. This claim is developed in two parts. The first part briefly presents some of the criticisms levelled in recent decades against purely deductive moral theories. The second part argues, appealing to Aristotle’s account of the knowledge’s process, that an inductive-deductive model provides a more realistic account of how sound moral judgments are actually made.
Andorno 2011 What is the Role of 'Human Nature' and 'Human Dignity' in Our Biotechnological Age? Roberto Andorno 3(1) Amsterdam Law Forum 53 Rapid developments in genetics and reproductive technologies, including the prospect of human genetic engineering, cloning and various forms of enhancing human capacities, oblige us to face very old questions that have been largely abandoned in modern philosophy. What does it mean to be human? What constitutes a meaningful life? Do human beings have intrinsic worthiness? What values should guide society in making its choices? In this paper, I first argue that these fundamental questions are today more valid than ever, and that they need to be specifically addressed in the context of human biotechnological interventions and not lumped together with other technological developments. Second, I briefly explore the question of whether the notions of human nature and human dignity can contribute to the efforts that are aimed at responding to the new dilemmas posed by technological interventions on ourselves and on our descendants.
Andorno 2004 The Precautionary Principle: A New Legal Standard for a Technological Age Roberto Andorno 1 J. Int'l Biotechnology Law 11 The precautionary principle is basically an appeal to caution addressed to policy makers who must take decisions about products or activities that could be seriously harmful to public health or the environment. For that reason, this emerging principle of international law does not offer a predetermined solution to every new problem raised by scientific uncertainty. On the contrary, it is just a guiding principle that provides helpful criteria for determining the most reasonable course of action in confronting situations of potential risk. Far from being antithetical to science or to technological innovation, the precautionary principle aims at promoting alternative modes of development “safer and cleaner technologies“ in order to ensure a good quality of life for present and future generations.
Andrews 2014 Avoiding the Technical Knockout: Tackling the Inadequacies of Youth Concussion Legislation Erin P. Andrews 58 N.Y.L. Sch. L. Rev. 417
Annas 2007 Foreword: Imagining a New Era of Neuroimaging, Neuroethics, and Neurolaw George J. Annas 33 Am. J.L. & Med. 163
Appelbaum 2007 The New Lie Detectors: Neuroscience, Deception, and the Courts Paul S. Appelbaum 58 Psychiatry Servs. 460 This column examines the use of two technologies in lie detection. "Brain fingerprinting" is based on the finding that the brain generates a unique brain-wave pattern when a person encounters a familiar stimulus. Use of functional magnetic resonance imaging in lie detection derives from studies suggesting that persons asked to lie show different patterns of brain activity than they do when being truthful. Issues related to the use of such evidence in courts are discussed. The author concludes that neither approach is currently supported by enough data regarding its accuracy in detecting deception to warrant use in court.
Appelbaum 2005 Behavioral Genetics and the Punishment of Crime Paul S. Appelbaum 56 Law & Psychiatry 25
Arda 2012 Neuroethics and Neurolaw in Turkey Berna Arda, Ahmet Aciduman International Neurolaw 289 (Springer, Tade Spranger, Ed., 2012) This section is dedicated to examining the subject “Neuroethics and Neurolaw in Turkey”. The development of medicine and related branches in Turkey generally demonstrates a parallelism with the examples from the similar countries in the world. In brief, the contemporary criterions are applicable to both education and daily practices of these fields. In this context, the headlines under the disciplines of neurology and neurosurgery shall be evaluated from the medical ethics and medical law points of view under the heading of scientific neurothics and neurolaws. Today, the worthiness problems related with the end of life constitute one of the most important subjects of discussion in medical ethics. In the neurology area, where this problem frequently arises, the commands: do not apply euthanasia and do not resuscitate are two important phenomena to be studied closely. A very crucial subject from the organ transplantation point of view is making the decision on the “brain death”. The specialists on neurosurgery and neurology in Turkey are legally tasked among the decision-making doctors in this subject. Therefore, this is one of the headings that will be discussed in the text from both ethical and deontological or medical law points of view. Thus, referring to an eternal problem of medicine “terminating a life” and also to a new concept the organ trade, belonging to the 21st century and which is the result of modern economical and political factors. The “clinical researches” shall be discussed as a rather discrete dimension of the daily doctor – patient relations under the heading of neurological sciences as a separate subsection within the text. Here, we shall discuss how the concept of informed consent may be applied to the patient and subject groups which the neurological sciences deal with in the normal daily medical applications and in research phases and the potential problems related with it. Another concept to be scrutinized here is how experimental treatments may be turned out to be a subject of hope trade in some communities. Finally, this section is a response given from a geography on the junction of Asia and Europe to the query of how different nations may develop different approaches to similar subjects from a “neuroethics and neurolaw” point of view.
Arkush 2008 Situating Emotion: A Critical Realist View of Emotion and Nonconscious Cognitive Processes for Law and Legal Theory David J. Arkush 2008 BYU L. Rev. 1275 This article attempts to clarify legal thinking about emotion in decision-making. It surveys evidence from psychology and neuroscience on the extensive role that emotion and related nonconscious cognitive processes play in human behavior, then evaluates the treatment of emotion in three legal views of decision-making: rational choice theory, behavioral economics, and cultural cognition theory. The article concludes that each theory is mistaken to treat emotion mostly as a decision objective rather than a part of the decision-making process and, indeed, to treat it as a force that mostly compromises that process. The article introduces the view that emotion is a critical behavioral process that plays a role in most decisions, often nonconsciously, and is not readily amenable to accumulation or maximization. The article discusses the broad implications of this view for welfarist legal theory and policy generally and an ongoing debate on risk regulation between behavioral economists and cultural cognition theorists. It also briefly sketches potential applications for the law of employment discrimination, consumer protection, and criminal law.
Arnaudo 2012 La ragione sociale. Saggio di economia e diritto cognitivi [On Social Reason. An essay in cognitive economics and law] Luca Arnaudo Luiss University Press The book reconstructs the path followed by the economic thought for switching from a rigid axiomatic approach to an experimental-cognitive approach with a distinctive evolutionary flavor and based upon neuroscience knowledge, pursuing a distinctive history of ideas. The book proposes then a similar path to be followed also by the legal thought, in view of reaching a unifying decision theory to be adopted by law and economics for a better understanding and management of human behaviors.
Arnaudo 2011 Cognitive Law: An Introduction Luca Arnaudo 19 Digest. N.I.A.B.A. Law Journal 1 Over the past decades cognitive neuroscience has achieved major results in better understanding the neural basis of human behavior. Eco­nomics has been the first social science interested and able in using some of these results for its own purposes, mainly because of the renewed inter­est towards psychology fostered by behavioral economics. Though with some delay, also the legal studies are now showing a growing in­terest towards cognitive neuroscience researches. The essay first reviews the major facts of this process, then supports new applications of cognitive neuros­cience findings to the law, together with the proposal of a new definition for such field of research. Finally, the essay focuses on possible improvements of legal drafting and law enforcement due to a better cognitive-behavioral knowledge of reactions to legal provisions, also by means of practical experiments.
Aronson 2010 The Law's Use of Brain Evidence Jay D. Aronson 6 Ann. Rev. L. & Soc. Sci. 93 This review examines how advances in neuroscience are affecting civil law, criminal law, and law enforcement. Brain imaging techniques have already been used to detect brain injury, assess pain, and determine mental state and capacity for rational thought. There is also much excitement about using neuroimaging to detect lies and deception in legal and national security contexts. Despite claims of these techniques’ revolutionary nature, numerous questions should be answered about their validity and reliability before they become widely adopted. Neuroscientists still do not fully understand the link between brain activity and behavior or memory formation. Important legal and ethical questions remain unresolved, particularly around the potential effect on juries and judges of colorful, but scientifically unproven, brain images. Finally, the very impetus behind the use of neuroscience in the legal system—to avoid the subjectivity and uncertainty of more traditional methods for assessing thought and behavior—may be misguided.
Aronson 2009 Neuroscience and Juvenile Justice Jay D. Aronson 42 Akron L. Rev. 917 This article focuses on the connection between neuroscience and juvenile justice. Aronson discusses whether the new neuroscience provides sufficiently reliable evidence to establish meaningful differences between adolescent and adult brains and whether science should mitigate the culpability of juvenile defendants and prevent them from being tried in the adult criminal justice system. He concludes that there is still too much scientific disagreement about the relationship between brain structure and decision-making capacity to even contemplate using neuroscience in this way. He notes that the few studies that have shown some link have had significant methodological flaws. In the end, Aronson is not convinced that neuroscience will be able to explain adequately why some teenagers commit crimes and others do not because so many other factors are involved in anti-social behavior, especially socioeconomic issues. He concludes by suggesting that our desire to find a scientific solution to questions of justice may be fundamentally misguided.
Aronson 2007 Brain Imaging, Culpability and the Juvenile Death Penalty Jay D. Aronson 13 Psychol. Pub. Pol'y & L. 115 In Roper v. Simmons (2005), the U.S. Supreme Court banned the death penalty for offenders under the age of 18 years. Central to Simmons's defense was new brain imaging evidence suggesting that the regions of the brain responsible for decision making and impulse control are not as well developed in adolescents as in adults, thereby rendering adolescents less culpable for the crimes they commit. Although these images were not explicitly cited in the Court's decision, they were hailed by anti-death penalty advocates as the wave of the future. However, legal advocates and scientists should be cautious in using cutting-edge neuroscience for criminal justice purposes for several reasons. First and foremost, no definitive link between brain structure and deviant behavior has been established. Furthermore, very little is known about the developmental threshold that separates juvenile decision-making ability from adultlike decision-making ability.
Arrigo 2007 Punishment, Freedom, and the Culture of Control: The Case of Brain Imaging and the Law Bruce A. Arrigo 33 Am. J.L. & Med. 457 The article addresses issues regarding the use of functional magnetic resonance imaging (fMRI) and its application in the case of interrogating criminal suspects. Critical social theory and philosophy criminology insights regarding the use of fMRI were taken into account. Ethical implications of fMRI technology are also discussed.
Aspinwall 2012 The Double-Edged Sword: Does Biomechanism Increase or Decrease Judges' Sentencing of Psychopaths? Lisa G. Aspinwall, Teneille R. Brown, James Tabery 337 Science 6096 We tested whether expert testimony concerning a biomechanism of psychopathy increases or decreases punishment. In a nationwide experiment, U.S. state trial judges (N 181) read a hypothetical case (based on an actual case) where the convict was diagnosed with psychopathy. Evidence presented at sentencing in support of a biomechanical cause of the convict's psychopathy significantly reduced the extent to which psychopathy was rated as aggravating and significantly reduced sentencing (from 13.93 years to 12.83 years). Content analysis of judges' reasoning indicated that even though the majority of judges listed aggravating factors (86.7%), the biomechanical evidence increased the proportion of judges listing mitigating factors (from 29.7 to 47.8%). Our results contribute to the literature on how biological explanations of behavior figure into theories of culpability and punishment.
Atiq 2013 How Folk Beliefs about Free Will Influence Sentencing: A New Target for the Neuro-Determinist Critics of Criminal Law Emad H. Atiq 16(3) New Criminal Law Review 449 Do recent results in neuroscience and psychology that portray our choices as predetermined threaten to undermine the assumptions about “free will” that drive criminal law? This article answers in the affirmative, and offers a novel argument for the transformative import of modern science. It also explains why a revision in the law’s assumptions is morally desirable. Problematic assumptions about free will have a role to play in criminal law not because they underlie substantive legal doctrine or retributive theory, but because everyday actors in the sentencing process are authorized to make irreducibly moral determinations outside of the ordinary doctrinal framework. Jurors, judges, and legislators are each required, at key points in the sentencing process, to make moral judgments that cannot be reached without reference to the person’s own understanding of free will. As a result, sentencing actors give legal effect to widely held folk beliefs about free will—beliefs that the evidence suggests are both scientifically suspect and morally distorting. The relevant beliefs make adjudicators less likely to attend to the underlying causes of crime, such as social deprivation—a tendency that biases adjudicators against relevant arguments for mitigation in sentencing. Modern science could have an important corrective effect in this context.
Azzini 2009 Come lavorare su casi e materiali nel campo delle scienze e del diritto: l’Archivio IBLARC Sara Azzini & Amedeo Santosuosso Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 171
Bader 2010 The Psychology of Mediation: Issues of Self and Identity and the IDR Cycle Elizabeth E. Bader 10 Pepp. Disp. Resol. L.J. 183 Issues of self-identity and self-esteem play an important role in mediation. They may be described in different ways. Sometimes people speak of a party's need to save face, or of a person's ego clouding their thinking, or, in psychoanalytic terms, of narcissistic issues, (a term which no longer necessarily connotes pathology). However they are described, they are part and parcel of the fabric of mediation. Put simply, most people take the conflict personally and the outcome of the mediation as a reflection of who they are. This article discusses these issues by drawing on modern psychoanalytic theory. The dynamics in mediation are reviewed in light of the work of Margaret Mahler, the 'self' psychologists, attachment research and intersubjective psychoanalysis. Cognitive and social science research, neuroscience, and views of self and identity in certain spiritual traditions are also reviewed. As psychoanalytic developmental research shows, much of the hostility and sense of insult one encounters in mediation is a normal defensive reaction to feelings of vulnerability. Paradoxically, some who are most challenged will present as though they were least troubled, manifesting arrogance instead of vulnerability. The concept of psychological power imbalance is introduced. This occurs when people with different types of ego structure negotiate together. Special problems relating to narcissistic defenses and narcissistic personality structures are also discussed. It is posited that the process of mediation often follows a certain pattern due to the role that issues of self and identity play in mediation. The author has denominated this the "IDR Cycle." At the outset, parties experience a type of narcissistic inflation as they plan to enter the mediation. As the mediation continues, and contact with the other parties and the mediator intensifies, there is inevitably a kind of deflation. Finally, the party learns to hold the varying views of the situation in mind, and to weigh choices. This is a kind of wisdom akin to what Margaret Mahler called 'object constancy,' or what Peter Fonagy and colleagues refer to as 'reflective functioning.' At last, hopefully, there is a resolution. In some cases, the process involves a renegotiation of identity. Faced with the painful, practical dilemma inherent in the conflict, the parties begin to realize their situation is exacerbated by the linkage in their minds between the outcome of the mediation and their identities. Under the pressure of the conflict, and hopefully with appropriate assistance from the mediator, they finally manage to cut the link between the two. The release that follows allows for clearer thinking and reflective functioning. This psychological, spiritual and practical achievement heralds the possibility of resolution. The importance of the mediator's respect or deep recognition of the parties is also emphasized. Respect has the advantage of validating the party as a human being while simultaneously addressing the psychological issue inevitably being stimulated by the mediation - the validity, stability and value of the party's sense of identity. Deep recognition is seen as contrasting with and complementing 'mindfulness' practice and with recognition as discussed in other spiritual traditions and by intersubjective theorists. Mediation practice is also discussed at length in this article. In particular, the importance of the mediator's skill in dealing with her own narcissistic issues is emphasized.
Baertschi 2011 Genetic Determinism, Neuronal Determinism, and Determinism Tout Court Bernard Baertschi & Alexandre Mauron Oxford Handbook of Neuroethics (Oxford Univ. Press, Judy Illes & Barbara J. Sahakian, eds., 2011). This article analyses neuronal determinism (neurodeterminism) and mentions that at first sight it appears to be a type of qualified determinism. Neurodeterminism is better conceived as determinism tout court when it is applied to human beings. It differs importantly from genetic determinism, together the two views that are often regarded as similar in form if not in content. Moreover, the article examines the question of genetic determinism, because it is a paradigm of qualified determinism. It then explains the meaning of determinism tout court, its relation with the notions of “free will” and “responsibility,” and the debate about their alleged incompatibility. It provides an understanding of what neurodeterminism consists of, shows that it should be conceived as determinism tout court when it is applied to human beings, imparting an empirical turn to a very old metaphysical conundrum.
Baertschi 2009 La neuroéthique : Ce que les neurosciences font à nos conceptions morales Bernard Baertschi Paris, Editions La Découverte Depuis quelques décennies, les progrès de l'imagerie cérébrale (scanners et résonance magnétique) ont permis un développement sans précédent de notre connaissance du cerveau. Comme souvent, les avancées scientifiques et les applications qu'elles rendent possibles soulèvent des questions éthiques fondamentales. Leur enjeu apparaît ici d'autant plus décisif qu'elles concernent un organe qui symbolise pour beaucoup la personne elle-même : mieux connaître le cerveau, c'est mieux nous connaître : et agir sur lui, c'est agir sur notre identité. Jusqu'où pouvons-nous et devons-nous aller ? Au-delà des problématiques proprement éthiques, le domaine de la neuroéthique s'étend à des questions philosophiques fondatrices, que les neurosciences renouvellent en profondeur : la nature de l'être humain, les rapports de l'âme et du corps, le libre arbitre ou l'identité personnelle. Cet ouvrage est principalement consacré à quatre de ces questions : le rôle. classiquement dévalorisé par les philosophes, des émotions dans nos décisions morales : la place de la responsabilité et de la liberté individuelles à l'épreuve du déterminisme cérébral : l'observation des états mentaux à travers la neuro-imagerie qui réactive un vieux rêve, lire dans l'esprit : et enfin l'amélioration des capacités humaines que promettent les médicaments du cerveau. En soumettant les neurosciences à l'examen philosophique et, réciproquement, en étudiant en quoi leurs avancées nous obligent à repenser nos conceptions morales, cette réflexion solidement argumentée évite à la fois un refus de principe et un enthousiasme naïf.
Baird 2012 Juvenile Neurolaw: When It's Good It is Very Good Indeed, and When It's Bad It's Horrid Abigail A. Baird, Christy L. Barrow, Molly K. Richard 15 J. Health Care L. & Pol'y 15 The article focuses on the U.S. Supreme Court case Ayotte v. Planned Parenthood, which dealt with the constitutionality of the New Hampshire Parental Notification Prior to Abortion Act requiring parental consent for abortions in minors. Topics include juveniles' ability to make health care decisions and the history of parental consent laws in the U.S.
Baird 2006 The Emergence of Consequential Thought: Evidence from Neuroscience Abigail A. Baird & Jonathan A. Fugelsang Law and the Brain 245 (Oxford Univ. Press, Semir Zeki & Oliver Goodenough, eds., 2006). The ability to think counterfactually about the consequence of one's actions represents one of the hallmarks of the development of complex reasoning skills. The legal system places a great emphasis on this type of reasoning ability as it directly relates to the degree to which individuals may be judged liable for their actions. The present paper reviews both behavioural and neuroscientific data exploring the role that counterfactual thinking plays in reasoning about the consequences of one's actions, especially as it pertains to the developing mind of the adolescent. On the basis of assimilation of both behavioural and neuroscientific data, it proposes a brain-based model that provides a theoretical framework for understanding the emergence of counterfactual reasoning ability in the developing mind.
Baker 2011 Time for Change: Handling Child Prostitution Cases in Georgia K. Michael Baker 4 J. Marshall L.J. 177 This Comment proposes several changes to handle CSEC cases in a better manner. First, Georgia should adopt the Child Protection and Public Safety Act, originally introduced in the state Senate in 2009. Article 6 of the Child Protection and Public Safety Act creates the designation “Child in Need of Services” (“CHINS”), which provides the legal framework for processing cases of children determined to be in need of rehabilitative services. Second, in conjunction with that framework, Georgia should enact a “Safe Harbor” bill, creating a rebuttable presumption that individuals below the age of eighteen charged with prostitution are victims and children in need of services. This legislation should establish that: (1) a person under the age of eighteen who is charged with prostitution or solicitation of sodomy is a severely trafficked person under the federal Trafficking Victims Protection Act of 2000; (2) any case involving a person under the age of eighteen who is a severely trafficked person shall proceed under Article 6 of the Child Protection and Public Safety Act; and (3) these children shall receive services from Georgia's Governor's Office for Children and Families through Georgia Care Connection. In addition, the legislation should retain a criminal element giving discretion to the court for determining whether the rehabilitative process in Article 6 is futile. If the process is futile, then the case may proceed through the court process with a delinquency petition.
Ball 2009 Damages and the Reptilian Brain David Ball 45-SEP Trial 24
Bandes 2011 Moral Imagination in Judging Susan A. Bandes 51 Washburn L.J. 1 The debate over the role of empathy in judging has revealed a tenaciously hardy folk conception of judicial deliberation and the judicial role. This concept is most crudely captured in Chief Justice Roberts’ well-known “umpire” metaphor, in which judges leave all their preconceptions and values behind and simply discover and apply the law “as written.” This conception is the legal variant of the hardy philosophical notion that moral reasoning is the process of discovering and applying a system of universal moral laws, and that these laws exist in a realm that transcends individual subjectivity. If laws are universal, timeless and discoverable, then a decision-maker’s attributes, beliefs and values; his or her situatedness in a tradition, a culture, a historical time and place, can only be impediments to rational decision-making. This notion of rationality has long been a subject of criticism, but few of its critics have had kind words for the role of empathy or moral imagination in the judicial process. Yet empathy and moral imagination implicate questions that go to the heart of longstanding jurisprudential debates. What role should a judge’s prior assumptions and values play in decision-making? What factors are relevant to principled adjudication? How do judges give meaning to spacious, indeterminate terms like due process and equal protection of law? What institutional reforms might serve to improve the quality of the deliberative process? I will argue that the denial of indeterminacy and the myth of the omniscient judge pose significant barriers to the rule of law. The widespread reaction against the role of empathy is based on unrealistic and largely undefended notions of the judicial role and the process of judicial deliberation. More broadly, it reflects assumptions about deliberation that are increasingly out of synch with developing understandings of moral cognition. Empathy and moral imagination, properly understood, are part of the solution to the problem of unaccountable judges interpreting indeterminate law, rather than part of the problem.
Bandes 2010 The Promise and Pitfalls of Neuroscience for Criminal Law and Procedure Susan A. Bandes 8 Ohio St. J. Crim. L. 119 This short essay is the conclusion to a symposium entitled Neuroscience, Cognitive Psychology and the Criminal Justice System. The symposium, based on papers presented at an AALS Criminal Justice Section panel at the 2010 Annual Meeting, contains an introduction by its guest editor Deborah Denno, and articles by Alafair Burke, John Darley, and Andrew Taslitz.
Bandes 2009 Repellent Crimes and Rational Deliberation: Emotion and the Death Penalty Susan A. Bandes 33 Vt. L. Rev. 489 It is often assumed that the anger, outrage, and other strong emotions provoked by repellent crimes interfere with rational deliberation. There is some truth to the notion that heinous murders and other shocking crimes place an enormous strain on the criminal justice system and may exert a destructive influence on institutional process. Nevertheless, the argument that strong emotion interferes with rational deliberation begs the question: what is rational deliberation? In this article, Bandes argues for an understanding of rational deliberation that recognizes its pervasive emotional content. Bandes suggests that the legal system operates on certain misconceptions about emotion that are harmful to the institutional process. The most pervasive misconception is that the very attempt to address emotion is destabilizing to the rule of law. Though the legal system rarely incorporates scientific or social-scientific knowledge of emotional dynamics, it nevertheless operates on its own assumptions about how emotions work. It tends to take three approaches to emotion: requiring it to be “set aside” (e.g., the antisympathy instruction), permitting it to be “introduced” (e.g., the victim impact statement), and ignoring it (e.g., the refusal to clarify the meaning of life without parole despite evidence that juries misunderstand the term). This article argues that the legal approach to emotion and rationality is based on three primary misconceptions about the nature of emotion: 1) that emotions are tangible objects with an identity independent of the person they are in or the institutional context in which they occur; 2) that emotions are private and internal feelings rather than processes that take shape in a social world; and 3) that emotions are bursts of uncontrollable passion that short-circuit rational deliberation. Using the example of capital punishment, Bandes illustrates that these misconceptions have serious consequences for the structure and operation of the capital system.
Banks 2010 Do We Really Know What We Are Doing? Implications of Reported Time of Decision for Theories of Volition William P. Banks & Eve A. Isham Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). Is the moment of conscious decision (known as W), as timed by Benjamin Libet and colleagues, a measure of volition? This chapter discusses a new experiment showing that the perceived time of response (known as M) is also shifted by the same auditory cue that shifts W. The experiment showed that the strength of the tactile sensation of pressing the response button does not affect the apparent time of response or the auditory cue. A second experiment showed that judgments of another person performing in a Libet task show an effect of the delayed cue on M and W. Two final experiments showed that use of a digital clock gives results quite different from the analog clock most often used in these studies. The chapter argues that many inferences drawn from M and W reported from an analog clock need to be reconsidered. It also discusses implications for theories of volition.
Barbee 2011 Juveniles are Different: Juvenile Life Without Parole After Graham v. Florida Michael Barbee 81 Miss. L.J. 299
Barcs 1997 Investigation of Vehicle Driving Ability in Two Diagnostic Groups of Epileptic Patients With Special Neuropsychological Approach Gabor Barcs, Jozsef Vitrai, & Peter Halász 16 Med. & L. 277 The driving abilities of two groups of epileptic patients (temporal lobe epileptics: 44 and idiopathic generalized epileptics: 26) and a control group of healthy volunteers were compared. A computerized device (MST-CARAT), was used by comparing the test performance measures with the results of the practical driving tests. The results show that the neuropsychological aspects deserve greater attention in temporal lobe epileptic patients in general and in those epileptic patients receiving non-monotherapy (especially on Phenobarbital). The level of driving skill of well-treated idiopathic generalized epileptic patients was similar to that of normal drivers.
Bard 2012 Oh Yes, I Remember it Well: Why the Inherent Unreliability of Human Memory Makes Neuroimaging Technology a Poor Measure of Truth-Telling in the Courtroom Jennifer S. Bard University of New Mexico Law Review We all know that human memory is unreliable. But we consider less often is how difficult it is evaluate our own memories for accuracy. The song referenced in the title of this article concerns a conversation about two lovers describing their first meeting - in all good faith both remember it quite differently. Yet the quest to know the thoughts of others as well as identify when we are being deliberately deceived has encouraged the application of newly developed technologies to the task of reading minds. From witch dunking to phrenology to polygraphs, science’s promise to access thought has been met with first great enthusiasm and then even greater disappointment. Today, companies like NoLie MRI are advertising the latest version of this promise in the form of software which, it claims, can use brain imaging technology to “by-pass” conscious thought and identify deliberate deception. This article takes a new approach to considering the prospect of mind reading technology in that it reviews the claims made by those selling access to thoughts in light of the current cognitive understanding about human memory which requires us to retire the heuristic of the brain as a camera. It then links the current understanding of memory with the strong criticisms made by the Innocence Project and others seeking to overturn wrongful convictions about the misuse and over-reliance on eye-witness testimony which also is based on a misunderstanding of the inherent unreliability of memory. It argues that both information from neuroimaging and direct eye-witness testimony must meet rigorous standards for admitting forensic scientific evidence before being offered to juries to assist in fact-finding. Although much has been written about neuroimaging as a method of truth detection, this article takes a new approach by identifying the information which comes from neuroimaging as “memory” and then by analyzing it in the context of contemporary cognitive science. It also addresses the tenacity of the claim that there is such a thing as direct access to past events whether through eye-witness testimony or neuroimaging. Any law student who has taken Evidence has read about, or better experienced, an experiment in which a man bursts into a crowded classroom, runs through shouting and then leaves. When questioned directly after the event there is strong disagreement among the witnesses as to what the man was saying, what he was wearing and whether or not he had a gun. Based on the work of psychologist Elizabeth Loftus, now on the faculty of the University of California at Irvine Law School, this experience, more than any dry article about cognitive science, demonstrates the inherent unreliability of human memory and the conviction of eye-witnesses about what they have seen. Lawyers involved in the Innocence Project which is seeking to challenge wrongful convictions based on eye-witness testimony by examining conflicting DNA evidence have further brought these findings to public attention. Yet despite what has become common knowledge about the malleability of human memory, the idea that it’s possible to access the brain directly to find out whether a witness is telling the truth is being put forward by companies which seek to profit from research that suggests that new imaging technology can detect when a human is telling a lie. These companies are advertising this technology as a tool for law enforcement and promoting its use in U.S. trials as a way of helping juries to assess the credibility of witnesses. This article explores these claims that neuroimaging scans can be used to detect lies, which far exceed those made by responsible scientists, and also puts them in the context of a series of U.S. Supreme Court cases which have dramatically changed how scientific (forensic) evidence can be presented to the jury in criminal trials. In this article I argue that promises of lie detection are not only based on false premises, but they are harmful to the integrity of the legal system because they seek to substitute a technology, which is not just undeveloped and inadequately tested but inherently flawed, for the judgment of the fact-finder, judge or jury, in a criminal trial. I conclude that even if there was neuroimaging technology which could provide direct access to human thought, the result would share the inaccuracies and subjectivity that we already know is an inherent feature of human memory. Moreover, because this technology promises to do something that jurors know they cannot - determine when a person is lying - there is a substantial risk that it will prejudice defendants because jurors will substitute the results of the technology for their own collective judgment.
Barillare 2006 As Its Next Witness, the State Calls . . . the Defendant: Brain Fingerprinting As “Testimonial” Under the Fifth Amendment Jody C. Barillare 79 Temp. L. Rev. 971 As the rapidly developing field of cognitive neuroscience continues to produce advanced technologies to extract information from the brain, its intersection with the criminal justice system is inevitable. While these analyses have the potential to be extremely useful, the continued proliferation of these technologies throughout the law enforcement community and judicial system will raise serious constitutional issues. This article seeks to analyze the impact of one such emerging brain imaging technology, “Brain Fingerprinting,” on the Fifth Amendment’s privilege against self-incrimination. Specifically, the article examines the Fifth Amendment implications of the government compelling a criminal suspect to undergo a Brain Fingerprinting analysis and using the resulting evidence against them at trial. The article begins by briefly explaining the science of Brain Fingerprinting and the historical and ideological underpinnings of the Fifth Amendment’s privilege against self-incrimination. After summarizing current Fifth Amendment jurisprudence, the article focuses on the critical question of whether compelled Brain Fingerprinting obtains “mere physical evidence” or elicits “testimonial communications” from a suspect. The author ultimately argues that although Brain Fingerprinting appears directed at obtaining physical evidence, it actually elicits testimonial psychological responses that force a suspect to reveal the contents of his mind and involuntarily disclose incriminating information to the government in violation of the Fifth Amendment. Due to the involuntary nature of Brain Fingerprinting–no questions or answers are required and the suspect cannot prevent his brain from emitting the critical brain waves–compelling a suspect to submit to a Brain Fingerprinting analysis would be akin to forcing him to testify against himself at his own trial. Despite the pitfalls of compelled Brain Fingerprinting, the use of voluntary Brain Fingerprinting has the potential to be an effective tool in ensuring justice is served by exonerating innocent suspects and those who may have been wrongfully convicted.
Barnard 2008 Deception, Decisions, and Investor Education Jayne W. Barnard 17 Elder L.J. 201 Tens of millions of dollars each year are spent on investor education. Because older adults (those aged sixty and older) are disproportionately victims of investment fraud schemes, many educational programs are targeted at them. In this article, Professor Barnard questions the effectiveness of these programs. Drawing on recent studies from marketing scholars, neurobiologists, social psychologists, and behavioral economists examining the ways in which older adults process information and make decisions, she offers a model of fraud victimization (the “deception/decision cycle”) that explains why older adults are often vulnerable to investment fraud schemes. She then suggests that many of the factors that contribute to fraud victimization are unlikely to be influenced by fraud prevention education. She also recommends alternative uses for the money now spent on fraud prevention education that would better achieve the goal of protecting older investors.
Barnden 2001 Artificial Intelligence, Mindreading and Reasoning in Law John A. Barnden & Donald M. Peterson 22 Cardozo L. Rev. 1381 One aspect of legal reasoning is the act of working out another party's mental states (their beliefs, intentions, etc.) and assessing how their reasoning proceeds given various conditions. This process of “mindreading” would ideally be achievable by means of a strict system of rules allowing us, in a neat and logical way, to determine what is or what will go on in another party's mind. The authors argue, however, that commonsense reasoning, and mindreading in particular, are not adequately described in this way: they involve features of uncertainty, defeasibility, vagueness, and even inconsistency that are not characteristic of an adequate formal system. The authors contend that mindreading is achieved, at least in part, through “mental simulation,” involving, in addition, nested levels of uncertainty and defeasibility. In this way, one party temporarily puts himself or herself certainly in the other party's shoes, without relying wholly on a neat and explicit system of rules. They also describe the ATT-Meta system, an artificial intelligence program one of whose functions is to model mindreading through simulation. The creation of such a model is valuable in part because it forces us to clearly formulate the details of how the relevant processes are achieved, in particular the nested process of reasoning about another party's reasoning.
Barnhorn 2011 Speak the Truth and Tell No Lies: An Update for the Employee Polygraph Protection Act David Barnhorn, Joey E. Pegram 29 Hofstra Lab. & Emp. L.J. 141 As a society and as human beings, we are inherently fascinated with uncovering the unknown, especially when it involves what those around us are thinking - how they feel about us, what they are planning next, and most importantly, whether or not they are lying. [FN2] This idea manifests itself from the esoteric, with a vast number of superheroes [FN3] and book characters possessing telepathic powers, to the concrete, with man's attempt to make this nagging desire a reality in the form of a lie-detector machine. As one journalist puts it “[t]here is something disconcerting about the fact that we can map the human genome and land a robot on Mars, but we still can't say for sure whether someone is trying to pull the wool over our eyes.” [FN4] *142 In 1988, Congress passed the Employee Polygraph Protection Act (“EPPA”) to restrict the startlingly high use of lie detection devices in the workplace. [FN5] While this law did much to combat the use of these inaccurate devices, the codified exemptions in the law left many individuals, namely public sector employees, unprotected. In addition to these gaps in the legislation, new and increasingly intrusive technology is being marketed as a lie detection device. These shortcomings and technological advancements urgently require a change in the EPPA's statutory framework. The purpose of this Note is to outline the changes necessary to cure the current weaknesses in the EPPA and bring it up to date. Section II describes the history of the polygraph itself as well as the EPPA. Section III outlines the current statutory provisions and the corresponding regulations of the EPPA and discusses the law's exemptions in detail. Section IV explores functional magnetic resonance imaging (“fMRI”), a medical scan similar to an MRI that is being touted as the newest form of lie detection. Lastly, Section V proposes amendments and modifications to the EPPA to update the law and ensure its continued effectiveness.
Barros 2010 Human Behavior, Evolution, and the Law: The Case of the Biology of Possession Benjamin Barros Prop., Land Use & Real Est. L. eJournal Possession is a foundational idea in property law. Recent scholarship has suggested that respect for possession may be an innate aspect of human behavior. Jeffrey Evans Stake argued in 2004 that there is an evolutionary basis for an instinct to respect possession. More recently, Ori Friedman and Karen Neary have published the results of psychological studies suggesting that both adults and children tend to associate prior possession with ownership. These studies suggest that the respect for possession that is at the center of our property law may be consistent with – and, indeed, may have its basis in – basic human behavioral tendencies. In this Essay, Barros considers the relevance of this behavioral research to normative issues in property law. Along the way, Barros discusses the broader issue of the potential relevance of biological facts about human behavior to the law. He argues that facts about actual human behavior, like those discussed in Friedman & Neary’s research, are potentially relevant to property and other legal issues. In contrast, he argues that evolutionary arguments like those made by Stake are not relevant to property or other legal issues. Barros criticizes Stake’s evolutionary argument on two levels. First, he argues Stake’s evolutionary claims lack evidentiary support and fail to connect in subtle but important ways with substantive property law. Second, drawing in part on arguments recently developed by Brian Leiter and Michael Weisberg, he argues that evolutionary facts, even if scientifically well founded, have little or no relevance to normative legal issues, in property or otherwise.
Barth 2007 A Double-Edged Sword: The Role of Neuroimaging in Federal Capital Sentencing Abram S. Barth 33 Am. J.L. & Med. 501 The article examines the limitations and role of neuroimaging in federal capital sentencing in the U.S. The impact of frontal lobe dysfunction to the behavior of an individual is taken into account. Current federal procedure for capital cases are also discussed. Key information about the role of defense counsel and mental health experts in neuroimaging cases is also presented.
Baskin 2007 Is a Picture Worth a Thousand Words? Neuroimaging in the Courtroom Joseph H. Baskin, Judith G. Edersheim & Bruce H. Price 33 Am. J.L. & Med. 239 The article examines the legal implications of neuroimaging. The historical use of neurologic evidence in criminal cases was taken into account as well as the attempt to create a science of criminality. Current research on the attempt to use functional imaging in constructing a neuropathologic diagnosis are reviewed. Key information about brain imaging and relevant neuroanatomy is also presented.
Batts 2009 Brain Lesions and Their Implications in Criminal Responsibility Shelley Batts 27 Behav. Sci. & L. 261 For over 200 years, Western courts have considered pleas of not guilty by reason of insanity (NGRI) for defendants in possession of a mental defect rendering them unable to understand the wrongfulness of their act. Until recently, determining the mental state of a defendant has fallen largely upon the shoulders of court psychologists and experts in psychiatry for qualitative assessments related to NGRI pleas and mitigation at sentencing. However, advances in neuroscience - particularly neurological scanning techniques such as magnetic resonance imaging (MRI), functional magnetic resonance imaging (fMRI), computed tomography scanning (CT), and positron emission tomography scanning (PET) - may provide additional, pertinent biological evidence as to whether an organically based mental defect exists. With increasing frequency, criminal defense attorneys are integrating neuroimaging data into hearings related to determinations of guilt and sentencing mitigation. This is of concern, since not all brain lesions and abnormalities indicate a compromised mental state that is relevant to knowing whether the act was wrong at the time of commission, and juries may be swayed by neuroscientific evidence that is not relevant to the determination of the legal question before them. This review discusses historical and modern cases involving the intersection of brain lesions and criminality, neuroscientific perspectives of how particular types of lesions may contribute to a legally relevant mental defect, and how such evidence might best be integrated into a criminal trial.
Bauermeister 2006 Responding to Juror Bias—Gaining Insight From Cognitive Neuroscience Don C. Bauermeister Winter ATLA-CLE 89
Becker 2013 A Glimpse into the Future? The Current, Potential, and Appropriate Role of Functional Magnetic Resonance Imaging (fMRI) Evidence as a Predictor of Dangerousness in the American Criminal Sentencing Context Sarah Becker University of Toronto Faculty of Law, Master of Laws Thesis Research suggests there are neurological predictors of violence, such as brain function abnormalities most frequently displayed by violent offenders who may suffer from a psychological phenomenon termed “psychopathy.” Functional magnetic resonance imaging (fMRI) can detect signs of some of these brain abnormalities. Neurological markers of violence, evident in a convicted individual’s fMRI results, could speak to that offender’s tendency to act violently in the future. Can fMRI play a meaningful role in estimating recidivism rates and in sentencing? Even if fMRI evidence meets legal thresholds for use in sentencing, should it be employed in light of many concerns, such as reliability, as the implications of predicting an individual’s dangerousness based on fMRI evidence are substantial, especially in the context of defendant rights. Moreover, neurological indicators of violence may undermine a holistic approach to sentencing that considers the convicted individual’s particular story.
Beecher-Monas 2006 Genetic Predictions of Future Dangerousness: Is There a Blueprint for Violence? Erica Beecher-Monas & Edgar Garcia-Rill 69 J. L. & Contemp. Prob. 301 This article discusses the relationship of genetics and neuroscience in the context of future dangerousness predictions. At least since the late Nineteenth Century, courts and prisons have attempted to discriminate between the innately criminal, and those who acted merely by force of circumstance (whose crimes, being caused by circumstance rather than nature, would not pose a future danger to society). In order to distinguish the dangerous criminals from the merely circumstantial ones, predictions of future dangerousness became vital to the criminal justice system, and continue as a pervasive influence in death penalty adjudications and sex offender civil commitment hearings. This article discusses the fallacy of genetic determinism and explains the complex interactions between genes, environment and developmental forces in generating behavior.
Beecher-Monas 2003 Danger at the Edge of Chaos: Predicting Violent Behavior in a Post-Daubert World Erica Beecher-Monas & Edgar Garcia-Rill 24 Cardozo L. Rev. 1845 This interdisciplinary article explores the boundaries of predicting violence in the context of capital sentencing decisions. Currently, experts are permitted to proffer opinions in death sentencing proceedings that have little grounding in science, without any examination of the scientific validity of their assertions. They are permitted to do so because, despite being widely castigated as wholly unscientific by the scientific community, predictions of future dangerousness were found to be constitutionally admissible in Barefoot v. Estelle. Standards for evaluating expert testimony have changed considerably since Barefoot, however. The Supreme Court, through its Daubert line of cases, has caused a paradigm shift in the evaluation of scientific evidence in both state and federal courts. The kind of unscientific predictions proffered in Barefoot continue nonetheless to be routinely admitted in sentencing proceedings without any judicial gatekeeping efforts. The tension between the scientific scrutiny required for admissibility even in civil cases (where money damages are at stake) and the unscientific predictions freely admissible in capital sentencing determinations (where the issue is death) is, at best, troubling. This article explores the validity of dangerousness predictions in light of the latest scientific research about brain structure and function. It also discusses the development of actuarial instruments to assess risk, and compares three predominant actuarial instruments. Based on criteria scientists themselves use to assess validity, as well as the Supreme Court's requirements in Daubert, Joiner, and Kumho Tire, this article outlines a framework for sound analysis of scientific evidence regarding predictions of future violence. Drawing on insights from brain science as well as complexity theory and empirical studies of jury decision-making, this article concludes that although actuarial instruments should be used with caution, they offer improvements over the unaided judgment of juries and over the kind of unscientific assertions about future dangerousness currently typical in capital sentencing proceedings. This is an important and timely issue, because the consequences of misleading the jury in a death sentencing determination are severe, not only for the defendant, but for a society that values justice and aspires to rationality.
Beecher-Monas 1999 Essay: The Law and the Brain: Judging Scientific Evidence of Intent Erica Beecher-Monas & Edgar Garcia-Rill 1 J. App. Prac. & Process 243 Expert testimony about mental capacity is proffered in both civil and criminal trials. This essay explores the application of Daubert gatekeeping requirements to mental capacity testimony. It contends that an opinion as to the existence and implications of a hypothesized mental state must be based on empirical data, and that judges who admit testimony without such a basis are avoiding their gatekeeping responsibilities. Brain science, however, is an evolving field, requiring flexibility on the part of judges who must be prepared to continually rethink issues of mental disorder in the light of new data and new understandings of how complex systems (like the brain) work. This may be a tall order for judges who prefer certainty and stare decisis, but it is necessary to the proper evaluation of scientific testimony. The essay also presents some foundational concepts to guide judges in their task.
Belcher 2013 Neuroscience Basics Annabelle M. Belcher & Adina L. Roskies in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds.
Belcher 2010 Neurolaw Annabelle Belcher & Walter Sinnott-Armstrong 1 Wiley Interdisc. Revs: Cognitive Sci. 18 Less than three decades ago, the fields of cognitive psychology and neuroscience joined forces to form cognitive neuroscience. More recently, neuroscience has combined with social psychology and with economics to produce social neuroscience and neuroeconomics. Each of these amalgamations has been revolutionary in its own way. Neurolaw extends this trend.
Bellin 2007 Significance (If Any) for the Federal Criminal Justice System of Advances in Lie Detector Technology Jeffrey Bellin 80 Temp. L. Rev. 711 Against a backdrop of accelerating developments in the science of lie detection certain to reopen the debate on the reliability and therefore admissibility of lie detector evidence in the federal courts, this Article examines whether the prohibition on hearsay evidence (or other evidentiary objections) will preclude admissibility of even scientifically reliable lie detector evidence. The Article concludes that the hearsay prohibition, which has been largely ignored by courts and commentators, is the primary obstacle to the future admission of scientifically valid lie detector evidence. The Article also suggests a potential solution to the hearsay problem that may allow admission of lie detector evidence in narrowly defined circumstances.
Benforado 2010 The Body of the Mind: Embodied Cognition, Law, and Justice Adam Benforado 54 St. Louis U. L.J. 1185 Recent research from embodied cognition strongly contests the dualist notion of the mind as distinct and apart from the biological machine of the body - a conception that has powerfully shaped our laws, legal practices, theories, and institutions for centuries. According to the embodied (or grounded) cognition perspective, the body is involved in the constitution of the mind. Thus, beyond our conscious awareness, an abstract concept, like trustworthiness, may be primed by sensorimotor experience, like feeling physical warmth. This Article introduces recent insights from this budding field, discusses some of the potential implications of experiments in embodied cognition for courtroom interactions, and addresses the significant challenges to using this research as a means to reform.
Bennett 2012 Neurolaw: Brain Waves in the Courtroom Alison K. Bennett & Jason Bloom 75 Tex. B.J. 280
Bennion 2013 A Right to Remain Psychotic? A New Standard for Involuntary Treatment in Light of Current Science Elizabeth Bennion Loyola of Los Angeles Law Review Mass shootings, such as the killing of school children and staff in Newtown, Connecticut, have provided brutal reminders of inadequacies in our nation’s mental health system. In the wake of these shootings, President Obama asserted that “[w]e are going to need to work on making access to mental health care as easy as access to a gun.” But what should society do when the person needing mental health treatment refuses care — when the problem is not rooted in access but in free will? When is involuntary treatment justified? In deciding whether to forcibly medicate, multiple interests come into play, including patient autonomy, public safety, and the patient’s medical welfare. As a society, we have overemphasized patient autonomy and underemphasized patient welfare to the detriment not only of the patient’s well being but also of public safety — and even to the detriment of patient autonomy itself. This Article briefly examines the history of the involuntary treatment debate and how society arrived at the present imbalance. It then considers the implications of current scientific research on the brain and the nature of severe mental illness, using schizophrenia as an illustrative example. The Article explains how current involuntary treatment standards could be revised to reflect this scientific understanding and continue protecting a patient’s civil rights without making undue sacrifices of the patient’s long-term health and well-being. It also defends the proposed new standard against potential constitutional challenges. The new standard would allow involuntary treatment for a limited number of years after onset of severe psychotic symptoms under specified conditions. It would also provide for more access to medical information by patients’ immediate family members and primary caretakers. The standard reflects (1) research showing the vital importance of early treatment for long-term prognosis and prevention of irreversible injury to the brain; (2) statistics suggesting the particular vulnerability of a maturing brain; (3) a respect for autonomy and the patient’s ultimate agency to reject treatment if no satisfactory treatment option can be found; (4) consideration of factors that uniquely affect autonomy concerns when patients are severely psychotic; and (5) research demonstrating that family involvement can greatly benefit treatment outcomes. Because brain science is currently an area of explosive growth and discovery, this Article recognizes that any involuntary treatment standard will need to be continually re-examined and revised in light of scientific progress.
Bertolino 2008 Il "Breve" Cammino del Vizio di Mente. Un Ritorno al Paradigma Organicistico [The Short Path of Mind’s Fault. A Comeback to the Organicist Paradigm] Marta Bertolino 3 Criminalia. Annuario di scienze penalistiche 325 Lo scritto riproduce l'intervento al Convegno "Le neuroscienze e il diritto", tenuto a Milano il  dicembre 2008. Premesse alcune considerazioni sul tema dell'imputabilità penale, la cui definizione in termini di capacità di intendere e di volere è rinvenibile nell'art. 85 c.p., l'Autore si sofferma sull'attuazione dei presupposti sostanziali della responsabilità penale nell'ambito del processo, sotto il profilo dell'accertamento dei coefficienti psichici di attribuibilità del fatto all'autore. Ad arricchire la funzione cognitiva di tale accertamento contribuiscono di recente senza dubbio le neuroscienze, le cui conquiste scientifiche si sono rapidamente imposte all'attenzione degli studiosi. Le neuroscienze applicate al diritto, soprattutto ai fini dell'accertamento dell'infermità mentale, sembrano addirittura superare le aspettative iniziali: le neuroimmagini del cervello e la rilevazione dei danni ai lobi prefrontali sembrano offrire una piattaforma descrittiva idonea a fare piena luce sulle correlazioni tra funzioni cerebrali e comportamento umano. L'Autore avverte, tuttavia, che, poiché sono in discussione la responsabilità penale e la conseguente limitazione della libertà individuale dell'imputato, sarebbe opportuno accedere ad una prospettiva metodologica del tutto peculiare, ispirata dallo scopo di combinare le evidenze scientifiche con la loro valutazione giudiziale: accanto ad un primo livello di indagine, al quale rimettere la valutazione dell'affidabilità scientifica della prova tecnica, dovrebbe essere sviluppato un secondo livello di indagine, nell'ambito del quale riservare al giudice l'espressione di un giudizio circa l'affidabilità delle risultanze scientifiche ed il grado di rilevanza alle stesse attribuibile a fini probatori nell’ambito del processo.
Beschle 2006 Cognitive Dissonance Revisited: Roper v. Simmons and the Issue of Adolescent Decision-Making Competence Donald L. Beschle 52 Wayne L. Rev. 1
Bianchi 2010 Neuroscienze cognitive e diritto: spiegare di più per comprendere meglio [Cognitive neuroscience and the law: the need to explain more for understanding better] Angelo Bianchi 2 Sistemi intelligenti 295
Bianchi 2009 Manuale di Neuroscienze Forensi [Forensic Cognitive Neuroscience Handbook]Giuffrè, Milano, 2009. Angelo Bianchi, Guglielmo Gulotta, Giuseppe Sartori Giuffrè, Milano (Angelo Bianchi, Guglielmo Gulotta, Giuseppe Sartori, eds.)
Bianchi 2007 La complessità del danno psichico [The complexity of psychic damage] Angelo Bianchi 9 Responsabilità civile e previdenza 1990
Bigler 2012 MRI and Functional MRI Erin D. Bigler Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) Neuroimaging provides objective information about brain structure and function. In neurological and neuropsychiatric disorders computed tomography (CT) and magnetic resonance imaging (MRI) are the standards. The basics of CT and MRI are reviewed, with an emphasis on MRI, including quantitative methods used to assess the integrity of brain structure. MRI methods to assess the brain's connectivity using diffusion tensor imaging (DTI) are covered along with functional neuroimaging methods, in particular functional MRI (fMRI).
Binford 2012 Criminal Capacity and the Teenage Brain: Insights from Neurological Research Warren Binford 14(3) The Dynamics of Youth Justice & the Convention on the Rights of the Child in South Africa 1 Recent advances have been made in magnetic resonance imaging (‘MRI’) that allow researchers to create and study three dimensional images of the brain without using radiation. This technological development allows scientists to safely monitor children’s neurological development over the years. The information culled from this groundbreaking research tells not just how, but why, adolescents act the way they do from the perspective of neuroscience. Does a neuroscience perspective matter more than civilization’s collective wisdom in persuading jurists to treat adolescents differently than adults in criminal matters? Apparently, it does, at least in the United States Supreme Court, which recently struck down a series of controversial sentencing practices involving children, including the death penalty and mandatory life imprisonment without the possibility of parole. In issuing these decisions, the U.S. Supreme Court expressly cited the recent findings of neuroscientists as a reason for their decisions. This article summarizes recent neurological research on teen brain development and briefly highlights recent U.S. Supreme Court decisions that appear to have been influenced by the latest neuroscientific research.
Bird 2003 Cognitive Neuroscience as a Model for Neural Software Patent Examination Joseph S. Bird 31 AIPLA Q.J. 273 This article argues that the present classification system employed by the U.S. Patent & Trademark Office ("PTO") is insufficient for neural software patent examination. Neural software, also known as neural computation or artificial intelligence ("AI"), is software that performs functions analogous to the central nervous system—rather than those normally performed by machines as is the realm of conventional software inventions. The intangibility of neural software makes categorization especially difficult within the present PTO system of classification. A new set of categories would help the PTO and practitioners keep track of important similarities and distinctions among neural software inventions. This new classification system, to be used in addition to the existing application-specific classifications of the PTO, should be created based on cognitive neuroscience. The PTO, as well as the court system, can easily use the ready set of categories provided by the actual functions of the central nervous system to improve the quality of prior art searches, and the application of novelty, obviousness, and § 112 principles in both the examination and validity contexts.
Birke 2011 Neuroscience and Negotiation Richard Birke 17 Disp. Resol. Mag. 4 Neuroscience is everywhere. A search in Amazon.com's book section for the word neuroscience yields more than 13,000 entries. A similar search of NPR's Internet archives shows more than 3,300 stories on the workings of the brain. Every week, magazine covers from such prominent journals as The New York Times Book Review, The Economist, Science News, and Newsweek display elegant and colorful chromatographic pictures of human brains. The stories within offer neuroscientific explanations for everything from why your teenage son is so moody to why humans are predisposed to believe in a supreme being to why people feel pain in phantom limbs. Neuroscience has attracted fans from far outside the scientific community and from vastly divergent areas of life. David Brooks, the popular conservative columnist for The New York Times, has recently written The Social Animal, a book that details his belief that the study of the brain is the next significant frontier in intellectual and political development. The Dalai Lama has coauthored several works discussing his understanding of how meditative practice changes brain development and how tapping into the power of the brain holds the greatest promise to create lasting peace. Neuroscience has, it seems, attracted both the left and right. Neuroscience has become ubiquitous. But why now?
Birke 2010 Neuroscience and Settlement: An Examination of Scientific Innovations and Practical Applications Richard Birke 25 Ohio St. J. on Disp. Resol. 477
Bitz 1999 Incompetence in the Brain Injured Individual Donald M. Bitz & Jean S. Bitz 12 St. Thomas L. Rev. 205
Blank 1999 Brain Policy: How the New Neuroscience Will Change Our Lives and Our Politics Robert H. Blank Georgetown Univ. Press Neural grafting, virtual reality, gene therapy, psychotropic drugs … As startling new treatments emerge for disorders of the brain, new concerns are arising along with them. In the first book to examine the implications of the full range of revolutionary interventions now possible in the human brain, Robert H. Blank warns that while these new techniques may promise medical wonders, they also raise profound political questions. Our rapidly unfolding knowledge about the brain and the accompanying applications have three main policy dimensions: funding research initiatives, controlling individual use, and assessing social consequences. But underlying these aspects, Blank argues, are more disturbing issues that pose fundamental challenges to our conceptions of equality, autonomy, freedom, responsibility, and human nature itself. Brain Policy makes the key facts from the technical literature readily accessible to social scientists and general readers and points out the implications for our society. Blank first explains the structure and function of the nervous system and current theories of brain operation; he then assesses the uses and potential abuses of various intervention techniques. He identifies the public policy issues raised by discoveries in the neurosciences and calls for intensified scrutiny of the advantages and disadvantages of new technologies. Warning that the risks and dangers of the dramatic developments in neuroscience are potentially large, Blank offers a means of understanding these scientific advances and the philosophical and political issues they entail. This book will be of interest to social scientists, policy analysts, policy makers, bioethicists, scientists who want to see the bigger picture, and the informed reader with an interest in the implications of neuroscience for themselves and society.
Blasi 2005 What Lawyers Know: Lawyering Expertise, Cognitive Science, and the Functions of Theory Gary L. Blasi 45 J. Legal Educ. 313 This article suggests that recent developments in cognitive science offer legal scholars the means to better understand the range of knowledge and practice of lawyers, including such issues as judgment, wisdom, expertise, and relationship of theory to practice in law. A broader view of the role of theory in law practice is proposed; implications for legal education are considered.
Blaustone 2011 Improving clinical judgment in lawyering with multidisciplinary knowledge about brain function and human behavior: what should law students learn about human behavior for effective lawyering? Beryl Blaustone 40 U. Balt. L. Rev. 607 This article explores the significance of emerging multidisciplinary theories about brain function that dictate profound reassessment of basic lawyering assumptions about human behavior. These emerging theories indicate that, as human beings, our perceptions and memories are flawed, and as a result, lawyers work with distorted information that influences our thinking. This article describes how the brain functions to create these distortions, how this affects law practice, and how we can teach students to compensate for these deficiencies in thinking. I argue that these premises should be integrated into the teaching of law and lawyering to law students.
Bles 2009 Detecting Concealed Information Using Brain-Imaging Technology Mart Bles & John D. Haynes Neuroscience and Crime: A Special Issue of Neurocase (Psychology Press, Hans Markowitsch, ed., 2009). Many conventional techniques for revealing concealed information have focused on detecting whether a person is responding truthfully to specific questions, typically using some form of lie detector. However, lie detection has faced a number of criticisms and it is still unclear to what degree conventional lie detectors can be used to reveal concealed knowledge in applied real-world settings. Here, the authors review the key problems with conventional lie-detection technology and critically discuss the potential of novel techniques that aim to directly read concealed mental states out of patterns of brain activity.
Blitz 2010 Freedom of Thought for the Extended Mind: Cognitive Enhancement and the Constitution Marc J. Blitz Wis. L. Rev. 1049 Freedom of thought is often described as the central liberty in our constitutional system. Justice Oliver Wendell Holmes said that there is no principle that “more imperatively calls for attachment” than “the principle of free thought.” The Supreme Court has likewise often placed it at the center of our First Amendment jurisprudence, saying that our “whole constitutional heritage” rebels at giving government the power to “control men's minds,” and suggesting that the more well-known right to freedom of speech is important largely because of the support it provides for our freedom of thought. But while the Court has often celebrated freedom of thought, it has never clearly defined it or delineated its contours. Is “freedom of mind” a liberty that operates and protects only when we express our thoughts in speech or religious action? Or does it have independent force? This Article suggests an answer by looking at a form of government regulation that arguably limits our right to think, or enhance our powers of thought, without limiting our freedom of speech or worship. More specifically, it asks whether the Constitution's freedom of thought places limits on the extent to which officials may restrict our use of cognitive-enhancement technology. Ultimately, I argue, the power to reshape our thinking processes biologically should be recognized as merely one form of a more general power that our “freedom of mind” is intended to place firmly in our own hands, not in the hands of government officials.
Bloch 2010 Changing the Topography of Sentencing Kate E. Bloch 7 Hastings Race & Poverty L.J. 185
Bloch 2009 Cognition and Star Trek: Learning and Legal Education Kate E. Bloch 42 J. Marshall L. Rev. 959
Bloom 2010 Does Neuroscience Give Us New Insights Into Drug Addiction? Floyd E. Bloom A Judge's Guide to Neuroscience 42 (SAGE Center For the Study of the Mind, 2010).
Blume 2011 Life, death, and neuroimaging: the advantages and disadvantages of the defense's use of neuroimages in capital cases-lessons from the front John H. Blume & Emily C. Paavola 62 Mercer L. Rev. 909 In this Article, we examine the use of neuroimaging in capital cases with a practical, case-based perspective and conclude that brain imaging can be an important, helpful, and successful tool for capital defenders, but there are serious risks that must be considered before determining whether to employ these techniques. Drawing on examples from our own practice, we discuss the role neuroimaging can play in capital cases. More importantly, however, we also discuss the pros and cons of the defense's use of neuroimaging in these cases. Our take-home message is that neuroimaging is never the first option in a capital case, and it should only be considered after (1) a comprehensive social history investigation has been conducted; (2) a comprehensive neuropsychological battery of tests has been administered to the client; and (3) the client has been evaluated by a neuropsychiatrist or neurologist who is familiar with neuropsychological testing and its social history and who is sensitive to the dangers of neuroimaging. In sum, neuroimaging is not an investigative tool; it is a confirmatory and explanatory tool (and even then, only in the right case). Part II of this Article briefly describes some of the most commonly used imaging techniques in capital cases. Part III uses a case example to illustrate how a carefully crafted mitigation story can successfully incorporate cutting-edge brain imaging. Part IV, however, describes some potential disadvantages and risks we have experienced. Part V concludes this Article with a brief list of practical “lessons from the front.”
Blumenthal 2007 Emotional Paternalism Jeremy A. Blumenthal 35 Fla. St. U. L. Rev. 1 The literature on heuristics and biases in decision-making, as well as on emotional influences on judgments, is burgeoning. Commentators reviewing such work have begun to discuss its practical implications for the law. Most recently, they have focused in particular on what the research might suggest for an increased third-party role to help protect individuals from their own biases. That is, the most recent discussion has focused on the findings' implications for the appropriateness and scope of paternalistic policies. This paternalism discussion, however, has been incomplete in a number of contexts. First, despite a substantial focus on the implications of the first line of scholarship (documenting cognitive biases), commentators have addressed the implications of emotional biases far less. Second, much of the most recent discussion has been in the context of intervention by private parties (such as a company's conduct encouraging employees to participate in 401(k) plans), rather than addressing potential governmental steps, legislative or judicial, to protect individuals from their errors. Finally, although commentators have recently noted the importance of comparing the costs and benefits of paternalistic interventions, there has been little specification of those costs and benefits. In particular, commentators in this area have largely avoided the question of how difficult it might be to correct such biases, and thus how effective any such interventions might in fact be. In this article Blumenthal evaluates and extends this developing discussion of using social science data to justify paternalism, addressing these three gaps in the literature as well as other issues and examples. After a critical review of the existing literature, including discussion of whether paternalistic intervention is justified in the first place, he moves to remedy some of these gaps. Blumenthal documents not only cognitive, but emotional biases that people are subject to, including a number that have been little discussed in legal academia. He notes the importance of such emotional biases to legal decision-making and illustrates potential legal errors to which they may lead. Blumenthal also mentions implications of such errors for paternalistic intervention by government, both by legislatures and by courts. In the distinct contexts of cognitive and emotional biases, one sort of government intervention may be appropriate where another is not. Finally, Blumenthal takes steps toward evaluating the effectiveness of measures to correct cognitive and emotional biases, a step mentioned but not pursued in discussions of social science and paternalism. Specifically, he draws on empirical social science literature to examine whether effective mechanisms exist to correct various cognitive and emotional biases at the individual level, with implications for policy at the larger interpersonal and societal level. Throughout, Blumenthal identifies potential objections to some of the points he raises, summarizing and concluding with further speculation about the appropriateness of paternalistic intervention by the State.
Blumenthal 2005 Law and the Emotions: The Problems of Affective Forecasting Jeremy A. Blumenthal 80 Ind. L.J. 155 Legal scholarship on behavioralism and the implications of cognitive biases for the law is flourishing. In parallel with the rise of such commentary, legal scholars have begun to discuss the role of emotions in legal discourse. Discussion turns on the appropriateness of various emotions for the substantive law, and on attempts to model the place of the emotions in the law. Implicit in some of these theories, however - and explicit in others - is the assumption that emotions are predictable, manageable, and (for some commentators) under conscious control. This assumption is belied by psychological research on affective forecasting that demonstrates individuals' inability to accurately predict future emotional states, both their own and others'. Such inaccuracy has surprisingly broad implications for both substantive and procedural aspects of the legal system. The research findings also demonstrate the implausibility of some theoretical models of the emotions; if these models are flawed, then the normative conclusions drawn from them may be flawed as well. This article reviews the psychological data demonstrating inaccuracies in affective forecasting, and spins out their implications in a number of substantive legal areas. The data show potential flaws in the way civil juries assign compensatory awards, and in our approach to certain aspects of sexual harassment law. The findings have profound implications not only for the presentation of victim impact statements to capital juries, but also undercut some abolitionist claims regarding the suffering that death row prisoners experience. Contract law is implicated by these findings, especially in the context of contracts for surrogate motherhood. And the data are relevant to areas of health law as well - for instance, regarding the use of advance directives broadly as well as in the specific context of euthanasia. The article also discusses broader issues, such as the implications of the affective forecasting research for theories of law and the emotions more broadly. In this discussion it includes some of the specific drawbacks to some current theories. In addition, it addresses the data's implications for theories of welfare and well-being that underlie much legal policy, as well as some speculation about what the findings might have to say about potential paternalistic policies.
Blumoff 2013 When Nature and Nurture Collide: Early Childhood Trauma, Adult Crime, and the Limits of Criminal Law Theodore Y. Blumoff Carolina Academic Press Professor Blumoff, who is trained in psychology and law, has spent the last decade trying to bring population-wide observations from the brain sciences to the jurisprudence of criminal law, thus producing a better model of human behavior for understanding criminal misconduct. This work examines the neuropsychological injuries suffered by seriously abused and neglected children, towards an explanation for why those children produce children who tend to abuse and neglect their own children and sometimes others. This is just a brute social fact. The book is structured in three parts, Part I engages the science of child development. Part II addresses the jurisprudence of substantive criminal law, which is still mired in the dualism and formalism of a much earlier era that largely neglects the actor’s biography. Part III speaks to anticipated objections and proposals for change. The work ends by drawing on the work of the philosopher John Rawls’s well known “Original Position,” a thought experiment on the treatment of damaged children. This book should be of interest to anyone who teaches criminal law and procedure or is involved in the administration of criminal justice, including those individuals who provide social services to the incarcerated. It could be an assigned text in a law and psychiatry course or a criminal law or jurisprudence seminar. This book is also useful for students and teachers in specialized post-graduate criminology programs, federal and state law enforcement agencies that profile offenders, specialists in the jurisprudence of punishment, and some upper-division courses in criminal justice.
Blumoff 2011 The Brain Sciences and Criminal Law Norms Theodore Y. Blumoff 62 Mercer L. Rev. 705 Although neuroscience and the tools of brain imaging are sufficiently well developed to provide evidence of our neurobiological processing at a level of detail unimaginable until even decade ago (roughly the size of a grain of rice), they are not yet sufficiently developed to be consistently useful in the guilt phase of most criminal trials. Given the advances in imaging and behavioral genetics, however, neuroscience is sufficiently mature today to effect some global procedural and substantive changes in our criminal law jurisprudence based on our advanced understanding of behavioral norms - e.g., changes in the definitions of, and burdens of proof on the issue of competency. In this work, Blumoff surveys many of the presuppositions that guide work in a jurisprudence grounded in neuroscience and behavioral genetics and suggests how the findings in these areas could prove useful in effecting real change.
Blumoff 2010 The Neuropsychology of Justifications and Excuses: Some Cases from Self-Defense, Duress, and Provocation Theodore Y. Blumoff 50 Jurimetrics J. 391 Writing in 1984, Professor Greenawalt described cases on the excuse/justification border as “perplexing.” He concluded that two of the most frequently articulated reasons for distinguishing between justifications and excuses - warranted versus unwarranted conduct, objective and general versus subjective and individual - are not as descriptively clean as they sometimes purport to be. The “conceptual fuzziness” that Greenawalt documents is inherent in the nature of the acts themselves; they are neurobiologically indistinct. Justifications and excuses in the boundary cases trigger both our emotional and cognitive processing areas almost simultaneously. The emotions tend to precede the cognitive but only long enough to focus attention on the immediate threat. The conceptual blur will continue as long as our jurisprudence categorizes rigidly conduct that exists only on a continuum. This is not a new problem. The law tends to break down into categories - guilty or not guilty, for example. But the world is not binary; it is continuous and categorical thinking tends to distort our view of the world. The drafters of the Model Penal Code’s mens rea provisions, which divide into four categories and which the drafters concede exist only on a continuum and cannot be rationally determinate without question-begging, constitute implicit recognition of the way in which our control functions actually operate. It is time to acknowledge that these problematic excuse/justification cases defy categorization and thereby eliminate the confusion by adopting an advertently hybrid defense.
Blumoff 2010 How (Some) Criminals are Made Theodore Y. Blumoff Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). Some kids have bad luck. Kids who are abused, for example, tend to become abusers themselves. This is a brute sociological fact. Abused children are the unfortunate victims of poor antecedent and constitutive conditions that conduce to bad moral luck. This paper hopes to explain why this is the case, at least for some children, and (perhaps) especially for those who enter the world with low levels of monoamine oxidase type A (MAOA), a brain enzyme responsible for inhibiting neurotransmitters associated with aggression. It also argues that individuals of this type (genetic predisposition (G)) coupled with abusive and/or neglectful early environments (E), have suffered from poor constitutive, antecedent, and circumstantial conditions that generate bad moral luck and, therefore, they are (a) less blameworthy than those who have not endured the combination of such conditions and (b) are, therefore, candidates for restorative justice: treatment and restorative justice for those who we know or prima facie should know suffer neurobiological deficits.
Blumoff 2009 The Problems with Blaming Theodore Y. Blumoff Law, Mind and Brain 127 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009). This work examines the social practice of blaming, beginning with a prominent view of the moral philosophy of blaming, the semantics of character that support this (and related) views, and the social and cultural biases we bring to the process of attributing blame. Our penchant for blaming is too often manifest in a hyper-willingness to attribute wrongdoing solely to the character of the wrongdoer, often overlooking the salience of the varied situations in which the wrongdoer finds himself. Blumoff synthesizes the wealth of data, mostly from social psychology, showing that blaming actualizes our own dispositions for over-emphasizing the actor’s wicked disposition to doing wrong in a process that, on balance, fails to serve our long term goal of providing a safer society for ourselves and our children. Finally, Blumoff addresess the role of blaming as part of the paradox of evil, and presents an outline for a different approach.
Bockman 2010 Cybernetic-Enhancement Technology and the Future of Disability Law Collin R. Bockman 95 Iowa L. Rev. 1315 Cybernetic devices--extensions, replacements, and upgrades that interface directly with the human nervous system--are becoming increasingly advanced and commonplace. Impending developments in neuroscience technology, including brain-computer interfaces and robotic prosthetics that surpass levels of ordinary human functionality, will raise novel legal and ethical questions. This Note argues that these enhancement technologies will create problems for people covered under the Americans with Disabilities Act (“ADA”). Congress recently amended the ADA to bar courts from taking mitigating factors into account when determining whether a claimant is ADA-protected. The ADA and its amendments embody disability by legislating the existence of disability as within the body of the disabled, rather than as a social construct determined by societal norms. This Note suggests changes to the ADA that would help prepare the ADA for the increasingly broad spectrum of ability that will accompany humanity through the twenty-first century.
Boire 2004 Neurocops: The Politics of Prohibition and the Future of Enforcing Social Policy From Inside the Body Richard G. Boire 19 J.L. & Health 215 Over the next decade an increasing number of new “pharmacotherapy” medications will become available with the potential to tremendously impact the use and abuse of illegal drugs and the overall direction of national and international drug policy. These pharmacotherapy medications are designed to block or significantly reduce the “highs” elicited by illegal drugs. Used as part of a drug treatment program, pharmacotherapy medications may provide valuable assistance for people voluntarily seeking a chemical aid in limiting or eliminating problem drug use. However, the tremendously politicized nature of the “drug war” raises substantial concerns that, in addition to those who voluntarily choose to use such medications, some people will be compelled to use them. This article concludes that in the absence of extraordinary circumstances, governmental action forcing or coercing a person to use a pharmacotherapy drug would violate a number of important legal rights. Among the rights implicated by compulsory use of pharmacotherapy drugs are the right to informed consent, the right to bodily integrity and privacy, the protection against cruel and unusual punishment, and the right to freedom of thought or cognitive liberty.
Bonnie 2013 The Teenage Brain: Adolescent Brain Research and the Law Richard J. Bonnie & Elizabeth S. Scott 22 Current Directions in Psychological Science 158 In this article, we explore the emerging and potential influence of adolescent brain science on law and public policy. The primary importance of this research is in policy domains that implicate adolescent risk taking; these include drug and alcohol use, driver licensing, and criminal justice. We describe the emerging importance of brain science in the Supreme Court and other policy arenas. Finally, we argue that current research cannot contribute usefully to legal decisions about individual adolescents and should not be used in criminal trials at the present time, except to provide general developmental information.
Bonnie 2010 The Virtues of Pragmatism in Drug Policy Richard J. Bonnie 13 J. Health Care L. & Pol'y 7 This conference addresses “obstacles to development and use of pharmacotherapies in the treatment of addiction.” I will focus on the challenges of increasing use of medical agents if they are developed. Expanding the potential market for these drugs will increase the likelihood that they will be developed in the first place. My point of departure is that the best way of responding to this challenge is to put the nation’s drug policy on the right track. I say this because a sensible drug policy will encourage, and indeed subsidize, the use of evidenced-based, cost-effective addiction treatments. The basic thrust of my argument is that we need a stable, essentially pragmatic, drug policy that avoids the ideologically driven positions that have for so long dominated policy discourse and, because they are so contentious, have tended to paralyze policy-making. Just to give you a point of reference, I believe that the only time such a policy was actually in place was about 30 years ago during the Nixon and Ford administrations and the early years of the Carter administration. A little detour here may be in order. The statement I just made is admittedly somewhat self-serving. I was Associate Director of the National Commission on Marijuana and Drug Use from 1971-73 and was a principal architect of the Commission’s two reports, the first of which recommended decriminalization of marijuana use in 1972. The final report, issued the following year, recommended a framework for drug policy that remains pertinent today. During the following several years, I served as an adviser to the Directors of what was then called the Special Action Office of Drug Abuse Prevention (SAODAP) in the White House (1973-77), was appointed Secretary of the first National Advisory Council on Drug Abuse (1975-1980), contributed to the first several Federal Strategies on Drug Abuse and helped write an important White Paper on Drug Abuse for the Ford Administration (1976). During this short period, I think our nation’s drug policy was moving in the right direction. As I’ll discuss, however, the pendulum suddenly swung in the other direction and remained stuck there for more than twenty years. I don’t have time to spin out my policy positions fully here, but I will give a brief historical account of drug policy and then draw out three implications of my views that bear most heavily on the subject of this conference.
Bonnie 2002 Responsibility for Addiction Richard J. Bonnie 30 J. Am. Acad. Psychiatry Law 405 Taking as its starting point the characterization of addiction as a "brain disease" by the nation’s leadership in public health and biomedical science, this paper explores the implications of recent developments in neuroscience for the concept of responsibility. The terrain is divided into three parts: responsibility for becoming addicted; responsibility for behavior symptomatic of addiction; and responsibility for amelioration of addiction. In general, the paper defends the thesis that recent scientific developments have sharpened but not erased traditional understandings in the first two areas, while recent legal developments have exposed new and intriguing theories of responsibility for managing.
Borgelt 2011 "This is why you've been suffering": reflections of providers on neuroimaging in mental health care Emily Borgelt, Daniel Z. Buchman, Judy Illes 8 Bioethical Inquiry 15 Mental health care providers increasingly confront challenges posed by the introduction of new neurotechnology into the clinic, but little is known about the impact of such capabilities on practice patterns and relationships with patients. To address this important gap, we sought providers’ perspectives on the potential clinical translation of functional neuroimaging for prediction and diagnosis of mental illness. We conducted 32 semi-structured telephone interviews with mental health care providers representing psychiatry, psychology, family medicine, and allied mental health. Our results suggest that mental health providers have begun to re-conceptualize mental illness with a neuroscience gaze. They report an epistemic commitment to the value of a brain scan to provide a meaningful explanation of mental illness for their clients. If functional neuroimaging continues along its projected trajectory to translation, providers will ultimately have to negotiate its role in mental health. Their perspectives, therefore, enrich bioethical discourse surrounding neurotechnology and inform the translational pathway.
Bottalico 2011 Neuroscience and Law in a Nutshell Barbara Bottalico Diritti Comparati The term neuroscience is currently used to refer to a bundle of disciplines which study the relationships between human brain, mental activity, and behavior. Promising to explain operations of the mind in terms of the physical operations of the brain, neuroscience has received great attention by the scientific, legal and philosophical communities.
Bottalico 2009 Casi e materiali su neuroscienze e diritto Barbara Bottalico & Amedeo Santosuosso Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 177
Boudreau 2010 Pathways to Persuasion: How Neuroscience Can Inform the Study and Practice of Law Cheryl Boudreau, Seana Coulson & Mathew D. McCubbins Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter examines how neuroscience can inform the study and practice of law. It begins with a brief overview of the EEG experiments that were used to study the behavioural and neural correlates of persuasion. It then describes the hypotheses, as well as the data and methods that used to test them. Next, experimental results on subjects' decisions, reaction times, and brain activity are summarized. The chapter concludes with a discussion of the substantive and methodological implications that the research has for debates about persuasion in courtroom settings. Specifically, it emphasizes that the experiments show the value of tying together both behavioural results and brain data in analyses of persuasion and trust. Although the study represents only a first step in this endeavour, future research on persuasion (and other topics of interest to legal scholars) can potentially benefit from simultaneously assessing behaviour and brain activity.
Boudreau 2009 Cues in the Courtroom: When Do They Improve Jurors' Decisions? Cheryl Boudreau Law, Mind and Brain 373 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009). Over the past 20 years, cognitive neuroscience has revolutionized our ability to understand the nature of human thought. Working with the understandings of traditional psychology, the new brain science is transforming many disciplines, from economics to literary theory. These developments are now affecting the law and there is an upsurge of interest in the potential of neuroscience to contribute to our understanding of criminal and civil law and our system of justice in general. The international and interdisciplinary chapters in this volume are written by experts in criminal behaviour, civil law and jurisprudence. They concentrate on the potential of neuroscience to increase our understanding of blame and responsibility in such areas as juveniles and the death penalty, evidence and procedure, neurological enhancement and treatment, property, end-of-life choices, contracting and the effects of words and pictures in law. This collection suggests that legal scholarship and practice will be increasingly enriched by an interdisciplinary study of law, mind and brain and is a valuable addition to the emerging field of neurolaw.
Boundy 2012 The Government Can Read Your Mind: Can the Constitution Stop It? Mara Boundy 63 Hastings L.J. 1627 Functional Magnetic Resonance Imaging (“fMRI”) technology produces a fourdimensional map of brain activity, such as perception, memory, emotion, and movement. fMRI scans track the flow of blood to the various regions of the brain in real time and reveal the subject’s response to particular stimulus. For example, an fMRI scan might reveal blood flow to a subject’s memory center in response to a picture of the house in which she was raised. On the one hand, this technology seems to produce a model of a physical attribute and offer insight into the workings of the human brain. On the other, fMRI scans seem to read our minds and disclose our thoughts. The full range of applications of fMRI technology is just emerging, but proponents have already sought its admission in court as a type of lie detector or credibility builder. If fMRI scans are incorporated into the government’s investigatory process, constitutional safeguards should be in place to protect the fundamental right of privacy and an individual’s freedom to decide whether to assist the state. This Note proposes that the results of fMRI scans are testimonial evidence: first, because the scans reveal the subject’s knowledge or beliefs, and second, because this classification ensures that fMRI scan results are afforded the protection of the Fifth Amendment. If fMRI scans are privileged under the Fifth Amendment, the government cannot compel an individual to submit to the scan and reveal the contents of her mind.
Bourget 2007 Amnesia and Crime Dominique Bourget & Laurie Whitehurst 35 J. Am. Acad. Psychiatry L. 469 Amnesia for serious offenses has important legal implications, particularly regarding its relevance in the contexts of competency to stand trial and criminal responsibility. Forensic psychiatrists and other mental health professionals are often required to provide expert testimony regarding amnesia in defendants. However, the diagnosis of amnesia presents a challenge, as claims of memory impairment may stem from organic disease, dissociative amnesia, amnesia due to a psychotic episode, or malingered amnesia. This article reviews the theoretical, clinical, and legal perspectives on amnesia in relation to crime and presents relevant cases that demonstrate several types of crime-related amnesia and their legal repercussions. Consideration of the presenting clinical features of crime-related amnesia may enable a fuller understanding of the different types of amnesia and assist clinicians in the medico-legal assessment and diagnosis of the claimed memory impairment. The development of a profile of aspects characteristic of crime-related amnesia would build toward establishing guidelines for the assessment of amnesia in legal contexts.
Braman 2010 Some Realism About Punishment Naturalism Donald Braman, Dan M. Kahan & David A. Hoffman 77 U. Chi. L. Rev. 1531 In this Article, we critique the increasingly prominent claims of Punishment Naturalism—the notion that highly nuanced intuitions about most forms of crime and punishment are broadly shared, and that this agreement is best explained by a particular form of evolutionary psychology. While the core claims of Punishment Naturalism are deeply attractive and intuitive, they are contradicted by a broad array of studies and depend on a number of logical missteps. The most obvious shortcoming of Punishment Naturalism is that it ignores empirical research demonstrating deep disagreements over what constitutes a wrongful act and just how wrongful a given act should be deemed to be. But an equally serious shortcoming of Punishment Naturalism is that it fails to provide a credible account of the social and cognitive mechanisms by which individuals evaluate both crime and punishment, opting instead for explanations that are either specific and demonstrably wrong or so vague as to be untestable. By way of contrast, we describe an alternative approach, Punishment Realism, that develops the core insights of legal realism via psychology and anthropology. Punishment Realism, we argue, offers a more complete account of agreement and disagreement over the criminal law and provides a more detailed and credible account of the social and cognitive mechanisms that move people to either agree or disagree with one another on whether a given act should be praised or punished and how much praise or punishment it deserves. The differences between these two empirical accounts also suggest contrasting implications for how those interested in maximizing social welfare and public satisfaction with the law should approach questions of crime and punishment.
Briner 2003 Brain Trauma and the Myth of the Resilient Child John D. Briner 39-MAR Trial 64 Litigating brain-injury claims presents trial lawyers with significant challenges. The difficulties are compounded when a case involves a plaintiff injured in infancy; these claims are notorious for their complexity and uncertainty. Several misconceptions exist about the nature of brain injuries in young children--even among plaintiff experts who sometimes agree with the defense that if a plaintiff was an infant when the injury occurred, he or she stands a better chance of recovering at least some of the lost brain function.
Brocas 2013 The Neurobiology of Opinions: Can Judges and Juries Be Impartial? Isabelle Brocas & Juan D. Carrillo 86 S. Cal. L. Rev. 421 In this article we build on neuroscience evidence to model belief formation and study decision-making by judges and juries. We show that physiological constraints generate posterior beliefs with properties that are qualitatively di erent from traditional Bayesian theory. In particular, a decision-maker will tend to reinforce his prior beliefs and to hold posteriors in uenced by his preferences. We study the implications of the theory for decisions rendered by judges and juries. We show that early cases in a judge's career may affect his 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 consequences 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.
Brookbanks 2008 Neuroscience, "Folk Psychology", and the Future of Criminal Responsibility Warren Brookbanks 2008 N.Z. L. Rev. 623 This article examines claims that cognitive neuroscience challenges the theoretical andpractical efficacy ofthe notions offree will and criminal responsibility and threatens to dominate the entire legal system. The notion of'folk psychology" - popular explanations of behaviour ofwhich criminal responsibility and its analogues may be a manifestation - is considered in light ofthe challenges posed by eliminative materialism anddeterministic neuroscience. The question that is posed is whether the concept ofcriminal responsibility will be able to withstand the imperious advances of modern science inherent in cognitive neuroscience and other reductionist accounts ofhuman behaviour. The article concludes that, while neuroscience technology may impact the way in which certain evidence is led in criminal trials, it is unlikely (at leastfor the foreseeable future) that neuroscience will undermine the libertarian concept offree will on which the retributivist system of criminal law depends.
Brooks 2013 Scanning the Horizon: The Past, Present, and Future of Neuroimaging for Lie Detection in Court Spencer J. Brooks 51 U. Louisville L. Rev. 353 The article focuses on the dangers and benefits of accurate lie detection and the constitutional and moral difficulties posed by lie detection technology. It explores the use of scientific methods and instruments for lie detection, particularly the active brain scan technology such as functional magnetic resonance imaging (fMRI). It also analyzes the admissibility of information derived from the said technology.
Brown 2011 Emerging Issues in Neuroscience Policy Teneille R. Brown & Jennifer B. McCormick Oxford Handbook of Neuroethics (Oxford Univ. Press, Judy Illes & Barbara J. Sahakian, eds., 2011). This article describes some of the diverse areas where neuroscience findings have overlapped with policy and the law and provides concrete questions that policymakers, including judges and lawyers, interest groups, individual lobbyists, and legislators, should answer before relying on neuroscience research. The aim is to inject a little humility into the way neuroscience findings are used by policymakers. The central thesis is that neuroscience findings, particularly those that relate to complex human behavior, must be used with care and caution. Until they are thoroughly vetted through the scientific process, neuroscience findings must be interpreted narrowly and in context, or they risk being abused for political gain. One use of neuroscience would be when research findings lead to the development of a targeted delivery drug that operates on specific faulty mechanisms, completely correcting or alleviating debilitating symptoms.
Brown 2011 The Affective Blindness of Evidence Law Teneille R. Brown 89 Denv. U. L. Rev. 47 Many evidentiary rules and practices reveal a folk psychological view of emotion, placing it at odds with reason. In order to make the point that this false dichotomy is simultaneously reflected in our evidence law and also empirically wrong, I will address how emotion is treated in (a) the use of limiting instructions, (b) the exclusion of prejudicial evidence, (c) credibility assessments, (d) sentencing and damages instructions, (e) instructions related to the “heat of passion” theory of voluntary manslaughter, and (f) the excited utterance hearsay exception. In each case I will demonstrate that while the text of the rules may be benign, the way they are interpreted reflects confusion over the role played by both subtle and intense emotion.
Brown 2010 Through A Scanner Darkly: Functional Neuroimaging as Evidence of a Criminal Defendant's Past Mental States Teneille Brown & Emily Murphy 62 Stan. L. Rev. 1119 As with phrenology and the polygraph, society is again confronted with a device that the media claims is capable of reading our minds. Functional magnetic resonance imaging ("fMRI"), along with other types of functional brain imaging technologies, is currently being introduced at various stages of a criminal trial as evidence of a defendant's past mental state. This article demonstrates that functional brain images should not currently be admitted as evidence into courts for this purpose. Using the analytical framework provided by Federal Rule of Evidence 403 as a threshold to a Daubert/Frye analysis, it demonstrates that, when fMRI methodology is properly understood, brain images are only minimally probative of a defendant's past mental states and are almost certainly more unfairly prejudicial than probative on balance. Careful and detailed explanation of the underlying science separates this Article from others, which have tended to paint fMRI with a gloss of credibility and certainty for all courtroom-relevant applications. Instead, it argues that this technology may present a particularly strong form of unfair prejudice in addition to its potential to mislead jurors and waste the court's resources. Finally, since fMRI methodology may one day improve such that its probative value is no longer eclipsed by its extreme potential for unfair prejudice, it offers a nonexhaustive checklist that judges and counsel can use to authenticate functional brain images and assess the weight these images are to be accorded by fact finders.
Bruni 2011 Cross-Cultural Variation and fMRI Lie-Detection Tommaso Bruni TECHNOLOGIES ON THE STAND: LEGAL AND ETHICAL QUESTIONS IN NEUROSCIENCE AND ROBOTICS (pp. 129-148, B. Van den Berg, L. Klaming, eds., Nijmegen: Wolf Legal Publishers) As decidedly underscored by a recent editorial in Nature Neuroscience (2010), many experiments in cognitive neuroscience have been carried out with a sample that is not representative of the general human population, as the subjects are usually university students in psychology. The underlying assumption of this practice is that the workings of the brain do not vary much even when subjects come from different cultural groups. Recent research by Henrich et al. (2010) shows that this assumption is unwarranted. On several basic features of perception and cognition, Western university students turn out to be outliers relative to the general human population, so that data based on them should be interpreted with caution. In particular, this situation seems to provide an argument for questioning the conformity of functional Magnetic Resonance Imaging (fMRI) lie-detection to Federal Rule of Evidence 702 and Daubert. Deception is a social phenomenon and it is related to mental functions, such as theory of mind, for which cross-cultural variability at the neural level has been detected. Furthermore, culture is a multi-dimensional variable whose effects are diverse. Thus, the use of fMRI lie-detection in legal contexts may hinder the ascertainment of truth if the experimental results are not shown to be conserved in different cultures. Cross-cultural variability in neural activation patterns is just a facet of the broader issue of external and ecological validity for neuroscientific experiments on the detection of deception; nonetheless, fMRI lie-detection is unlikely to meet the Daubert standards if cross-cultural variation is not controlled by appropriate experiments.
Bryant 2009 Expanding Atkins and Roper: A Diagnostic Approach to Excluding the Death Penalty as Punishment for Schizophrenic Offenders Bethany C. Bryant 78 Miss. L.J. 905
Bublitz 2013 Guilty Minds in Washed Brains? Manipulation Cases and the Limits of Neuroscientific Excuses in Liberal Legal Orders Christoph Bublitz & Reinhard Merkel Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) Among the worrisome aspects of neuroscience is that the increasing knowledge about neuronal and mental processes as well as new tools to intervene into brains and minds in order to modify thoughts and behavior can be used for manipulative purposes. This chapter addresses the responsibility of persons for actions resulting from severe manipulations. In a rich philosophical debate it is widely held that manipulated agents are not responsible. By contrast, the law rarely excuses defendants even when their motives for action were severely influenced from outside. We compare these diverging lines of reasoning and argue against recognition of a “brainwashing defense”. The wide guarantee of personal freedom in liberal constitutional orders is viable and defensible only if persons can be expected to abide by the law. When persons disappoint normative expectations, a reactive response has to (counterfactually) reinforce the validity and stability of the norm. This is one of the rationales for the ascription of responsibility and punishment. A history-oriented approach of responsibility that would excuse persons because of manipulative influences, as favored by many philosophers and by unexamined moral intuitions, focuses too narrowly on purely subjective aspects such as authenticity, and therewith, just like many current discussions of responsibility and neuroscience, tends to lose sight of the functions of responsibility within the social and normative structures in which it is embedded.
Buchen 2012 Science in court: Arrested development Lizzie Buchen 304 Nature 484 Neuroscience shows that the adolescent brain is still developing. The question is whether that should influence the sentencing of juveniles.
Buchman 2010 Imaging Genetics for Our Neurogenetic Future Daniel Z. Buchman & Judy Illes 11 Minn. J.L. Sci. & Tech. 79 In 2009, Tairyan and Illes outlined the potential challenges posed by the growing possibility of combining genetic and neuroimaging information to improve diagnostic and predictive testing of people with disorders affecting the central nervous system. Here, Buchman and Illes continue that discussion with a specific focus on the potential power and utility of such combined technologies to accurately predict psychiatric illness, particularly schizophrenia. They review the science of imaging genetics, discuss related ethical issues, such as how endophenotypes construct an at-risk profile, and examine clinical ethics issues surrounding early intervention in the context of the emerging capability. They consider how individuals diagnosed with schizophrenia may embody knowledge from their brains and genomes into an objective-self. They discuss possible implications of imaging genetics for the law and how use of the combined technologies may impact issues of justice. Finally, they argue that while imaging genetics remains a purely laboratory technique today, its potential social uses require careful reflection on how the knowledge gained from it may be constructed and interpreted by clinicians, patients, legal scholars, and the lay public.
Buchman 2010 The Paradox of Addiction Neuroscience Daniel Z. Buchman, Judy Illes & Peter B. Reiner 4 Neuroethics 65 Neuroscience has substantially advanced the understanding of how changes in brain biochemistry contribute to mechanisms of tolerance and physical dependence via exposure to addictive drugs. Many scientists and mental health advocates scaffold this emerging knowledge by adding the imprimatur of disease, arguing that conceptualizing addiction as a “brain disease” will reduce stigma amongst the folk. Promoting a brain disease concept is grounded in beneficent and utilitarian thinking: the language makes room for individuals living with addiction to receive the same level of compassion and access to healthcare services as individuals living with other medical diseases, and promotes enlightened social and legal policies. However such claims may yield unintended consequences by fostering discrimination commonly associated with pathology. Specifically, the language of neuroscience used to describe addiction may reduce attitudes such as blame and responsibility while inadvertently identifying addicted persons as neurobiological others. This paper examines the merits and limitations of adopting the language of neuroscience to describe addiction. It argues that the reframing of addiction in the language of neuroscience provides benefits such as the creation of empowered biosocial communities, but also creates a new set of risks, as descriptive neuroscience concepts are inseparable from historical attitudes and intuitions towards addiction and addicted persons. In particular, placing emphasis on the diseased brain may foster unintended harm by paradoxically increasing social distance towards the vulnerable group the term is intended to benefit.
Buckholtz 2012 The Roots of Modern Justice: Cognitive and Neural Foundations of Social Norms and their Enforcement Joshua W. Buckholtz & René Marois 15 Nature Neuroscience 5 Among animals, Homo sapiens is unique in its capacity for widespread cooperation and prosocial behavior among large and genetically heterogeneous groups of individuals. This ultra-sociality figures largely in our success as a species. It is also an enduring evolutionary mystery. There is considerable support for the hypothesis that this facility is a function of our ability to establish, and enforce through sanctions, social norms. Third-party punishment of norm violations (“I punish you because you harmed him”) seems especially crucial for the evolutionary stability of cooperation and is the cornerstone of modern systems of criminal justice. In this commentary, we outline some potential cognitive and neural processes that may underlie the ability to learn norms, to follow norms and to enforce norms through third-party punishment. We propose that such processes depend on several domain-general cognitive functions that have been repurposed, through evolution’s thrift, to perform these roles.
Buckholtz 2010 The Neural Correlates of Third-Party Punishment Joshua W. Buckholtz, Christopher L. Asplund, Paul E. Dux, David H. Zald, John C. Gore, Owen D. Jones & René Marois Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). Legal decision-making in criminal contexts includes two essential functions performed by impartial ‘‘third parties:’’ assessing responsibility and determining an appropriate punishment. To explore the neural underpinnings of these processes, we scanned subjects with fMRI while they determined the appropriate punishment for crimes that varied in perpetrator responsibility and crime severity. Activity within regions linked to affective processing (amygdala, medial prefrontal and posterior cingulate cortex) predicted punishment magnitude for a range of criminal scenarios. By contrast, activity in right dorsolateral prefrontal cortex distinguished between scenarios on the basis of criminal responsibility, suggesting that it plays a key role in third-party punishment. The same prefrontal region has previously been shown to be involved in punishing unfair economic behavior in two-party interactions, raising the possibility that the cognitive processes supporting third-party legal decision-making and second-party economic norm enforcement may be supported by a common neural mechanism in human prefrontal cortex.
Buckholtz 2008 The Neural Correlates of Third-Party Punishment Joshua W. Buckholtz, Christopher L. Asplund, Paul E. Dux, David H. Zald, John C. Gore, Owen D. Jones & René Marois 60 Neuron 930 Legal decision-making in criminal contexts includes two essential functions performed by impartial “third parties:” assessing responsibility and determining an appropriate punishment. To explore the neural underpinnings of these processes, we scanned subjects with fMRI while they determined the appropriate punishment for crimes that varied in perpetrator responsibility and crime severity. Activity within regions linked to affective processing (amygdala, medial prefrontal and posterior cingulate cortex) predicted punishment magnitude for a range of criminal scenarios. By contrast, activity in right dorsolateral prefrontal cortex distinguished between scenarios on the basis of criminal responsibility, suggesting that it plays a key role in third-party punishment. The same prefrontal region has previously been shown to be involved in punishing unfair economic behavior in two-party interactions, raising the possibility that the cognitive processes supporting third-party legal decision-making and second-party economic norm enforcement may be supported by a common neural mechanism in human prefrontal cortex.
Buller 2005 Brains, Lies, and Psychological Explanations Tom Buller Neuroethics: Defining the Issues in Theory, Practice and Policy 51 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter addresses the following question: If we adopt the view that it is the brain that feels, thinks, and decides, then how do we accommodate commonsense explanations of human behavior and the notion that we are intentional rational agents capable of voluntary action? It argues that there are limits to the coexistence of folk psychology (and the notion that we are intentional rational agents) and neuroscience. It explores how neuroethics must accommodate both science and ethics and, drawing on contemporary studies of deception, lies, and others, urges an awareness of the limitations of neuroscience in determining thought and defining responsibility for actions.
Bumann 2011 Intuitions of Blameworthiness as a Heuristic That Evaluates the Probability of the Offender Committing Future Antisocial Acts Benjamin Bumann & David M. Eagleman 36 Thurgood Marshall Law Journal 129
Bumann 2010 The Future of Neuroimaging in Witness Testimony Benjamin Bumann 12(11) Virtual Mentor 873
Burgess 2010 Deepening the Discourse Using the Legal Mind's Eye: Lessons from Neuroscience and Educational Psychology that Optimize Law School Learning Hillary Burgess 29 Quinnipiac L. Rev. 1 Many law professors will say that the most crucial lesson in law school is learning to "think like a lawyer." While critical thinking is a crucial skill, the foundational principles of many core law school courses are critical to passing the bar and, more importantly, the competent practice of law. Lawyers need to be able to identify when their clients have legal problems outside of their narrow area of specialty and they need to devise legal solutions that do not violate other areas of law. However, law students tend to forget a significant amount of the doctrine and policy before they graduate. Researchers have found ways to improve learning, especially for the complex learning that takes place in law school. Applying these techniques in law school would allow professors to cover more doctrine at more sophisticated levels while knowing that their students will retain much of their lessons throughout their career. This article begins by mapping common law school learning tasks onto a leading taxonomy of learning objectives. This article argues that the legal curriculum engages all six levels of learning by traditionally teaching the lowest four levels of learning. However, law schools traditionally test on the highest four levels of learning because this level of thinking is required to practice law competently. To help professors teach all six levels of learning optimally, this article provides a neuroscience and cognitive psychology perspective on how students learn. This section serves as a reference for any professor interested in how students learn. The article reviews research that indicates that students learn more, at deeper levels, while retaining information longer when they engage in multimodal learning, especially learning involving visual aids and visual exercises. This impact is greatest with higher-order cognitive skills such as “thinking like a lawyer.” This article argues that because law school learning focuses on the highest order cognitive skills, professors optimize the learning environment by including visual aids and visual exercises. This article serves three purposes. First, it provides professors with a review of the theoretical and scientific literature on learning theory as it applies to law school. This information will provide professors a reference when they reform the overall legal curriculum, modify teaching strategies, and create innovative teaching methods. Secondly, this article provides professors with information about teaching methods that increase student learning and retention in law school, on the bar, and for a lifetime career in law. Third, this article provides concrete guidelines for law faculty interested in incorporating visual aids effectively in their teaching. The article also provides many concrete examples of specific teaching techniques that professors could adopt in their own class immediately.
Burke 2010 Prosecutorial Agnosticism Alafair S. Burke 8 Ohio St. J. Crim. L. 79 Most legal ethicists maintain that an ethical prosecutor should pursue criminal charges against a defendant only if the prosecutor personally believes that the defendant is guilty. The assumption is that the obligation to “do justice” encompasses a duty to act as initial case-screener, scrutinizing the evidence against the defendant not just for sufficient proof to avoid a judgment of acquittal, but for proof that persuades the prosecutor of the defendant’s guilt beyond a reasonable doubt in her own mind. From this perspective, prosecutors act not simply as advocates of conviction in an adversarial system, but as a first and ever-present protector of the innocent, capable at any moment of declining or dismissing charges based on her own conclusions as a juror. Rather than resist this description, most prosecutors embrace it, priding themselves on their nearly unrivaled power to do justice through unreviewable compassion. This Article challenges the prevailing assumption and argues, both descriptively and normatively, that ethical prosecutors can be agnostic about a defendant’s guilt. As a descriptive matter, ethical prosecutors routinely pursue charges despite personal doubts about their applicability. For example, few question a prosecutor’s ability to pursue charges in the alternative, as when she is uncertain if a homicide was malicious or provoked, if an assault was purposeful or reckless, or if the value of stolen property exceeded a statutorily required amount. Similarly, ethical prosecutors pursue charges even when they carry doubts about the applicability of a defense such as self-defense or duress. Indeed, prosecutors have been able to challenge antiquated judicially-created defenses such as the year-and-a-day rule only be charging defendants who otherwise would have relied on such defenses. This Article extends the logic prosecutors invoke in such cases, allowing them to pursue charges not only when they are uncertain about legal guilt, but also when they carry doubts about factual guilt. As a normative matter, this Article argues that agnostic prosecutors might be better defenders of the innocent than those who pride themselves on their roles as supreme jurors. Whereas ethicists have emphasized the merciful power of a prosecutor who believes in a defendant’s innocence, commentators have only recently begun to explore the distorting effects of a prosecutor’s personal belief in guilt on her subsequent decision making. Drawing on the cognitive science literature, this Article argues that the protection to defendants provided by the prosecutor’s personal fact-finding function are outweighed by the adverse affects on prosecutorial neutrality once the prosecutor’s belief in guilt is formed. As an initial matter, the prosecutor’s case-screening for guilt may not be especially protective of the defendant. Because of confirmation bias, prosecutors "testing" a hypothesis of the defendant’s guilt may be likely to search the case evidence for proof confirming that hypothesis, to the detriment of exculpatory evidence. Once the prosecutor forms a personal belief in guilt, that belief becomes "sticky" as selective information processing, belief perseverance, and cognitive consistency will prevent the prosecutor from revisiting her conclusion. Tunnel vision also impairs the prosecutor’s ability to identify material, exculpatory evidence to which the defense is entitled under Brady v. [enter Abstract Body] Maryland, as selective information processing will cause the prosecutor to overestimate the strength of her case without the evidence at issue and to underestimate the evidence’s potential exculpatory value. Finally, the prosecutor’s role as a first and constant case screener may lead to cascading effects in judges, grand jurors, and petit jurors, who might be less scrutinizing for reasonable doubt because of an assumption that charges are pursued only against the guilty. In defending agnostic prosecutors, this Article argues for a transformation of our understanding of the prosecutorial function. The claim that prosecutors pursue charges only when they are personally persuaded of the defendant’s guilt is largely mythical. Being transparent about that fact might enable not only prosecutors, but also other actors in the criminal justice system, to mitigate bias in their decision making, leading to greater protection of the innocent and reducing wrongful convictions.
Burke 2006 Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science Alafair S. Burke 47 Wm. & Mary L. Rev. 1587 This article draws on cognitive psychology to develop a new explanation for prosecutorial misconduct. Traditionally, commentators have clothed the study of prosecutorial decision-making in the rhetoric of fault. They have attributed overcharging, undisclosed exculpatory evidence, and convictions of the innocent to bad prosecutorial intentions and widespread prosecutorial wrongdoing. This fault-based lens colors both the description of the problem and the recommended solutions. In the language of fault, the problem is a culture that values obtaining and maintaining convictions over justice. The solution is to change prosecutorial values through, for example, more stringent ethical rules and increased disciplinary proceedings and sanctions against prosecutors. This article attempts instead to explain prosecutorial decision-making from a cognitive perspective. It argues that even virtuous prosecutors can make normatively inappropriate decisions that result, not from flawed values, but from limits in human cognition. Prosecutors make what appear to be irrational decisions because all human decision-makers share a common set of information-processing tendencies that depart from perfect rationality. In comparison to a fault-based approach, a cognitive description of the problem complicates the road for corrective action. If prosecutors fail to achieve justice not because they are bad, but because they are human, what hope is there for change? In three parts, this article attempts to explain how cognitive bias can affect the exercise of prosecutorial discretion and to suggest some initial reforms to improve the quality of prosecutorial decision-making. Part I summarizes four related cognitive phenomena: confirmation bias, selective information processing, belief perseverance, and the avoidance of cognitive dissonance. Part II explores how these cognitive biases might adversely affect the exercise of prosecutorial discretion. Part III proposes a series of reforms that might improve the quality of prosecutorial decision making, despite limits on rationality.
Burns 2003 Right Orbitofrontal Tumor With Pedophilia Symptom and Constructional Apraxia Sign Jeffrey M. Burns, Russell H. Swerdlow 60 Arch Neurol 437 BACKGROUND: Orbitofrontal abnormalities are associated with poor impulse control, altered sexual behavior, and sociopathy. OBJECTIVE: To describe a patient with acquired pedophilia and a right orbitofrontal tumor who was unable to inhibit sexual urges despite preserved moral knowledge. DESIGN: Case report. RESULTS: The patient displayed impulsive sexual behavior with pedophilia, marked constructional apraxia, and agraphia. The behavioral symptoms and constructional deficits, including agraphia, resolved following tumor resection. CONCLUSIONS: For patients with acquired sociopathy and paraphilia, an orbitofrontal localization requires consideration. This case further illustrates that constructional apraxia can arise from right prefrontal lobe dysfunction. Agraphia may represent a manifestation of constructional apraxia in the absence of aphasia and ideomotor apraxia.
Burton 2010 "They Use it Like Candy": How the Prescription of Psychotropic Drugs to State-Involved Children Violates International Law Angela O. Burton 35 Brook. J. Int'l L. 453 The prescription of psychotropic drugs to children in the United States has reached epidemic proportions. Children in state foster care systems and juvenile prisons are particularly at risk of overmedication with psychotropic drugs. On any given day up to 50% of children in some state foster care systems and juvenile prisons are administered psychotropic drugs, often without documentation or medical justification supporting their use, and under conditions that constitute egregious departures from sound medical practice. Psychotropic drugs act directly on the brain to affect behavior, emotion, or mood. Because they are deemed to be highly addictive and susceptible to abuse and diversion into the illegal drug trade, some are designated as controlled substances under the United Nations Convention on Psychotropic Substances, 1971. This international treaty requires the United States government to protect the public – including children in state custody – from medically unjustified exposure to psychotropic drugs. In particular, the treaty requires that psychotropic drugs be prescribed only for medical purposes and administered in accordance with sound medical practice, and that the government prohibit their advertisement directly to the public. Analyzing the conditions under which state-involved children are prescribed and administered these highly addictive and powerful drugs, this Article concludes that the United States is in violation of the 1971 Convention because it permits drug companies to advertise controlled psychotropic substances such as methylphenidate, commonly sold as Ritalin, directly to the public, fails to restrict the prescription of psychotropic drugs to state-involved children for medical purposes only, and does not ensure that psychotropic drugs are administered to children in accordance with sound medical practice. The Article calls on the United States government to take swift and aggressive steps to comply with the 1971 Convention so as to ensure that children in foster care and in juvenile prisons are protected from excessive and unwarranted exposure to psychotropic drugs.
Buss 2010 What the Law Should (and Should Not) Learn from Child Development Research Emily Buss 38 Hofstra L. Rev. 13 The law has always treated children differently, and these differences in treatment are largely attributed to differences in capacity. Children lack the decision making ability and the self-control of adults, the cases and commentary explains, and therefore should be given less control over their own lives, and blamed less severely for their offenses. For much of the 20th century, these developmental arguments were grounded in life experience and conventional wisdom. More recently, however, developmental psychologists and legal scholars have joined forces to argue for legal rights and responsibilities that more accurately and consistently reflect psychological (and, most recently, neuroscientific) research about how children change as they grow up. This heavy reliance on developmental science was embraced by the Supreme Court in Roper v. Simmons, the 2005 case ruling that the Constitution prohibited the imposition of the death penalty for offenses committed by juveniles. While the Roper analysis can be applauded for its careful attention to social scientists' increasingly sophisticated understanding of children's capacities, it also demonstrates certain risks that come with this inter-disciplinary approach. In her talk, Buss will consider these risks, and suggest an approach to the formulation of children's rights that rests less on our current understanding of children's capacities and more on the role we want the law to play in shaping how children grow up.
Buss 2009 Rethinking the Connection Between Developmental Science and Juvenile Justice Emily Buss 76 U. Chi. L. Rev. 493
Cabrera 2013 The emotional impact of ‘study drugs’: unsurprising and unconvincing Laura Cabrera & Peter Reiner 4 AJOB Neuroscience 1 Vrecko’s highlights the significance of emotions in university student’s experiences with ‘study drugs’, pointing out that cognitive enhancement might be less cognitive than we think. However his account of the emotional impact smart drugs have is at once completely unsurprising as well as unconvincing. Any experience, particularly one that alters the functioning of one’s brain, will have an experiential dimension, and the narratives that Vrecko presents merely reinforce that observation. The data that are presented do not provide these readers with compelling evidence that “alterations of emotions” are an “important dimension of the drug effects.” Thus, while we concur with Vrecko’s in that more empirical neuroethics is needed, we think that ensuring quality, rigor, and robustness of empirical results is fundamental.
Cabrera 2011 Memory enhancement: The issues we should not forget about Laura Cabrera 22 Journal Of Evolution and Technology 1 The human brain is in great part what it is because of the functional and structural properties of the 100 billion interconnected neurons that form it. These make it the body’s most complex organ, and the one we most associate with concepts of selfhood and identity. The assumption held by many supporters of human enhancement, transhumanism, and technological posthumanity seems to be that the human brain can be continuously improved, as if it were another one of our machines. In this paper, I focus on some of the ethical issues that we should keep in mind when thinking about memory enhancement interventions. I start with an overview of one of the most precious capacities of the brain, namely memory. Then I analyze the different kinds of memory interventions that exist or are under research. Finally, I point out the issues that we should not forget when we consider enhancing our memories. In this regard, my argument is not against memory enhancement interventions; rather, it concentrates on the need to “keep in mind” what kind of enhancements we want. We should consider whether we want the kind of “enhancements” that will end up making us lose synapse connections, or the kind that promote more use of them.
Cabrera 2011 Neuroethics: a new way to do ethics or a new understanding of ethics? Laura Cabrera 2(2) AJOB Neuroscience 25 Levy’s (2011) article makes some interesting and provocative points about neuroethics. He argues that neuroethics offers us the opportunity to dramatically alter, the tools we use as applied ethicists. He describes two sets of evidence that he thinks are relevant to assessing the reliability of our intuitions, based on neuroimaging and psychological evidence respectively. While I fully agree with the author that neuroscience can give us new tools to assess moral judgements, I am skeptical about his idea that it will instantiate a different, more reliable, or even better way to do ethics. In this regard, the main contribution of neuroethics, as the neuroscience of ethics, is not necessarily that it will help us do ethics in a different way, but rather that it gives us different understandings of ethics, such as the neural mechanisms behind moral judgments.
Cabrera 2011 They Might Retain Capacities to Consent But Do They Even Care? Laura Cabrera 2(1) AJOB Neuroscience 41 Dunn and colleagues (2011) claim that the belief that depressed patients have diminished decision-making capacity due to having a mental illness is not well founded. While Dunn and colleagues might be correct in arguing that the worry associated with informed consent, in the case of treatment resistant major depression (TRD) patients to be treated with Deep Brain stimulation (DBS), is not so much that their intellectual capacities and abilities to reason are impaired, as often depression leaves those intact, I argue that it is the emotional states characteristic of their condition what we should be considering. TRD patients may not have the appropriate minimal degree of concern for their own well-being even though they might understand and be able to evaluate all the risks and implications involved with DBS. However, I fully agree with Dunn and colleagues that more research is needed to have a better grasp of the ethical issues involved around consent issues in DBS for TRD.
Cabrera 2010 Neurotechnology: the need for neuroethicists Laura Cabrera 11 Australian Journal of Professional and Applied Ethics (AJPAE) 1 Selected papers from the 2009 Conference of the Australian Association for Professional and Applied Ethics.
Cáceres 2010 Steps toward a Constructivist and Coherentist Theory of Judicial Reasoning in Civil Law Tradition Enrique Cáceres Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter presents a theoretical model of judicial reasoning that satisfactorily integrates partially provided explanations by three different theoretical research paradigms: philosophy of law, legal epistemology, and artificial intelligence and law. The model emerges from the application of knowledge elicitation and knowledge representation methods, and uses the theory of neural networks as a theoretical metaphor to generate explanations and visual representations. The epistemological status of the model is of constructivist stripe: it is in line with the contemporary research tendencies within cognitive psychology that propose that judicial reasoning may be better understood if a coherentist and a connectionist approach is taken.
Callen 1991 Cognitive Science and the Sufficiency of "Sufficiency of the Evidence" Tests Craig R. Callen 65 Tul. L. Rev. 1113
Callender 2010 Free Will and Responsibility: A Guide for Practitioners John S. Callender Oxford University Press In Free Will and Responsibility, John Callender starts by describing the evolution of morality and the roles of reason and emotion in the making of moral judgments. He then summarizes recent neuroscientific research on volitional behavior, moral decision-making, and criminality, and discusses what this might mean for our practices of blame and punishment. In the second part, he examines the overlaps between art, free will, and moral value and argues that this offers a paradigm that reconciles our subjective sense of freedom with causal determinism. Finally, he examines these ideas in the clinical context of conditions such as psychopathic personality disorder, post-traumatic stress disorder and the dissociative disorders and discusses their implications for psychotherapy.
Camchong 2012 Imaging Psychoses: Diagnosis and Prediction of Violence Jasmin Camchong & Angus W. MacDonald III Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) The main purpose of this chapter is to address the issue of whether neuroimaging techniques can or should have a role in the diagnosis or classification of mental diseases such as schizophrenia for forensic purposes. We will first review the concept of schizophrenia by describing several aspects of the illness that are increasingly well established. We will then shift our focus to what has been discovered about schizophrenia using neuroimaging methodologies to examine patients' brain structure, the connectivity of their neurons, as well as functioning under a number of different circumstances. Because of its forensic relevance, we also address schizophrenia's comorbidity with violence and substance use. Lastly, we review the potential for using neuroimaging as a diagnostic tool to classify individuals both before and after illness onset. One key observation within this chapter is that classification algorithms may benefit further from several modes of brain imaging techniques (e.g. combinations of structural, functional and connectivity markers); these algorithms may be further aided by behavioral measures, such as those assessed by neuropsychological tasks. While there are still several pending issues that need to be addressed, findings reported in this chapter suggest that there is potential for neuroimaging to become a standard component of the approach to confirming a diagnosis of schizophrenia. Perhaps in time it will be useful for distinguishing schizophrenia patients from patients with related disorders, and/or guiding treatment recommendations.
Camerer 2006 Wanting, Liking, and Learning: Neuroscience and Paternalism Colin F. Camerer 73 U. Chi. L. Rev. 87 A large number of young children die every year from ingesting poisons by accident. Revealed-preference theory, the foundation of microeconomics, has only two concepts to explain these accidents: beliefs and preferences (that is, utilities revealed by choices). In the beliefpreference language, all we can say is that a child who died of accidental poisoning either believed the poison was safe, and made a mistake, or that the child preferred death to life, and committed suicide. While economic theory may be comfortable calling these accidents only mistakes or expressions of preference, I am not. My goal in this Essay is to acquaint the legal audience with ideas emerging in neuroscience that could potentially be a richer language for talking about cases like accidental child poisoning and, more broadly, about welfare and paternalism in some limited cases. Further development of the framework could lead to a broader view with wider applicability. The idea is that three separable neural systems are relevant for choice and welfare: a hedonic “liking” system (welfare), a “wanting” system that guides choice, and a learning system that, ideally, links information stored in the other systems so that people choose to learn what they truly like. Other multiple-process neuroeconomic accounts use different components but have similar implications.
Canli 2005 When Genes and Brains Unite: Ethical Implications of Genomic Neuroimaging Turhan Canli Neuroethics: Defining the Issues in Theory, Practice and Policy 169 (Oxford Univ. Press, Judy Illes, ed., 2005). Geneticists, neuroscientists, and personality psychologists are now on a quest to understand the biological basis of personality and individual differences. This chapter highlights recent advances in this field of research. It illustrates how data obtained from neuroimaging scans can predict narrowly defined forms of behavior better than self-report and other behavioral measures, and argues that future integration of genetic and life experience data with neuroimaging data will further enhance this capability. It identifies likely applications of this technology and concludes that a statistically informed cost-benefit analysis may be the most practical approach towards the ethical use of this technology across a diverse set of real-life applications.
Canli 2002 Neuroimaging of emotion and personality: scientific evidence and ethical considerations Turhan Canli & Zenab Amin 50 Brain and Cognition 414 Affective neuroscience has seen an explosion of research efforts using modern neuroimaging approaches to uncover the neural basis of emotion and personality. The first section of this paper reviews studies from the domains of affective and forensic neuroimaging. These studies illustrate some of the topics likely to be the subject of future ethical debates. The second section relates limitations of the neuroimaging approach to ethical considerations in predicting future psychopathology on the basis of brain state analysis.
Capraro 2012 Primi casi "clinici" in tema di prova neuroscientifica [Cognitive neuroscience and criminal proceedings: the first caselaw] Laura Capraro 3 Processo penale e Giustizia 9
Capraro 2011 Neurodiritto. Un'introduzione L. Capraro, V. Cuzzocrea, E. Picozza, D. Terracina Torino
Capraro 2010 The Juridical Role of Emotions in the Decisional Process of Popular Juries Laura Capraro Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter focuses on the jury, in particular on the contribution that neuroscience can make to the understanding of the relationship between emotions and decision-making. The study of law is, in general, the result of a scientific approach that tends to privilege ‘rationale’ over the influence of ‘emotions’ and ‘intuitions’ within the context of juridical reasoning. Emotions hold a fundamental role even in instances such as criminal cases, in which results — as supported by research and findings furnished by cognitive neuroscience — are strongly conditioned by ‘emotions’. The latter, while belonging to the realm of ‘reason’ are not an effective impediment to its functionality but, rather, greatly contribute to the reasoning process.
Carbone 2010 Neuroscience and Ideology: Why Science Can Never Supply a Complete Answer for Adolescent Immaturity June Carbone Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). For those who study adolescent development and the transition to adulthood, the lure of innovations in neuroscience is considerable. Magnetic resonance imaging (MRIs) and CT scans offer the illusion of peering into the teen brain and discovering what many have long suspected — while all the parts are there, they are not necessarily fully connected. Innovations in neuroscience and adolescent decision-making say more about our existing decision-making processes than they do about the adolescents who are the subject of the decisions. This chapter argues that to resolve the issues about the role of neuroscience, we need to question the framework in which it arises. That is, the increasing complexity of scientific determinations raises issues of institutional capacity. Recognizing innovations in the science of adolescent development may change not so much our view of adolescence as the calculus underlying institutional functions. The chapter begins by describing the ‘lure of neuroscience’, that is, the promise and limitations of the scientific advances, comparing legal decision-making capacity in individual cases versus broader matters of constitutional doctrine or public policy, analysing the recent US Supreme Court decisions on the juvenile death penalty in such terms, and assessing the role of neuroscience in the different possible outcomes of that case.
Carbone 2009 Examining the Biological Bases of Family Law: Lessons to be Learned for the Evolutionary Analysis of Law June Carbone & Naomi Cahn Law, Mind and Brain 323 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009). This article critically examines the insights that biology (including evolutionary analysis and neuroscience data) offers for understanding the relationship between family law and family stability. The paper initially considers evolutionary analysis, comparative anatomy, and neuroscience data to conclude that while the pair bond appears to be a universal feature of human societies, long-term fidelity is not. The second part of the paper considers the benefits and limitations of evolutionary analysis concluding, first, that evolutionary analysis, without connection to modern neuroscience or sociological data, remains highly speculative; second, that where the evolutionary analysis is borne out by modern neuroscience and/or sociological data, it is more persuasive, but often leads to obvious conclusions; and third, that undertaking this type of examination nonetheless leads to new insights or new questions that should prompt productive research.
Caretti 2010 La personalità psicopatica [On psychopatic personality] Vincenzo Caretti & Giuseppe Craparo 2 Sistemi intelligenti 229
Carota 2010 Forward Modeling Mediates Motor Awareness Francesca Carota, Michel Desmurget & A. Sirigu Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). This chapter focuses on the issue of motor awareness. It addresses three main questions: What exactly are we aware of when making a movement? What is the contribution of afferent and efferent signals to motor awareness? What are the neural bases of motor awareness? It reviews evidence that the motor system is mainly aware of its intention. As long as the goal is achieved, nothing reaches awareness about the kinematic details of the ongoing movements, even when substantial corrections have to be implemented to attain the intended state. The chapter also shows that motor awareness relies mainly on the central predictive computations carried out within the posterior parietal cortex. The outcome of these computations is contrasted with the peripheral reafferent input to build a veridical motor awareness. Some evidence exists that this process involves the premotor areas.
Carrido 2012 Revisiting the Insanity Defense: A Case for Resurrecting the Volitional Prong of the Insanity Defense in Light of Neurosceintific Advances Melinda Carrido 41 Sw. L. Rev. 309 The narrowing of the insanity defense was a backwards step in legislation because the law no longer provides a defense for those who cannot control their actions. 20 The insanity defense should be broadened because neuroscience can presently identify particular sections of the brain (specifically, those that control behavior) that, if damaged, could be a possible source of criminal behavior. 21 Such advances are not accounted for in the Insanity Reform Defense Act. 22 Part I will articulate the advances in neuroscience that explain the behavior of mentally disturbed individuals such as Chris Benoit, and will describe the technology used to determine whether brain abnormalities exist. 23 Part II will discuss the creation of and reasoning behind the insanity defense, its evolution, and hasty devolution resulting from public outrage over the verdict in United States v. Hinckley. 24 It will also show how the resulting insanity defense does not adequately account for individuals with severe frontal lobe damage. 25 Part III will argue for the inclusion of a volitional prong in the insanity defense, and demonstrate that such legislation will still achieve the social goal of keeping society safe, while also providing the possibility of rehabilitation instead of incarceration for defendants who successfully plead the insanity defense.
Caruana 2010 Due problemi sull'utilizzo delle neuroscienze in giurisprudenza [Two problems related to the use of neuroscience in the caselaw] Fausto Caruana 2 Sistemi intelligenti 337
Casartelli 2013 Which Future for Neuroscience in Forensic Psychiatry: Theoretical Hurdles and Empirical Chances L. Casartelli & C. Chiamulera 4 Front Psychiatry 74 In this work we have assumed that neuroscience data cannot be profitably endorsed in a dualistic perspective; we have tried to show that the most of Western Penal Codes are shaped on a dualistic model, consequently we have claimed that there are compelling reasons to encourage a new perspective also in the forensic field. If neuroscience data may be useful – in specific and limited circumstances – to give aid to traditional forensic assessment for mental capabilities, at the same time not all neuroscience data may assume the same explanatory value; in other words, not all data may be useful in forensic psychiatry evaluation (FPE). We have suggested that the preliminary condition to introduce neuroscience data in FPE is the assumption of a new perspective overcoming classical dualist models. Such new perspective permits to rule out misleading assumptions (i.e., the deterministic link between “mental defect” and specific behavior). Noteworthy, it is a necessary but not sufficient condition to introduce neuroscience data in FPE, given that such data has to be evaluated case by case.
Casartelli 2013 Opportunities, Threats and Limitations of Neuroscience Data in Forensic Psychiatric Evaluation L. Casartelli & C. Chiamulera 26(5) Curr Opin Psychiatry 468 PURPOSE OF REVIEW: In the last decade, a number of studies have been published to shed light on the interaction between neuroscience and the law, notably on the introduction of neuroscience data in forensic psychiatric evaluation (FPE). Even if there is a growing consensus on the relevance of neuroscience in clinical practice, the role of neuroscience in FPE is still controversial. RECENT FINDINGS: The use of neuroscience data in FPE can support the detection of psychopathological disabilities (e.g. deficit of self-control, aggressiveness) that may be involved in criminal action. Traumatic brain injury-related clinical disorders that may lead to misconduct have a relevant role in the debate. Traditionally, literature refers also to rare and weird cases in which brain tumours, infections and morphological abnormalities were supposed to be significantly associated with disorders leading to criminal action. SUMMARY: After reviewing recent literature from both legal and neuroscientific perspectives, we consider a broader range of clinical conditions (e.g. disorders of consciousness in sleepwalking, dopamine replacement therapy in Parkinson's disease, misattributions of self in delusional experience) that may have implications in legal settings. Obviously, it would be possible to consider also different clinical conditions. We conclude by suggesting further experimental and theoretical analysis.
Casasole 2012 Neuroscienze, genetica comportamentale e processo penale [On neuroscience, behavioral genetics and criminal proceedings] Frederica Casasole 1 Diritto penale e processo 110
Casebeer 2011 Security, stories and the other: the narrative neurobiology of identity formation William Casebeer Gruter Institute Squaw Valley Conference: Law, Institutions & Human Behavior Narratives play a critical role in multiple national security issues, including influencing the genesis and development of political violence. Cognitive neuroscience has reached the stage where the neural mechanisms responsible for the impact of stories on the neurobiology and psychology of group identity can be explored systematically. A review of existing and pilot work in this area indicates narrative frames can have dramatic neurobiological impact on the machinery of empathy and in-group/out-group formation. Here, I discuss and review this literature and its strategic upshot for national security policy.
Casebeer 2009 Reason's Ends: Ecological Rationality and Moral Judgment William D. Casebeer 35 Queen's L.J. 359 The author sets out to navigate between psychologism (or extreme naturalism) and supernaturality (or extreme anti-naturalism), by developing a biologically based theory of judgment premised on the notion that a cognitive system's capacity to learn depends on its capacity to modify its processes of judgment in response to experiences and environmental stimuli. Psychologistic approaches to the nature of thought, the author notes, are traditionally seen as erroneously conflating the laws of logic with empirically derived laws of thought. He proposes that such approaches be placed on an axis. At one pole is what he calls Good Old Fashioned Cognition (GOFC). This approach, which is the least likely to be disparaged as psychologistic, is akin to traditional computational-representational theories of thought, which maintain that understanding the mind requires understanding the “software” that directs our brains. At the other pole is what the author calls New Fangled Cognition (NFC), which he advocates in this paper. NFC focuses on the biological functions (or “hardware”) of the brain, and is typically characterized by a connectionist or neural network approach. Conceptually, it sees neither language nor community and environment as being essential to judgmental activities. NFC amounts to a biologized theory of judgment which centers on a Heideggerian-like pre-linguistic capacity--an a priori function that is responsive to environmental norms. It allows a distinction to be drawn between three levels of cognitive capacity with which systems respond to their environment: systems are classified as having either minimal, standard or robust (i.e. human) moral agency. Each level is characterized by particular types of learning mechanisms and moral function. The NFC approach puts forward a textured idea of judgment as a biological capacity to skillfully cope with the environment--a capacity that can be developed through experience. This idea of “naturalized decision-making” provides a unique conception of moral agency; for example, moral perception (or misperception) is understood as a product of the functional relationship (effective or ineffective) between robust cognitive systems and their environments. Although it has a biological basis, NFC is in step with the Aristotelian notion that the end of reason is to encourage human flourishing, and not the reverse. What it means to be rational is important to the law, and if the NFC approach is right, the purposes of reason and the purposes of law will best be furthered by systems that take due account of our biological nature.
Casey 2013 The Teenage Brain: Self Control B. J. Casey & Kristina Caudle 22 Current Directions in Psychological Science 82 Adolescence refers to the transition from childhood to adulthood that begins with the onset of puberty and ends with successful independence from the parent. A paradox for human adolescence is why, during a time when the individual is probably faster, stronger, of higher reasoning capacity, and more resistant to disease, there is such an increase in mortality relative to childhood. This is due not to disease but, rather, to preventable forms of death (accidental fatalities, suicide, and homicide) associated with adolescents putting themselves in harm’s way, in part because of diminished self-control—the ability to suppress inappropriate emotions, desires, and actions. This article highlights how self-control varies as a function of age, context, and the individual and delineates its neurobiological basis.
Casonato 2009 Introduzione al biodiritto[An introduction to biolaw] Franco Casonato Turin, Giappichelli
Casper 2008 Cross-Examination of the Defense Expert in a Traumatic Brain Injury Case—No Perry Mason Moments Stewart M. Casper 1 Ann. AAJ-CLE 1103
Cassin 2013 Eggshell Minds and Invisible Injuries: Can Neuroscience Challenge Longstanding Treatment of Tort Injuries? Shaun Cassin 50 Hous. L. Rev. 929 Tort law has traditionally taken vastly different approaches to various types of injuries. It consistently favors physical injuries more than it does emotional injuries and invisible injuries—which this Comment defines as a hybrid of physical and emotional injuries. The reasons for this disparate treatment are valid ones. Emotional and invisible injuries are particularly difficult to prove. Moreover, because litigants have incentives to get higher damage awards, they can, and do, lie about their injuries and fake their pain. However, the mere fact that a person fails to provide physical evidence of pain does not mean that his pain is nonexistent. What if there was a technology that could objectively measure a person’s pain levels? Advancements in neuroscience are moving closer to that possibility. Neuroscience is gaining huge traction in the law. Soon enough, courts will be faced with tort litigants seeking to introduce neuroimaging evidence as objective proof of pain that has traditionally been unverifiable. Focusing on emotional and invisible injuries, this Comment discusses whether neuroscience will undermine the current approach of distinguishing these injuries from physical ones.
Castellani 2010 Fatti e controfatti nel ragionamento giudiziario [Facts and counterfactuals within judiciary reasoning] Patrizia Castellani 2 Sistemi intelligenti 209
Catanesi 2014 Evolution of Criminology Roberto Catanesi & Giovanna Punzi Organized Crime, Corruption and Crime Prevention 315 Scientific research about the biological basis of aggressive and criminal behaviors performed in the last few decades could change modern criminology. Functional and structural neuroimaging overall suggests that decreased prefrontal activity and increased subcortical activity may predispose individuals to violence. At a molecular level, dopamine and serotonin signaling seem to be mostly involved in contributing to this phenotype, which has also revealed a significant heritability. In the present article, the Authors will try to explore the issues related to the coupling of imaging and genetic data with criminology, starting from the first case which made this kind of evidence gain admittance to a US criminal courtroom.
Caterina 2010 Psicologia della decisione e tutela del consumatore: il problema delle "pratiche ingannevoli" [Decision Psychology and consumer’s protection: the issue of misleading practices] Raffaele Caterina 2 Sistemi intelligenti 221
Caterina 2008 I fondamenti cognitivi del diritto[Cognitive foundations of the law] Raffaele Caterina Milan, Bruno Mondadori
Caulum 2007 Postadolescent Brain Development: A Disconnect Between Neuroscience, Emerging Adults, and the Corrections System Melissa S. Caulum 2007 Wis. L. Rev. 729 Should the U.S. legal system punish emerging-adult offenders (offenders ages 18-24) as fully culpable adults? Psychological, behavioral and cognitive neuroscientific research shows significant brain development occurs through the age of 25 in areas of decision-making skills, judgment, and rational thought. This research suggests emerging-adult offenders have trouble controlling their behavior, not understanding the difference between right and wrong. Continued brain development may not suggest that first-time, nonviolent emerging adult-offenders should not be held less responsible for their actions, but development in the areas that implicate moral culpability suggest that rehabilitation efforts in corrections systems should rely more on individual, developmental, and maturation information, than on traditional elements of adult punishment and incarceration. This Comment analyzes recent U.S. Supreme Court death penalty jurisprudence and its emphasis on moral culpability and behavioral and cognitive development; and neuroscientific findings suggesting that brain development in the areas governing decision-making skills, judgment and rational thought continues through the age of 25; and the history and current state of juvenile and adult corrections in the U.S. It also examines existing corrections programs already aimed at emerging-adult offenders, and recommends a programmatic sentencing approach that squares the development of the emerging-adult brain with both juvenile-and adult-corrections models, through (i) judicial education; (ii) structured scheduling including work and education programs; (iii) re-entry programs; and (iv) specialized programming. Finally, it suggests that state legislatures should address emerging-adult corrections and determine appropriate sentencing structures based on the available psychological, behavioral and cognitive neuroscientific research.
Chan 2007 The Food and Drug Administration and the Future of the Brain-Computer Interface: Adapting FDA Device Law to the Challenges of Human-Machine Enhancement Erik D. Chan 25 J. Marshall J. Computer & Info. L. 117 The neuroelectronic interface is an emerging technology that uses electric signals to communicate directly with the human brain. It promises to make possible a new generation of user-worn prosthetic devices that can be controlled at the speed of thought, functioning as actual extensions of the human body. Prototypes already exist, though they are still in development – artificial retinas, which can provide replacement sight for the blind; sophisticated prosthetic limbs. Though current applications are geared towards replacing lost natural function, there is no reason that these brain-computer interface devices cannot also be used to enhance the capabilities of a healthy human body. Neuroelectronic devices may not only allow humans to run faster, jump higher, and see farther, but they might potentially impart new forms of sensory perception and control over the world that were previously unimaginable. This paper explores the new safety risks and burgeoning legal and ethical implications of neuroelectronic enhancement devices under U.S. Food & Drug Administration law. It argues that the Premarket Approval regime administered by FDA’s Center for Devices and Radiological Health is deficient in two respects when it comes to these futuristic devices. First, by focusing on device approval as the sole regulatory event, the FDA fails to effectively ensure safety and effectiveness in the long term–over the life of a user. Second, the FDA’s “procedural” regulatory regime does not consider the moral, ethical and social considerations–“substantive” concerns–that enhancement devices will implicate. Only regulation that accounts for these issues can raise public awareness and prevent the inevitable public backlash and moratorium on neuroelectronic development when something goes wrong. This paper thus proposes two main modifications to existing FDA device law. FDA should create a new “Class IV” designation for neuroelectronic devices, implementing along the way a two-tiered approval process to better assess long-term risks of safety and effectiveness. In order to consider the broader questions of enhancement itself, a “Class IV-E” sub-designation should be established to review Class IV devices that have “significant potential” to enhance human abilities.
Chandler 2013 Another Look at the Legal and Ethical Consequences of Pharmacological Memory Dampening: The Case of Sexual Assault Jennifer A. Chandler, A. Mogyoros, T. Martin Rubio, & Eric Racine 41(4) Journal of Law, Medicine and Ethics 859 Research on the use of propranolol as a pharmacological memory dampening treatment for post-traumatic stress disorder is continuing and justifies another look at the legal and ethical issues raised in the past. We summarize the general ethical and legal issues raised in the literature so far, and we select two for in-depth reconsideration. We address the concern that a traumatized witness may be less effective in a prosecution emerging from the traumatic event after memory dampening treatment. We analyze this issue in relation to sexual assault, where the suggestion that corroborating evidence may remedy any memory defects is less likely to be helpful. We also consider the clinical ethical question about a physician’s obligation to discuss potential legal consequences of memory dampening treatment. We conclude that that this latter question reflects a general problem related to novel medical treatments where the broader socio-legal consequences may be poorly understood, and suggest that issues of this sort could usefully be addressed through the promulgation of practice guidelines.
Chandler 2011 Autonomy and the Unintended Legal Consequences of Emerging Neurotherapies Jennifer A. Chandler ___ Neuroethics ___ One of the ethical issues that has been raised recently regarding emerging neurotherapies, is that people will be coerced explicitly or implicitly in the workplace or in schools to take cognitive enhancing drugs. This article builds on this discussion by showing how the law may pressure people to adopt emerging neurotherapies. It focuses on a range of private law doctrines that, unlike the criminal law, do not come up very often in neuroethical discussions. Three doctrines - the doctrine of mitigation, the standard of care in negligence, and child custody determinations in family law – are addressed to show how the law may pressure people to consent to treatment by offering a choice between accepting medical treatment and suffering a legal disadvantage. The doctrines considered in this article apply indirect pressure to submit to treatment, unlike court-ordered medical treatment, which applies direct pressure and is not addressed here. The outcome of this discussion is to show that there is a greater range of social pressures that may encourage the uptake of novel neurotherapies than one might initially think. Once treatments that were developed and offered with therapeutic benefits in mind become available, their existence gives rise to unintended legal consequences. This certainly does not mean we should cease developing new therapies that may be of tremendous benefit to patients, but it does raise some questions for physicians and for legal policy-makers. How should physicians, who are required by medical ethical principles to obtain valid consent to treatment, react to a patient’s reluctant consent that is driven by legal pressure? From the legal policy perspective, are our legal doctrines satisfactory or should they be changed because, for example, they unduly promote the collective interest over individual freedom to reject medical treatment or because they channel us toward economically efficient treatments to the detriment of more costly but potentially superior approaches of dealing with behavioural problems?
Chandler 2010 Reading the Judicial Mind: Predicting the Courts' Reaction to the Use of Neuroscientific Evidence for Lie Detection Jennifer A. Chandler 33 Dalhousie L.J. 85 How will the courts react to the emerging technology of detecting deception using neuroscientific methods such as neuro-imaging? The sociological theory of the autonomy of technology suggests that if neuroscientific techniques come to be seen as reliable for this purpose, other objections will soon be abandoned. The history of the judicial reaction to DNA evidence illustrates this pattern. As DNA evidence came to be seen as highly reliable, the courts rapidly abandoned their concerns that juries would be overwhelmed by the “mystique of science” and that the justice system would be “dehumanized.” The legal justifications for rejecting polygraph evidence are explored in order to illustrate that the judicial resistance to lie detection technologies, including neuro-imaging, can be expected to follow a similar pattern. The key determinant of whether courts are likely to accept neuroscientific evidence for the purpose of lie detection is the degree to which this evidence is considered to be reliable. Competing concerns about the “dehumanization” of the justice system, or the customary judicial attachment to protecting credibility determination as a purely human function, are unlikely to be able to overcome the pressure to adopt reliable neuroscientific technologies for lie detection should such technologies develop. This is because technologies that are widely accepted as reliable cannot be permitted to remain outside the justice system to deliver their own verdicts incompatible with those of the courts. The continued legitimacy of the justice system cannot tolerate this. The rules of evidence and, in particular, the constitutional right to make full answer and defense are the legal mechanisms by which this accommodation would take place.
Chiesa 2010 Beyond Torture: The Nemo Tenetur Principle in Borderline Cases Luis E. Chiesa 30 B.C. Third World L.J. 35 The Latin phrase nemo tenetur seipsum accusare means roughly “no man has to accuse himself.” It is the basis of our rights against self-incrimination and forced inculpation. It protects against three practical problems associated with confessions: (1) untrustworthy confessions; (2) involuntary confessions; and (3) confessions provoked through unacceptable force. This article argues that the nemo tenetur principle was intended primarily to avoid the third problem: confessions obtained through improper methods. It examines the arguments for and against justifying the principle as a protection against either untrustworthy or involuntary confessions. The article also develops a framework to aid in the identification of improper methods of interrogation. Finally, it concludes by applying this framework to three hypothetical cases and arguing that only confessions obtained through unacceptable force should be barred.
Choi 2008 Brain Death Revisited: The Case for a National Standard Eun-Kyoung Choi et al. 36 J.L. Med. & Ethics 824 The concept of brain death--first defined decades ago--still presents medical, ethical, and legal challenges despite its widespread acceptance in clinical practice and in law. This article reviews the medicine, law, and ethics of brain death, including the current inconsistencies in brain death determinations, which a lack of standardized federal policy promotes, and argues that a standard brain death policy to be used by all hospitals in all states should be created.
Chorvat 2006 The Brain and the Law Terrence Chorvat & Kevin McCabe Law and the Brain 113 (Oxford Univ. Press, Semir Zeki & Oliver Goodenough, eds., 2006). Much has been written about how law as an institution has developed to solve many problems that human societies face. Inherent in all of these explanations are models of how humans make decisions. This article discusses what current neuroscience research tells us about the mechanisms of human decision making of particular relevance to law. This research indicates that humans are both more capable of solving many problems than standard economic models predict, but also limited in ways those models ignore. This article discusses how law is both shaped by our cognitive processes and also shapes them. The article considers some of the implications of this research for improving our understanding of how our current legal regimes operate and how the law can be structured to take advantage of our neural mechanisms to improve social welfare.
Chorvat 2005 Neuroeconomics and Rationality Terrence R. Chorvat & Kevin A. McCabe 80 Chi.-Kent L. Rev. 1235 The assumption of rationality is both one of the most important and most controversial assumptions of modern economics. This article discusses what current experimental economic as well as neuroscience research tells us about the relationship between rationality and the mechanisms of human decision-making. The article explores the meaning of rationality, with a discussion of the distinction between traditional constructivist rationality and more ecological concepts of rationality. The article argues that ecological notions of rationality more accurately describe both human neural mechanisms as well as a wider variety of human behavior than do constructivist notions of rationality.
Chorvat 2005 Law and Neuroeconomics Terrence R. Chorvat, Kevin A. McCabe & Vernon L. Smith 13 Sup. Ct. Econ. Rev. 35 As legal scholarship has come to rely more on economic analysis, the foundational questions of economics have become important questions for legal analysis as well. One of the key foundational elements of modern economics is the assumption of the rational utility maximizing individual. While this assumption has often been questioned, until recently, it was not possible to actually examine the brain mechanisms that individuals use to process the economic problems they face. As a result of the increasing abilities to explore the brain as individuals engage in economic activity, this article calls for a new approach to the study of law which incorporates the findings from the emerging area of neuroeconomics. It calls this approach law and neuroeconomics. It argues that this research can help us understand what is occurring in the brains of the individuals and knowledge gained thereby can greatly aid both in understanding the process of creation and development of law, as well as its effects on human behavior. The article discusses this research and begins the analysis of applying these findings to the study of law.
Choudhury 2009 Critical neuroscience: linking neuroscience and soceity through critical practice Suparna Choudhury, Saskia Kathi Nagel & Jan Slaby 4 BioSocieties 61 We outline the framework of the new project of Critical Neuroscience: a reflexive scientific practice that responds to the social, cultural and political challenges posed by the advances in the behavoural and brain sciences. Indeed, the new advances in neuroscience have given rise to growing projects of the sociology of neuroscience as well as neuroethics. In parallel, however, there is also a growing gulf between social studies of neuroscience and empirical neuroscience itself. This is where Critical Neuroscience finds its place. Here, we begin with a sketch of several forms of critique that can contribute to developing a model of critical scientific practice. We then describe a set of core activities that jointly make up the practice of Critical Neuroscience as it can be applied and practised both within and outside of neuroscience. We go on to propose three possible areas of application: (1) the problems related to new possibilities of neuropharmacological interventions; (2) the importance of culture, and the problems of reductionism, in psychiatry; (3) the use of imaging data from neuroscience in the law as alleged evidence about 'human nature'.
Chua 2012 Evaluating Confidence in Our Memories: Results and Implications for Neuroimaging and Eye Movement Monitoring Studies of Metamemory Elizabeth Chua Memory and Law (Oxford University Press, Lynn Nadel & Walter Sinnott-Armstrong, Eds., 2012) Recognition confidence is a common metric used to assess the accuracy of eyewitness identifications. Consequently, it is critical that we understand what information individuals use to make confidence judgments about their memory. Drawing on research in the field of metamemory (i.e., knowledge of one’s own memory), this chapter examines findings from the behavioral, eye tracking, and neuroimaging literature to determine what factors influence subjective memory confidence, and their relationship to objective accuracy. Critically, confidence judgments may be based on factors other than direct retrieval of the original event, such as familiarity or fluency of the cue that serves to elicit the sought after memory. The chapter also evaluates the potential for techniques such as functional magnetic resonance imaging (fMRI) and eye tracking in distinguishing highly confident accurate and highly confident inaccurate memory.
Church 2014 Imaging’s Insights Into Human Violence Elizabeth J. Church 85(4) Radiologic Technology 417 Following every well-publicized act of incomprehensible violence, the news media rush to interview neighbors, family members, and experts in an attempt to discover what could have led an individual to commit such a barbarous act. Certain stock answers are reiterated: video games, bullying, violent films, mental illness, the availability of guns, and a society that is increasingly both anonymous and callous. Might imaging be one of the more valuable keys to unlocking the mysteries of violent, aggressive people? This article explores these questions and their complex answers in the context of violent individuals.
Church 2012 Neuroscience in the Courtroom: An International Concern Dominique J. Church 53 Wm. & Mary L. Rev. 1825 The article discusses the use of neuroscientific evidence and technologies in courtroom proceedings around the globe as of April 2012, focusing on international concerns over the legality of obtaining mental information for use in judicial proceedings. Issues regarding potential violations of search and seizure laws and privacy rights are addressed in relation to neuroscientific procedures such as brain fingerprinting and functional magnetic resonance imaging (fMRI).
Churchill 2010 The Parity Cure: Solving Unequal Treatment of Mental Illness Health Insurance Through Federal Legislation Christopher J. Churchill 44 Ga. L. Rev. 511
Churchland 2011 Braintrust: What Neuroscience Tells Us about Morality Patricia S. Churchland Princeton University Press What is morality? Where does it come from? And why do most of us heed its call most of the time? In Braintrust, neurophilosophy pioneer Patricia Churchland argues that morality originates in the biology of the brain. She describes the "neurobiological platform of bonding" that, modified by evolutionary pressures and cultural values, has led to human styles of moral behavior. The result is a provocative genealogy of morals that asks us to reevaluate the priority given to religion, absolute rules, and pure reason in accounting for the basis of morality. Moral values, Churchland argues, are rooted in a behavior common to all mammals--the caring for offspring. The evolved structure, processes, and chemistry of the brain incline humans to strive not only for self-preservation but for the well-being of allied selves--first offspring, then mates, kin, and so on, in wider and wider "caring" circles. Separation and exclusion cause pain, and the company of loved ones causes pleasure; responding to feelings of social pain and pleasure, brains adjust their circuitry to local customs. In this way, caring is apportioned, conscience molded, and moral intuitions instilled. A key part of the story is oxytocin, an ancient body-and-brain molecule that, by decreasing the stress response, allows humans to develop the trust in one another necessary for the development of close-knit ties, social institutions, and morality. A major new account of what really makes us moral, Braintrust challenges us to reconsider the origins of some of our most cherished values.
Churchland 2005 Moral Decision-making and the Brain Patricia S. Churchland Neuroethics: Defining the Issues in Theory, Practice and Policy 3 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter addresses the question of whether we can have thought without biology. Developments in neuroscience and cognitive science have made it possible to formulate a rough hypothesis concerning the neurobiology of ‘in-control’ brains, and the respects in which it differs from that of ‘not-in-control’ brains. This hypothesis must be framed in terms of a parameter space, the dimensions of which are specified in terms of neurobiological properties, especially of the prefrontal cortex, the limbic system, and the brainstem. As a consequence, ‘in control’ can be characterized neurobiologically as a volume within that parameter space. This provides a framework for further research on planning, decision-making, evaluation, and choice in nervous systems.
Clark 2008 On The Diagnosticity of Multiple-Witness Identifications Steven E. Clark & Gary L. Wells 32 Law & Hum. Behav. 406 It is not uncommon for there to be multiple eyewitnesses to a crime, each of whom is later shown a lineup. How is the probative value, or diagnosticity, of such multiple-witness identifications to be evaluated? Previous treatments have focused on the diagnosticity of a single eyewitness's response to a lineup (Wells and Lindsay, Psychol. Bull. 3 (1980) 776); however, the results of eyewitness identification experiments indicate that the responses of multiple independent witnesses may often be inconsistent. The present paper calculates response diagnosticity for multiple witnesses and shows how diagnostic probabilities change across various combinations of consistent and inconsistent witness responses. Multiple-witness diagnosticity is examined across variation in the conditions of observation, lineup composition, and lineup presentation. In general, the diagnostic probabilities of guilt were shown to increase with the addition of suspect identifications and decrease with the addition of nonidentifications. Foil identification results were more complicated-diagnostic of innocence in many cases, but nondiagnostic or diagnostic of innocence in biased lineups. These analyses illustrate the importance of securing clear records of all witness responses, rather than myopically focusing on the witness who identified the suspect while ignoring those witnesses who did not.
Clausen 2008 Die “Natur des Menschen” in Neurowissenschaft und Neuroethik Jens Clausen Würzburg, Königshausen & Neumann
Claydon 2012 Neuroscientific Evidence in the English Courts Lisa Claydon, Paul Catley International Neurolaw (Springer, Tade Spranger, Ed., 2012) This chapter examines the use of neuroscientific evidence in the courts of England and Wales. It considers the breadth of use which has been made of this evidence. In particular it examines the use of this evidence in cases where the capacity of the legal actor has been questioned. This may apply in evaluations of criminal responsibility and in a civil context in assessing capacity to perform legally meaningful actions such as the making of wills. Consideration is given to what this evidence adds to determinations of whether individuals are in a persistent vegetative state in particular in relation to the withdrawal of treatment. This chapter looks at the use of expert evidence in court and briefly considers proposed changes. Finally the chapter considers how neuroscientific evidence may be used in the future and also whether it has wider application in the criminal and civil justice systems.
Claydon 2010 Law, Neuroscience, and Criminal Culpability Lisa Claydon Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter examines the relationship between explanations of human behaviour drawn from neuroscientific imaging and the approach adopted by the criminal law to establishing the legal framework for evaluating guilt or innocence. It questions whether purely scientific approaches provide a sufficient understanding of what it means to be guilty or innocent of a crime. It considers what pictures of brain states may tell us about culpability and concludes by considering whether the present philosophical basis of the criminal law is sufficiently robust to withstand some claims that are being made about what neuroscience tells us about brain states.
Claydon 2009 Mind the Gap: Problems of Mind, Body and Brain in the Criminal Law Lisa Claydon Law, Mind and Brain 55 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009). Over the past 20 years, cognitive neuroscience has revolutionized our ability to understand the nature of human thought. Working with the understandings of traditional psychology, the new brain science is transforming many disciplines, from economics to literary theory. These developments are now affecting the law and there is an upsurge of interest in the potential of neuroscience to contribute to our understanding of criminal and civil law and our system of justice in general. The international and interdisciplinary chapters in this volume are written by experts in criminal behaviour, civil law and jurisprudence. They concentrate on the potential of neuroscience to increase our understanding of blame and responsibility in such areas as juveniles and the death penalty, evidence and procedure, neurological enhancement and treatment, property, end-of-life choices, contracting and the effects of words and pictures in law. This collection suggests that legal scholarship and practice will be increasingly enriched by an interdisciplinary study of law, mind and brain and is a valuable addition to the emerging field of neurolaw.
Claypoole 2013 Regulating the Brainspray Revolution Theodore F. Claypoole Nov 2013 Business Law Today
Codognotto 2010 Neuroscienze in tribunale: la sentenza di Trieste [Neuroscience goes to tribunal: the Trieste case] Sara Codognotto & Giuseppe Sartori 2 Sistemi intelligenti 269
Cohen 2014 Rewiring Juvenile Justice: The Intersection of Developmental Neuroscience and Legal Policy Alexandra O. Cohen & B.J. Casey 18(2) Trends in Cognitive Sciences 63 The past decade has been marked by historic opinions regarding the culpability of juveniles by the US Supreme Court. In 2005, the death penalty was abolished, 5 years later, life without parole for crimes, other than homicide, was banned, and then just last year, mandatory life sentences for any crime was abolished. The court referenced developmental science in all these cases. In this article, we highlight new scientific findings and their relevance to law and policy.
Cohen 2010 Merchants of Deception: The Deceptive Advertising of FMRI Lie Detection Technology Jordan T. Cohen 35 Seton Hall Legis. J. 158
Collett 2014 Previability Abortion and the Pain of the Unborn Teresa Stanton Collett Washington and Lee L. Rev. One of the most basic and widely accepted principles of political governance is that that the State is justified in promulgating laws to protect individuals from harm by others. The state’s power to legislate and protect against a variety of harms, including the harm of being made to suffer physical pain, has been recognized in both domestic and international law. “The Government of course has an obligation to protect its citizens from harm.” The exercise of this power is up to the prudential judgment of state and our national legislatures, however, and not a constant constitutional imperative. This power of protection encompasses all living creatures, as well as developing fetal human life. Thirteen states and the United States House of Representatives have passed legislation that strictly limits abortions during the second half of the pregnancy, generally after nineteen weeks gestation, to protect the developing human person from pain. These laws, known as Pain-Capable Child Protection Acts, strictly limit abortion after the point of gestation when the unborn child has developed the capacity to feel pain during the process of an abortion. Proponents argue that protecting an unborn child from such pain is a natural extension of the long tradition in American law prohibiting acts that inflict unwarranted suffering on human beings and other sentient creatures. Opponents argue that such laws are based on scientific speculation and inflammatory rhetoric. Given the large number of states adopting Pain-Capable Child Protection Acts it is no surprise that these arguments are now before federal courts. This article explores the arguments supporting the existence of fetal pain and the constitutionality of abortion limits at twenty weeks gestation.
Colorio 2011 Esplorazioni neurogiuridiche tra antichità e modernità [Neurolegal explorations through ancient and modern times] Andrea Colorio 8(11,B) Atti della Accademia Roveretana degli Agiati 43
Compton 2010 Not Guilty by Reason of Neuroimaging: The Need for Cautionary Jury Instructions for Neuroscience Evidence in Criminal Trials E. Spencer Compton 12 Vand. J. Ent. & Tech. L. 333 Neuroimaging technology gives researchers the ability to see structures and functions of the human brain. As the technology advances, it is beginning to change the way the legal field understands the brain and its impact on legal concepts of capacity, sanity, guilt, and innocence. However, the sophisticated technology poses risks that juries will misunderstand the limits of the science or misapply the technical findings to a particular case. To combat the risk of undue prejudice, this note proposes a cautionary jury instruction designed to remind jurors of the technical and legal limits of bringing neuroimages into the courtroom. Part I of this note reviews the admissibility standards for scientific evidence and briefly examines some additional devices that courts may use to ensure jurors receive only relevant and reliable evidence. Part II examines some current uses for neuroimaging in the courtroom, focusing on its use during the guilt phase of criminal trials. Part III identifies a variety of risks posed by neuroimaging evidence including the risk that the jury will misunderstand the technical limits of neuroscience, will be overly-influenced by the evidence, or will misinterpret the significance of the evidence as it relates to a defendant’s behavior and mental processes. Part IV suggests a jury instruction that includes warnings reflective of such risks.
Conason 2010 Neurologic Birth Injury: Protecting the Legal Rights of the Child Robert L. Conason & Steven E. Pegalis 31 J. Legal Med. 249
Conti 2011 Neuroscienze e neuroetica: riflessioni scientifiche e correlati bioetici [Neuroscience and neuroethics: scientific and bioethical considerations] Adelaide Conti & Massimo Gandolfini 2 Medicina e morale 263
Conway 2012 Ten Things the Law and Others Should Know about Human Memory Martin A. Conway Memory and Law (Oxford University Press, Lynn Nadel & Walter Sinnott-Armstrong, Eds., 2012) This chapter describes my experiences a memory expert witness and how these led to a major report by the British Psychological Society on memory and the law. The aim of this report was to provide a set of guidelines about human memory that were agreed by a broad range of memory researchers and supported by scientific findings. The intention was to provide an authoritative source that could be used by non-experts and which would also stop the selective use of findings that so undermines expert testimony.
Coon 2013 Drawing the Line at Atkins and Roper: The Case against Additional Categorical Exemptions from Capital Punishment for Offenders with Conditions Affecting Brain Function Mark E. Coon 115 W. Va. L. Rev. 1221
Corbellini 2009 Quale neurofilosofia per la neuroetica? Gilberto Corbellini Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 63
Corda 2013 Neurociencias y derecho penal desde el prisma de la dimensión procesal Alessandro Corda Neurociencia y proceso judicial 109 (Madrid: Marcial Pons, Michele Taruffo & Jordi Nieva Fenoll, eds., 2013) La neurociencia parece estar delimitando de forma -quizás- inevitable las fronteras del conocimiento humano de la realidad, constatación que está influyendo ya decisivamente en el estudio del proceso judicial. Actualmente es obligado saber qué es la fMRI, o resonancia magnética funcional por imágenes, para conocer los últimos avances prácticos -es difícil decir teóricos- tanto en materia probatoria como en la elaboración del juicio jurisdiccional. Hoy en día podemos averiguar aspectos relevantes para el juicio que hasta ayer mismo eran ciencia ficción. Está comenzando a determinarse, por ejemplo, si la configuración orgánica cerebral de una persona le ha llevado, no ya a cometer un delito, sino a actuar de una determinada manera, lo que encierra ventajas enormes, pero también riesgos igual de relevantes. También empieza a ser posible averiguar el grado de sufrimiento anímico de una víctima, lo que resulta esencial en el cálculo de los daños morales. Asimismo hay quien investiga, con esta técnica, en el campo de la detección de mentiras. Aunque esto último todavía está lejos de ser una realidad científica, se vislumbra que existe, al menos, cierto camino por recorrer. El presente libro aborda todas esas cuestiones, junto a las no menos importantes en torno al estudio de la voluntad humana, determinante para la propia existencia del Derecho, así como a la puesta en cuestión de las nociones habituales de imparcialidad o valoración de la prueba, entre otras. En definitiva, se abre una nueva fase en el estudio del enjuiciamiento con la que todos los juristas, inevitablemente, nos tendremos que enfrentar. De hecho, como seres humanos, ya nos enfrentamos con la misma, aunque sin ser conscientes de ello.
Corda 2012 Riflessioni sul rapporto tra neuroscienze e imputabilità nel prisma della dimensione processuale Alessandro Corda 7 Criminalia. Annuario di Scienze penalistiche 497
Cormier 2010 Providing Those With Mental Illness Full and Fair Treatment: Legislative Considerations in the Post-Clark Era Joseph W. Cormier 47 Am. Crim. L. Rev. 129 Reforming legal treatment of individuals with mental illness has been a topic that periodically resurfaces only to quickly be replaced by the next emergent public policy issue. Decisions are generally made in a reactionary fashion instead of the more deliberative processes afforded other ongoing issues such as taxes, health care, budgets, and others. Now that the dust has settled from the Supreme Court’s decision in Clark v. Arizona, it is time that legislatures take another look, this time with a broader and perhaps more sober perspective, at how their legal system approaches such individuals. Generally speaking, the civil legal system deals with people with mental illness in terms of public services such as treatment facilities, mental health care provisions, and non-discrimination policies, among others. The criminal justice system, on the other hand, interfaces with people with mental illness through several mechanisms: diversion to alternative sentencing programs such as mental health courts, defendant competency requirements, and the availability, scope, and use of the insanity defense. Although the rise of the regulatory state has born some strict liability criminal statutes, actus reus, mens rea, justification, and excuse, together, form the basic fundament of criminal liability and the resultant ability of the government to deprive an individual of liberty and even life. When considering defendants with mental illness, Clark v. Arizona upheld extremely narrow policy choices with respect to mens rea and the insanity defense. Legislatures, of course, remain free to consider alternative strategies; indeed, the Supreme Court has demonstrated a remarkable deference to local formulations of the insanity defense. This Note will argue that narrow rules serve neither the public nor a prisoner’s interest in rehabilitation and that legislatures should broaden the insanity defense and fund policies that ensure early detection, provide adequate treatment, and enable people with mental illness to lead productive lives. The United States criminal justice system fails to serve adequately both the individual inmate and societal needs when dealing with defendants with mental illness. This problem is illustrated in cases involving persons with schizophrenia. For these individuals, incarceration based on either just desert or incapacitation functions as a way for society to ignore the underlying issues of treatment and post-release psychological care. Providing adequate treatment services before, during, and after confinement is necessary to meet the moral obligation we have to take care of the most vulnerable within our society. This is not to say that such individuals necessarily should be free from responsibility. Rather, people with mental illness present unique challenges to our judicial system and to the host of public services that the government provides its citizens. Addressing these issues – making the difficult policy choices – is incumbent upon legislatures, the courts, and the public at large. For individuals with mental illness, existing approaches provide a mechanism for the public to avoid the long-term problems of mental illness and the ability to either prevent such crimes from even occurring or to help reduce their recurrence after release from confinement. Specific social programs and services are needed, together with legal reforms, in order to address these issues. These changes are neither popular nor cheap in the short-term; however, a longer-horizon approach will show that such programs provide the public with lower incarceration rates and lower recidivism and give individuals with mental illness a chance at a more productive and healthy life. This Note will begin by examining the current understandings of both the pathology and effectiveness of treatment for individuals with schizophrenia and how the legal system interacts with individuals with mental illness. Then the historical progression of the law’s treatment of those with mental illness will be reviewed. A detailed accounting of the current status of the insanity defense will be discussed. This Note will conclude by proposing alternatives for legislatures to consider in the wake of the Clark v. Arizona decision.
Cornet 2013 Neurobiological Factors as Predictors of Cognitive-Behavioral Therapty Outcome in Individuals With Antisocial Behavior: A Review of the Literature Liza J. M. Cornet, Catharina H. de Kogel, Henk L. I. Nijman, Adrian Raine, & Pater H. van der Laan International Journal of Offender Therapy and Comparative Criminology This review focuses on the predictive value of neurobiological factors in relation to cognitive-behavioral therapy outcome among individuals with antisocial behavior. Ten relevant studies were found. Although the literature on this topic is scarce and diverse, it appears that specific neurobiological characteristics, such as physiological arousal levels, can predict treatment outcome. The predictive value of neurobiological factors is important as it could give more insight into the causes of variability in treatment outcome among individuals with antisocial behavior. Furthermore, results can contribute to improvement in current treatment selection procedures and to the development of alternative treatment options.
Covey 2007 Reconsidering the Relationship Between Cognitive Psychology and Plea Bargaining Russell Covey 91 Marq. L. Rev. 213 Cognitive researchers have identified numerous ways in which human reasoning diverges from the rational choice model employed by mainstream economic theory and conventional law and economics. Applications of the insights of this cognitive research to the study of plea bargaining, however, gives rise to a puzzle. Most of the cognitive quirks and biases identified by researchers, such as loss aversion, overconfidence, overdiscounting, and self-serving bias suggest that defendants should be consistently disinclined to plead guilty, a prediction in stark tension with the overwhelming prevalence of plea bargaining in modern criminal practice. This essay reconsiders the reigning explanations for plea bargaining's prevalence in light of the cognitive research, concluding that several common features of the criminal justice system are best explained precisely as mechanisms designed to overcome plea-impeding cognitive biases. A consideration of the impact of cognitive bias on plea-bargaining casts new light on the factors that drive plea-bargaining outcomes and helps to explain, among other things, the magnitude of sentencing differentials, the pervasiveness of pretrial detention, and the prosaic procedural brutality that is a universal feature of virtually every encounter with the system.
Craigie 2013 Irrationality, Mental Capacities, and Neuroscience Jillian Craigie & Alicia Coram Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) The concept of mental capacity is of central importance in private law, where it is used to determine a person’s ability to consent to or refuse medical treatment. Questions about psychological capacities are also increasingly playing a role in the criminal law, where culpability is being understood in terms of the ability for rational action. In both contexts, progress in the neurosciences has raised questions about how it might inform these decisions. We investigate this question by examining the relationship between judgments about capacity, norms of rationality and underlying psychological and neural mechanisms. The role played by normative requirements in both kinds of determination, and differences in the norms that are relevant, are used to draw conclusions about what neuroscience can offer in these two legal contexts. We conclude that current debates in moral psychology call into question key assumptions that underlie optimism about the usefulness of neuroscience for assessing culpability.
Crawford 2000 Criminal Penalties for Creating a Toxic Environment: Mens Rea, Environmental Criminal Liability Standard and the Neurotoxicity Hypothesis Colin Crawford 27 B.C. Envtl. Aff. L. Rev. 341 Recent research in brain biochemistry examining the likely neurological effects of exposure to toxic contaminants continues to demand legal consideration. In this article, Professor Crawford evaluates the possible consequences of recent neurobiological studies—labeled “The Neurotoxicity Hypothesis” by researchers—for lawyers and the legal system. After summarizing the research, Professor Crawford suggests that as this (or similar) neurobiological research gains increased scientific acceptance, it will be necessary to reduce dramatically the acceptable levels of these toxic elements that can be discharged into the environment. He then examines the implications of such a result for establishing criminal liability under federal environmental statutes, focusing on the criminal liability provisions of the Federal Water Pollution Control Act.
Creo 2013 Memory is Not a Video Recording Robert A. Creo 31 Alternatives to High Cost Litig. 51
Creo 2013 It's Not a Video Recording, Part II: Mediation and Memory Robert A. Creo 31 Alternatives to High Cost Litig. 69
Creo 2013 It's Not a Video Recording, Part III: Sharing and Vindicating Mediation Memories Robert A. Creo 31 Alternatives to High Cost Litig. 89
cummings 2013 Junior Seau, Head Trauma, and the NFL's Concussion Problem andré douglas pond cummings University of Mississippi Sports Law Review, Forthcoming By all accounts, Tiaina “Junior” Seau was an extraordinary professional athlete. Seau’s career in the National Football League (“NFL”) spanned two decades as he battled furiously as a linebacker for the San Diego Chargers, Miami Dolphins, and the New England Patriots. His performance on the field of play was exceptional; he was selected to the Pro Bowl twelve times and will most certainly be voted into the NFL Hall of Fame when he becomes eligible in 2015. Despite Seau’s unparalleled career, athletic accomplishments, and financial rewards, he committed suicide on May 2, 2012, at the age of 43, just two years after his retirement from professional football. While newspaper accounts in the immediate aftermath of Seau’s suicide recounted an impulsive man who became disconnected, volatile, and erratic following his retirement from the NFL, his family speculated that this erratic behavior and disconnectedness were uncharacteristic of the man that befriended thousands, and was unfailingly committed to representing the Seau name with honor. Upon his suicide, some speculated that repeated concussive head trauma and brain disease led to Seau’s devolving behavioral changes and ultimate suicide. During Seau’s twenty-year NFL career, he was never diagnosed with a concussion, nor did he miss a game because of concussion-like symptoms. This single fact alone is stunning because following Seau’s suicide, the National Institute of Health (NIH) conducted neutral/blind examinations of his brain tissue and found widespread evidence of “chronic traumatic encephalopathy [(“C.T.E.”)], a degenerative brain disease widely connected to athletes who have absorbed frequent blows to the head.” According to reports, Seau had privately complained that in the final five or six years of his life, he endured a headache that never relented. Indeed, at age forty three, Junior Seau’s brain was found to contain “abnormal, small clusters called neurofibrillary tangles of protein known as tau” which are found “in the brains of those with Alzheimer’s disease and other progressive neurological disorders.” Junior Seau was afflicted with late-stage chronic brain disease when he committed suicide. Emerging medical evidence confirms that Seau is not alone. Recent studies conducted by teams of researchers led by both Dr. Julian Bailes at West Virginia University and Dr. Ann McKee at Boston University have uncovered jarring evidence that an overwhelming percentage of former NFL players, those who have allowed their brains to be autopsied and studied, are afflicted with C.T.E. The issue of brain disease and traumatic head injury has become so clamorous, that President Barack Obama recently speculated that if he had a son, he would most likely not let that son play tackle football. To that end, the NFL and the sport of American football seem to be quickly approaching a crossroads. A strong probability exists that many of the athletes that have played tackle football, at all levels, but particularly those that played for many years, are at some level of risk of serious brain disease. Questions abound. This article seeks to answer a few of those questions. Will American football continue its meteoric rise in popularity as a cultural phenomenon in the United States as more is learned about the damage that its athletes are enduring? Did the NFL incur liability by ignoring and actively discounting the seriousness of head trauma to thousands of athletes that played in the league, as alleged by a class of former players currently suing the NFL for damages (including the Seau family)? Will a player of Junior Seau’s magnitude bring the kind of attention to traumatic head injuries in football that will require determined action by pee-wee, middle school, high school, college and professional football organizations to protect its players? Can American football continue in its trajectory of rising popularity or will it eventually decline in relevance and become a relative afterthought, much like boxing or horseracing, because of its insidious dangers.
Da Rocha 2013 Toward a Better Understanding of the Relationship Between Neurosciences and Law Armando Freitas Da Rocha Research on Artificial and Natural Intelligence Neurosciences and Law as an interdisciplinary field of science, has recently attracted attention of many scholars by distinct motives. Hopes that brain mapping could be of help for court decisions at one side, are contrasted with ethical concerns about using neurosciences tests for evaluating liability at the other side. Despite its impressive development in the last half century, Neurosciences lacks well supported and formalized theories to guide experimental studies about complex cognitive tasks. This limits the impact any contribution of this new interdisciplinary area may have in the present and near future. Therefore, it is necessary to start to build a solid formal knowledge that will correctly guide future work in this new and very important area of research. The purpose of the present paper is to contribute to the development of this formal knowledge, by discussing how knowledge provided by neurosciences may contribute to the understanding of some concepts such as action adequacy and fairness; altruism and selfishness, personal and social conflict, etc. that are at the core of any law system. In addition, the study of brain activity associated with vote decision in Brazilian Firearm Commerce Prohibition carried out by Rocha et. al. (2010) is discussed to illustrate the present proposal.
Da Rocha 2013 Free Will from the Neuroscience Point of View Armando Freitas Da Rocha & Fábio T. Rocha Research on Artificial and Natural Intelligence There is still a controversy if human volitions and actions are governed by causal laws or obeys free will. Neurosciences start to study the neural correlates of free will by investigating how brains make decisions. Here, some of questions about free will are discussed from the neurosciences point of view taking into consideration a neuroeconomic model of decision making. This model is used here with the purpose of providing very formal definitions of key concepts raised in any free will discussion such as goals, necessity, motivation, etc., and to provide a formal background for discussing decision making. One of the conclusions of this discussion is that free will is computable but unpredictable, therefore not submitted to causal laws. In addition, the electroencephalogram was recorded in an experiment about choice selection of alternative actions and it presented here as an example of how neurosciences may study the neural correlates of free will.
Da Rocha 2013 Gun Control: What Goes on in Your Brain Armando Freitas da Rocha, Fábio T. Rocha, & Eduardo Massad Research on Artificial and Natural Intelligence Arguments for and against gun control are polarized at two opposite ends of a broad spectrum: personal liberties and social benefits. Brazil has introduced a referendum regarding the prohibition of firearm commerce and propaganda arguments, similar to the present ongoing discussion in the U.S. It has invoked socially and personally driven issues in the promotion of voting in favor of and against firearm control, respectively. Here, we used electroencephalography (EEG) technology to study the brain activity associated with a voter’s perception one week prior to Election Day, of the truthfulness of these arguments and their influence on voting decisions. The present results clearly showed that this decision was not influenced by arguments that were introduced by propaganda, which were typically driven by specific social and self-interest motives. In addition, different neural circuits were identified in the analysis of arguments for and against gun control.
Dahan-Katz 2013 The Implications of Heuristics and Biases Research on Moral and Legal Responsibility: A Case Against the Reasonable Person Standard Leora Dahan-Katz Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) Research in the field of heuristics and biases has demonstrated that human reasoning processes are often non-normative. Specifically, such research demonstrates that human reasoning processes often rely upon heuristics and are subject to a wide variety of biases. These, in turn, can lead to errors in judgment which may impact human behavior. This chapter argues that this impact cannot be ignored when dealing with questions of moral and legal responsibility. It argues that when heuristic reasoning has an impact upon human judgment and decision-making, this fact can ultimately negate moral culpability. Furthermore, it argues that where legal responsibility is stipulated upon moral responsibility, the findings of Bias Research must also inform the imposition of legal responsibility. Specifically, it argues that in light of Bias Research, the current reasonable person standard employed in negligence offences is unjustifiable and must be replaced with a standard of responsibility that better reflects individual culpability.
Dailey 2010 Imagination and Choice Anne C. Dailey 35 Law & Soc. Inquiry 175 Contemporary behavioral legal scholarship on individual decision-making draws primarily from cognitive psychology. This article argues that the field of behavioral legal scholarship should be broadened to include modern psychoanalytic ideas about the processes of individual decision-making. As explained here, the basic perspective of psychoanalytic psychology is largely compatible with recent cognitive research on decision-making. However, a psychoanalytic perspective adds valuable nuance and complexity by exposing for scholarly examination certain essential attributes of individual decision-making that have so far been overlooked. As a first step in bringing modern psychoanalytic ideas to the attention of contemporary behavioral legal scholars, this article examines imagination, a psychological attribute central to individual decision-making and a fundamental feature of psychoanalytic psychology. Contemporary legal scholarship recognizes the relatively narrow idea of a cognitive imagination by looking at processes such as representation, memory, and counter-factual thinking, as well as cognitive distortions and biases in processing information such as the availability heuristic. In contrast, imagination as understood from a psychoanalytic perspective is the creative capacity to express one's personal wishes, needs, and desires in words and images. Imagination is central to decision-making because, however trivial or important the context, individual choice always depends fundamentally on consideration of desired future courses of action and their consequences. For this reason, studying the origins and mechanisms of imagination - its relationship to reality testing, its sources in early childhood, and its unconscious operations - is essential if law is to develop a comprehensive understanding of individual choice. An example of the value of psychoanalytic psychology to contemporary legal scholarship is provided by examining the law governing the enforceability of prenuptial agreements. As this discussion illustrates, a psychoanalytic perspective, in conjunction with research from the cognitive sciences, provides a richer understanding of the assumptions about individual choice upon which many laws and legal policies are based.
Dalton 2013 Their Brains on Google: How Digital Technologies Are Altering the Millennial Generation's Brain and Impacting Legal Education Kari Mercer Dalton 16 SMU Sci. & Tech. L. Rev. 409
Darley 2010 Citizens' Assignments of Punishment for Moral Transgressions: A Case Study in the Psychology of Punishment John M. Darley 8 Ohio St. J. Crim. L. 101
Dattilio 2011 Toward a Good Fit between Forensic Psychiatrists and Psychologists Frank M. Dattilio 39 J. Psychiatry & L. 689 The longstanding relationship between forensic psychiatrists and psychologists has been fraught with tension and controversy over the years, particularly pertaining to the issue of their overlapping roles and what some consider a competitiveness in the field. This article reviews some of that controversy and also addresses the issue of how psychiatrists and psychologists actually do different things and can work harmoniously in a collaborative fashion. The text also addresses how this collaborative relationship can be best promoted—not only through forensic training programs, but also in the eyes of attorneys and jurists.
Dauer 1996 Evidentiary Admissibility of Evidence of Neurodiagnostic Testing Showing Frontal Brain Lesion as a Defense in a Criminal Homicide Trial Robert E. Dauer 1 Seminars in Clinical Neuropsychiatry 211
Davies 2013 Skepticism Concerning Human Agency: Sciences of the Self Versus "Voluntariness" in the Law Paul Sheldon Davies Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) On the conception of criminal responsibility in the Model Penal Code, the notion ‘voluntariness’ looms large. Application of the Code presupposes that most adults, including those likely to serve as jurors, know that we are agents who sometimes “determine” their actions and also know when our actions are the results of our “determinations”. If this crucial assumption is false, then the law cannot fulfil its function. The thesis of this chapter is that, in light of converging evidence from various sciences of the self, we are faced with a potent form of scepticism concerning our capacities as agents and, in consequence, the law is indeed defective.
Davis 2012 Inconsistencies between Law and the Limits of Human Cognition: The Case of Eyewitness Identification Deborah Davis & Elizabeth F. Loftus Memory and Law (Oxford University Press, Lynn Nadel & Walter Sinnott-Armstrong, Eds., 2012) This chapter considers the issue of whether the legal system assumes greater accuracy in the production and assessment of eyewitness identifications than the limits of cognition reasonably permit. It first reviews what is known about the limits of accuracy in eyewitness performance under optimal conditions, and the ease with which this maximum performance can be compromised by common real life witnessing conditions. Evidence is reviewed that, even under optimal conditions, witness accuracy does not reach standards of certainty beyond reasonable doubt. Discussion then turns to the problems faced by those who must judge witness accuracy, including: inadequacies in knowledge of determinants of face processing and memory accuracy; selective access to information relevant to factors known to affect witness accuracy; inadequacies of safeguards such as cross-examination of witnesses, and others. Implications for reforms in treatment of eyewitness evidence are discussed.
Dawson 2009 Why Distinguish "Mental" and "Physical" Illness in the Law of Involuntary Treatment? John Dawson & George Szmukler Law, Mind and Brain 173 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009). Over the past 20 years, cognitive neuroscience has revolutionized our ability to understand the nature of human thought. Working with the understandings of traditional psychology, the new brain science is transforming many disciplines, from economics to literary theory. These developments are now affecting the law and there is an upsurge of interest in the potential of neuroscience to contribute to our understanding of criminal and civil law and our system of justice in general. The international and interdisciplinary chapters in this volume are written by experts in criminal behaviour, civil law and jurisprudence. They concentrate on the potential of neuroscience to increase our understanding of blame and responsibility in such areas as juveniles and the death penalty, evidence and procedure, neurological enhancement and treatment, property, end-of-life choices, contracting and the effects of words and pictures in law. This collection suggests that legal scholarship and practice will be increasingly enriched by an interdisciplinary study of law, mind and brain and is a valuable addition to the emerging field of neurolaw.
De Caro 2011 Traumatic Brain Injury: Detecting, Defining, Litigating Shana De Caro, Michael V. Kaplen New York Law Journal Although the signs and symptoms of some brain injuries may be subtle, there is nothing mild about a mild traumatic brain injury. Identifying the occurrence of such an injury is often difficult because the signs and symptoms associated with this condition are elusive, idiosyncratic and last for varying durations.
De Caro 2010 Current Issues in Neurolaw Shana De Caro, Michael V. Kaplen 33 Psychiatr Clin N Am 915 Traumatic brain injury has received significant attention in recent years. Advances in diagnosis and management have resulted in opportunities to improve patient outcomes; however, controversies in diagnosis and management have resulted in increased interactions between the medical and legal communities. This article highlights some of the areas of controversy in traumatic brain injury litigation with the hope that synchronous resolutions of both legal and medical issues will ultimately benefit patient care. It is imperative that the neuroscience community engage the legal community to facilitate an understanding of the issues and their ramifications. Proactive communication and understanding between medical and legal specialties offer the potential to maximize efficiencies in our health care and legal systems.
De Caro 2010 Siamo davvero liberi? Le neuroscienze e il mistero del libero arbitrio [Are we really free? Neuroscience and the mystery of free will] Mario De Caro, Andrea Lavazza, & Guiseppe Sartori Turin, Codice
De Caro 2010 Libertà, responsabilità e retributivismo [Freedom, responsibility, and retributivism] Mario De Caro & Massimo Marraffa 2 Sistemi intelligenti 357
De Cataldo Neuburger 2010 Aspetti psicologici nella formazione della prova: dall'ordalia alle neuroscienze [Psychological issues of probation: from God’s judgement to neuroscience] Luisella De Cataldo Neuburger 5 Diritto penale e processo 604
De Cataldo Neuburger 2010 Scienza e processo penale. Linee guida per l’acquisizione della prova scientifica [Science and criminal procedings. Guidelines for the collection of scientific evidence] Luisella De Cataldo Neuburger Padova, Cedam
De Cataldo Neuburger 2009 Neuroscienze e diritto penale. La scienza come, quando e perché Luisella de Cataldo Neuburger Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 141
de Kogel 2013 Civil Law and Neuroscience C. H. de Kogel, W. M. Schrama, & M. Smit Journal of the Australian and New Zealand Association of Psychiatry, Psychology and Law (ANZAPPL) The relationship between the brain and human behaviour is receiving increasing attention in legal practice. Much has already been published about the role of neuroscience in criminal law, but surprisingly little is known about its role in civil law. In this contribution, the relevance of neuroscientific insights within the civil law context will be demonstrated on the basis of examples in international publications from both continental and Anglo-American jurisdictions. Furthermore, a number of cases will be presented that demonstrate that neuroscientific information is already appearing in Dutch courtrooms in a broad array of civil law areas. These include liability law, health law, family law and contract law. The use of neuroscientific knowledge in civil law cases raises a number of general questions, regardless the jurisdiction, which will be identified on the basis of the literature and case law.
Deaton 2006 Neuroscience and the In Corpore-ted First Amendment Rodney J. S. Deaton 4 First Amend. L. Rev. 181
Deitch 2012 Seventeen, Going on Eighteen: An Operational and Fiscal Analysis of a Proposal to Raise the Age of Juvenile Jurisdiction in Texas Michele Deitch, Rebecca Breeden, Ross Weingarten 40 Am. J. Crim. L. 1 The age of juvenile jurisdiction in Texas, unlike the majority of states, is seventeen, meaning that any seventeen-year-old arrested is treated as an adult, regardless of the severity of the crime. Recent research shows that young people face physical and psychological risks when placed in adult prisons, and that a young person adjudicated in the juvenile justice system experiences far better outcomes. Additionally, developments in neuroscience confirm the original rationale for separate justice systems for juveniles: the human brain is still developing into a person’s mid-twenties, and as a result adolescent offenders are more malleable, and less culpable, than their adult counterparts. In response to these findings, four states have raised their relevant age of juvenile jurisdiction in the past five years, with four more states currently discussing such a change. This Article examines what the operational and fiscal impact on Texas would be if the age of juvenile jurisdiction were to be raised from seventeen to eighteen years old. The authors interviewed stakeholders and conducted an extensive cost–benefit analysis. We found most stakeholders supported the concept of raising the age of juvenile jurisdiction, while noting that there could be some significant operational challenges to be addressed. Our cost–benefit analysis found that raising the age of juvenile jurisdiction would have a net benefit of $88.9 million for every cohort of seventeen-year-olds moved into the juvenile system in Texas. This policy change would require an investment of $50.9 million per cohort, but would result in $139.9 million in benefits to taxpayers, victims, and youth. Our research indicates that not only would raising the age of juvenile jurisdiction be beneficial to our state’s youthful offenders with no detrimental effect on public safety, but it would be beneficial for Texas, its counties, taxpayers, and potential victims in the long run.
Delgado 2008 Social and Emotional Influences on Decision Making and the Brain Mauricio R. Delgado & James G. Dilmore 9 Minn. J. L. Sci. & Tech. 899 How do we make decisions? How do we judge what is right or wrong and how does this judgment translate to behavior? Over the last decade, research on the human brain has begun to shed light on such questions. Those research efforts build on a strong foundation of animal research responsible for the delineation of neural circuitry involved in processing information about rewards and punishments. Animal research also provided for the development of an understanding of how such circuitry operates during simple decision-making, such as pressing a lever to receive a reward. Advances in technology, chiefly the advent of neuroimaging techniques such as functional magnetic resonance imaging (fMRI), have allowed researchers to investigate similar matters regarding the operation of the human brain. Furthermore, research using these techniques may be extended in new directions to address questions not easily explored in animals, such as those involving the more complex decisions that occur in human society, (e.g., trusting an individual during a business transaction). These research efforts have introduced interdisciplinary collaborations and considerations, ranging from philosophy to economics, into the field of cognitive neuroscience. The contributions of these diverse fields do much to shape current thinking on human decision-making. In this paper, we will discuss how social information can modulate traditional ways of thinking about rational and economic decision-making specifically by affecting the neural systems of reward. First, we present an overview of the neural circuitry underlying human reward systems. Next, we present a description of an experiment where social impressions affect trust judgments and decision-making. Finally, we address potential implications of the experimental findings to the legal field and discuss the potential of future interdisciplinary collaborations across law and neuroscience.
Denno 2013 What Real-World Criminal Cases Tell Us About Genetics Evidence Deborah W. Denno 64 Hastings L.J. 1591 This Article, which is part of a symposium on “Law and Ethics at the Frontier of Genetic Technology,” examines an unprecedented experimental study published in Science. The Science study indicated that psychopathic criminal offenders were more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy. This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component of how genetic and neurobiological information operates, and the study suffers from serious omissions that affect the validity and reliability of its results. It is important to call attention to these problems given that the study’s widely-publicized findings are likely to bolster inaccurate perceptions regarding the dangers of allowing behavioral genetics evidence in criminal cases. This Article concludes with a detailed discussion of a number of recent criminal cases involving behavioral genetics evidence. Familiarity with such cases may improve the real-world applicability of future experimental studies exploring the influence of genetics evidence on criminal cases.
Denno 2011 Changing Law's Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively Deborah W. Denno Oxford University Press (forthcoming) A criminal justice system should protect society from crime and also punish criminals at the level of their blameworthiness. Changing Law’s Mind contends that new insights about the brain can help us in the quest to construct a fairer and more effective criminal justice system. Recent neuroscientific discoveries suggest that some of our previous intuitions about human culpability fail to reflect the reality of how the brain functions. If we ignore these developments, we risk perpetuating a justice system that punishes some people far too much and others too little or not at all. The intersection of law and neuroscience is a thriving topic, but this book is unique. Many books and chapters in edited books focus narrowly on issues such as the diagnosis and effect of brain abnormalities or the possibility that neuroscience will someday perfect lie detection. Changing Law’s Mind, instead, provides readers with a foundation in both the legal doctrine and neuroscience and then uses that bridge to question the criminal law’s underlying principles and practice, starting from the moment a case is processed in the system to the point at which a defendant is sentenced and punished. Based on this assessment, the book suggests ways in which the criminal law can change - either quickly by accommodating our new understanding of the human mind into current practice or more fundamentally by incorporating this understanding into long-term modifications of criminal law doctrine.
Denno 2011 Courts' Increasing Consideration of Behavioral Genetics Evidence in Criminal Cases: Results of a Longitudinal Study Deborah W. Denno Mich. St. L. Rev. 967 This article, which is part of a symposium honoring David Baldus, presents a unique study of all criminal cases (totaling thirty-three) that addressed behavioral genetics evidence from June 1, 2007, to July 1, 2011. The study builds upon this author’s prior research on all criminal cases (totaling forty-eight) that used such evidence during the preceding thirteen years (1994-2007). This combined collection of eighty-one criminal cases employing behavioral genetics evidence offers a rich context for determining how the criminal justice system has been handling genetics factors for nearly two decades, but also why the last four years reveal particularly important discoveries. Results suggest that not only is much of the controversy surrounding behavioral genetics and crime unwarranted, the use of such evidence has been misunderstood. Within the last four years, for example, behavioral genetics evidence has appeared to have been applied almost exclusively as mitigating evidence in death penalty cases and primarily in two ways to support claims of ineffective assistance of counsel for neglecting such evidence or to provide proof and diagnosis of a defendant’s mitigating condition. Strikingly, this study found no case during 2007-2011 in which behavioral genetics factors were introduced by the State, much less used as aggravating evidence or as indications that a defendant would be a future danger to others. These findings debunk arguments that such evidence will be legally detrimental to a defendant. Indeed, in most cases, the evidence is so tightly intertwined with other factors in a defendant’s life that the particular impact of behavioral genetics can be difficult to isolate. This study’s results suggest that, at the very least, behavioral genetics evidence has no decipherable impact on a defendant’s case or, at most, it becomes an effective tool along with a range of other kinds of variables in rendering a defendant ineligible for the death penalty. Courts appear willing to accept behavioral genetics evidence as part of a defendant’s mitigation story, even if genetics renders that story a more troubling one in terms of the defendant’s purported propensities. The last four years also showed a number of break-a-way trends from earlier years. For example, there were substantially more cases that incorporated behavioral genetics evidence of any kind. In addition, there was a clear increase in the number of cases in which defendants submitted proof of a genetic propensity for alcoholism and/or substance abuse. Overall, this article’s research shows that courts accept behavioral genetics evidence in the majority of cases in which defense attorneys attempt to offer it. The coming years will reveal whether such trends will be affected by Cullen v. Pinholster, the Supreme Court’s recent decision restricting prisoners’ efforts to seek federal habeas relief under AEDPA. Regardless, behavioral genetics evidence seems, on the surface, to have reached a status commensurate with other kinds of evidence without the baggage of abuse with which it has typically been associated.
Denno 2010 Neuroscience, Cognitive Psychology, and the Criminal Justice System: Introduction Deborah W. Denno 8 Ohio St. J. Crim. L. 1 This introduction discusses a symposium on the linking of neuroscience, cognitive psychology, and law. Although the symposium is one of a number of projects on neuroscientific approaches to the legal system that have been organized over the years, readers will see something very different in the articles that follow. The contributions cover a distinctively important niche - a pragmatic focus on the practices of key law enforcement actors, namely the police, prosecutors, and punishers in the criminal justice community. By examining the decision-making of these individuals and groups in real world circumstances, through a range of brain sciences, the symposium’s authors enhance the value that any single scientific discipline can give while also offering proposals that could be implemented immediately.
Denno 2009 Consciousness and Culpability in American Criminal Law Deborah W. Denno 12 Waseda Proc. Comp. L. 115 American law requires a voluntary act or omission before assigning criminal liability. The law also presumes that an individual who is unconscious, such as a sleepwalker, is incapable of a voluntary act. For some criminal defendants in the United States this all-or-nothing approach to the voluntary act requirement can mean the difference between unqualified acquittal if they are found to have acted involuntarily, lengthy institutionalization if they are found to be insane, and incarceration or even the death penalty if their acts are found to be voluntary. In contrast to the law’s dual dichotomies of voluntary/involuntary and conscious/unconscious, modern neuroscientific research indicates that the boundaries between our conscious and unconscious states are permeable, dynamic, and interactive. To enable the law to join science in a more nuanced and just view of the human mind, this article proposes that, in addition to voluntary and involuntary acts, the criminal law recognize a third category - semi-voluntary acts.
Denno 2009 Behavioral Genetics Evidence in Criminal Cases: 1994-2007 Deborah W. Denno The Impact of Behavioral Sciences on Criminal Law (Oxford University Press, Nita A. Farahany, ed., 2009). In 1994, convicted murderer Stephen Mobley spurred an international debate on the political and scientific acceptance of behavioral genetics evidence in the criminal law when he fought to be tested for genetic deficiencies in an effort to appeal his death sentence. Such legal-scientific disputes are even more relevant today, given the relative upswing in the use of genetics evidence in criminal cases. This upswing also prompts a key question: How have courts and litigators treated behavioral genetics evidence in criminal cases since Mobley's 1994 appeal? Much of the controversy concerning Mobley was based on the presumption that behavioral genetics evidence would skyrocket in use and abuse. This chapter seeks to determine if such forecasts have been realized by analyzing forty eight criminal cases that relied on behavioral genetics evidence from 1994 to June 1, 2007. These cases share several important characteristics: they overwhelmingly constitute murder convictions in which defendants attempted to use genetics evidence as a mitigating factor in a death penalty case (as Mobley did), and the evidence is introduced mostly to verify a condition (such as a type of mental illness) that is commonly acceptable for mitigation. Indeed, the overview suggests that, contrary to some commentators' warnings, the post-Mobley years have not revealed a legally irresponsible application of behavioral genetics factors in criminal cases. Rather, most courts continue to regard behavioral genetics variables skeptically, and society still embraces the same political and moral concerns over the role of such information. At the same time, courts have failed to provide sound and conceptually consistent reasons either for denying defendants' offers of behavioral genetics evidence or for viewing such evidence in the worst light for defendants. For example, some courts have regarded a defendant's family history of behavioral disorder to be indicative of that defendant's potential for future dangerousness or misguided attempt to sidestep responsibility for violence. These kinds of judicial reactions suggest that at least some of the legal strategies using behavioral genetics evidence are without question a double-edged sword for defendants. Unwarranted constraints or stereotypical perspectives on the admissibility of behavioral genetics factors in death penalty cases can undercut some defendants' efforts to fight their executions through the use of traditional mitigating evidence. As a result, the criminal justice system may be undermining the very principles and progressive thinking the cap on behavioral genetics information was originally intended to achieve.
Denno 2006 Revisiting the Legal Link Between Genetics and Crime Deborah W. Denno 69 Law & Contemp. Probs. 209 In 1994, convicted murderer Stephen Mobley's death penalty case attracted intense international debate when his attorneys attempted to have Mobley tested for genetic deficiencies based on his family history of disorders. According to the attorneys, indications that Mobley shared a genetic propensity for serious misconduct could help explain some of his troubling tendencies and why he should not be executed. Ultimately, the trial and appellate courts rejected that reasoning. In 2005, Mobley was executed. Yet Mobley's death once again stirs the genetics and crime debate with a key question: How have courts and litigators treated genetics evidence in criminal cases during the years following Mobley's first trial? Much of the controversy concerning Mobley v. State was based on the presumption that such evidence would skyrocket in use and abuse. This article seeks to determine if such forecasts have been realized. Contrary to predictions at the time of Mobley's appeal, it appears that little has occurred in the area of genetics and crime warranting the concern that Mobley generated. Of course, the criminal justice system should remain alert to potential hazards of genetics evidence. Yet unsupported fears could also curtail some defendants' constitutionally legitimate attempts to submit aggravating factors in their death penalty cases, in particular, genetics evidence that could validate the existence of more traditionally accepted mitigating conditions, such as mental illness. Presumably, judges and juries would be less likely to think that a defendant is feigning states such as schizophrenia or alcoholism if such disorders commonly occurred across generations of the defendant's family. Part I of this article briefly reviews the facts and legal arguments in Mobley. Part II addresses the primary issues that concerned the court in Mobley, noting that many of the original reasons for the controversy over the potential use of genetics evidence remain the same as they did in 1994. Part III discusses the twenty-seven key genetics and crime cases occurring between 1994 and 2004, since Mobley spurred the topical dispute. These cases, which are surprisingly small in number, share several important characteristics: they overwhelmingly constitute murder convictions in which defendants attempted to use genetics evidence as a mitigating factor in a death penalty case (as Mobley did), and the evidence is introduced mostly to verify a condition (such as a type of mental illness) that is commonly acceptable for mitigation. Part IV contends that, contrary to some commentators' warnings during the first Mobley trial, the last decade has not revealed a legally irresponsible application of genetics factors in criminal cases. Rather, courts continue to regard genetics variables skeptically, and society still embraces the same political and moral concerns over the role of such information. At the same time, courts have failed to provide sound and conceptually consistent reasons for denying defendants' offers of genetics evidence. This article concludes that unwarranted constraints on the admissibility of genetics evidence in death penalty cases can undercut some defendants' efforts to fight their executions. By imposing unreasonable limitations on genetics arguments, the criminal justice system may be undermining the very principles and progressive thinking the cap on genetics evidence was originally intended to achieve.
Denno 2003 A Mind to Blame: New Views on Involuntary Acts Deborah W. Denno 21 Behavioral Sciences and the Law 601 This article examines the legal implications linked to recent scientific research on human consciousness. The article contends that groundbreaking revelations about consciousness expose the frailties of the criminal law's traditional dual dichotomies of conscious versus unconscious thought processes and voluntary versus involuntary acts. These binary doctrines have no valid scientific foundation and clash with other key criminal law defenses, primarily insanity. As a result, courts may adjudicate like individuals very differently based upon their (often unclear) understanding of these doctrines and the science that underlies them. This article proposes a compromise approach by recommending that the criminal concept of voluntariness consist of three parts: (1) voluntary acts, (2) involuntary acts, and (3) semi-voluntary acts. The semi-voluntary acts category, which is new, incorporates modern ideas of consciousness and also advances the law. Using some actual criminal cases, this article applies this new three-part grouping and demonstrates how it enhances a more just outcome for defendants, victims, and society.
Denno 2002 Crime and Consciousness: Science and Involuntary Acts Deborah W. Denno 87 Minn. L. Rev. 269 This article examines the important, but hardly recognized, legal implications that stem from modern scientific research on human consciousness. In light of groundbreaking scientific developments, the article focuses on questioning two of criminal law's traditional dichotomies: conscious versus unconscious thought processes, and voluntary versus involuntary acts. Evidence suggests that these dichotomies have no valid scientific basis, and in fact use antiquated models of mental functioning. These dichotomies also conflict conceptually and substantively with key criminal law defenses, such as insanity. This confusion frequently leads courts to adjudicate like individuals very differently based upon a misunderstanding of criminal defenses and the science that underlies them. This article considers possible solutions to this predicament which range from the total abolition of the voluntary act requirement to a new act requirement based on degrees of consciousness. The article proposes a compromise between these two extremes. Voluntary acts should consist of three parts: (1) voluntary acts, (2) involuntary acts, and (3) semi-voluntary acts. This new category of semi-voluntary acts not only incorporates modern ideas of consciousness but also advances the Model Penal Code. Using actual criminal cases, this article applies this new formulation of voluntary acts and shows how it leads to a more equitable resolution for criminal defendants, victims, and society.
Denno 1994 Gender, Crime, and the Criminal Law Defenses Deborah W. Denno 85 J. Crim. L. & Criminology 80 Gender is one of the strongest predictors of crime, particularly violent crime. Arrest, self report, and victimization data consistently show that men and boys commit significantly more crime, both serious and not, than women and girls. In addition, evidence from the Biosocial Study - one of the country’s largest longitudinal studies of biological, psychological, and sociological predictors of crime - shows that different factors are predictive of crime among females than males. With some exceptions, biological factors were found to be more predictive of crime among females, whereas environmental factors were found to be more predictive of crime among males. These differences between the sexes raise the question of whether the criminal justice system should recognize a gender-based standard for either punishments or defenses. After a detailed look at the results of the Biosocial Study and examination of current gender-based defenses, both biological and cultural, the author concludes that criminal defenses and sentencing should be gender neutral. A policy of specific deterrence based on generalizations about immutable individual characteristics, such as gender, offends society’s notions of justice and promotes faulty stereotypes.
Denno 1988 Human Biology and Criminal Responsibility: Free Will or Free Ride? Deborah W. Denno 137 U. Pa. L. Rev. 615 This article examines the role of the possible biological deficiency defenses in the criminal law. The topic is inspired by the renewed interest in biological and genetic research on behavior and the possible use of this research in a variety of criminal defenses in the United States and other countries. In general, the article presents three major arguments concerning biological deficiency defenses, using, respectively, a critique of biosocial science research, a statistical model of biological and sociological data, and an examination of theories and philosophies on causation and behavior. The first of this article’s arguments states that there should be no defense to mitigate criminal responsibility except in the less than one percent of cases eligible for the insanity defense. Mitigating factors may be considered at the sentencing stage, not for determining the length of the sentence, but only to determine the type of facility for detaining or treatment of a convicted defendant. The second argument contends that social science research has not successfully demonstrated sufficiently strong links between biological factors and criminal behavior to warrant major consideration in determining criminal responsibility. This conclusion is based upon the results of one of this country's largest studies of the biological and sociological development of individuals from the time of their birth to young adulthood. Social science research, however, can be valuable in other contexts, such as predicting bias in death penalty sentencing, in which measures are better defined and there is a lesser burden of statistical proof. The article’s third argument suggests that there is no strong evidence to support either a strictly free will or a strictly deterministic philosophy in the criminal law regarding either the causes of crime or the determinants of criminal responsibility. Moreover, the notion of ‘cause’ has varying implications depending on the context. Statistical models of biosociological research support a philosophy of ‘degree determinism,’ however, that spans a lifetime. The criminal law should reflect this philosophy rather than a free will fiction. The article has four parts. Part I outlines some selected theories and research on genetic, biological, sociological, and environmental influences on criminal behavior. Criminal law cases and defenses that have used this research are discussed and criticized. Likewise, many of these theories are tested together in Part II, which examines research results from a longitudinal study of juvenile and adult crime in order to assess the rationale and desirability of a biological deficiency defense. This article then applies the results of this study's statistical model to develop a probability theory of behavior, which is discussed in Part III in the context of arguments supporting both free will and deterministic notions of criminal responsibility. Part III argues that a theory of ‘degree determinism’ more accurately reflects what have previously been called cause-and-effect relationships. Part III also assesses the feasibility of a biological deficiency defense given the problems posed by other proposed criminal defenses, such as Vietnam Stress Syndrome. Part IV concludes with a commentary on the appropriate and inappropriate uses of social science research and its relation to the goals and philosophy of the criminal justice system.
Denno 1984 Neuropsychological and Early Environmental Correlates of Sex Differences in Crime Deborah W. Denno 23 Int'l J. Neuroscience 199 Results of recent research suggest that longitudinal influences on sex differences in verbal and spatial abilities, and delinquent behavior, may be similar. The present study examined biological, environmental, and psychological variables collected from birth through age 17 on a sample of subjects who participated in the Philadelphia Collaborative Perinatal Project (CPP). Findings supported in part past research suggesting that environmental relationships with intellectual ability and delinquency are strongest for males, whereas biological relationships are somewhat more important for females. Socioeconomic factors were among the strongest predictors of delinquency for both sexes, however. In turn, biological and environmental influences on verbal and spatial abilities and their relationships with later achievement were different between the sexes. Results are discussed in terms of possible sex differences in the development of the left and right cerebral hemispheres, as well as in the vulnerability to environmental influences.
D'Esposito 2003 Alterations in the bold fMRI signal with ageing and disease: a challenge for neuroimaging Mark D'Esposito, Leon Deouell & Adam Gazzaley 4 Nature 1 Functional MRI (fMRI) has rapidly emerged as a powerful tool for studying brain function, despite the fact that it measures neuronal activity indirectly, through the blood-oxygen-level-dependent (BOLD) signal. The BOLD signal depends on neurovascular coupling — the processes by which neural activity influences the haemodynamic properties of the surrounding vasculature. Although the exact mechanisms that underlie eurovascular coupling are not completely understood, there is empirical evidence that these mechanisms might be altered in normal ageing and disease. So, interpretation of BOLD fMRI studies of individuals with different ages or pathology might be more challenging than is commonly acknowledged.
Destro 2009 Learning Neuroscience the Hard Way: The Terri Schiavo Case and the Ethics of Effective Representation Robert A. Destro 12 Waseda Proc. Comp. L. 115
Di Francesco 2009 Il soggetto. Scienze della mente e natura dell’io [The subject. The sciences of the mind and the nature of the self] Michele Di Francesco & Massimo Marraffa Milan, Bruno Mondadori
Di Giovine 2011 Chi ha paura delle neuroscienze? [Who’s afraid of neuroscience?] Ombretta Di Giovine 3 Archivio penale 837
Domin 2009 Mitigating Evidence? The Admissibility of Polygraph Results in the Penalty Phase of a Capital Trial Christopher Domin 43 U.C. Davis L. Rev. 1461 This Comment argues that polygraph evidence should be admissible in the penalty phase of a capital trial. Part I discusses the legal background and evolution of case law involving the admissibility of polygraph evidence during the penalty phase of a capital trial. Part II outlines the circuit split between the Fourth and Ninth Circuit Courts of Appeals on the admissibility of polygraph evidence in capital sentencing. Part III argues that courts should admit polygraph evidence during the penalty phase of a capital trial. First, U.S. Supreme Court precedent establishes that expansive standards of evidence govern the penalty phase of a capital trial. Thus, lower courts should permit the admission of polygraph evidence. Second, lower courts incorrectly apply the Supreme Court's analysis in United States v. Scheffer when ruling on polygraph evidence in the penalty phase of a capital trial. (In Scheffer, the Supreme Court held that due to reliability concerns, polygraph evidence was inadmissible in a noncapital case.) Finally, a per se ban on the admission of polygraph test results in all criminal proceedings is prejudicial to the defendant. For the reasons mentioned above, the Supreme Court should hold that polygraph test results are admissible as evidence in the penalty phase of a capital trial.
Dossey 2010 Neurolaw or frankenlaw? The thought police have arrived Larry Dossey 6 Explore 5 We have entered dangerous territory. We can be sure that the search for better methods of lie detection is not going away. The way forward? It is not enough to look to the advice of experts in knowing how to proceed, because, as we’ve seen, there is no agreement among them. Which Nobelist shall we believe? The Great Lie Detection Debate reminds me of Gibson’s law: “For every PhD there is an equal and opposite PhD.” Which criteria shall we use in judging the fitness of these methods for human application? Everyone is entitled to his or her opinion on these contentious issues. For my part, I remain wedded to an old-fashioned document, the Constitution of the United States of America, and the hallowed precept of the right to privacy and the implied right of cognitive liberty. I believe that privacy is freedom’s twin. I do not consider mind and brain as identical, and I believe science is on my side in this view. I believe that, where truth telling in our courts is concerned, the path forward may not require newfangled gizmos and doodads, but primarily the judgment of 12 wellmeaning if imperfect jurors. We must be careful in handing over questions of truth to shadows on a brain scan, as seductive as they may be. And above all we should unfailingly recall, as Sir William Blackstone said in 1765 in his Commentaries on the Laws of England, “It is better that ten guilty persons escape than one innocent suffer.”
Dresser 2010 Brain Imaging and Courtroom Deception Rebecca Dresser 40 Hastings Ctr. Rep. 7 Scientists have developed new approaches to lie detection that use a brain scanning technique called functional magnetic resonance imaging (fMRI) to evaluate whether someone is lying. Enthusiasts hope that courts will be more receptive to fMRI lie detection techniques than they have been to polygraph tests. But two recent court decisions - United States v. Semrau and Wilson v. Corestaff Services - suggest that these techniques are far from ready for courtroom use.
Dressing 2009 Implications of fMRI and Genetics for the Law and the Routine Practice of Forensic Psychiatry Harald Dressing, Alexander Sartorius & Andreas Meyer-Lindenberg Neuroscience and Crime: A Special Issue of Neurocase (Psychology Press, Hans Markowitsch, ed., 2009). This review outlines recent neurobiological findings in humans relevant for the practice of law and forensic psychiatry. It focuses on offenders with antisocial personality disorder and on sex offenders. In addition, the impact of risk polymorphisms in monoamine oxidase A (MAO-A), previously related to violence in interaction with the environment, on brain structure and function and on personality traits in healthy persons are presented. While increasing knowledge of functional and structural alterations provides a better understanding of the neurobiological underpinnings of delinquent behaviour, antisocial and violent behaviour arises from a complex pattern of biological, psychological, social and situational factors, precluding a stance of simple biological reductionism. Rather, optimal integration of neurobiological findings requires cooperation among many disciplines such as medicine, criminology, sociology, psychology, politics and neuroscience.
Dreyfuss Teens Impulsively React Rather than Retreat from Threat Michael Dreyfuss, Kristina Caudle, Andrew T. Drysdale, Natalie E. Johnston, Alexandra O. Cohen, Leah H. Somerville, Adriana Galván, Nim Tottenham, Todd A. Hare, & BJ Casey
Drobac 2012 A Bee Line in the Wrong Direction: Science, Teenagers, and the Sting to 'The Age of Consent' Jennifer Drobac 20 Journal of Law & Policy 63 This article updates prior work on the sexual harassment of juveniles to mark that the trend, in New York and across the nation, is to treat adolescent acquiescence, in the context of civil sexual abuse allegations, like adult consent. Incorporating Supreme Court adoption of the neuroscience and psychosocial studies from Graham v. Florida, 130 S.Ct. 2011 (2010), the article takes a fresh look at the trend to recommend a new approach to adolescent “consent.” It recommends affording adolescents the right to give legal assent when it serves their best interests. Part I of this Article briefly reviews the neuroscience and psychosocial evidence regarding adolescent development to maturity. This research is new and reported conclusions vary, but a snapshot review of current understanding helps guide an evaluation of New York law first formulated in 1933. Part I concludes that adolescents are not younger, smaller adults but are fundamentally different in the ways they think and behave. Part II explores legal guidance concerning consent, assent, and juvenile incapacity. It highlights that legal authority cautions against attributing full legal capacity to minors — whether or not one affords them decision making autonomy. Part III reviews recent cases from New York to show how New York courts treat adolescent consent to unlawful sex with an adult inconsistently. It also notes several other cases from across the nation that replicate the New York inconsistencies. This Article concludes in Part IV by recommending a new approach to adolescent consent to sex with an adult-legal assent.
Drobac 2006 “Developing Capacity”: Adolescent “Consent” at Work, at Law, and in the Sciences of the Mind Jennifer A. Drobac 10 U.C. Davis J. Juv. L. & Pol'y 1 No national consensus exists concerning adolescent capacity to consent to sex. The law gives differing legal significance to adolescent consent to teen-adult sex depending upon a variety of factors. In response to an increase in teen sexual harassment cases, this article examines three subject areas that should inform the debate over the actual meaning of adolescent consent: adolescent development, adolescent sexuality, and child/adolescent sexual abuse. First, new neuroscientific and psychosocial science data suggest that adolescent physical and psychosocial development continue into the third decade of life. Studies reveal that adolescents' activities influence their physical brain development and growth. In other words, adolescents hard-wire their experiences into their brains. Second, statistics regarding adolescent sexuality indicate that teens are having sex that is not always completely voluntary. Moreover, parents are often unaware that their children are having sex. Finally, evidence demonstrates that child sexual abuse can permanently and physically disable youth. This article suggests that the new scientific and statistical evidence should prompt law reform pertaining to teen capacity and consent. It concludes that while adolescents need to exercise their decision-making skills as they mature, they still need protection from adult sexual predators. As the Supreme Court's recent decision in Roper v. Simmons suggests, we should not presume full capacity where science indicates adolescents are immature and still developing capacity. This article recommends, in particular, that sexual harassment law should be revised to make teen consent to workplace sex with an adult supervisor voidable by the minor. Courts should find teen-adult sex unwelcome as a matter of law, when the minor alleges sexual harassment. This article recommends a strict liability civil response to teen sexual harassment, whether or not the teenager once consented to sex with the adult supervisor.
Drury 2010 From Biology to Behavior to the Law: Policy Implication of the Neurobiology of Early Adverse Experiences Stacy S. Drury, Michael S. Scheeringa, Keith E. Schmidt & Charles A. Nelson 10 Whittier J. Child & Fam. Advoc. 25 This article will describe research which demonstrates that current policies neither reflect the known neurobiological factors associated with early adversity nor incorporate existing effective assessment and treatment practices for very young children. Following a brief discussion of early brain development we will discuss the current body of research documenting the biological impact of early adversity from studies of very young children exposed to a range of stressful experiences including abuse and neglect, trauma, and institutional care. Finally, we will outline the challenges and failures in Post-Katrina New Orleans that highlight many of these issues as well as two additional policies specific to disaster preparedness and the care of young children. At the conclusion of this paper we will recommend changes to address the following six policies we believe significantly contribute to the inadequate provision of care for our most vulnerable children: 1) State funded agencies that provide mental health care to young children generally do not permit or fund treatment of the parent(s) in the same facility or concurrently with the treatment of the child, 2) Inadequate attention is paid to the attachment relationship between caregivers and young children with exposure to early adversity, particularly those children in state protective custody, 3) State funded mental health clinics limit the amount of time for initial evaluations, in some cases to one hour, which results in an inadequate understanding of the child, the family, and the many associated factors which are needed to achieve a clear diagnostic understanding of the patient. This inadequate assessment impairs the development of an effective treatment plan, 4) powerful medications, for which there is limited or no evidence of efficacy in very young children, are used too frequently rather than evidence based psychotherapy in part because of the limited availability of individuals who can provide therapy to young children and in part because psychotherapy is more time consuming. These four policies span all traumatic experiences but in the aftermath of large scale disasters two additional policies add further challenges for those seeking to provide appropriate care to very young children: 5) Current SAMHSA and FEMA plans of care following disasters do not include evidence based care for preschool and younger children, and 6) SAMHSA's and FEMA's efforts in post-disaster areas limit mental health support to crisis counseling which is not evidence-based and has no documented effectiveness to date.
Drysdale 2013 Helmet-to-Helmet Contact: Avoiding a Lifetime Penalty by Creating a Duty to Scan Active NFL Players for Chronic Traumatic Encephalopathy Thomas A. Drysdale 34(4) Journal of Legal Medicine 425
Du Laing 2009 Equality in Exchange Revisited: From an Evolutionary (Genetic and Cultural) Point of View Bart Du Laing Law, Mind and Brain 267 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009). This paper addresses the legal relevance of recent evolutionary theoretical research on human prosociality and human strong reciprocity and the explanations it offers regarding the existence and scope of what could be called a 'sense of fairness'. To this end, it will draw on the legal example of equality in exchange in contract law on the one hand and on research on human cooperative behaviour on the other hand. It will start by making some remarks on the issue of substantive fairness in legal contract theory and in legal anthropology. It will then briefly sketch some results of some of the experiments commonly used in behavioural economics to shed light on human prosocial behaviour. Recent research not only shows that the economists' canonical assumption that individuals are entirely self-regarding is incorrect, but also indicates that there is a considerable amount of cross-cultural behavioural variability. This should set the stage for an exposition of a particular encompassing evolutionary theoretical framework underlying a particular interpretation of the experimental data. Indeed, it mainly hopes to show why evolutionary analysis in law could benefit considerably from incorporating culture - and its accompanying evolutionary theory - more explicitly into its models than at present seems to be the case. It will argue that one has to be able to give a plausible evolutionary account for both the behaviour that is supposed to be regulated and the regulating behaviour itself. Moreover, rather than focusing exclusively on the - indeed likely - universal aspects of the regulated behaviour, this universality has to be connected more explicitly with the - cultural - diversity encountered in the world's legal systems. When approaching regulating behaviour in general as an evolutionary puzzling form of human large-scale cooperation, gene-culture coevolutionary theory and the related concept of cultural group selection promise to go a long way in providing this necessary connection.
Duffy 2010 What Hobbes Left Out: The Neuroscience of Comparison and its Implications For a New Commonwealth James D. Duffy Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). Much has changed, and much has happened, in the four centuries since Hobbes wrote Leviathan. However, his jaundiced view of human nature and the necessity of enforced moral codes remains the dominant organizing principle of our social and legal systems. Our judicial restraints have multiplied and the number of our incarcerated citizens continues to escalate dramatically. Given this apparent paradox, one can be forced into one of two conclusions, i.e., human beings are incapable of being morally constrained; or, our current model of societal morality is inadequate (or simply wrong). This chapter argues for the latter. Recent advances in the social neurosciences are providing us with insights into ourselves that require us to re-evaluate and evolve our models of social morality. Rather than replacing our current models, these insights provide us with an opportunity to support the emergence of social systems that not only inhibit anti-social behaviours, but actually support pro-social behaviours by our citizens.
Dungan 2011 Multiple Moralities: Tensions and Tradeoffs in Moral Psychology and the Law James Dungan & Liane Young 36 T. Marshall L. Rev. 177
Dyer 2007 The Queen of Chula Vista: Stories of Self-Represented Litigants and a Call for Using Cognitive Linguistics to Work With Them Charles R. Dyer 99 Law Libr. J. 717 Self-represented litigants who come to law libraries face a difficult challenge since they lack the acquired skill of using the rationalist logic of the courts. Mr. Dyer examines recent cognitive science and cognitive linguistics to seek a better theoretical grounding for working with self-represented litigants. He concludes with a call to action, especially for further research.
Eagleman 2012 Defining A Neurocompatibility Index for Criminal Justice Systems: A Framework to Align Social Policy with Modern Brain Science David M. Eagleman & Sarah Isgur Flores 1 Law of the Future Series 161 Criminal jurisprudence is often driven more by intuition and political needs than by evidence-based science. As a result, criminal laws frequently prove sub-optimal and inefficacious. As a guideline for improvement, we here define a neurocompatibility index: seven criteria to measure the degree to which a system of criminal justice is compatible with the lessons of modern science. These include: (1) understanding of mental illness, (2) methods of rehabilitation, (3) individualised sentencing based on risk assessment, (4) eyewitness identification standards, (5) specialised court systems, (6) incentive structuring based on psychology, and (7) a minimum standard of science education for policy-makers. As demonstrated in the ideas outlined here, a brain-compatible system prizes fairness and longterm crime prevention over harsh yet inconsequential punishment.
Eagleman 2011 The Brain on Trial David Eagleman 308 Atlantic Monthly 112 This article summarizes several difficulties with the current system of criminal justice. It begins with several examples to clarify the relationship between biology and behavior, identifies problems with the assumption that all brains are created equal, argues for a forward-looking justice system, describes new opportunities from neuroscience for rehabilitation, and offers a roadmap to achieve a more tailored, customized, neurally-compatible system of sentencing.
Eagleman 2011 Incognito: The Secret Lives of the Brain David Eagleman Pantheon Books If the conscious mind--the part you consider to be you--is just the tip of the iceberg, what is the rest doing? In this sparkling and provocative book, renowned neuroscientist David Eagleman navigates the depths of the subconscious brain to illuminate its surprising mysteries. Why can your foot move halfway to the brake pedal before you become consciously aware of danger ahead? Is there a true Mel Gibson? How is your brain like a conflicted democracy engaged in civil war? What do Odysseus and the subprime mortgage meltdown have in common? Why are people whose names begin with J more like to marry other people whose names begin with J? And why is it so difficult to keep a secret? Taking in brain damage, plane spotting, dating, drugs, beauty, infidelity, synesthesia, criminal law, artificial intelligence, and visual illusions, Incognito is a thrilling subsurface exploration of the mind and all its contradictions.
Eagleman 2011 The Human Brain: Turning Our Minds to the Law David Eagleman The Telegraph, Apr. 5 Our understanding of the way the brain works could help us create a better legal system, says neuroscientist David Eagleman.
Eagleman 2010 Why Neuroscience Matters For Rational Drug Policy David M. Eagleman & Mark A. Correro 11 Minn. J.L. Sci. & Tech. 7 Drug addiction reflects abnormal operation of normal neural circuitry. More than physical dependence, addiction represents changes in the brain that lead to increased craving and diminished capacity for the control of impulses. Given the growing biological understanding of addiction, it is critical for scientists to play an active role in drug policy because, as neuroscientific understanding develops, we will, to a much greater degree, be able to target specific behavioral, pharmaceutical, and neurological treatments for specific addictions. It is important to emphasize that biological explanations will not become equivalent to exculpation. Instead, the goal of explanation is to introduce rational sentencing and the opportunity for customized rehabilitation. This approach is likely to show more utility and less cost than incarceration. The neuroscientific community should continue to develop rehabilitative strategies so that the legal community can take advantage of those strategies for a rational, customized approach to drug addiction.
Eagleman 2009 What Neuroscience May Be Able to Tell Us About Criminal Behavior and Rehabilitation David M. Eagleman, Mark A. Correro & Jyotpal Singh Gruter Institute Squaw Valley Conference 2009: Law, Behavior & the Brain Emerging questions at the interface of law and neuroscience challenge several presumptions at the heart of the legal system. For example, under what circumstances is it a legitimate defense to claim that a brain tumor or idiosyncratic neural wiring was responsible for a behavior? Will neuroscience inform sentencing decisions by offering a better prediction of recidivism? Can novel neuroscience technologies be leveraged for new methods of rehabilitation? Eagleman addresses these questions with a look toward what neuroscience may and may not be able to tell us about criminal behavior within the next decade. He additionally covers preliminary experimental data from our novel strategy for real-time functional neuroimaging-based rehabilitation, which he discusses on both scientific and ethical grounds. Finally, he touches on Baylor College of Medicine’s Initiative on Neuroscience and Law (www.NeuLaw.org), which brings together a unique collaboration of neurobiologists, legal scholars, and policy makers, with the goal of building modern, evidence-based policy.
Eagleman 2008 Neuroscience and the Law David M. Eagleman 45-APR Hous. Law. 36
Ebert 2010 Bending Time to One's Will Jeffrey P. Ebert & Daniel M. Wegner Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). Building on the research of Libet and others, this chapter shows that conscious will, and authorship more generally, is less a cause of events than an experience one has when the mind determines an event should be ascribed to the self—and that time plays a key role in such determinations. It then shows that this experience of authorship involves a subjective bending of time, such that actions and events are perceived to be temporally closer to each other when authorship is inferred.
Edersheim 2012 Neuroimaging, Diminished Capacity and Mitigation Judith G. Edersheim Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) A large and growing body of neuroscientific research links brain dysfunction, particularly in the prefrontal cortex, with impulsive aggression and violence. Evidence for impaired brain function can be used to challenge the mens rea (state of mind) element of a criminal offense, as well as to argue that the offender is less responsible for his or her actions due to diminished capacity to form a specific mental state. In capital crimes, a wide range of evidence can be introduced in mitigation, arguing for a sentence less than death. However, defense attorneys in capital cases must weigh their options carefully, as evidence of future dangerousness may be considered a factor in aggravation. As the scientific understanding of the neurobiology of brain maturation, impulse control and decision-making grows, neuroimaging evidence is being introduced with ever greater frequency in the most serious criminal cases in an effort to reduce culpability and the severity of punishment.
Eggen 2012 Toward a Neuroscience Model of Tort Law: How Functional Neuroimaging Will Transform Tort Doctrine Jean Macchiaroli Eggen & Eric J. Laury 13 Colum. Sci. & Tech. Law Review 235 The “neuroscience revolution” has now gained the attention of legal thinkers and is poised to be the catalyst for significant changes in the law. Over the past several decades, research in functional neuroimaging has sought to explain a vast array of human thought processes and behaviors, and the law has taken notice. Although functional neuroimaging is not yet close to being a staple in the courtroom, the information acquired from these studies has been featured in a handful of cases, including a few before the United States Supreme Court. Our assertion involves the incorporation of functional neuroscience evidence in tort law related to the variety of mental states, including intent, knowledge, recklessness, and negligence. As the courts become saturated with neurimaging evidence, it is imperative to be prepared with a framework for addressing the many legal questions that the new neuroscience will pose. Our proposed neuroscience model of tort law is both simple and complex. Its simplicity lies in a workable framework for allowing the law to move forward while incorporating functional neuroimaging evidence in tort law. Its complexity is in the challenges posed by the interpretation of the neuroscience data and by extrapolation from the evidence to the legal issues. Our model is intended to commence the discourse about ways in which tort law may be improved through an understanding of, and appropriate use of, information acquired through the newest technologies of functional neuroimaging. We intend this model to provide guidance to judges and attorneys when confronted with functional neuroimaging evidence in tort cases, and we anticipate that serious consideration of the model will propel courts toward incorporating these relevant social and scientific advances into the evolving principles of tort law.
Eismann-Harpen 2013 Kentucky Should Mandate Attorney Consultation Before Juveniles Can Effectively Waive Their Miranda Rights Sandra Eismann-Harpen 40 N. Ky. L. Rev. 201 The article discusses Kentucky law reforms for protecting juveniles' constitutional rights by incorporating a rule which mandates attorney consultation before juveniles claim Miranda rights. It presents information that a court requires Miranda warnings to ensure that suspects are cognizant of their civil rights and the repercussions they might face from its waiver. It informs that Kentucky's insufficient protection of juveniles' Miranda rights generate a loophole in its juvenile legal system.
Elbert 2012 A Mindful Military: Linking Brain and Behavior through Neuroscience at Court-Martial Major Jason M. Elbert 2012-SEP Army Law. 4 The article discusses neuroscience, court-martials, and the link between a human's brain and his or her behavior as of September 2012, focusing on the psychological aspects of U.S. military personnel and their decisionmaking processes. The combat experiences of U.S. Army Sergeant Andrew Jones in Iraq and Afghanistan are examined, along with post-traumatic stress disorder and traumatic brain injury. Cognitive brain functions and their influence on criminal behavior are mentioned.
Ellenberg 2009 Lie Detection: A Changing of the Guard in the Quest for Truth in Court? Cooper Ellenberg 33 Law & Psychol. Rev. 139
Elliott 2011 Neuropsychiatry in the courtroom Richard L. Elliott 62 Mercer L. Rev. 933 This Symposium, “The Brain Sciences in the Courtroom,” will make frequent reference to neuropsychiatry, neuroimaging, and brain science, and assumes a rudimentary understanding of neuroscience. While some readers have considerable experience in these areas, others might benefit from a brief introduction to key concepts in neuroscience, and to their applications in the courtroom from a historical perspective. In providing such an introduction, several points will become clear. For 200 years, lawyers, judges, and expert witnesses have struggled to understand how neuroscience can be helpful in the courtroom, with varying degrees of success. This is, in part, due to the fact that the brain is even more complex than might be supposed, rendering any attempt to reduce human emotion and behavior to a simple causal explanation, easily comprehensible to decisionmakers, intractable. With this limitation, the ultimate goal of this review is to provide a background to understand some of the promises and limitations that forensic neuropsychiatry has to offer. We begin by describing neuropsychiatry, presenting a brief introduction to the organization in the brain, and reviewing several historical cases illustrating problems applying neuropsychiatry in legal settings.
Emery 2009 Anger is Not Anger is Not Anger: Different Motivations Behind Anger and Why They Matter for Family Law Robert E. Emery 16 Va. J. Soc. Pol'y & L. 346 The article offers information on the various motives behind anger and the reason why they are important in the law of the family. According to the author, anger has a variety of meanings in different circumstances which is based on models of emotion which are new that relies on principles of evolution and the rising of evidences in neuroscience. It mentions that the coming out of the position of the law and emotions can render the foundation which is needed for a family law that has a new legal theory.
Epright 2010 Coercing Future Freedom: Consent and Capacities for Autonomous Choice M. Carmela Epright 38 J.L. Med. & Ethics 799 In this paper I examine some of the significant moral concerns inherent in cases of treatment refusal involving patients with psychotic disorders. In particular, I explore the relevance of the principle of autonomy in such situations. After exploring the concept of autonomy and explaining its current and historical significance in a health care setting, I argue that because autonomous choice depends for its existence upon certain human functions such as the ability to reason, judge, and assess consequences, patients cannot be said to be making free and autonomous decisions if these capacities are compromised. I contend further that because psychotic disorders have the potential to compromise these functions in the future, it is appropriate, in some limited cases, to coerce patients with psychotic disorders to undergo treatment in order to preserve their future decision-making capacities and to protect their ability to recognize and respect the autonomy of others.
Epstein 2006 Behavioral Economics: Human Errors and Market Correction Richard A. Epstein 73 U. Chi. L. Rev. 111 The article examines the implications of the fact that people often make serious mistakes in deciding important matters and that they often find it most difficult to control emotions when it matters the most. Issues discussed include: maturation and mistakes, the proper legal response to errors made by persons with full capacity, an analysis of generic mistakes in valuation, and mistakes in credit card transactions.
Erickson 2012 The Limits of Neurolaw Steven K. Erickson 11 Hous. J. Health L. & Pol'y 303 This brief essay is a response to Professor Lamparello‘s ambitious article in the forthcoming symposium collection in the Houston Journal of Health Law and Policy. Professor Lamparello suggests that cognitive neuroscience might finally provide the criminal justice system with a reliable method of crime control. Unlike previous proposals under the fashionable neurolaw framework, Lamparello suggests that the value of the technology neuroscience brings to the table lies not in overturning the entrenched legal doctrine of mens rea or responsibility, but rather in its utilization to make predictions of future dangerousness. Those offenders who possess neurological abnormalities should be civilly committed after serving their prison sentences, according to Lamparello, just as many sexually violent predators are civilly committed today in light of the Kansas v. Hendricks and Kansas v. Crane. For reasons I discuss, I believe such policy prescriptions are unnecessary and unwise.
Erickson 2012 Foreword: Mental Health Symposium Steven K. Erickson 11 Hous. J. Health L. & Pol'y 175
Erickson 2010 Blaming the Brain Steven K. Erickson 11 Minn. J.L. Sci. & Tech. 27 Criminal law scholarship has recently become absorbed with the ideas of neuroscience in the emerging field of neurolaw. This mixture of cognitive neuroscience and law suggests that long established conceptions of human agency and responsibility are fundamentally at odds with the findings of science. Using sophisticated technology, cognitive neuroscience claims to be upon the threshold of unraveling the mysteries of the mind by elucidating the mechanical nature of the brain. Despite the limitations of that technology, neurolaw supporters eagerly suggest that those revelations entail that an inevitable and radical overhaul of our criminal justice system is soon at hand. What that enthusiasm hides, however, is a deeper ambition among those who desire an end to distributive punishment based on desert in favor of a prediction model heavily influenced by the behavioral sciences. That model rests squarely on the presumption that science should craft crime policy at the expense of the authority of common intuitions of justice. But that exchange has profound implications for how the law views criminal conduct and responsibility – and how it should be sanctioned under the law. Neurolaw promises a more humane and just criminal justice system, yet there is ample reason to believe otherwise.
Erickson 2009 The Neuroscience and Psychology of Moral Decision Making and the Law Steven K. Erickson 27 Behav. Sci. & L. 119
Erickson 2007 Daubert's Bipolar Treatment of Scientific Expert Testimony--From Frye's Polygraph To Farwell's Brain Fingerprinting Megan J. Erickson 55 Drake L. Rev. 763
Erickson-Davis 2012 Ethical Concerns Regarding Commercialization of Deep Brain Stimulation for Obsessive Compulsive Disorder Cordelia Erickson-Davis 26 Bioethics 8 The United States Food and Drug Administration's recent approval of the commercial use of Deep Brain Stimulation (DBS) as a treatment for Obsessive Compulsive Disorder (OCD) will be discussed within the context of the existing USA regulatory framework. The purpose will be to illustrate the current lack of regulation and oversight of the DBS market, which has resulted in the violation of basic ethical norms. The discussion will focus on: 1) the lack of available evidence on procedural safety and efficacy, 2) the numerous conflicts of interest held by research investigators, and 3) the ambiguity of both aforementioned categories due to an inherent lack of transparency in the research. It is argued that in order to address these issues, ethical analyses of DBS for psychiatric disorders must include the role of the industry forces that have become the primary impetus for this research. As such, DBS for OCD serves as an important case example in studies of neurotechnology and innovative surgery.
Fabian 2009 Forensic Neuropsychological Assessment and Death Penalty Litigation John M. Fabian 33-APR Champion 24 The state attorney prosecuting a capital case will emphasize words and phrases such as “inherent evil,” “psychopath,” “predator,” and “abuse is no excuse” while deeming irrelevant alternative explanations of human behavior other than free will. The prosecutor will not acknowledge that human behavior is deterministic in nature and based on biopsychosocial interactions within one’s life. Capital defense attorneys must combat the state’s narrow and simplistic view of human behavior by educating the jury through their experts about relevant mitigating evidence applicable to the defendant’s life history and level of functioning. Frequently in capital cases there will be a significant history of neuropathology/dysfunction (cognitive impairment) that needs to be examined by a forensic mental health professional and presented to the jury. More than one-third of capital defendants have histories of neuropathological damage, and it appears a “no-brainer” to request neuropsychological assessment.
Faigman 2014 Group to Individual (G2i) Inference in Scientific Expert Testimony David L. Faigman, John Monahan & Christopher Slobogin 81 U. Chi. L. Rev. ___ A fundamental divide exists between what scientists do as scientists and what courts often ask them to do as expert witnesses. Whereas scientists almost invariably measure phenomena at the group level, trial courts typically need to resolve cases at the individual level. A basic challenge for trial courts that rely on scientific experts, therefore, concerns translating scientific knowledge derived from studying groups into information that can be helpful in the individual cases before them (what this article refers to as “G2i”). To aid in dealing with this challenge, this article proposes a distinction between two types of expert evidence: framework evidence that describes general scientific propositions and diagnostic evidence that applies the general propositions to individual cases. It then examines the evidentiary implications of that distinction. Most importantly, admissibility standards for expert testimony should differ depending on whether experts are proffering framework or diagnostic evidence. Judicial analysis of “fit,” expert qualifications, testability, error rates, peer review, general acceptance, helpfulness and other traditional admissibility criteria for expert evidence will often vary, sometimes significantly, based on this distinction. The article provides general guidelines about the best practices judges should follow in sorting through these considerations. These guidelines will permit courts to manage G2i inferences in a more informed and coherent way than they do currently.
Faigman 2013 Admissibility of Neuroscientific Expert Testimony David L. Faigman in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds.
Fallon 2006 Neuroanatomical Background to Understanding the Brain of the Young Psychopath James H. Fallon 3 Ohio St. J. Crim. L. 341 The objective of this paper is to describe the basis of violent psychopathology from a neuroanatomical point of view. Although there is no universally accepted neurological cause of psychopathology, there are some basic patterns of brain malfunction that are present in a majority of cases. Most notably is the compromised functioning of the orbital prefrontal cortex and associated neural circuitry. Beyond this fundamental finding are considerations of how many types of psychopaths there are, how they are characterized, and what may be the potential contributing causes. These questions are approached from multiple levels of neuroanatomical analysis, including genetic, molecular, neurotransmitter, neuronal, cell cluster, and brain area levels, to entire circuit systems. These levels are then considered in light of prenatal, perinatal, and postnatal development and the timing of neuronal system damage in the life of the psychopathic individual. The mechanistic neuroscience approaches are discussed in terms of the relative contributions of nature (genetic/epigenetic/brain damage) and nurture (environmental).
Fangerau 2011 Implanted Minds : the neuroethics of intracerebral stem cell transplantation and deep brain stimulation Heiner Fangerau, Jörg M. Fegert & Thorsten Trapp Bielefeld, Transcript Intracerebral interventions raise particular ethical issues. For instance, attempts at replacing lost or altered brain cells with the help of stem cells or the therapeutic application of Deep Brain Stimulation would have morally relevant implications. Many medically relevant questions and ethical concerns need to be clarified before these intracerebral interventions can become routine procedure: If the brain is conceived as the carrier of an individual's personality or of the self then operations on the brain can be seen as intrusions upon one's personality. The book addresses historical, philosophical, social and legal implications of these new developments in the neurosciences and aims at resolving some of the dilemmas that go hand in hand with "implanted minds."
Farah 2014 Functional MRI-based Lie Detection: Scientific and Societal Challenges Martha J. Farah, J. Benjamin Hutchinson, Elizabeth A. Phelps & Anthony D. Wagner 15(2) Nature Reviews Neuroscience 123 Functional MRI (fMRI)-based lie detection has been marketed as a tool for enhancing personnel selection, strengthening national security and protecting personal reputations, and at least three US courts have been asked to admit the results of lie detection scans as evidence during trials. How well does fMRI-based lie detection perform, and how should the courts, and society more generally, respond? Here, we address various questions — some of which are based on a meta-analysis of published studies — concerning the scientific state of the art in fMRI-based lie detection and its legal status, and discuss broader ethical and societal implications. We close with three general policy recommendations.
Farah 2012 Neuroethics: The Ethical, Legal, and Societal Impact of Neuroscience Martha Farah 63 Annu. Rev. Psychol. 571 Advances in cognitive, affective, and social neuroscience raise a host of new questions concerning the ways in which neuroscience can and should be used. These advances also challenge our intuitions about the nature of humans as moral and spiritual beings. Neuroethics is the new field that grapples with these issues. The present article surveys a number of applications of neuroscience to such diverse arenas as marketing, criminal justice, the military, and worker productivity. The ethical, legal, and societal effects of these applications are discussed. Less practical, but perhaps ultimately more consequential, is the impact of neuroscience on our worldview and our understanding of the human person.
Farah 2010 Neuroethics: An Introduction with Readings Martha Farah MIT Press Neuroscience increasingly allows us to explain, predict, and even control aspects of human behavior. The ethical issues that arise from these developments extend beyond the boundaries of conventional bioethics into philosophy of mind, psychology, theology, public policy, and the law. This broader set of concerns is the subject matter of neuroethics. In this book, leading neuroscientist Martha Farah introduces the reader to the key issues of neuroethics, placing them in scientific and cultural context and presenting a carefully chosen set of essays, articles, and excerpts from longer works that explore specific problems in neuroethics from the perspectives of a diverse set of authors. Included are writings by such leading scientists, philosophers, and legal scholars as Carl Elliot, Joshua Greene, Steven Hyman, Peter Kramer, and Elizabeth Phelps. Topics include the ethical dilemmas of cognitive enhancement; issues of personality, memory and identity; the ability of brain imaging to both persuade and reveal; the legal implications of neuroscience; and the many ways in which neuroscience challenges our conception of what it means to be a person.Neuroethics is an essential guide to the most intellectually challenging and socially significant issues at the interface of neuroscience and society. Farah's clear writing and well-chosen readings will be appreciated by scientist and humanist alike, and the inclusion of questions for discussion in each section makes the book suitable for classroom use.Contributors Zenab Amin, Ofek Bar-Ilan, Richard G. Boire, Philip Campbell, Turhan Canli, Jonathan Cohen, Robert Cook-Degan, Lawrence H. Diller, Carl Elliott, Martha J. Farah, Rod Flower, Kenneth R. Foster, Howard Gardner, Michael Gazzaniga, Jeremy R. Gray, Henry Greely, Joshua Greene, John Harris, Andrea S. Heberlein, Steven E. Hyman, Judy Iles, Eric Kandel, Ronald C. Kessler, Patricia King, Adam J. Kolber, Peter D. Kramer, Daniel D. Langleben, Steven Laureys, Stephen J. Morse, Nancey Murphy, Eric Parens, Sidney Perkowitz, Elizabeth A. Phelps, President's Council on Bioethics, Eric Racine, Barbara Sahakian, Laura A. Thomas, Paul M. Thompson, Stacey A. Tovino, Paul Root Wolpe
Farah 2005 Neuroethics: The Practical and the Philosophical Martha J. Farah 9 Trends in Cognitive Sciences 34 In comparison with the ethical issues surrounding molecular genetics, there has been little public awareness of the ethical implications of neuroscience. Yet recent progress in cognitive neuroscience raises a host of ethical issues of at least comparable importance. Some are of a practical nature, concerning the applications of neurotechnology and their likely implications for individuals and society. Others are more philosophical, concerning the way we think about ourselves as persons, moral agents and spiritual beings. This article reviews key examples of each type of issue, including the relevant advances in science and technology and their accompanying social and philosophical problems.
Farah 2005 Poverty, Privilege and the Developing Brain: Empirical Findings and Ethical Implications Martha J. Farah, Kimberly G. Noble & H. Hurt Neuroethics: Defining the Issues in Theory, Practice and Policy 277 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter attempts to relate findings on socio-economic status (SES) and brain development. The ultimate goals are to inform practical decisions concerning child policy, and to reveal the neuroethical dimensions of the problem of childhood poverty. It shows that who we are is determined not only by genetically programmed development, neurodegenerative disease, and psychoactive drugs, but also by the socio-economic circumstances of our childhood in equivalently physical mechanistic ways. Neuroethicists have rightly called attention to the ethically complex ability of drugs to change who we are. It is metaphysically just as perplexing, and socially at least as distressing, that an impoverished and stressful childhood can diminish us by equally concrete physical mechanisms, such as the impact of early life stress on medial temporal memory ability through neuroendocrine mechanisms.
Farah 2004 Monitoring and Manipulating Brain Function: New Neuroscience Technologies and Their Ethical Implications Martha J. Farah & Paul Root Wolpe 34 Hastings Center Report 35 The eye may be window to the soul, but neuroscientists aim to get inside and measure the interior directly. There’s also talk about moving some walls.
Farah 2002 Emerging Ethical Issues in Neuroscience Martha J. Farah 5 Nature Neuroscience 1123 There is growing public awareness of the ethical issues raised by progress in many areas of neuroscience. This commentary reviews the issues, which are triaged in terms of their novelty and their imminence, with an exploration of the relevant ethical principles in each case.
Farahany 2012 Searching Secrets Nita A. Farahany 160 University of Pennsylvania Law Review 5 A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated protected information like the “content” inside. That metaphor is flawed because it focuses exclusively on whether information is secluded and assigns no value to the substantive information itself. This Article explores the descriptive potential of intellectual property law as a metaphor to describe current Fourth Amendment search and seizure law. It applies this new metaphor to identifying, automatic, memorialized, and uttered evidence to solve current riddles and predict how the Fourth Amendment will apply to emerging technology. Unlike real property law, intellectual property law recognizes that who authored information — and not just how or where it was stored — informs the individual interests at stake in that information. The exclusive rights of authors, including nondisclosure, are interests recognized by copyright law. Recognizing the secrecy interests of individuals has broad implications for the Fourth Amendment in the information age. Together with real property law, an intellectual property law metaphor better describes emerging doctrine, which has required greater government justification to search certain categories of information. But it also reveals the normative shortcomings of current doctrine when the secrets the government seeks are automatically generated information that arises from computer activities, via GPS tracking, or are emitted by our brains.
Farahany 2011 Incriminating Thoughts Nita Farahany 64 Stanford L. Rev. 351 The neuroscience revolution poses profound challenges to current self-incrimination doctrine and exposes a deep conceptual confusion at the heart of the doctrine. In Schmerber v. California, the Court held that under the Self- Incrimination Clause of the Fifth Amendment, no person shall be compelled to “prove a charge [from] his own mouth,” but a person may be compelled to provide real or physical evidence. This testimonial/physical dichotomy has failed to achieve its intended simplifying purpose. For nearly fifty years scholars and practitioners have lamented its impracticability and its inconsistency with the underlying purpose of the privilege. This Article seeks to reframe the debate. It demonstrates through modern applications from neuroscience the need to redefine the taxonomy of evidence subject to the privilege against self-incrimination. Evidence can arise from the identifying characteristics inherent to individuals; it can arise automatically, without conscious processing; it can arise through memorialized photographs, papers, and memories; or it can arise through responses uttered silently or aloud. This spectrum — identifying, automatic, memorialized, and uttered — is more nuanced and more precise than the traditional testimonial/physical dichotomy, and gives descriptive power to the rationale underpinning the privilege against self-incrimination. Neurological evidence, like more traditional evidence, may be located on this spectrum, and thus doctrinal riddles of self-incrimination, both modern and ancient, may be solved.
Farahany 2011 A Neurological Foundation for Freedom Nita A. Farahany 2011 Stan. Tech. L. Rev. 11 This essay illustrates why neuroscience supports a robust theory of human freedom. Rather than condemning humanity to a reductionist view of human actions, neuroscience provides a lens through which a long-standing debate about freedom of choice versus freedom of action can be renewed and resolved. Research investigations into the neural processes involved in preferences, desires, and human actions offer new insights into the flexibility and control that human actors exercise over voluntary actions.
Farahany 2009 Cruel and Unequal Punishments Nita Farahany 86 Wash. U. L. Rev. 859 This article argues that Atkins v. Virginia and its progeny of categorical exemptions to the death penalty create a new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendments of the U.S. Constitution. When the United States Supreme Court adapted its proportionality analysis from categories of crime to categories of people, it abandoned intrajurisdictional analysis, a de facto equality consideration under the Cruel and Unusual Punishments Clause. The Court, the legal academy, and commentators have failed to consider the remarkable equal protection implications of this doctrinal shift. To see the point in practice, one need only consider two criminal defendants: the first was mentally retarded from birth; the second suffered a traumatic brain injury at the age of twenty-two; and both have identical cognitive, behavioral, and adaptive impairments. Under state statutes cited approvingly in Atkins and others enacted since, the first defendant cannot be executed, but the second one can. This seems wrong on its face, but to understand why, it is necessary to explore the interaction of the Eighth and Fourteenth Amendments. The doctrinal shift in Atkins has profoundly altered that interaction, putting the Cruel and Unusual Punishments Clause in tension with the Equal Protection Clause. This article illustrates that conflict, and how legislative classifications adopted pursuant to categorical exemptions under the Eighth Amendment may now be subject to Fourteenth Amendment scrutiny.
Farahany 2009 Genetics, Neuroscience, and Criminal Responsibility Nita Farahany & James E. Coleman, Jr. The Impact of Behavioral Sciences on Criminal Law 183 (Oxford Univ. Press, Nita Farahany, ed., 2009). This chapter discusses practitioners' attempts to use behavioral genetics and neuroscience in U.S. criminal law cases, and explores the relationship between behavioral genetics, neuroscience, and criminal responsibility as it operates in the U.S. criminal justice system. It argues that irrespective of understanding the underlying contributions to human behavior, as a matter of criminal law theory, such evidence is unlikely to unhinge current assessments of criminal responsibility.
Farahany 2006 Genetics and Responsibility: To Know the Criminal From the Crime Nita A. Farahany & James E. Coleman, Jr. 69 Law & Contemp. Probs. 115 This article discusses the use of behavioral genetics in criminal cases and argues, contrary to the conventional view, that criminal responsibility theory limits the role behavioral predisposition testimony should play in assessing criminal responsibility. We proceed by reviewing criminal cases in which behavioral genetics and neurological evidence has been introduced - including claims that a defendant acted involuntarily, lacked the requisite mens rea, satisfied the mental defect element of an insanity defense, or was entitled to differential sentencing. This review reveals that courts have rejected the majority of these claims, but primarily because of the inadequacy of the science thereby leaving open the door for the introduction of such evidence in future criminal cases as the science further develops. The article then offers a more robust rationale for rejecting behavioral predisposition evidence when assessing a defendant's criminal responsibility. Using behavioral genetics as a tool, we explain why criminal responsibility theory clashes with defenses based on behavioral predispositions. We argue that the two components of criminal responsibility - liability and justifications and excuses to liability - operate with little regard to the infirmities of a criminal defendant. In so doing, we elucidate the fundamental characteristics underlying these components including the assumptions of legal free will and human agency, the voluntary act requirement, mens rea, and the reasonable person standard. We explain why seemingly anomalous defenses such as provocation and battered woman syndrome do not meaningfully challenge whether criminal responsibility operates without regard to a defendant's unique mental infirmities. Because liability and justifications and excuses to liability do not turn on individual infirmities, we conclude that behavioral genetics should not inform criminal responsibility.
Farisco 2013 On the Stand. Another Episode of Neuroscience and Law Discussion From Italy Michele Farisco & Carlo Petrini Neuroethics After three proceedings in which neuroscience was a relevant factor for the final verdict in Italian courts, for the first time a recent case puts in question the legal relevance of neuroscientific evidence. This decision deserves international attention in its underlining that the uncertainty still affecting neuroscientific knowledge can have a significant impact on the law. It urges the consideration of such uncertainty and the development of a shared management of it.
Farisco 2009 Neuro-bio-diritto: tra imputabilità e negazione di responsabilità. Verso un nichilismo giuridico? [Neuro-bio-law: between chargeability and responsibility’s denial. Towards a lagal nihilism?] Michele Farisco 3 Archivio giuridico "Filippo Serafini" 317
Farrell 2010 Can't Get You Out of My Head:The Human Rights Implications of Using Brain Scans as Criminal Evidence Brian Farrell 4 Interdisc. J. Hum. Rts. L. 101 The June 12, 2008, conviction of a woman for the murder of her former fiancé in India marked the dawn of a new era for the use of scientific technology in law enforcement. For the first time, a brain scan was admitted by a court against a criminal defendant as evidence that she had experiential knowledge of the alleged crime. While the use of such technology is currently very limited, strong interest exists in its development for use in the realms of both law enforcement and national security. This article analyzes the use of brain scans purporting to show the presence or absence of memory of an event as evidence against criminal defendants under the civil liberties guarantees of international and regional human rights instruments. It begins with an overview of brain scan technology and its potential application in criminal prosecutions. The article then considers the scientific and civil liberties arguments against the use of such evidence in this context. Finally, it draws conclusions as to the legality of the use of brain scan evidence under prevailing human rights norms.
Faulkes 2011 Can Brain Imaging Replace Interrogation and Torture? Zen Faulkes 6 Global Virtue Ethics Review 55 Many techniques have been used to extract reliable information from individuals who are unwilling to divulge it, including interrogation, torture, and “lie detectors,” all of which have shortcomings in their ability to get and / or evaluate information. Brain imaging technologies present the possibilities of determining if an individual is lying, concealing information, or has predispositions to particular behaviors. Functional magnetic resonance imaging (fMRI) is the best known brain imaging technique, and can already be used to determine hidden conscious states of an individual, and to determine true and false statements with accuracy greater than chance. Thus, the main empirical question is no longer if brain imaging can be used productively in security situations, but rather how practical it might be and how confident users may be in the information obtained. Ethical questions about appropriate uses of brain imaging technology in security situations are immediate and urgent, but ethical concerns about privacy and similar issues raised by brain imaging appear minor compared to the ethical issues raised by torture. Brain imaging may be able to render some arguments about the use of torture moot by providing a more reliable method of getting and evaluating information from individuals.
Faulkner 2008 Rational Jury Assessment of Damages Through Neuroeconomics Megan Faulkner 32 Law & Psychol. Rev. 163 The article focuses on the possible application of neuroeconomics in the study of jury behavior to determine fair assessment of damages. It states that neuroeconomics helps courts to determine whether jurors can be relied upon in the damage assessment related to the actions of defendants. It mentions that neuroeconomics promotes rational decision-making in the jury room during adjudication of a case. It also provides immense resources in the identification of the emotional and social triggers that the jurors may have.
Federico 2011 Intersecting Complexities in Neuroimaging and Neuroethics Carole A. Federico, Sofia Lombera & Judy Illes Oxford Handbook of Neuroethics (Oxford Univ. Press, Judy Illes & Barbara J. Sahakian, eds., 2011). Neuroimaging has been to neuroethics what free will and determinism has been, albeit for much longer, to philosophy: pillars for scholarly inquiry and curiosity, and entries to dialogue, debate, and discovery. With interest piqued by reproducible measures of regional blood flow in the human brain under well-defined conditions such as existential problem solving, decision-making, and trust, this article meticulously documents emerging trends involving functional MRI (fMRI) studies. The article builds on that work and examines the hypothesis that almost twenty years after the first wave of such studies, the focus on neuroimaging and its application to complex and profoundly personal human behaviors has not abated. Neuroimaging studies remain an unwavering source of energy for the field. It reviews some of the reasons that they have provoked so much attention in neuroethics and elsewhere, presenting a 2002–2008 update to the trends that documented for 1991–2001, comparing this second generation of data to the first.
Federle 2009 Thinking Like a Child: Legal Implications of Recent Developments in Brain Research for Juvenile Offenders Katherine H. Federle & Paul Skendelas Law, Mind and Brain 199 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009). Over the past 20 years, cognitive neuroscience has revolutionized our ability to understand the nature of human thought. Working with the understandings of traditional psychology, the new brain science is transforming many disciplines, from economics to literary theory. These developments are now affecting the law and there is an upsurge of interest in the potential of neuroscience to contribute to our understanding of criminal and civil law and our system of justice in general. The international and interdisciplinary chapters in this volume are written by experts in criminal behaviour, civil law and jurisprudence. They concentrate on the potential of neuroscience to increase our understanding of blame and responsibility in such areas as juveniles and the death penalty, evidence and procedure, neurological enhancement and treatment, property, end-of-life choices, contracting and the effects of words and pictures in law. This collection suggests that legal scholarship and practice will be increasingly enriched by an interdisciplinary study of law, mind and brain and is a valuable addition to the emerging field of neurolaw.
Federspiel 2008 1984 Arrives: Thought(Crime), Technology, and the Constitution William Federspiel 16 Wm. & Mary Bill Rts. J. 865 Using functional magnetic resonance imaging ("fMRI"), scientists around the world have conducted studies that indicate it may one day be possible to develop technologies that can read people’s thoughts, intentions and emotions – in short, to read minds. Such advancements bring both great promise and great potential for abuse. In the criminal justice arena, the possibility of some form of thought-reading technology poses difficult constitutional issues, especially for the Supreme Court’s Fourth and Fifth Amendment jurisprudence. Historically, the Court has struggled to adapt the protections afforded by the Fourth and Fifth Amendments to technological advances. In particular, the Court has failed to address successfully polygraph technology, which presents many of the same issues raised by potential thought-reading technology. Given the incredible potential of thought-reading technology in the world of crime-solving and the Court’s difficulties in adapting Fourth and Fifth Amendment protections to advancing technologies, it is crucial to begin exploring what protections our Constitution may offer in the face of rapid advancements in neuroscience. This Note applies the Court’s Fourth and Fifth Amendment jurisprudence to potential fMRI thought-reading technologies and argues that protections afforded by the First Amendment may be better suited to the challenges these technologies pose.
Feigenson 2009 Brain Imaging and Courtroom Evidence: On the Admissibility and Persuasiveness of fMRI Neal Feigenson Law, Mind and Brain 23 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009). Functional magnetic resonance imaging (fMRI) is currently the most advanced technique for measuring and depicting brain function. Functional MRI studies abound in neuroscience, psychiatry and psychology. Inevitably, fMRI-based evidence will be offered in court as proof of matters involving parties' mental states and capabilities. This paper analyses the likely admissibility of fMRI testimony and images. Cases involving other types of functional neuroimaging (PET and SPECT), which may shed light on judges' receptivity to fMRI evidence, are briefly surveyed. The conceptual and methodological underpinnings of fMRI are then explored, prompting basic questions about the evidentiary reliability and relevance of fMRI results. The first reported case involving fMRI evidence, which raises several of these questions, is described. Finally, the admissibility and probative value of the fMRI images themselves are discussed. Assuming that the expert testimony that the images are offered to illustrate is admissible, it is argued that the law can obtain the benefits of fMRI science while minimising the judgmental risks by allowing triers of fact to see the images and encouraging experts and lawyers to educate the triers to interpret the images properly.
Feigenson 2007 Thinking Beyond the Shown: Implicit Inferences in Evidence and Argument Neal Feigenson & Richard K. Sherwin 6 Law, Probability & Risk 295 Visual representations are especially well suited to the construction of implicit meanings. Like advocates in other fields, lawyers use visual displays to prompt cognitive and emotional associations of which viewers may not be aware, and which, consequently, they are less likely to evaluate critically. The authors review some of the psychological and rhetorical effects of visual representations in general, discuss several examples of how legal visual displays encourage audiences to draw implicit inferences, and argue for the importance of heightened visual literacy in improving our ability to understand the meanings and implications of visual advocacy within the legal system.
Feld 2013 Adolescent Culpability and Competence: Implications of Neuroscience for Criminal Justice Adjudication Barry C. Feld, B.J. Casey & Yasmin L. Hurd in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds.
Feld 2013 The Youth Discount: Old Enough To Do The Crime, Too Young To Do The Time Barry C. Feld 11(1) Ohio State Journal of Criminal Law 107 An essay is presented on the rigorous proportionality of the juvenile crime policy implementation by the U.S. Supreme Courts in applying harsh mandatory capital life sentences to juvenile offenders. It highlights the constitutionality of the Eight Amendment protections and jurisprudence for crimes committed by juvenile delinquents under 18 years old. The author believes that youthfulness must be considered by judges as a mitigating factor when making individualized sentencing decisions.
Fentiman 2011 Rethinking Addiction: Drugs, Deterrence, and the Neuroscience Revolution Linda C. Fentiman 14 U. Pa. J. L. & Soc. Change 233 This article connects the debate about addiction with the fundamental criminal law principle of deterrence. It seeks to bridge the gap between the competing medical and criminal justice approaches by exploring addiction in light of recent research about the brain, gender differences, and what works best from both a treatment and justice perspective. To sharpen the issues, the article deliberately focuses on the emotionally freighted subject of pregnant drug users. This approach will illuminate prevailing assumptions about how biological, genetic, cultural, and other environmental factors shape human behavior and challenge conventional understandings of deterrence in light of new research on substance abuse and addiction. It is important to point out what this article is not. This article is not about criminal responsibility in the age of neuroscience. Rivers of ink have been spilled and acres of forests have been destroyed discussing whether our expanded understanding of the biological and environmental factors that shape human decision-making demands a change in the laws of criminal responsibility. In the 1990s much of the debate among academics and public policymakers about criminal responsibility and its scientific and philosophical underpinnings focused on genetic predispositions and predictions about engaging in such behavior. Since the turn of the twenty-first century, most commentators have couched their arguments in terms of neuroscience. This article does not propose to add to that debate, which is often viewed simplistically as a choice between accepting free will or determinism as the explanation for human behavior.
Ferguson 2004 The Implications of Developmental Cognitive Research on “Evolving Standards of Decency” and the Imposition of the Death Penalty on Juveniles Lucy C. Ferguson 54 Am. U. L. Rev. 441
Ferrarella 2009 Neuroscienze e media Luigi Ferrarella Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 157
Fields 2010 Can Neuroscience Identify Pain? Howard Fields A Judge's Guide to Neuroscience 32 (SAGE Center For the Study of the Mind, 2010).
Fink 2010 Künstliche Sinne, gedoptes Gehirn. Neurotechnik und Neuroethik Helmut Fink & Rainer Rosenzweig Paderborn, Mentis Dieses Buch handelt von der wachsenden technologischen Verfügbarkeit des Gehirns und dem dringenden Bedarf an ethischer Verständigung, der daraus resultiert. Neue Entwicklungen an der Schnittstelle von Neurowissenschaft, Medizin und philosophischer Ethik wirken hinein in den Alltag, in Politik und Gesellschaft. Je besser die physiologischen Grundlagen und funktionalen Prinzipien des Gehirns erforscht werden, desto weiter reichen die Möglichkeiten zum technischen Eingriff. Cochlea-Implantate für Hörgeschädigte und Psychopharmaka für Depressive sind erst der Anfang. Neuroprothesen und Neuropharmaka gelten als zukunftsträchtige Anwendungen der Hirnforschung. Doch was therapeutischen Zwecken dient, kann auch zur Leistungs- und Luststeigerung Gesunder eingesetzt werden. Das kommende »Neuro-Enhancement« zwingt dazu, ethische Fragen neu zu stellen: Wie sind die Wirkungen und Nebenwirkungen für Individuum und Gesellschaft zu bewerten? Welche Anwendungen sind möglich, erlaubt, wünschenswert oder gar geboten? Welche Zugangsmöglichkeiten sind gerecht? Die Antworten sind mit dem Menschenbild rückgekoppelt. Mit Beiträgen von Andreas Büchner, Peter Fromherz, Bernward Gesang, Thomas Kammer, Thomas Metzinger, Gert Pfurtscheller, Klaus Peter Rippe, Stephan Schleim, Cornelius Schwarz, Rüdiger Vaas, Henrik Walter.
Fins 2010 Minds Apart: Severe Brain Injury, Citizenship and Civil Rights Joseph J. Fins Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). Despite the impressive progress that has been made in neuroscience, little has changed for patients with disorders of consciousness who struggle for access to even basic diagnostic and rehabilitative services as they remain sequestered from the scientific advances, which might make a difference in their lives. Although this is certainly a question of access to care, it is more than an entitlement issue. It is fundamentally a question of human rights in which a class of patients have been denied voice and been victimized by segregation and disinterest. This chapter considers how current practices and ethical norms should evolve to reflect progress in the neurosciences for this neglected population. In making these recommendations, it draws parallels to the US Civil Rights Movement, a struggle worthy of emulation as we consider ways to achieve integration and parity in civic life for a population society has forgotten.
Fins 2007 Late recovery from the minimally conscious state: ethical and policy implications Joseph J. Fins, Nicholas D. Schiff, Kathleen M. Foley 68 Neurology 304 We consider the ethical and public policy implications of late recovery from the minimally conscious state in light of an Institute of Medicine exploratory meeting convened to discuss current knowledge about disorders of consciousness as well as a recently published study demonstrating axonal regrowth in a patient two decades after traumatic injury. Participants at the meeting (which included the authors) described a lack of research initiatives for basic investigations of patients in these states, the frequent warehousing of patients following a diagnosis of persistent vegetative state that limits their access to appropriate neurologic and diagnostic tests, and the breadth of public confusion about disorders of consciousness. Meeting participants encouraged the Institute to pursue a more formal study to outline both the need for research and the unique opportunities to study consciousness, now available through the use of neuroimaging and related technologies. Areas of initial focus would be to define the epidemiology of the minimally conscious state, elucidate mechanisms of recovery, and identify clinically useful diagnostic and prognostic markers that will aid decision making at the bedside.
Fischer 2010 Indeterminism and Control: An Approach to the Problem of Luck John Fischer Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter begins by outlining William James' famous ‘Dilemma of Determinism’. It then focuses on the ‘indeterministic horn’, that is, the following premises: (i) if causal determinism is false (in a relevant way), then how I act is a matter of luck, and thus I am not morally responsible for my actions; and (ii) if causal determinism is false (in a relevant way, i.e., in the sequences leading to my behaviour), then my actions are not appropriately connected to my prior states (that is ‘my actions’ are not in a genuine sense my actions), and thus I am not morally responsible for my actions. The proper analysis of the deterministic horn is illuminated in this chapter with respect to the indeterministic horn. It is argued that neither the second premises of the parallel arguments nor the third premises are true, and thus the argument is unsound for two separate reasons. It further argues that similar considerations help to establish the failure of both the deterministic and indeterministic horns of the dilemma. Not only are the worries similar at a deep level, but the appropriate replies are also based on similar insights.
Fisher 2010 Diagnosing Consciousness: Neuroimaging, Law, and the Vegetative State Carl E. Fisher & Paul S. Appelbaum 38 J.L. Med. & Ethics 374 In this paper, we review recent neuroimaging investigations of disorders of consciousness and different disciplines' understanding of consciousness itself. We consider potential tests of consciousness, their legal significance, and how they map onto broader themes in U.S. statutory law pertaining to advance directives and surrogate decision-making. In the process, we outline a taxonomy of themes to illustrate and clarify the variance in state-law definitions of consciousness. Finally, we discuss broader scientific, ethical, and legal issues associated with the advent of neuroimaging for disorders of consciousness and conclude with policy recommendations that could help to mitigate confusion in this realm.
Flatt 2010 All in Your Head: A Comprehensive Approach to Somatoform Disorders in Adult Disability Claims Gregory C. Flatt 87 Wash. U. L. Rev. 1397 The Patient is a married woman in her late twenties. She has a diagnosed history of depression, anxiety, post-traumatic stress disorder, and high blood pressure, and she was sexually abused as a child. In recent years, she has suffered seizures that occur as frequently as several in a single day and as rarely as two in a month. Because of the frequency and severity of the seizures, the Patient finds it impossible to hold a steady job, has difficulty with complex tasks, and is embarrassed to leave her house without her husband. She has been hospitalized several times for the seizures and has been examined by many physicians. To her dismay, no physiological cause for her seizures has been diagnosed. Electroencephalogram (EEG) tests, generally helpful in identifying epileptic seizures, have produced no evidence of epileptic seizure activity in the brain, despite the fact that family, friends, and medical personnel have all observed the effects of the seizures firsthand. Doctors have prescribed numerous medications for her and she has undergone psychotherapy, but neither option has resulted in a demonstrable change in her condition. She feels that because of her debilitating condition, and its effect on her social, physical, and occupational well-being, she has no choice but to file for disability with the Social Security Administration (SSA). Her condition was examined by her own physicians, as well as those employed as a part of the SSA’s disability evaluation process. However, because there is no demonstrable physiological cause for her condition, no medically generated evidence that it exists, and no methodological evaluation or test which can attest to how her condition actually affects her (beyond what she claims is happening to her), the SSA denied her request for disability. Her application was again denied after she requested reconsideration, and she was subsequently granted an appeal hearing before an Administrative Law Judge (ALJ) to make a more formal evaluative determination. But how can she demonstrate to the ALJ that she has a debilitating condition when even her physicians can offer no physiological evidence of its cause and no physical evidence to substantiate its effects?
Focquaert 2013 Free Will, Responsibility, and the Punishment of Criminals Farah Focquaert, Andrea L. Glenn, Adrine Raine in The Future of Punishment, OUP, Thomas Nadelhoffer, ed. In the past decades, the neurosciences have begun to challenge our common notions of free will and moral responsibility. The idea that individuals, whether criminals or law-abiding citizens, have little to no control over the many factors that shape their intentional mental states and behavior raises many questions for the criminal justice system. Does this mean that we should change the way the justice system works and prisons are run today? In this chapter, we provide a detailed overview of the recent neurobiological findings on psychopathy and discuss how these might bear on moral responsibility. For example, psychopaths may suffer from brain impairments in regions that underlie emotional processing—regions that are necessary for moral development in normal individuals. Next, we argue that a similar neurobiological approach might apply to other cases, such as individuals with antisocial personality disorder and those with substance abuse. Even if one is not willing to give up on the notion of truly voluntary behavior, and we might have every reason not to do so, there remains a wealth of scientific data that urges us to reconsider our current approach to crime and punishment. In the last section of this chapter, we argue for a different approach involving (a) the abandonment of massive incarceration as a solution to crime; (b) the guaranteed personal, physical, and mental well-being of incarcerated individuals; and (c) the integration of choice in terms of an offender's punishment and rehabilitation trajectory. Such changes reflect a more long-term approach to criminal behavior and recidivism and have the potential to change our society and the safety of all its members for the better.
Fondacaro 2011 The Injustice of Retribution: Toward a Multisystemic Risk Management Model of Juvenile Justice Mark R. Fondacaro 20 J.L. & Pol'y 145 This Article will provide an overview of a Multisystemic Risk Management (MRM) model of juvenile justice that attempts to shift the focus of juvenile justice policy from retributive punishment to recidivism reduction and crime prevention. The MRM model is guided by parallel trends in the fields of psychology and law towards forward-looking systemic models to inform decision making and influence human behavior. In psychology, early models of human behavior that focused narrowly on internal, unidimensional mental states to explain or change complex behavior have been supplemented by more ecological, multisystemic models that consider contextual influences on human behavior and span biological, psychological, and social levels of analysis. This body of cutting edge behavioral science research presents challenges to traditional mens rea analysis in criminal law and highlights the potential injustice of retribution as the basis for legal sanctions. The MRM model promises to improve the fairness, effectiveness, and efficiency of the juvenile justice system by integrating these innovations from psychology with converging trends in law. In the legal system, and the area of administrative law in particular, recent conceptualizations of due process have gone beyond the traditional backward-looking, case-by-case adversarial model toward more system-wide, forward-looking managerial models that emphasize measurable fairness, accuracy, and efficiency in decision making aimed at implementing substantive policy goals. In previous work, I have attempted to synthesize these converging trends into what I have called an “Ecological Jurisprudence.” In essence, the MRM model of juvenile justice represents a specific application of the Ecological Jurisprudence framework. Throughout this Article, the MRM model will be contrasted with traditional approaches to juvenile justice, with an emphasis on those rooted in principles of moral judgment and retribution. Part II of this Article identifies and presents challenges to traditional models of criminal responsibility that are grounded in outdated and empirically unsupported legal presumptions about human behavior. Part III examines trends towards more ecological models of human behavior in the behavioral sciences. Part IV tracks analogous legal trends in administrative models of due process and procedural justice. Based on a synthesis of these parallel trends in the behavioral sciences and the law, Part V presents general principles of an MRM model of juvenile justice. Finally, Part VI concludes with an outline that illustrates what such a model might look like.
Ford 2012 Neuroethics of Functional Neuroimaging in the Courtroom Elizabeth Ford & Neil Aggarwal Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) This chapter reviews ethical debates regarding the use of neuroimaging in the courtroom. First, a definition of neuroethics and brief historical outline are offered for context. Next, neuroethical concerns around the quality of scientific standards in neuroimaging are explored in depth. Debates for and against the use of unproven technology are presented, especially concerning the application of functional imaging for lie detection. The uncertainty of expert witness qualifications and the social meanings of the images, with their potential to sway jurors, healthcare professionals, and insurance companies, also introduce new ethical dilemmas as mental disorders increasingly become physically characterized through evolving technologies. Privacy, informed consent, the prediction of future dangerousness, and prejudice on the basis of positive findings are some of the neuroethical issues confronting the scanned subject. The chapter offers recommendations before closing with a real case example that illustrates some of these principles at play.
Ford 2005 Functional Neurosurgical Intervention: Neuroethics in the Operating Room Paul J. Ford & Jaimie Henderson Neuroethics: Defining the Issues in Theory, Practice and Policy 213 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter covers ethical challenges faced by surgeons practicing functional neurosurgery. The exploration of issues surrounding this set of surgeries presents especially interesting problems given the effects, potential or actual, on patient's quality of life in the attempt to restore or normalize a function. The chapter sets the context by briefly discussing the special challenges of surgical ethics in general, defines ‘functional neurosurgery’, and reviews the past, present, and expected future of functional neurosurgery. After setting this context, it addresses a variety of prominent ethical issues. It pays special attention to the context in which issues arise and reflect on ethical challenges to functional neurosurgery as a discipline.
Forman 2011 Countering Criminalization: Toward a Youth Development Approach to School Searches Sarah Jane Forman 14 SCHOLAR 301 This Article focuses on the search and seizure practices in America's public high schools and why such practices are developmentally inappropriate. In Part II, I will examine and critique the current paradigm of school search jurisprudence. I discuss how the Court's analysis largely ignores age as a factor in determining the reasonableness of a search. This Part also addresses the increased use of police officers to enforce school discipline. Drawing on neuroscience and developmental psychology, Part III discusses the developmental needs of youth, particularly in light of recent Supreme Court cases involving juveniles. The Court's endorsement of recent research in the area of adolescent brain development has important implications for school search jurisprudence because reasonableness is an evolving standard that can accommodate multiple interests. Part IV explores ways to strike a developmentally appropriate balance between safety and privacy in the context of the educational environment. In this Part, I discuss positive youth development and socialization, particularly as these concepts relate to notions of privacy, autonomy, and the legitimation of the law. I suggest a new paradigm for school search and seizure, which I call a “positive youth development approach” to school searches. Because of the special role public education plays in the creation of republican citizens, any school search framework should account for the realities of adolescent brain development and the particular tension between vulnerability and responsibility that occur in youth. Students and society have a convergent interest in a public education system that creates law-abiding citizens capable of making positive contributions to society. Therefore, when determining the reasonableness of a school search, this interest should be included in the balance. In the Conclusion, I suggest doctrinal and policy changes to how schools conduct searches and seizures, which will help counter the trend *309 of increasing youth criminalization, by using the negative Fourth Amendment right as a tool for democratic socialization and positive youth development. I argue that probable cause is a more developmentally appropriate standard for searches that take place in schools, the training ground of citizenship. Probable cause is a clearly defined, workable standard that protects against arbitrariness and the perception of arbitrariness. Therefore, probable cause should be the unitary standard in school searches. I also suggest important implementation procedures that will bolster the socialization function of these new Fourth Amendment rights for students. Finally, in recognition that, at least for now, the applicable standard is reasonable suspicion, I examine how this standard can be implemented in a way that will advance positive youth development in school searches that are conducted by school officials.
Forza 2012 La sfida delle neuroscienze: verso un cambiamento di paradigma? [The challenge of neuroscience. Towards a paradigm’s shift?] Antonio Forza 11 Diritto Penale e Processo 1376
Forza 2012 Razionalità ed emozioni nel giudicante [Rationality and emotion in the Judges] Antonio Forza 1 Criminalia. Annuario di scienze penalistiche 353
Forza 2010 Le neuroscienze entrano nel processo penale [Neuroscience enters the criminal trial] Antonio Forza 1 Rivista penale 75
Forza 2009 Neuroscienze e diritto [Neuroscience and the law] Antonio Forza 3 Rivista penale 247
Fost 2013 Remaking Responsibility: Complexity and Scattered Causes in Human Agency Joshua Fost & Angela Coventry 1 Global Science and Technology Forum 91 Contrary to intuitions that human beings are free to think and act with “buck-stopping” freedom, philosophers since Holbach and Hume have argued that universal causation makes free will nonsensical. Contemporary neuroscience has strengthened their case and begun to reveal subtle and counterintuitive mechanisms in the processes of conscious agency. Although some fear that determinism undermines moral responsibility, the opposite is true: free will, if it existed, would undermine coherent systems of justice. Moreover, deterministic views of human choice clarify the conditions in which we ought to protect people from themselves, for example when they cannot give informed consent to medical procedures. Some of the most unresolved questions in this domain are just now emerging; they include robot ethics and the responsibilities of groups. We propose a philosophical and scientific research program to apply complex systems science to these problems.
Foster 2005 Engineering the Mind Kenneth R. Foster Neuroethics: Defining the Issues in Theory, Practice and Policy 185 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter examines the ethical issues raised by new technologies that allow investigators to monitor and control the brain, and how they are distinctive from those raised by other medical technologies, such as genetic testing. It begins with a brief review of some new technologies that have emerged from neuroscience. These devices are intended to stimulate selected regions of the brain or peripheral nervous system for therapeutic purposes, or, more recently, as brain-computer interfaces to allow the brain to exchange information with the outsideworld through direct recording of potentials measured by means of electrodes implanted in the motor cortex, or placed on the surface of the head.
Fox 2013 Psychopathy and Culpability: How Responsible is the Psychopath for Criminal Wrongdoing? Adam R. Fox, Trevor H. Kvaran, Reid Griffith Fontaine 38 Law & Soc. Inquiry 1 Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions. In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence. Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility. We conclude, by introducing the notion of rights as correlative that even if psychopaths were to be fully non-responsible, it would still be warranted to impose some form of civil commitment.
Fox 2011 Psychopathy and Culpability: How Responsible is the Psychopath for Criminal Wrongdoing? Adam R. Fox, Trevor H. Kvaran, Reid Griffith Fontaine FSU College of Law, Public Law Research Paper No. 521 Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions. In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence. Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility. We conclude, by introducing the notion of rights as correlative that even if psychopaths were to be fully non-responsible, it would still be warranted to impose some form of civil commitment.
Fox 2010 The Right to Silence Protects Mental Control Dov Fox Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter examines the idea that individuals have a right of control, vis-à-vis the state, over the use of their thoughts. Advances in cognitive science and forensic neurotechnology could make it possible for government actors to acquire reliable information from a suspect's brain without requiring the suspect's participation. Such interrogation techniques would elude traditional right-to-silence concerns about physical or psychological harm. It analyzes Fifth Amendment jurisprudence to argue that the right to silence protects a right of mental control.
Fox 2009 The Right to Silence as Protecting Mental Control Dov Fox 42 Akron L. Rev. 763 The Fifth Amendment prevents suspects from being forced to provide testimonial declarations like verbal or silent responses, but permits the compulsion of physical evidence like emails, tattoos, or medical records. Scholars have criticized this distinction between testimonial and physical evidence for failing to explain hard cases or capture the harm that the right to silence is said to prevent. But the prevailing accounts of that harm—deceiving questioners; compelling suspects to choose among indictment, contempt, and perjury; or diluting the integrity of statements made by innocent ones—fail to explain a common intuition that police may not extract incriminating thoughts from a suspect’s brain against his will. I reconceive the right as protecting control over a person’s mental life. Neural imaging, by packaging testimonial memories in the physical form of brain waves or blood flows exposes the false dichotomy that this distinction presumes between mental phenomena (mind) and brain chemistry (body). I use a range of cases to illustrate the explanatory and normative force of this account.
Fradella 2007 Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimony Henry F. Fradella 2 Fed. Cts. L. Rev. 1 Although most researchers have found general consistency in the ways in which courts have applied Daubert to social scientific evidence, one of the major areas of inconsistency concerns rulings on the admissibility of expert testimony about unreliability of eyewitness identifications. This article argues for a harmonization of this inconsistency by taking the minority approach to the issue: allowing such expert testimony. In support of the argument, the article summarizes the psychological literature on perception and memory (including both estimator variables and systemic variables) in the context of eyewitness identifications. The article then examines the inconsistent treatment of this research by the courts, asserting that courts often misunderstand the relevant psychological literature, thereby unwittingly contributing to wrongful convictions. The article ends by making legal and policy recommendations that expert testimony on eyewitness identifications be admissible under the rules of evidence.
Freeman 2010 Law and Neuroscience: Current Legal Issues Michael Freeman, ed. Oxford University Press Current Legal Issues, like its sister volume Current Legal Problems, is based upon an annual colloquium held at University College London. Each year leading scholars from around the world gather to discuss the relationship between law and another discipline of thought. Each colloquium examines how the external discipline is conceived in legal thought and argument, how the law is pictured in that discipline, and analyses points of controversy in the use, and abuse, of extra-legal arguments within legal theory and practice. Law and Neuroscience, the latest volume in the Current Legal Issues series, offers an insight into the state of law and neuroscience scholarship today. Focusing on the inter-connections between the two disciplines, it addresses the key issues informing current debates.
Freeman 2009 Law, Mind and Brain Michael Freeman & Oliver R. Goodenough, eds. Ashgate Over the past 20 years, cognitive neuroscience has revolutionized our ability to understand the nature of human thought. Working with the understandings of traditional psychology, the new brain science is transforming many disciplines, from economics to literary theory. These developments are now affecting the law and there is an upsurge of interest in the potential of neuroscience to contribute to our understanding of criminal and civil law and our system of justice in general. The international and interdisciplinary chapters in this volume are written by experts in criminal behaviour, civil law and jurisprudence. They concentrate on the potential of neuroscience to increase our understanding of blame and responsibility in such areas as juveniles and the death penalty, evidence and procedure, neurological enhancement and treatment, property, end-of-life choices, contracting and the effects of words and pictures in law. This collection suggests that legal scholarship and practice will be increasingly enriched by an interdisciplinary study of law, mind and brain and is a valuable addition to the emerging field of neurolaw.
Friend 2008 Commentary: Describing Differences - Possibilities and Pitfalls Annette Friend 36 J. Am. Acad. Psychiatry L. 1 Reports of attempts to investigate, characterize, compare, and contrast those who are mentally ill fill the literature and invite controversy. It seems to be part of human nature to reestablish and define the differences between us. Creative descriptive studies continually challenge our perspective, yet they must be balanced with thoughtful consideration of possible selection bias, an understanding of how a perspective may influence a particular view, and an appreciation of statistical constraints, before describing differences as predictive risk factors.
Fruehwald 2011 Law and Human Behavior: A Study in Behavioral Biology, Neuroscience, and the Law Edwin S. Fruehwald Vandeplas Publishing Behavioral biology and neuroscience are the next frontiers for legal thought. In the next few years, behavioral biology and neuroscience will become as important for the analysis of law as economics has been for the last several decades. In this book, Professor Fruehwald presents the general principles of behavioral biology and neuroscience, then applies these principles to topics in the law. He believes that there was a nascent legal system on the savannah, where innate behavioral rules were enforced by devices such as force, reputation, and ostracism. Among the topics he explores are the use of behavioral biology and neuroscience to critique Postmodern Legal Thought, reciprocal altruism as the basis for contract, a biological basis of rights, and how behavioral biology can be used to analyze constitutional cases. He concludes by showing why it is important to base law on a correct view of human nature.
Fruehwald 2010 A Biological Basis of Rights Edwin S. Fruehwald 19 S. Cal. Interdisc. L.J. 195 Rights are an essential part of a modern legal system. This paper advocates rights based on a different kind of 'natural law,' rights which come not from God or externally from nature, but from human behavior - how our minds evolved. Under this approach, there are two kinds of truth: anthropocentric truth and non-anthropocentric truth. Non-anthropocentric truths are the laws of physical nature and mathematics; they are unassailable truths that 'are true regardless of what we happen to think about them.' Anthropocentric truths are 'truths that are true only because of the kinds of minds that we happen to have and the cultural worlds in which our minds developed.' This paper proposes that rights can be based on anthropocentric truths - that rights arose from human nature. In particular, anthropocentric rights developed to deal with specific adaptive problems in the Environment of Evolutionary Adaptedness. The fundamentals of rights derived from how our brains evolved with the details arising from how a particular culture reacted to how differing geography, ecology, and social conditions affected survival. Part II of this paper will introduce basic concepts of behavioral biology. It will first discuss neuro-cognitive universals, the universal grammar of morality, and universals in the law. Next, it will examine why cultural differences occur despite the existence of universal human behavioral traits, and then it will consider the selfish gene, a central characteristic of human behavior. Subsequently, it will show how society and the social contract evolved as a means for survival. Part III will present a biological basis for rights. It will first demonstrate the need for rights based on biological factors and introduce the sources of rights in human nature. Next, it will discuss the biological basis of four kinds of rights – property rights, fairness rights, liberty rights, and equal treatment rights. The final part will illustrate how biological rights exist in different cultures.
Fruehwald 2009 Reciprocal Altruism as the Basis for Contract Edwin S. Fruehwald 47 U. Louisville L. Rev. 489 Behavioral Biology illuminates the basis of contract. Behavioral biologists believe that genes are selfish; they are only interested in their survival. However, reciprocal altruism - "I'll scratch your back if you scratch mine" - provides a basis for cooperation among humans that promotes survival. If two humans cooperate in obtaining and allocating resources, they will have greater resources and a greater chance to survive and reproduce, thus continuing their genes. Contract law reflects and reinforces this reciprocal altruism from our evolutionary past. Connected with reciprocal altruism is a human instinct for equity in reciprocal exchanges. Humans can detect unfair situations and rectify them. Evolutionary fairness is reflected in the contract rules of frustration, unconscionability, and mistake, as well as the good faith duty in performance and unconscionability. Also connected with reciprocal altruism is the need to punish cheaters. In contract law, cheaters - those who breach the contract - are punished through contract remedies. Finally, contract law helps deal with the evolutionary problem of time-shifted rationality, where individuals value what they have over what they can gain in the future. Part II of this paper will discuss traditional theories of contract law, including the objective theory of contract formation, deontological and consequentialist approaches, redistributive theories, and more recent theories by Professor Solan (contract as agreement) and Professor Markovits (contract as collaboration). Part III will introduce behavioral biology and explain reciprocal altruism and related doctrines, such as cheating and time-shifted rationality. It will also show that neuroscientific studies support the existence of reciprocal altruism and related behavioral mechanisms. Part IV will then analyze the relationship between reciprocal altruism and contract law. It will argue that reciprocal altruism is the best explanation for the formation of contracts, compare reciprocal altruism as the basis of contract to the theories discussed in Part II, examine the other necessary element for contract validity - consideration - under reciprocal altruism, and give a justification for courts to enforce contracts under reciprocal altruism. Part V will demonstrate that contract damages are the glue for reciprocal altruism and that expectation damages are the proper measure of damages under this approach. Finally, Part VI will deal with reciprocal altruism and other contract issues-gap filling, unallocated risks, good faith in performance, and unconscionability.
Fruehwald 2008 Behavioral Biology and Constitutional Analysis Edwin S. Fruehwald 32 Okla. City U. L. Rev. 375 Behavioral biology is the next frontier for legal thought. In the next few years, behavioral biology will become as important for the analysis of legal rules as economics has been for the last several decades. To ignore the insights of behavioral biology in legal analysis is to create a legal system based on crucially incomplete information. Yet, legal scholars, following social scientists, have generally disregarded human behavior in legal analysis, instead analyzing law as a social construct. This blank slate view of the mind, however, has been thoroughly debunked. As Professor E. O. Wilson has declared, "the blank-slate model could be tested empirically. It lost." This paper will present concepts of behavioral biology that are relevant to the law, then use behavioral biology to analyze constitutional cases. Drawing on science, literature, philosophy, art, and law, this paper will introduce concepts of behavioral biology. It then will discuss behavioral biology and the Constitution in general. Finally, it will examine three areas of constitutional law in detail - takings, establishing parentage, and due process limitations on punitive damages.
Fruehwald 2006 The Emperor Has No Clothes: Postmodern Legal Thought and Cognitive Science Edwin S. Fruehwald 23 Ga. St. U. L. Rev. 375 The article criticizes postmodern legal thought using insights of cognitive science. The insights that cognitive science can bring to jurisprudence is the next frontier for legal philosophy. As Professor John Monahan has stated, "the question I want to raise is whether evolutionary psychology [a branch of cognitive science] . . . could play the same central role in legal scholarship for the next thirty years that economics has played for the past thirty." John Monahan, Symposium: Violence in the Family: Could "Law and Evolution" Be the Next "Law and Economics?" 8 Va. J. Soc. Pol'y & L. 123 (2000). Part II of the paper examines postmodern legal thought. Part III then introduces basic concepts of cognitive science, and Part IV demonstrates how insights of cognitive science weaken the foundations of postmodern legal thought. Part V shows the existence of universals in the human mind, which destroys the strong moral relativism underlying postmodernism. Finally, Part VI presents an alternative to postmodernism's radical political theories, based on cognitive science.
Fugelsang 2006 A Cognitive Neuroscience Framework for Understanding Causal Reasoning and the Law Jonathan A. Fugelsang & Kevin N. Dunbar Law and the Brain 157 (Oxford Univ. Press, Semir Zeki & Oliver Goodenough, eds., 2006). Over the past couple of decades, there have been great developments in the fields of psychology and cognitive neuroscience that have allowed the advancement of our understanding of how people make judgments about causality in several domains. The authors provide a review of some of the contemporary psychological models of causal thinking that are directly relevant to legal reasoning. In addition, they cover some exciting new research using advanced neuroimaging techniques that have helped to uncover the underlying neural signatures of complex causal reasoning. Through the use of functional imaging, they provide a first-hand look at how the brain responds to evidence that is either consistent or inconsistent with one's beliefs and expectations. Based on the data covered in this review, they propose some ideas for how the effectiveness of causal reasoning, especially as it pertains to legal decision-making, may be facilitated.
Garland 2006 Considering Convergence: A Policy Dialogue About Behavioral Genetics, Neuroscience, and Law Brent Garland & Mark S. Frankel 69-SPG Law & Contemp. Probs. 101 This chapter begins by considering some of the commonalities and differences between behavioral genetics and neuroscience as they relate to the criminal law, including topics addressed by both fields, as well as how each field might be applied in criminal proceedings. It then focuses on a common concern raised by both fields in this context—the possible misuse of science in the criminal law. It concludes with a proposal to address the need for a continuing policy dialogue about the law and scientific developments in neuroscience and behavioral genetics.
Garland 2006 Cognitive Neuroscience and the Law Brent Garland & Paul W. Glimcher 16 Neurobiology 130 Advances in cognitive neuroscience now allow us to use physiological techniques to measure and assess mental states under a growing set of circumstances. The implication of this growing ability has not been lost on the western legal community. If biologists can accurately measure mental state, then legal conflicts that turn on the true mental states of individuals might well be resolvable with techniques ranging from electroencephalography to functional magnetic resonance imaging. Therefore, legal practitioners have increasingly sought to employ cognitive neuroscientific methods and data as evidence to influence legal proceedings. This poses a risk, because these scientific methodologies have largely been designed and validated for experimental use only. Their subsequent use in legal proceedings is an application for which they were not intended, and for which those methods are inadequately tested. This article proposes that neurobiologists, who might inadvertently contribute to this situation, should be aware of how their papers will be read by the legal community and should play a more active role in educating and engaging with that community.
Garland 2004 Neuroscience and the Law: Brain, Mind, and the Scales of Justice Brent Garland American Assocation for the Advancement of Science & Dana Foundation How can discoveries in neuroscience influence America’s criminal justice system? Neuroscience and the Law examines the growing involvement of neuroscience in legal proceedings and considers how scientific advances challenge our existing concepts of justice. Based on an invitational meeting convened by the Dana Foundation and the American Association for the Advancement of Science, the book opens with the deliberations of the twenty-six scientists and legal scholars who attended the conference and concludes with the commissioned papers of four distinguished scholars in law and brain research.
Gaudet 2011 Brain fingerprinting, scientific evidence, and daubert: a cautionary lesson from india Lyn M. Gaudet 51 Jurimetrics J. 293 Although the Supreme Court decided the seminal case of Daubert v. Merrell Dow Pharmaceuticals, Inc. nearly two decades ago, academic discourse about the value of the Daubert standard rages on. This note discusses Daubert in a new context, using the 2008 Indian case of State of Maharashtra v. Sharma as an example of how unreliable, questionable evidence can penetrate the courtroom when admissibility standards for expert evidence do not keep it at bay. This note also analyzes Daubert against the backdrop of rapidly emerging technologies and highlights the fact that courts can expect to confront increasing amounts of technical expert evidence in the future. Now, more than ever, courts must be armed with a mechanism to separate the legitimate from the illegitimate. Addressing Daubert critics, whose arguments are focused mainly on toxic tort cases, this note finds their criticisms do not apply in criminal trials, and thus the vast majority of the dissatisfaction with Daubert is one-sided. It is as a screening tool for expert evidence and testimony in criminal court that the Daubert standard is so valuable. Lastly, this paper argues that United States criminal law is fortunate to have the evidentiary filter provided by Daubert and warns of the potential consequences of relaxing admissibility standards
Gavaghan 2013 Neuroscience, Deviant Appetites, and the Criminal Law Colin Gavaghan Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) Attempts to measure sexual appetites for legal purposes, while by no means novel, have been rendered particularly topical by some recent high profile controversies. At the same time, a number of papers have demonstrated the potential for fMRI technology to identify and measure sexual interest with potentially greater accuracy than existing technologies, and in a manner that may be seen as less invasive and degrading. In this chapter, I consider whether such technological advances could alleviate all concerns about such testing. While a safety-based case could certainly be made for seeking to identify potential sexual predators, there may remain legitimate causes for unease. Perhaps more importantly, the conflation of appetite with propensity to act threatens to compress the space in which authentically moral decisions are made, i.e. the space in which we opt not to act on our base appetites, but instead to be guided by our higher-order faculties.
Gazzaniga 2011 Neuroscience in the Courtroom Michael S. Gazzaniga 304 Scientific American 54 Today courts rarely admit brain scans as evidence at trial for both legalistic and scientific reasons. As neuroscience matures, however, judges may increasingly see such scans as relevant to arguments about a defendant’s mental state or a witness’s credibility. The greatest influence of brain science on the law may eventually come from deeper understanding of the neurological causes of antisocial, illegal behaviors. Future discoveries could lay the foundation for new types of criminal defenses, for example. Yet neurological insights might also upend traditional ideas about personal responsibility and just punishments. The courts—and the rest of society—should therefore proceed with caution in their adoption of findings from neuroscience.
Gazzaniga 2010 Neuroscience and the Correct Level of Explanation for Understanding Mind Michael Gazzaniga 14 Trends in Cognitive Science 291 An extraterrestrial roams through some neuroscience labs and concludes earthlings are not grasping how best to understand the mind/brain interface.
Gazzaniga 2010 What Is Cognitive Neuroscience? Michael S. Gazzaniga A Judge's Guide to Neuroscience 2 (SAGE Center For the Study of the Mind, 2010).
Gazzaniga 2008 The Law and Neuroscience Michael S. Gazzaniga 60 Neuron 412 Some of the implications for law of recent discoveries in neuroscience are considered in a new program established by the MacArthur Foundation. A group of neuroscientists, lawyers, philosophers, and jurists are examining issues in criminal law and, in particular, problems in responsibility and prediction and problems in legal decision making.
Gazzaniga 2008 La mente etica Michael Gazzaniga Codice Edizioni
Gazzaniga 2005 Facts, Fictions and the Future of Neuroethics Michael S. Gazzaniga Neuroethics: Defining the Issues in Theory, Practice and Policy 141 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter argues that cognitive neuroscience has three main issues with respect to the current field of neuroethics. First, cognitive neuroscience can help with some current ethical dilemmas such as whether the embryo has the moral status of a human being. Secondly, there are important ethical areas to which neuroscientists are being asked to contribute when, in fact, they should not be. For instance, neuroscience has nothing to say about concepts such as free will and personal responsibility, and it probably also has nothing to say about such things as antisocial thoughts. Finally, cognitive neuroscience is building an understanding of how brain research will instruct us on ideas like universal morals possessed by all members of our species. This fundamental development will find cognitive neuroscience becoming central to the modern world's view of ethical universals.
Gazzaniga 2004 Free Will in the 21st Century: A Discussion of Neuroscience and the Law Michael S. Gazzaniga & Megan S. Steven Neuroscience and the Law: Brain, Mind, and the Scales of Justice 51 (Dana Foundation, Brent Garland, ed., 2004). How can discoveries in neuroscience influence America’s criminal justice system? Neuroscience and the Law examines the growing involvement of neuroscience in legal proceedings and considers how scientific advances challenge our existing concepts of justice. Based on an invitational meeting convened by the Dana Foundation and the American Association for the Advancement of Science, the book opens with the deliberations of the twenty-six scientists and legal scholars who attended the conference and concludes with the commissioned papers of four distinguished scholars in law and brain research.
George 2013 Teaching the Smartphone Generation: How Cognitive Science Can Improve Learning in Law School Shailini Jandial George 66 Me. L. Rev. 163 Today’s law student enters law school as a digital native, constantly “plugged in” and accessing information at a moment’s notice, often during class time itself. Yet scholars agree that these students are entering law school with weaker reading and reasoning skills than prior generations, due in large part to the way students multitask through life. This article aims to address the problems caused by the intersection of these two issues by applying cognitive learning theory to the law school environment. Part One examines the characteristics of our current students by describing their skills and learning styles upon arriving at law school. Part Two examines cognitive learning theory insofar as it can inform our teaching andragogy: specifically, how do today’s students learn, how can we help our students learn better, and what effect does their multitasking have on learning? The final section suggests ways for students and educators to better translate the information offered in class into knowledge. Ultimately, this article suggests teaching students about metacognition and effective study techniques while also encouraging professors to design and plan their courses by adopting cognitive learning theories and using more visual aids, visual exercises, and assessments to help students better learn the material.
Gerard 2008 Waiting in the Wings? The Admissibility of Neuroimagery for Lie Detection Eric K. Gerard 27 Dev. Mental Health L. 1 An essential function of any trial is the testing of each litigant’s claims for veracity, the end being the court’s arrival at an equitable outcome. Historically, the task of assessing credibility has been reserved to the fallible reasoning and intuition of the human mind, be it that of a judge or juror. Scientists and legal practitioners have long sought to mitigate that inherent fallibility with technological aids to help sort fact from fiction. The most significant such “lie detector” advanced in the twentieth century was the polygraph, which measures physiological signs of the subject’s anxiety as a proxy to gauge that person’s truthfulness on a given matter. Courts, however, have taken a dim view of the polygraph’s accuracy, largely barring polygraph results from admission into evidence. Recently, newer technologies have emerged that purport to more accurately assess witness credibility. These technologies, loosely labeled “neuroimagery,” measure (and, in some cases, visually represent) the neurological activity of a subject’s brain. Proponents of neuroimagery argue that the moment is fast approaching when the fact-finder at trial will have at her disposal an accurate, scientific tool by which to assess credibility. Beginning with a primer on neuroimagery as applied to lie detection, this article turns to an overview of the legal challenges to admissibility under evidentiary rules that two of the most prominent of these new technologies face. The inauspicious history of the polygraph’s bid for admissibility is examined as a potential portent of the difficulty advocates of neuroimagery may yet encounter, followed by an evaluation of the prospects of admitting each of these two neuroimagery technologies for the purpose of lie detection. The article concludes with the prediction that courts will remain skeptical of embracing neuroimagery for this purpose without significant additional research, as well as a softening of many judges’ views that the use of any scientific evidence purporting to measure truthfulness unduly usurps the fact-finder’s role of assessing witness credibility.
Gewirtzman 2009 Our Founding Feelings: Emotion, Commitment, and Imagination in Constitutional Culture Don Gewirtzman 43 U. Rich. L. Rev. 623 Traditionally, scholars and judges have treated emotion as a destructive force within constitutional culture. This article uses recent developments in social psychology, neurobiology, and political psychology to challenge this dominant account and reposition emotion as central to our collective constitutional endeavor. It argues that emotion is critical to commitment and imagination, two features of human behavior that are essential to constitutional legitimacy and innovation. Further, emotions shape our perceptions and preferences about constitutional values through their impact on attitude development and moral decision-making. Finally, our increased understanding of emotion's impact on human behavior has the potential to alter the way we think about a range of ongoing debates in constitutional theory, including the merits of judicial supremacy, the relationship between the Court and public opinion, the standards for constitutional amendment, and the design of democratic institutions.
Gkotsi 2013 Assessing the impact of the neuroscientific revolution on ethics and law Georgia-Martha Gkotsi, Laura Cabrera, & Roberto Andorno 1 Bioethica Forum 33
Glannon 2010 What Neuroscience Can (and Cannot) Tell Us About Criminal Responsibility Walter Glannon Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter presents eight cases to frame and discuss the question of how neuroscience, in the form of neuroimaging, can inform evaluations of people's actions in the criminal law realm. The discussion supports the view that neuroscience can inform but not determine judgments of criminal responsibility. The cases presented suggest that brain imaging may be more useful in assessing judgments of criminal negligence, less useful in cases of impulsive behaviour and psychopathy, and least useful in judgments of criminal intent. It cautions against falling prey to a so-called ‘brain overclaim syndrome’.
Glassen 2008 Das Gehirn Hans Günter Glassen Darmstadt, Wissenschaftliche Buchgesellschaft
Glenn 2014 Neurocriminology: Implications for the Punishment, Prediction and Prevention of Criminal Behaviour Andrea L. Glenn & Adrian Raine 15 Nature Reviews Neuroscience 54 Criminal behaviour and violence are increasingly viewed as worldwide public health problems. A growing body of knowledge shows that criminal behaviour has a neurobiological basis, and this has intensified judicial interest in the potential application of neuroscience to criminal law. It also gives rise to important questions. What are the implications of such application for predicting future criminal behaviour and protecting society? Can it be used to prevent violence? And what are the implications for the way offenders are punished?
Glenn 2012 Neuroimaging in Psychopathy and Antisocial Personality Disorder: Functional Significance and a Neurodevelopmental Hypothesis Andrea L. Glenn Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) With the increase in brain imaging research over the past decade, evidence has accumulated supporting a plausible relationship between brain impairments and antisocial behavior and psychopathic traits. The neurophysiologic basis of antisocial behavior is complex – many structures have been implicated, each of which may be related to antisocial behavior and psychopathy in different ways. In this chapter we will review the neuroimaging evidence and describe how it may relate to key processes such as moral judgment that, when disrupted, may contribute to antisocial behavior. We will also review evidence that suggests that brain impairments in antisocial individuals are likely neurodevelopmental in nature. Finally, we will discuss some key methodological concerns, as well as the implications of neuroimaging findings and directions for future research.
Glenn 2009 Psychopathy and Instrumental Aggression: Evolutionary, Neurobiological, and Legal Perspectives Andrea L. Glenn & Adrian Raine 32 Int'l J.L. & Psychiatry 253 In the study of aggression, psychopathy represents a disorder that is of particular interest because it often involves aggression which is premeditated, emotionless, and instrumental in nature; this is especially true for more serious types of offenses. Such instrumental aggression is aimed at achieving a goal (e.g., to obtain resources such as money, or to gain status). Unlike the primarily reactive aggression observed in other disorders, psychopaths appear to engage in aggressive acts for the purpose of benefiting themselves. This is especially interesting in light of arguments that psychopathy may represent an alternative life-history strategy that is evolutionarily adaptive; behaviors such as aggression, risk-taking, manipulation, and promiscuous sexual behavior observed in psychopathy may be means by which psychopaths gain advantage over others. Recent neurobiological research supports the idea that abnormalities in brain regions key to emotion and morality may allow psychopaths to pursue such a strategy—psychopaths may not experience the social emotions such as empathy, guilt, and remorse that typically discourage instrumentally aggressive acts, and may even experience pleasure when committing these acts. Findings from brain imaging studies of psychopaths may have important implications for the law.
Godsoe 2011 Introduction -- Adolescents in Society: Their Evolving Legal Status Cynthia Godsoe 20 J.L. & Pol'y 145 The symposium “Adolescents in Society: Their Evolving Legal Status,” which took place in March 2011, focused on three key areas: criminal law, health, and technology. We were extremely fortunate to be able to bring together judges, lawyers, scholars, and other experts to address questions including: How has the status and role of adolescents changed recently, whether through court decisions, legislation or other means of social change?; What types of data or evidence, be it psychological, statistical, or anecdotal, are courts and legislatures relying on to craft protections and obligations for today's youth?; How should young people be accorded increasing autonomy to allow them to mature, while also being protected against harms to which they are vulnerable?
Goel 2009 Delinquent or Distracted? Attention Deficit Disorder and the Construction of the Juvenile Offender Rashmi Goel 27 Law & Ineq. 1 Delinquent or Distracted? Attention Deficit Disorder and the Construction of the Juvenile Offender examines the intersection of race, class and mental health in the juvenile justice system. Using Attention Deficit Disorder (ADHD) as a lens, this work reveals that the juvenile justice system is currently criminalizing disease and doing so in a discriminatory manner. The first part of the article lays out the history and original premise of the juvenile justice system. That is, under the doctrine of parens patriae, the state has the authority and obligation to intervene when youth turn to delinquency to provide them with the care and guidance they need to become productive adults in society. Though it has evolved over time, the core mandate of the juvenile justice system remains the same – to rehabilitate. Part II introduces Attention Deficit Hyperactivity Disorder (ADHD) and the underlying neuroscience. Although ADHD remains somewhat controversial, the most current medical science makes clear that ADHD is a real disorder. An understanding of the brain’s chemistry behind ADHD lays a foundation for the later discussion of the delinquent behavior to which ADHD sufferers are often driven. Part III, at the core of the article, explicates in detail how specific types of ADHD behavior overlap with delinquent behavior. In particular, this is discussed in three areas: status offenses, involvement in violent incidents and illegal substance use. The overlap between ADHD related behavior and delinquent behavior in each of these areas is discussed with particular attention to the specific statutes which render these activities delinquent or criminal. The neuroscience behind these activities is also brought to bear to establish how, for ADHD youth, the anti-social motive usually associated with delinquent acts is not present. For example, the section on illegal substance use includes a discussion of self-medication with cocaine. Since cocaine and Ritalin are chemically similar, they have the same effect on the ADHD brain. As a result, undiagnosed ADHD sufferers might be using cocaine to achieve higher function, not a high, but are exposed to severe criminal sanction nonetheless. The intersection with race and class undiagnosed ADHD in the juvenile system is the subject of Part IV. The diagnostic process and the barriers to diagnosis for poor youth of color are illustrated here. Part V details the unconscious bias associated with race and class that prevents judges from recognizing ADHD behavior in poor youth of color, and that ultimately prevent a referral for a more detailed mental health assessment that might lead to a diagnosis. Part VI goes on to show how the lack of diagnosis ultimately places these youth on a fast track to delinquency when recidivism and offense severity are considered. Finally, keeping in mind the original premise of the juvenile justice system, I propose solutions for reform, both short term and long term, inside and outside the system.
Goldberg 2013 Mild Traumatic Brain Injury, the National Football League, and the Manufacture of Doubt: An Ethical, Legal, and Historical Analysis Daniel S. Goldberg 34 J. Legal Med. 157 This paper integrates legal, historical, and ethical approaches in analyzing the National Football League’s conduct regarding the risks its players face of experiencing concussions and the long-term neurodegenerative pathologies to which such injury is linked. Given that millions of children and adolescents play American football, and that the NFL concedes its behavior is a strong determinant of football culture, concussion issues are crucial matters of population health. Examining over 500 pages of testimony generated during Congressional hearings in 2009 and 2010, the paper links claims issued by leading NFL representatives to past efforts by industrial actors to manufacture doubt. The paper therefore argues that the history of public health is crucial to framing just public health policy in the present. The paper applies two frameworks drawn from public health ethics to argue first that a robust process of public reason is stymied by the NFL’s insistence on privately holding information relevant to its attitudes, practices and beliefs regarding concussions, and second, that the unequal distribution of "football prevalence" exposes already disadvantaged groups such as African-Americans to higher risks of concussions and neurological disease. The paper concludes that this latter possibility may contravene mandates of social justice, and, if so, would be ethically suboptimal.
Goldberg 2012 Against Reductionism in Law & Neuroscience Daniel S. Goldberg 11 Hous. J. Health L. & Pol'y 321 This response will track the three lines of inquiry sketched above: (1) a philosophical analysis of the concept of objectivity and the reasoning through which many scholars have convincingly shown that there is little objective about the evidence produced via functional magnetic resonance imaging (“fMRI”) techniques; (2) a brief review of the excellent historical literature regarding the history of criminology and cognitive neuroscience in the West; and (3) a brief discussion of the perils of reducing the complex social problem of violence to individual brains. But note that the merits of the latter two criticisms are independent of the merits of the first. The first criticism suggests that fMRI techniques do not provide objective evidence. Even if this is wrong, there still exist profound reasons supplied in (2) and (3) to doubt that integrating cognitive neuroscience and criminal law in the manner Lamparello suggests is advisable. Finally, it is crucial to observe that each of these lines of criticism is the subject of their own multidisciplinary and voluminous literatures, and it is not possible to plumb their depths in this short response. Therefore, the analysis is simply meant to introduce the reader to these areas of inquiry and to examine briefly some of their respective implications for Lamparello's claims. Those wishing to go further into any of these lines of work will hopefully find that the notes provide a suitable point of departure.
Goldberg 2010 Neuroscience and the Free Exercise of Religion Steven Goldberg Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter focuses on religion. Would respect for religious belief erode if religion came to be seen as merely a byproduct of biology and, not a very attractive byproduct? But, for two reasons neuroscience is not likely to undermine the social and legal status of religion. First, because of the philosophical hurdles that need to be surmounted — upon which there is hardly a beginning. And, recently, because the challenges are not new — they can be traced back 100 years or more — and have had little or no impact. But this is only ‘half the story’. Neuroscience plays a role in law and religion disputes in courts, for example where parents object to medicine for their children on religious grounds.
Goldberg 2010 The History of Scientific and Clinical Images in Mid-to-Late Nineteenth-Century American Legal Culture: Implications for Contemporary Law and Neuroscience Daniel S. Goldberg Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter argues that understanding the history of scientific and clinical imaging evidence is critical to informing analysis of the contemporary role of neuroscientific evidence in American legal culture. Justifying this thesis requires two principal tasks. First, it assesses the epistemic and evidentiary status of scientific and clinical images in late 19th- to early 20th-century American legal culture. Second, it argues that through a deeper understanding of the social and cultural power of the scientific image in shaping contemporary American law of evidence, one is in a better position to evaluate the scope and significance of neuroimaging evidence in American legal culture. More specifically, while many neurolaw scholars warn of the potentially prejudicial effects of neuroimages, there is less scholarship explaining why it is that such neuroimages are any more likely to pose significant risks of undue prejudice than many other forms of scientific and medical evidence.
Goldberg 2007 MRIs and the Perception of Risk Steven Goldberg 33 Am. J.L. & Med. 229 The most important safety decision concerning MRIs was to change the name of the procedure. In the late 1970s, the procedure known as nuclear magnetic resonance (NMR) became magnetic resonance imaging (MRI) because of the negative connotations the word “nuclear” invited. The change was understandable since MRIs do not expose patients to dangerous radiation: “nuclear” was in the original name because basic research on the atomic nucleus led to the development of MRIs. The main cost of the name change was to obscure the important link between basic research and useful medical technologies. In recent years, however, MRIs, a generally safe procedure, have been bothered by a new problem. MRIs, which are used in research as well as medical settings, often result in incidental findings of medical conditions that may be clinically significant. Automatic notification of subjects, however, is not always the sensible route, since incidental findings that turn out to be clinically irrelevant can lead not only to fear and anxiety but to needless and dangerous interventions. Sound ethical policies on incidental findings need to be developed. It is ironic that this process will involve the weighing of patient fears that may not be shared by experts; the original name change was motivated by much the same situation.
Gommer 2010 From the 'Is' to the 'Ought': a Biological Theory of Law Hendrik Gommer Archiv für Rechts- und Sozialphilosophie 449 In this article the naturalistic fallacy is challenged. It is a barrier that should be removed in order to make a necessary next step towards thinking about the biological foundations of law. Moore’s naturalistic fallacy and Hume’s is ought-problem imply a barrier between law and biology. However, we are constantly deriving the ought from the is. Biology can explain why people sometimes value killing another human being as ‘good’ (i.e. ‘ought’) and sometimes as ‘bad’ (i.e. ‘ought not’). Killing the enemy is good because it saves our children, killing my neighbour is bad because it destabilises society. Morals and rules have evolved from biological facts and are the result of interaction between genes and their surroundings. They are a product of our brain as all interpretations of facts are. As a result, ‘goodness’ can be regarded as a biological phenomenon. Inevitable as this conclusion may be, it looks like scientists hesitate to accept it.
Goodenough 2011 Neuroscience basics for lawyers Oliver R. Goodenough, Micaela Tucker 62 Mercer L. Rev. 945 As a prelude to diving into the discussions-and sometimes debates-that a neurolaw approach provokes in legal scholarship, a reader should have at least an introductory understanding of the brain and of the tools and models that make up the cognitive revolution. This Article is intended to provide just such an introduction. Those who wish to follow up with additional study have a flood of resources at their disposal. These range from popular works to short scholarly treatments and on to more challenging, graduate-level compendiums. Undergraduate texts can serve as very useful entry-level guides, and there are many online resources as well. Most of the information set out in this Article can and should be sourced authoritatively to these and similar works rather than to this introductory Article.
Goodenough 2011 Juveniles and punishment Oliver R. Goodenough Gruter Institute Squaw Valley Conference: Law, Institutions & Human Behavior This talk examines how adults think about punishment of juveniles in light the work of Baird (2009), which suggests that adolescents need some space in which to make mistakes, a need deriving not only from a lack of brain development, but also from a lack of experience necessary to push that development along, and the work of Cushman et al. which explores the evolutionary and neural explanations for punishment as a teaching tool. It will suggest that the traditional, if conflicted, allowance of some license to youth is a sensible strategy for dealing with juvenile transgressions, and will describe possible experiments to better delineate adult attitudes and juvenile responses.
Goodenough 2010 Law and Cognitive Neuroscience Oliver R. Goodenough & Micaela Tucker 6 Ann. Rev. Law Soc. Sci. 61 Law and neuroscience (sometimes neurolaw) has become a recognized field of study. The advances of neuroscience are proving useful in solving some perennial challenges of legal scholarship and are leading to applications in law and policy. While caution is appropriate in considering neurolaw approaches, the new knowledge should—and will—be put to use. Areas of special attention in current neurolaw scholarship include (a) techniques for the objective investigation of subjective states such as pain, memory, and truth-telling; (b) evidentiary issues for admitting neuroscience facts and approaches into a court proceeding; (c) free will, responsibility, moral judgment, and punishment; (d) juvenile offenders; (e) addiction; (f) mental health; (g) bias; (h) emotion; and (i) the neuroeconomics of decision making and cooperation. The future of neurolaw will be more productive if challenges to collaboration between lawyers and scientists can be resolved.
Goodenough 2009 Why Do Good People Steal Intellectual Property? Oliver R. Goodenough & Gregory Decker Law, Mind and Brain 345 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009). Why do good people steal intellectual property? You know who we mean. The person (perhaps even yourself) who feels deep remorse if she mistakenly walks off with your pencil, who takes a wallet she found on the street, full of money but with no identification, to the police, and who without a qualm or any thought of payment, downloads copyrighted music off the internet or from a friend to put onto her iPod. What is going on here? Some suggest ignorance of the law, but that is generally not the case. She knows about copyright. Some suggest a lack of enforcement, but that doesn’t stop her from turning in the wallet. No, something else is going on - some failure of a normally law-abiding, “good” person to feel any compulsion to obey this set of laws....
Goodenough 2009 Neuroscientific Developments as a Legal Challenge Oliver Goodenough Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 43
Goodenough 2006 A Neuroscientific Approach to Normative Judgment in Law and Justice Oliver R. Goodenough & Kristin Prehn Law and the Brain 77 (Oxford Univ. Press, Semir Zeki & Oliver Goodenough, eds., 2006). Developments in cognitive neuroscience are providing new insights into the nature of normative judgment. Traditional views in such disciplines as philosophy, religion, law, psychology and economics have differed over the role and usefulness of intuition and emotion in judging blameworthiness. Cognitive psychology and neurobiology provide new tools and methods for studying questions of normative judgment. Recently, a consensus view has emerged, which recognizes important roles for emotion and intuition and which suggests that normative judgment is a distributed process in the brain. Testing this approach through lesion and scanning studies has linked a set of brain regions to such judgment, including the ventromedial prefrontal cortex, orbitofrontal cortex, posterior cingulate cortex and posterior superior temporal sulcus. Better models of emotion and intuition will help provide further clarification of the processes involved. The study of law and justice is less well developed. The authors advance a model of law in the brain which suggests that law can recruit a wider variety of sources of information and paths of processing than do the intuitive moral responses that have been studied so far. The authors propose specific hypotheses and lines of further research that could help test this approach.
Goodenough 2006 Responsibility and Punishment: Whose Mind? A Response Oliver R. Goodenough Law and the Brain 259 (Oxford Univ. Press, Semir Zeki & Oliver Goodenough, eds., 2006). Cognitive neuroscience is challenging the Anglo-American approach to criminal responsibility. Critiques, in this issue and elsewhere, are pointing out the deeply flawed psychological assumptions underlying the legal tests for mental incapacity. The critiques themselves, however, may be flawed in looking, as the tests do, at the psychology of the offender. Introducing the strategic structure of punishment into the analysis leads us to consider the psychology of the punisher as the critical locus of cognition informing the responsibility rules. Such an approach both helps to make sense of the counterfactual assumptions about offender psychology embodied in the law and provides a possible explanation for the human conviction of the existence of free will, at least in others.
Goodenough 2001 Mapping Cortical Areas Associated With Legal Reasoning and Moral Intuition Oliver R. Goodenough & Kristin Prehn 41 Jurimetrics J. 429 The prevailing tools of legal scholarship have focused the study of law on questions of doctrine. Recent developments in cognitive neuroscience allow us to explore a different kind of problem: how people think when they apply law. First, we must update the accepted model of cognition, replacing the unified Cartesian approach with a multi-capacity, "modular" view of the human mind. Such an approach suggests that the classic, apparently intractable, arguments between positive-law and natural-law adherents may reflect the workings of two separate mental capacities for judging human actions-the application of word-based rules on the one hand and of unarticulated understandings of justice on the other. This hypothesis need not remain just a plausible assertion. The techniques of functional neuroimaging provide an experimental means of testing it. A series of brain-scanning experiments could reveal whether there are significant differences in the brain regions employed in using legal rules and moral intuition to judge human behavior, in the process helping us understand the neurological basis of the distinction between natural and positive law.
Graf 2013 Pediatric Neuroenhancement: Ethical, Legal, Social, and Neurodevelopmental Implications William D. Graf, Saskia K. Nagel, Leon G. Epstein, Geoffrey Miller, Ruth Nass, Dan Larriviere 80(13) Neurology 1251 The use of prescription medication to augment cognitive or affective function in healthy persons—or neuroenhancement—is increasing in adult and pediatric populations. In children and adolescents, neuroenhancement appears to be increasing in parallel to the rising rates of attention-deficit disorder diagnoses and stimulant medication prescriptions, and the opportunities for medication diversion. Pediatric neuroenhancement remains a particularly unsettled and value-laden practice, often without appropriate goals or justification. Pediatric neuroenhancement presents its own ethical, social, legal, and developmental issues, including the fiduciary responsibility of physicians caring for children, the special integrity of the doctor–child–parent relationship, the vulnerability of children to various forms of coercion, distributive justice in school settings, and the moral obligation of physicians to prevent misuse of medication. Neurodevelopmental issues include the importance of evolving personal authenticity during childhood and adolescence, the emergence of individual decision-making capacities, and the process of developing autonomy. This Ethics, Law, and Humanities Committee position paper, endorsed by the American Academy of Neurology, Child Neurology Society, and American Neurological Association, focuses on various implications of pediatric neuroenhancement and outlines discussion points in responding to neuroenhancement requests from parents or adolescents. Based on currently available data and the balance of ethics issues reviewed in this position paper, neuroenhancement in legally and developmentally nonautonomous children and adolescents without a diagnosis of a neurologic disorder is not justifiable. In nearly autonomous adolescents, the fiduciary obligation of the physician may be weaker, but the prescription of neuroenhancements is inadvisable because of numerous social, developmental, and professional integrity issues.
Grafton 2010 Has Neuroscience Already Appeared in the Courtroom? Scott T. Grafton A Judge's Guide to Neuroscience 54 (SAGE Center For the Study of the Mind, 2010).
Graham 2009 Cognition, Law, Stories Lorie M. Graham & Stephen M. McJohn 10 Minn. J.L. Sci. & Tech. 255 This essay reviews Steven Pinker, The Stuff of Thought (Penguin 2007), which offers insights from cognitive science just where it overlaps the most with law - how we use basic cognitive categories like intent, space, time, events and causation. The Stuff of Thought might offer insights into a broad range of issues in legal theory. Legal theory could make more use of such cognitive science concepts as chunking, recursion, and the primary qualities of an object. Other topics likewise resonate in thinking about the law: The book suggests that metaphor is an important cognitive tool, but less constraining than might be thought. Linguistic analysis of verb classes and polysemy suggests that words have surprisingly determinate meaning. Our apparent innate sense of causation (drawn from an analysis of language) sheds light on the legal treatment of causation. Lastly, The Stuff of Thought describes the role of indirect speech, whereby people convey information without revealing their state of mind - which often allows social interaction to proceed smoothly. Default rules in the law, we suggest, often play an analogous role. The essay then explores the cognitive aspects of stories (following literary theorists like Mark Turner who have linked cognitive science with narrative theory), suggesting a recursive definition of story, and another angle to the trolley problem. Looking at the cognitive role of stories permits a fuller view of legal reasoning, learning, and remembering. This fits well with recent scholarship, such as work on origin stories, and law and genre theory.
Granacher 2012 Traumatic Brain Injury Robert P. Granacher, Jr. Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) It is not possible to provide a comprehensive forensic neuropsychiatric or psychiatric assessment of a person following traumatic brain injury without also including within the examination, at a minimum, structural brain imaging. Functional brain imaging may be useful in special circumstances but it is never the modality of first choice following traumatic brain injury (TBI). TBI follows a classic neurochemical cascade, which often results in structural and anatomical changes to brain tissue. These changes can be detected with neuroimaging using computed tomography, magnetic resonance imaging, single photon emission computed tomography, positron emission tomography, and magnetic resonance spectroscopy. The use of neuroimaging in forensic psychiatric cases of traumatic brain injury requires knowledge of the medical-legal distinctions between their uses in the clinic versus introduction of neuroimaging to a judge or jury. The American College of Radiology guidelines for uses of neuroimaging in subacute and chronic traumatic brain injury assessments by a psychiatrist are emphasized.
Granacher 2012 Potential Uses of Neuroimaging in Personal Injury Civil Cases Robert P. Granacher, Jr. Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) Forensic psychiatric neuroimaging has numerous potential applications to personal injury civil cases. Physical injuries to the brain, or brain-based diseases, that result in forensic examinations of civil claims include: (1) Workers' Compensation cases; (2) disability cases for Social Security Disability or commercial disability insurance; (3) fitness-for-duty or readiness-to-work examinations; (4) examinations for fitness-for-duty specific to police and firefighters; and (5) personal injury litigation cases such as medical negligence producing brain injury or brain injury from exposure to toxic substances. Magnetic resonance imaging, and to a lesser degree, computed tomography play substantial roles in the forensic psychiatric analysis of such cases. Functional neuroimaging plays a limited role in the forensic evaluation of personal injury civil cases.
Granacher 2008 Applications of Functional Neuroimaging to Civil Litigation of Mild Traumatic Brain Injury Robert P. Granacher 36 J. Am. Acad. Psychiatry L. 323 The current definition of mild traumatic brain injury (MTBI) is in flux. Presently, there are at least three working definitions of this disorder in the United States, with no clear consensus. Functional neuroimaging, such as single photon emission computed tomography (SPECT) and positron emission tomography (PET), initially showed promise in their ability to improve the diagnostic credibility of MTBI. Over the past decade, that promise has not been fulfilled and there is a paucity of quality studies or standards for the application of functional neuroimaging to traumatic brain injury, particularly in litigation. The legal profession is ahead of the science in this matter. The emergence of neurolaw is driving a growing use of functional neuroimaging, as a sole imaging modality, used by lawyers in an attempt to prove MTBI at trial. The medical literature on functional neuroimaging and its applications to MTBI is weak scientifically, sparse in quality publications, lacking in well-designed controlled studies, and currently does not meet the complete standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., for introduction of scientific evidence at trial. At the present time, there is a clear lack of clinical correlation between functional neuroimaging of MTBI and behavioral, neuropsychological, or structural neuroimaging deficits. The use of SPECT or PET, without concurrent clinical correlation with structural neuroimaging (CT or MRI), is not recommended to be offered as evidence of MTBI in litigation.
Grasso 2011 The ethics of climate change: with a little help from moral cognitive neuroscience Marco Grasso CISEPS Research Paper No. 7 The moral essence of climate change relates to causing/suffering harm. In particular, carbon emissions that threaten the stability of climate systems, and the consequent harm inflicted by altered climatic dynamics on present and future generations are the moral facets of climate change. Moral cognitive neuroscience indicates that up close and personal harm triggers deontological moral reasoning, whereas harm originating from impersonal moral violations, like those of climate change, prompts consequentialist moral reasoning. Consequently, climate ethics should abandon common, unreliable, moral deontological intuitions and be based on welfare-improving consequentialist approaches. Because consequentialism is in line with the indications of moral cognitive neuroscience on moral processes and judgments, it is, in fact, closer to the inner nature of the morality of human beings in regard to climate change. Therefore, an approach inspired by it can ultimately prove more morally acceptable and politically feasible in this context, notwithstanding its apparent counter-intuitiveness.
Graves 2010 Volition and the Function of Consciousness Tashina Graves, Brian Maniscalco & Hakwan Lau Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). Many acts of volition seem to require conscious effort. We consciously initiate spontaneous motor movements. We cancel planned actions at will. We deliberately avoid particular actions. We intentionally shift our action plans in order to pursue different goals. Sometimes, theorists say, these are the functions of consciousness, as if evolution has equipped us with the gift of consciousness just to perform these acts. Without consciousness, presumably, we would only be able to perform much simpler actions that are no more sophisticated than embellished reflexes. This chapter reviews available evidence to see if these intuitive claims are empirically supported. It discusses what is logically required for an experiment to demonstrate the true function of consciousness.
Gray 2010 Punishment as Suffering David Gray 63 Vand. L. Rev. 1619 When it comes to punishment, should we be subjectivists or objectivists? That is, should we define, measure, and justify punishment based on the subjective experiences of those who are punished or should we instead remain objective, focusing our attention on acts, culpability, and desert? In a recent series of high profile articles, a group of contemporary scholars has taken up the mantle of subjectivism. In their view, criminal punishment is a grand machine for the production of negative subjective experiences — suffering. The machine requires calibration, of course. According to these scholars, the main standard we use for ours is comparative proportionality. We generally punish more serious crimes more severely and aim to inflict the same punishment on similarly situated offenders who commit similar crimes. In the views of these authors, this focus on comparative proportionality makes ours a rather crude machine. In particular, it ignores the fact that (1) different offenders suffer differently or to a different degree when subjected to the same punishment; (2) different offenders have different happiness baselines, which leads to disparities in the degree of suffering among offenders sentenced to the same punishment as measured by comparing their prepunishment baselines to their hedonic states during punishment; and (3) offenders’ self-reported states of happiness and suffering vary over the course of a sentence, revealing inaccuracies in our objective assessments of severity. These scholars contend that a more sophisticated and rational approach would be to calibrate punishment according to the amount of suffering produced, trading objective measures of punishment — years in prison, etc. — for subjective measures. Looking forward to a day when advances in neuroscience and psychology will provide us with reliable qualitative and quantitative metrics of suffering, these scholars are setting the stage now, arguing that no matter our theory of criminal law and punishment — be we retributivists or utilitarians — we are obliged to dial the machine according to who is in its thrall and to titer both the form and extent of punishment so as to achieve just the right kind and amount of suffering. This view of the criminal law may strike some readers as troubling. It should. The problem can be traced to three contestable propositions. The first is that “subjective disutility” is a necessary feature and primary goal of punishment. The second is that comparative proportionality serves as an independent measure of justice in punishment. The third is that punishment theory must justify all of the suffering caused by the punitive practices it endorses. This Article rejects each of these claims. It defends retributivist and utilitarian theories of punishment on objectivist grounds by explaining why arguments based on the proposition that punishment is suffering have no bite on these theories. These arguments urge punishment theorists to reject outright the claim that punishment should be calibrated according to the subjective suffering it inflicts. So too do the uncomfortable outcomes subjectivist critics deploy against objective theories of punishment as purported reductio ad absurdum. While admittedly absurd, those results obtain only if punishment is defined, measured, and justified subjectively.
Gray 2009 Third Restatement of Torts: Issue Two Articles and Commentary: Commentary Oscar S. Gray 44 Wake Forest L. Rev. 1193
Greely 2013 Neuroscience, Mind-Reading and the Law Henry T. Greely in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds.
Greely 2011 Reference Guide on Neuroscience Henry T. Greely & Anthony D. Wagner Reference Manual on Scientific Evidence (3 ed.) Federal Judicial Center; National Research Council, 2011.
Greely 2010 Neuroscience and Criminal Responsibility: Proving "Can't Help Himself" as a Narrow Bar to Liability Henry T. Greely Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter focuses on the claim that the criminal defendant ‘can't help himself’, asking specifically ‘how could such a claim be proven’? It argues that for a defendant to mount the defence that he ‘can't help himself’, there must be specific proof that ties some characteristics of that defendant (a condition, whether genetic, brain-based, or behavioural) that correlates extremely strongly with the criminal behaviour in question. The chapter cites Branner Syndrome and coprolalia (as part of Tourette Syndrome) as examples where proof may exonerate.
Greely 2009 Law and the Revolution in Neuroscience: An Early Look at the Field Henry T. Greely 42 Akron L. Rev. 687
Greely 2009 Neuroscience-Based Lie Detection: The Need for Regulation Hank Greely Using Imaging to Identify Deceit 46 (American Academy of Arts and Sciences, 2009).
Greely 2009 Who Knows What Evil Lurks in the Hearts of Men? Behavioral Genomics, Neuroscience, Criminal Law, and the Search for Hidden Knowledge Hank Greely The Impact of Behavioral Sciences on Criminal Law 161 (Oxford Univ. Press, Nita Farahany, ed., 2009). This chapter explores the differences between the implications of behavioral genomics and neuroscience for criminal justice. It focuses on how the consequences of possible neuroscientific methods differ from those of behavioral genomics. It first sketches the sciences involved and some of their plausible technological applications to criminal justice. It then analyzes some general ways in which neuroscience is likely to have different effects from those of behavioral genomics. Finally, it contrasts the likely power of neuroscience with that of behavioral genomics in two specific aspects of the criminal justice system: deciding who did it and then determining what to do with him. It argues that in the context of criminal law, neither science is likely to provide much help in determining, based on their predispositions, who committed a crime. Neuroscience, however, may well answer other important questions in solving crimes. Both behavioral genomics and neuroscience will provide some information useful, at least occasionally, for determining responsibility, sentencing, or “treatment” of criminal behaviors. For the most part, however weak or strong behavioral genomics will be, neuroscience is likely to be stronger.
Greely 2008 Neuroscience and Criminal Justice: Not Responsibility But Treatment Henry T. Greely 56 U. Kan. L. Rev. 1103
Greely 2008 Remarks on Human Biological Enhancement Henry T. Greely 56 U. Kan. L. Rev. 1139
Greely 2007 Neuroscience-Based Lie Detection: The Urgent Need For Regulation Henry T. Greely & Judy Illes 33 Am. J.L. & Med. 377 The article examines the historical background of brain-imaging technologies, such as the functional magnetic resonance imaging (FMRI). The test and external conditions regarding the ethical considerations for imaging the brain functions were taken into account. Key information about electroencephalography and legal aspects and federal regulation of FMRI-based lie detection is further presented.
Greely 2006 Neuroethics and ELSI: Similarities and Differences Henry T. Greely 7 Minn. J.L. Sci. & Tech. 599 In the last four years “neuroethics” has become a term to describe the study of the ethical, legal, and social implications of new technologies from neuroscience. That field is strongly influenced by its predecessor, “ELSI,” the ethical, legal, and social implications of genetics. Both areas are the result of ongoing revolutions in scientific knowledge directly relevant to human life, both concern technologies that will have substantial effects on human societies, and both discuss possibilities that scare many people. Yet there is reason to think that neuroethics will expand in directions and develop in ways that are often significantly different from ELSI. This article attempts to map some of the similarities and differences between these two fields. It first briefly reviews the history of both endeavors. It then describes ways in which the substantive questions explored by neuroethics are likely both to parallel and to diverge from those analyzed by ELSI. It ends by discussing the path forward for neuroethics and how its future will both be influenced by, but will differ from, that of ELSI.
Greely 2005 The Social Effects of Advances in Neuroscience: Legal Problems, Legal Perspectives Henry T. Greely Neuroethics: Defining the Issues in Theory, Practice and Policy 245 (Oxford Univ. Press, Judy Illes, ed., 2005). The term ‘neuroethics’ has been given several kinds of meanings. One use of neuroethics describes ethical problems arising directly from research in neuroscience; for example, what should researchers doing brain imaging tell research subjects about unusual findings of no known clinical significance? The term is also used to describe neuroscience (usually imaging) research into how humans resolve ethical or moral issues; for example, what parts of the brain are activated when subjects are wrestling with moral dilemmas? This chapter discusses a third area of neuroethics: the implications of new discoveries in, and capabilities of, neuroscience for our society and their consequences for the legal system. It looks specifically at three different ways in which neuroscience seems likely to change society and law. The discussion focuses on the society and the legal system of the United States, but the same basic issues will be found in all technologically advanced societies.
Greely 2005 Premarket Approval Regulation for Lie Detection: An Idea Whose Time May Be Coming Henry T. Greely 5 Am. J. Bioethics 50
Greely 2004 Prediction, Litigation, Privacy, and Property: Some Possible Legal and Social Implications of Advances in Neuroscience Henry T. Greely Neuroscience and the Law: Brain, Mind, and the Scales of Justice 114 (Dana Foundation, Brent Garland, ed., 2004). Neuroscience is rapidly increasing our knowledge of the functioning, and malfunctioning, of that intricate three-pound organ, the human brain. When science expands our understanding of something so central to human existence, advances in science will necessarily cause changes in both our society and its laws. This paper seeks to forecast and explore the social and legal changes that neuroscience might bring in four areas: prediction, litigation, confidentiality and privacy, and patents. The implications in prediction are similar to those anticipated from human genetics. The consequences for litigation seem potentially substantial, particularly if neuroscience leads to better methods to detect lying or bias or allows us to improve memory retrieval or to check the authenticity of memories. Protecting mental privacy, both from governmental and private intrusions, may also prove to be an important challenge. The patent issues, by contrast, appear fairly minor. The paper was prepared for a September 2003 workshop sponsored by the American Association for the Advancement of Science and the Dana Foundation on legal issues raised by advances in neuroscience. It was one of four papers commissioned for that conference, two of which were on legal issues. It complements the paper written by Professor Stephen Morse, which covers issues of personhood and responsibility, informed consent, the reform of existing legal doctrines, enhancement of normal brain functions, and the admissibility of neuroscience evidence.
Green 2012 Rehabilitating Lawyers: Perceptions of Deviance and Its Cures in the Lawyer Reinstatement Process Bruce Green & Jane Campbell Moriarty 40 Fordham Urban Law Journal 139 State courts’ approach to lawyer admissions and discipline has not changed fundamentally in the past century. Courts still place faith in the idea that “moral character” is a stable trait that reliably predicts whether an individual will be honest in any given situation. Although research in neuroscience, cognitive science, psychiatry, research psychology, and behavioral economics (collectively “cognitive and social science”) has influenced prevailing concepts of personality and trustworthiness, courts to date have not considered whether they might change or refine their approach to “moral character” in light of scientific insights. This Article examines whether courts should reevaluate how they decide whether to allow lawyers to return to law practice after suspension or disbarment for impermissibly deceptive conduct. The Article describes courts’ traditional approach, discusses some of the relevant scientific literature, and suggests some possible reasons why courts appear not to have considered such scientific insights. The Article concludes with some thoughts about the utility of the role of scientific research in the disciplinary process.
Green 2010 The Admissibility of Expert Witness Testimony Based on Adolescent Brain Imaging Technology in the Prosecution of Juveniles: How Fairness and Neuroscience Overcome the Evidentiary Obstacles to Allow for Application of a Modified Common Law Infancy Defense Sally Green 12 N.C. J. L. & Tech. 1 Most Infancy Defense statutes currently implemented by the states create a gap comprised of fourteen to eighteen-year-olds by failing to address this population of adolescents whose deficiencies in judgment and decision-making pose the most credible argument for criminal exoneration. Offering adolescent brain research as part of an Infancy Defense model provides juveniles with an opportunity to combat harsher penalties imposed by the states and facilitates imposition of legal standards that require consideration of the differences between children and adults. If juvenile offenders are to be truly considered less blameworthy than adults, preservation of the Infancy Defense is crucial. This is true even when they should be held accountable for their actions. By allowing the juvenile offenders to offer expert witness testimony based on adolescent brain imaging as part of the meaningful defense, the fact-finder can more fairly assess adolescents’ decision-making capacity. Consequently, we must allow the admissibility of adolescent brain imaging in order to guard against overestimation of an adolescent's criminal culpability.
Green 2005 From Genome to Brainome: Charting Lessons Learned Ron M. Green Neuroethics: Defining the Issues in Theory, Practice and Policy 105 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter explores converging and diverging issues between genetic and neuroimaging science research and clinical applications. It shows how genetics is intensely communal and familial, while the study of the central nervous system is more focused on the individual. Nonetheless, we learn how the ‘therapeutic gap’ gene hype, and the risk of scientific over-promising from both can lead to advances that may make situations worse before they make them better.
Greene 2009 Patterns of Neural Activity Associated with Honest and Dishonest Moral Decisions Joshua D. Greene & Joseph M. Paxton 106 Proc. Nat’l Acad. Sci. 12506 What makes people behave honestly when confronted with opportunities for dishonest gain? Research on the interplay between controlled and automatic processes in decision making suggests 2 hypotheses: According to the “Will” hypothesis, honesty results from the active resistance of temptation, comparable to the controlled cognitive processes that enable the delay of reward. According to the “Grace” hypothesis, honesty results from the absence of temptation, consistent with research emphasizing the determination of behavior by the presence or absence of automatic processes. To test these hypotheses, we examined neural activity in individuals confronted with opportunities for dishonest gain. Subjects undergoing functional magnetic resonance imaging (fMRI) gained money by accurately predicting the outcomes of computerized coin-flips. In some trials, subjects recorded their predictions in advance. In other trials, subjects were rewarded based on self-reported accuracy, allowing them to gain money dishonestly by lying about the accuracy of their predictions. Many subjects behaved dishonestly, as indicated by improbable levels of “accuracy.” The findings support the Grace hypothesis. Individuals who behaved honestly exhibited no additional control-related activity (or other kind of activity) when choosing to behave honestly, as compared with a control condition in which there was no opportunity for dishonest gain. In contrast, individuals who behaved dishonestly exhibited increased activity in control-related regions of prefrontal cortex, both when choosing to behave dishonestly and on occasions when they refrained from dishonesty. Levels of activity in these regions correlated with the frequency of dishonesty in individuals.
Greene 2004 For the Law, Neuroscience Changes Nothing and Everything Joshua Greene & Jonathan Cohen 359 Phil. Transactions Royal Soc'y London B: Biological Sci. 1775 The rapidly growing field of cognitive neuroscience holds the promise of explaining the operations of the mind in terms of the physical operations of the brain. Some suggest that our emerging understanding of the physical causes of human (mis)behaviour will have a transformative effect on the law. Others argue that new neuroscience will provide only new details and that existing legal doctrine can accommodate whatever new information neuroscience will provide. The authors argue that neuroscience will probably have a transformative effect on the law, despite the fact that existing legal doctrine can, in principle, accommodate whatever neuroscience will tell us. New neuroscience will change the law, not by undermining its current assumptions, but by transforming people’s moral intuitions about free will and responsibility. This change in moral outlook will result not from the discovery of crucial new facts or clever new arguments, but from a new appreciation of old arguments, bolstered by vivid new illustrations provided by cognitive neuroscience. The authors foresee, and recommend, a shift away from punishment aimed at retribution in favour of a more progressive, consequentialist approach to the criminal law.
Greene 2003 From neural 'is' to moral 'ought': what are the moral implications of neuroscientific moral psychology? Joshua Greene 4 Nature 247 Many moral philosophers regard scientific research as irrelevant to their work because science deals with what is the case, whereas ethics deals with what ought to be. Some ethicists question this is/ought distinction, arguing that science and normative ethics are continuous and that ethics might someday be regarded as a natural social science. I agree with traditional ethicists that there is a sharp and crucial distinction between the ‘is’ of science and the ‘ought’ of ethics, but maintain nonetheless that science, and neuroscience in particular, can have profound ethical implications by providing us with information that will prompt us to re-evaluate our moral values and our conceptions of morality.
Greenwald 2006 Implicit Bias: Scientific Foundations Anthony G. Greenwald & Linda Hamilton Krieger 94 Cal. L. Rev. 945 A substantial and actively accumulating body of research evidence establishes that implicit race bias is pervasive and is associated with discrimination against African Americans. Consequently, when racially neutral causes and explicit bias can be rejected as causal explanations for racially disparate outcomes, implicit race bias must be regarded as a probable, even if not definitively established, cause. More direct confirmations of the causal role of implicit bias may emerge in the next few years, as researchers increasingly include measures of implicit bias in their studies of relevant domains in which racially disparate impact is a known phenomenon.
Greiffensten 1996 The Neuropsychological Autopsy M. Frank Greiffenstein 75 Mich. B.J. 424
Grey 2012 Neuroscience, PTSD and Sentencing Mitigation Betsy Grey 33 Cardozo L. Rev. 53 Like other mental disorders, PTSD has been advanced in criminal law to support sentencing mitigation. Unlike other disorders, however, PTSD traces back to an event that is considered the cause of the disorder, known as the stressor. Stressors can range from car accidents to gang violence to the commission of a crime. This article examines whether lawmakers should consider the nature of the stressor when deciding whether to use PTSD as a mitigating factor in sentencing. Courts and legislatures generally have not embraced use of PTSD in sentencing mitigation except in cases where it resulted from combat duty or domestic violence. This article questions that exceptionalism. In particular, limiting PTSD consideration to these contexts can no longer be justified by concerns that a defendant is faking the syndrome. Advances in neuroscience increasingly make it possible to measure the physiological changes that occur in a person’s brain after experiencing a trauma, raising the prospect of establishing the validity of a wider range of PTSD claims. In that event, the distinction between the combat and domestic violence stressors, as opposed to other causes of PTSD, is unwarranted in terms of the prevailing justifications for punishment. The issue, then, is whether other rationales can justify limiting PTSD consideration to certain stressors. Accordingly, lawmakers should acknowledge that other normative concerns may influence our treatment of PTSD in sentencing and develop more neutral limiting principles to determine when PTSD can mitigate a criminal sentence.
Grey 2010 Neuroscience and Emotional Harm in Tort Law: Rethinking the American Approach to Free-Standing Emotional Distress Claims Betsy J. Grey Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter proceeds as follows. Part I reviews the current American common law, as well as the draft Restatement (Third) proposals, concerning emotional distress claims. Mental distress claims have never been given equal status with other tort claims and this part discusses why this value judgement has occurred. Using studies of PTSD as an example, Part II explores advances in neuroscience that have begun to shed light on the biological basis of the harm suffered when an individual is exposed to extreme stress. These advances underline the shrinking scientific distinction between physical and emotional harm. Part III examines English law and its threshold requirement of showing a diagnosable psychiatric illness. Drawing on these different lines of thinking, Part IV concludes that we should rethink the American approach to emotional distress claims. In general, it proposes that we change our approach to account for advances in neuroscience, moving toward a more unified view of bodily injury. The chapter advances two potential legal applications: firstly, that science can provide empirical evidence of what it means to suffer emotional distress, thus helping to validate a claim that has always been subject to greater scrutiny; and secondly, that this evidence may allow us to move away from the sharp distinction between how physical and emotional injuries are conceptualized, viewing both as valid types of harm with physiological origins.
Grey 2007 Neuroscience, Emotional Harm, and Emotional Distress Tort Claims Betsy J. Grey 7 Am. J. Bioethics 65 American tort law traditionally distinguishes between “physical” and “emotional” harm for purposes of liability, with emotional harm treated as a second class citizen. The customary view is that physical injury is more entitled to compensation because it is considered more objectively verifiable and perhaps more important. The current draft of the Restatement of the Law (Third) of Torts maintains this view. Even the name of the Restatement project itself - “Liability for Physical and Emotional Harm” - emphasizes this distinction. Advances in neuroscience suggest that the concern over verification may no longer be valid, and that the phenomena we call “emotional” harm has a physiological basis. Because of these early scientific advances, this may be an appropriate time to re-examine our assumptions about tort recovery for emotional harm. Using studies of Post Traumatic Stress Disorder as an example, this paper explores advances in neuroscience that have begun to shed light on the biological basis of the harm suffered when an individual is exposed to extreme stress. These advances underline the shrinking scientific distinction between physical and emotional harm. Drawing on these scientific developments, as well as on the British approach to emotional injury claims, the paper concludes that we should rethink the American treatment of emotional distress claims. In general, it proposes that we change our approach to account for advances in neuroscience, moving toward a more unified view of bodily and emotional injury. Two potential legal applications are advanced in this paper: (1) that science can provide empirical evidence of what it means to suffer emotional distress, thus helping to validate a claim that has always been subject to greater scrutiny; and (2) that this evidence may allow us to move away from the sharp distinction between how physical and emotional injuries are conceptualized, viewing both as valid types of harm with physiological origins.
Groshek 2012 The Wisdom of Juvenile Court: The Case for Treating Children Differently Than Adults Christa Jacqueline Groshek 2012 WL 3279185
Gruber 2006 Neurobiology and the Law: A Role in Juvenile Justice? Staci A. Gruber & Deborah A. Yurgelun-Todd 3 Ohio St. J. Crim. L. 321 Human behavior is determined by a complex interaction between biology and experience. In childhood, it is clear that specific biological milestones need to be reached for key behaviors to emerge. As we move into adolescence, it is more difficult to recognize the relationship between biological underpinnings and behavior. Just how old do you have to be to make a good decision? Determining the point at which someone is able to fully understand the consequences of his actions and be held accountable for such is critical to making and enforcing laws. A closer look at the neurobiology of adolescence and the processes involved in brain development underscore the importance of considering a number of factors when evaluating whether juveniles may be “held accountable” for all of their actions. While parental guidance, education and peer values undoubtedly play important roles in adolescent behavior, the integrity of the brain, particularly the prefrontal cortical region is of special importance. Data from recent investigations provide evidence that brain maturation continues well past where we once thought adolescence ends. Accordingly, the developmental factors which influence decision-making in adolescents may result in choices which are suggestive of cortical immaturity, poor judgment and impulsivity. It is reasonable then, to assume that all significant factors, including chronological age, nature and severity of the crime, previous history, and neurobiologic stage of development should be considered when dealing with juvenile offenders.
Gurley 2008 The Effects of Neuroimaging and Brain Injury on Insanity Defenses Jessica R. Gurley & David K. Marcus 26 Behav. Sci. & L. 85 Although neurological evidence is used with increasing frequency in criminal trials, there is limited research examining the effects this evidence has on juror decision-making in insanity trials. Participants (396) were presented with a case summary and psychological testimony and asked to render either a verdict of guilty or not guilty by reason of insanity in a 2 (psychosis or psychopathy) x 2 (presence or absence of an MRI indicating a brain lesion) x 2 (presence or absence of testimony describing a car accident that caused injury to the brain) factorial design. Defendants diagnosed with a psychotic disorder, defendants who could demonstrate the existence of a brain lesion via MRI, and defendants who had a history of brain injury were more likely to be found not guilty by reason of insanity than those defendants who did not present any neurological testimony. Participants who reported they were more influenced by the psychological and neurological testimony were almost six times more likely to render a verdict of NGRI than those participants who reported that the psychological and neurological testimony and evidence did not influence their decision regarding verdict.
Guthrie 2007 Blinking on the Bench: How Judges Decide Cases Chris Guthrie 93 Cornell L. Rev. 1 How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision-making, the authors propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. The model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which can also lead to erroneous decisions. Equipped with a better understanding of judging, the authors then propose several reforms that should lead to more just and accurate outcomes.
Guthrie 2004 Insights From Cognitive Psychology Chris Guthrie, Jeffrey J. Rachlinski & Andre J. Wistrich 54 J. Legal Educ. 42 My goal I this paper is to explore cognitive psychology's place in the dispute resolution field. To do so, I first look back and then look forward. Looking back, I identify the five insights from cognitive psychology that have had the biggest impact on my own dispute resolution teaching and scholarhip. Looking forward, I identify my five hopes for the future of cognitive psychology in the dispute resolution field.
Guttentag 2009 Is There a Law Instinct? Michael D. Guttentag 87 Wash. U. L. Rev. 269 The widely held view is that legal systems develop in response to purposeful efforts to achieve economic, political, or social objectives. An alternative view is that reliance on legal systems to organize social activity is an integral part of human nature, just as language and morality now appear to be directly shaped by innate predispositions. This article formalizes and presents evidence in support of the claim that humans innately turn to legal systems to organize social behavior.
Hafemeister 2010 Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan with Post-Traumatic Stress Disorder Thomas L. Hafemeister & Nicole A. Stockey 85 Ind. L.J. 87 As more psychologically-scarred troops return from combat in Iraq and Afghanistan, society's focus on and concern for these troops and their psychological disorders has increased. With this increase and with associated studies confirming the validity of the Post-Traumatic Stress Disorder (PTSD) diagnosis and the genuine impact of PTSD on the behavior of war veterans, greater weight may be given to the premise that PTSD is a mental disorder that provides grounds for a "mental status defense", such as insanity, a lack of mens rea, or self-defense. Although considerable impediments remain, given the current political climate, Iraq and Afghanistan War veterans are in a better position to succeed in these defenses than Vietnam War veterans were a generation ago. This article explores the prevalence and impact of PTSD, particularly in war veterans, the relevance of this disorder to the criminal justice system, and the likely evolution of related mental status defenses as Iraq and Afghanistan War veterans return from combat.
Hakun 2009 Exploring the Cognitive Structure of the Concealed Information Test with fMRI Jonathan G. Hakun, David Seelig, Kosha Ruparel, James W. Loughead, E. Busch, Ruben C. Gur & Daniel D. Langleben Neuroscience and Crime: A Special Issue of Neurocase (Psychology Press, Hans Markowitsch, ed., 2009). We studied the cognitive basis of the functional magnetic resonance imaging (fMRI) pattern of deception in three participants performing the Concealed Information Test (CIT). In all participants, the prefrontoparietal lie activation was similar to the pattern derived from the meta-analysis (N = 40) of our previously reported fMRI CIT studies and was unchanged when the lie response was replaced with passive viewing of the target items. When lies were replaced with irrelevant responses, only the left inferior gyrus activation was common to all subjects. This study presents a systematic strategy for testing the cognitive basis of deception models, and a qualitative approach to single-subject truth-verification fMRI tests.
Hall 2013 How May Neuroscience Affect the Way that the Criminal Courts Deal with Addicted Offenders? Wayne Hall & Adrian Carter Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) Two competing views of addiction often frame debates about the legal responsibility of addicted persons for their drug use and crimes committed in order to use drugs: 1) the “brain disease model”; and 2) the commonsense view. The brain disease model suggests that addicted offenders may not be legally responsible for criminal behavior engaged in to fund drug use. According to the moral model they should be held responsible. The legal practice in Australia (as in most developed countries) represents a defensible pragmatic compromise between these two positions. Courts typically do not accept addiction as a defense in criminal cases but often use coerced treatment for addiction as an alternative to imprisonment. We describe the different ways in which this practice has been implemented and summarize evidence on its effectiveness. We conclude by considering how research on addiction may be used to improve legal practice in dealing with addicted offenders.
Hallett 2010 Volition: How Physiology Speaks to the Issue of Responsibility Mark Hallett Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). This chapter describes an experiment designed to time the thought (T) of movement without relying on introspective data or retrospective reconstruction. It shows that T occurred later than observable brain events linked to action. The results also suggest that there is not enough time to veto action after willing becomes conscious, contrary to Libet's way of saving free will.
Halliburton 2009 How Privacy Killed Katz: A Tale of Cognitive Freedom and the Property of Personhood as Fourth Amendment Norm Christian M. Halliburton 42 Akron L. Rev. 803
Halliburton 2007 Letting Katz Out of the Bag: Cognitive Freedom and Fourth Amendment Fidelity Christian M. Halliburton 59 Hastings L.J. 309 Emerging surveillance technologies now allow operators to collect information located within the brain of an individual, allow the collection of forensic evidence regarding cerebral and cognitive processes, and are even beginning to be able to predict human intentions. While science has not yet produced a mind-reading machine per se, the devices referred to as “cognitive camera technologies” are substantial steps in the direction of that inevitable result. One such technique, a proprietary method called Brain Fingerprinting, is used as an example of the strong trend towards increasingly invasive and ever more powerful surveillance methods, and provides an entrée to a discussion of the limitations, if any, that the Constitution might impose on such methods. The article then outlines three basic frameworks used by the Supreme Court in its Fourth Amendment jurisprudence that might be used to determine whether official use of cognitive camera technologies would pass constitutional muster, and concludes with the suggestion that no one of the three available frameworks would create a significant obstacle to the exploitation of these techniques or to the use of the collected information in legal proceedings. The Fourth Amendment’s failure in this regard is demonstrated by reference to underlying, socially-constructed norms regarding freedom of thought and cognitive autonomy. The article samples the fields of social psychology and Cartesian philosophy, theology, and democratic political theory in order to weave together what may be called a social consensus on the place, importance, and substance of free and unfettered cognitive liberty – the right to be left alone in one’s head, the right to create a social persona using particular and unique identity vectors, and the right to think and imagine what we wish without the possible threat of observation. The inability of the Fourth Amendment to preserve that kind of freedom which our society has always cherished, and which by consensus we agree must be protected against interference, presents an opportunity to suggest that a new orienting principle should motivate our Fourth Amendment jurisprudence. The remainder of the article is spent outlining that new principle and deeply engaging the various constitutional interpretive theories that might support if not command adherence to this modified Fourth Amendment approach. The author thus seeks to make a connection between technological development, surveillance and Fourth Amendment liberty, and attends to the ways in which our burgeoning “surveillance society” poses a threat to the very core of what we think it means to be human.
Hamilton 2012 Democratic Inclusion, Cognitive Development, and the Age of Electoral Majority Vivian Eulalia Hamilton 77 Brook. L. Rev. 1447 The age of electoral majority has declined over time and across the globe. At the beginning of the twentieth century, the average voting age worldwide was just under twenty-four; today, it is just over seventeen. More than a dozen nations have recently lowered local, state, or national voting ages to sixteen. Others, including Australia and the U.K., are seriously considering doing the same. Yet the United States, which holds itself out as a beacon of democratic participation, is not currently considering the electoral inclusion of some cohort of its younger citizens. For a number of compelling reasons, it should be. Classic democratic theory describes the decision making of the ideal citizen-voter as both well-informed and rational. The decision making of the actual citizen-voter, however, is often neither. For reasons detailed in this article, I argue for a conception of electoral competence (1) informed by behavioral decision theory and studies of voter decision making; and (2) characterized by the reliable attainment of the relevant cognitive processes (cognition/learning, information processing, and decision making) and maturity of judgment. Converging research from several disciplines within the developmental sciences has established a reliable connection between age range and the attainment of certain cognitive competencies. Research in developmental psychology and cognitive and social neuroscience explains that/why adolescents make notoriously bad decisions under certain conditions. It also explains that by mid-adolescence, when making unpressured, considered decisions — like those required to privately cast a ballot in an election that has unfolded over time — their cognitive competencies are mature. States can thus no longer justify the electoral exclusion of mid-adolescents by claiming that they lack the relevant competencies. Absent other legitimate bases for their exclusion, I argue that the democratic presumption of inclusion obliges the states to adjust downward the age of electoral majority.
Hamilton 2011 Reinvigorating actus reus: the case for involuntary actions by veterans with post-traumatic stress disorder Melissa Hamilton Berkeley J. Crim. L. (forthcoming) This article outlines a theory in which a PTSD-afflicted veteran’s automatistic behavior or dissociative state can negate the actus reus element such that the veteran is not engaged in a voluntary act and therefore not criminally culpable. The argument takes the following path. Section II explains the theoretical principles that historically underlie the actus reus element in criminal law and how this element has generally been ignored or misconstrued in case law. Section III discusses the reasons behind PTSD being the signature injury of soldiers serving in the Iraq and Afghanistan wars, as well as synthesizes the scientific basis for understanding how PTSD can invoke automatistic responses through impairments of physiological and neurological functioning brought on by physical and mental adaptations to traumatic stress. A theory of how PTSD can explain a veteran’s automatism that negates the voluntary act element is then provided in Section IV. Free will enthusiasts likely will counter that PTSD-related behaviors ought to best to be considered instead under the rubric of mens rea, insanity, or possibly diminished capacity, but this redirection seems contrary to upholding the common law requirement of a voluntary act for criminal culpability
Hammond 2009 The Minimally Conscious Person: A Case Study in Dignity and Personhood and the Standard of Review for Withdrawal of Treatment Jeffrey B. Hammond 55 Wayne L. Rev. 821
Hanna 2012 Concussions May Prove To Be a Major Headache for the NFL Joseph M. Hanna 84-OCT N.Y. St. B.J. 10 The recent deaths and suicides of several National Football League alumni — along with groundbreaking clinical studies and a giant class-action lawsuit that threatens the financial livelihood of the league itself — have brought the topic of sports-related head injuries to the forefront of national attention. The question is whether the NFL will face liability for its arguably deficient efforts to inform players of the risks associated with football-induced head trauma. This article provides a comprehensive examination of the NFL concussion controversy, including congressional and scientific investigations, remedial measures taken by the league, legal implications of the NFL Committee’s prior policies, and analysis of various tactics the league may employ in defending the lawsuit.
Hanson 2004 The Situational Character: A Critical Realist Perspective on the Human Animal Jon D. Hanson & David G. Yosifon 93 Geo. L.J. 1 This article is dedicated to retiring the now-dominant "rational actor" model of human agency, together with its numerous "dispositionist" cohorts, and replacing them with a new conception of human agency that the authors call the "situational character." This is a key installment of a larger project recently introduced in an article titled "The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture," 152 U. Pa. L. Rev. 129 (2003). That introductory article adumbrated, often in broad stroke, the central premises and some basic conclusions of a new approach to legal theory and policy analysis. This article provides a more complete version of one of those central premises by elucidating a more realistic conception of the human animal than is currently embraced in legal theory. The article begins with a short introduction to the larger project, and describes the central place that a realist conception of the human actor plays in that project. It then explores several bodies of literature within the fields of social, cognitive, behavioral, and neural psychology in pursuit of a vision of the human actor that is grounded in social science. Having explicated that conception, the article then outlines some of the basic implications of it for law, legal theory, and social policy. It then analyzes conventional legal scholars', particularly legal economists', arguments for ignoring the lessons of social science in their treatment of human agency. As part of that analysis, this article describes why recent efforts to incorporate some psychological findings - the sort of work that is often labeled "behavioralist" - have been inadequate. Finally, the authors briefly look beyond the human actor itself to consider some of the fairly obvious - but generally ignored - realities of our present social situation, and some of their implications for common policy presumptions. As subsequent work will make clear, this new, situationist conception of the human animal is as important to a realist account of law and legal theory as the dispositionist conception has been to now-dominant accounts.
Hardegger 2009 Willenssache. Die Infragestellung der Willensfreiheit durch moderne Hirnforschung als Herausforderung für Theologie und Ethik Judith Hardegger Münster, LIT Hat der Mensch einen freien Willen oder hat er keinen? Diese uralte Menschheitsfrage wird in jüngster Zeit durch die Neurowissenschaften neu gestellt - und von einigen Vertretern verneint. Da enschliches Denken, Entscheiden und Handeln auf Gehirnprozessen beruhe, die nach deterministischen Gesetzen ablaufen, könne von Freiheit keine Rede sein. Mit dieser Behauptung steht für die Theologie viel, ja alles auf dem Spiel: Zentrale christliche Begriffe und Vorstellungen wie Glauben, Sünde, Sühne, Letztes Gericht oder Erlösung werden obsolet. Wie überzeugend sind diese Argumente und wie reagiert die Theologie darauf? Judith Hardegger bietet einen Überblick über den Stand der Freiheitsdiskussion in den Neurowissenschaften und in der Theologie, wobei auch Aspekte der aktuellen philosophischen und juristischen Diskussion miteinbezogen werden.
Harman 2011 "Locked-In" to Their Decisions: Investigating How the States Govern Revocation of Advance Directives and How Three States Make Revocation Impossible for People With Locked-In Syndrome Peter C. Harman 3 Hastings Sci. & Tech. L.J. 193 Advance directives often enshrine what are literally life-and-death decisions, including when to remove life support. In several states, a locked-in patient would not be able to comport with the formalities required to modify or revoke an advance directive, even if the directive ordered the doctors to halt life-sustaining procedures. The revocation statutes in those states discriminate against people with locked-in syndrome because people who are locked-in are not able to employ normal means of communication. The statutes in those states violate the Americans with Disabilities Act of 1990 and must be changed.
Harrison 2009 Happiness, Efficiency, and the Promise of Decisional Equity: From Outcome to Process Jeffrey L. Harrison 36 Pepp. L. Rev. 935 Those who resist the teachings of law and economics are rightfully concerned that economic efficiency is largely based on the predictions of relatively acquisitive people about what will make them feel or be better off. Due to a variety of factors, these predictions often turn out to be wrong. The explosion in happiness research would appear to have the potential to close the link between choices and actual outcomes and, consequently, make the concept of efficiency more meaningful. This Article explores this promising advance. It concludes that direct focus on one concept or another of happiness or "better-off-ness" does not fully address the limitations of law and economics and may raise additional issues. For example, which is more important, feeling better off or being better off? In addition, when does happiness count? Is it at the time of the activity or as one remembers it? The Article explains why outcome-oriented goals like efficiency, happiness, or well-being are ultimately of limited use as goals for law. It then makes the case that law would be more usefully applied to the process of decision-making. To this end, it examines the extent to which law can be devoted to a decision-making idea or "decisional equity." The ideal of decisional equity requires addressing three areas - information imbalances, psychic biases, and adaptations to social conditions.
Haselager 2013 Did I Do That? Brain–Computer Interfacing and the Sense of Agency Pim Haselager 23 Minds & Machines 405 Brain–computer interfacing (BCI) aims at directly capturing brain activity in order to enable a user to drive an application such as a wheelchair without using peripheral neural or motor systems. Low signal to noise ratio’s, low processing speed, and huge intra- and inter-subject variability currently call for the addition of intelligence to the applications, in order to compensate for errors in the production and/or the decoding of brain signals. However, the combination of minds and machines through BCI’s and intelligent devices (IDs) can affect a user’s sense of agency. Particularly confusing cases can arise when the behavioral control switches implicitly from user to ID. I will suggest that in such situations users may be insecure about the extent to which the resulting behavior, whether successful or unsuccessful, is genuinely their own. Hence, while performing an action, a user of a BCI–ID may be uncertain about being the agent of the act. Several cases will be examined and some implications for (legal) responsibility (e.g. establishing the presence of a ‘guilty mind’) are discussed.
Haupt 2014 Active Symbols Claudia E. Haupt 55 Boston College Law Review Visual representations of religious symbols continue to puzzle judges. Lacking empirical data on how images communicate, courts routinely dismiss visual religious symbols as “passive.” This Article challenges the notion that symbols are passive, introducing insights from cognitive neuroscience research to Establishment Clause theory and doctrine. It argues that visual symbolic messages can be at least as active as textual messages. Therefore, religious messages should be assessed in a medium-neutral manner in terms of their communicative impact, that is, irrespective of their textual or visual form. Providing a new conceptual framework for assessing religious symbolic messages, this Article reconceptualizes coercion and endorsement — the dominant competing approaches to symbolic messages in Establishment Clause theory — as matters of degree on a spectrum of communicative impact. This focus on communicative impact reconciles the approaches to symbolic speech in the Free Speech and Establishment Clause contexts and allows Establishment Clause theory to more accurately account for underlying normative concerns.
Haushofer 2008 You Shouldn’t Have: Your Brain on Others’ Crimes Johannes Haushofer & Ernst Fehr 60 Neuron 735 Our legal system requires assigning responsibility for crimes and deciding on appropriate punishments. A new fMRI study by Buckholtz et al. in this issue of Neuron reveals that the right dorsolateral prefrontal cortex (rDLPFC) plays a key role in these cognitive processes. This finding sheds light on the neural mechanisms underlying moral judgment from a third-party perspective.
Haynes 2010 Beyond Libet: Long-term Prediction of Free Choices from Neuroimaging Signals John-Dylan Haynes Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). This chapter discusses experiments using functional magnetic resonance imaging (fMRI) and pattern classifiers to explore less immediate intentions and choices than Libet studied. The researchers found signals from unconscious brain activity that predict, above chance, decisions 7–10 seconds in advance. They were also able to separate the “what” from the “when” in a decision.
Heilbronner 2011 Neuropsychological Assessment and Consultation in Forensic Practice Robert L. Heilbronner & G.K. Henry Neuropsychological Assessment of Work-related Injuries (Guilford Press, S. Bush & G. Iverson, eds., 2011)
Heilbronner 2009 American Academy of Clinical Neuropsychology Consensus Conference Statement on the Neuropsychological Assessment of Effort, Response Bias, and Malingering Robert L. Heilbronner, Jerry J. Sweet, Joel E. Morgan, Glenn J. Larrabee, Scott R. Millis & Conference Participants 23 The Clinical Neuropsychologist During the past two decades clinical and research efforts have led to increasingly sophisticated and effective methods and instruments designed to detect exaggeration or fabrication of neuropsychological dysfunction, as well as somatic and psychological symptom complaints. A vast literature based on relevant research has emerged and substantial portions of professional meetings attended by clinical neuropsychologists have addressed topics related to malingering (Sweet, King, Malina, Bergman, & Simmons, 2002). Yet, despite these extensive activities, understanding the need for methods of detecting problematic effort and response bias and addressing the presence or absence of malingering has proven challenging for practitioners. A consensus conference, comprised of national and international experts in clinical neuropsychology, was held at the 2008 Annual Meeting of the American Academy of Clinical Neuropsychology (AACN) for the purposes of refinement of critical issues in this area. This consensus statement documents the current state of knowledge and recommendations of expert clinical neuropsychologists and is intended to assist clinicians and researchers with regard to the neuropsychological assessment of effort, response bias, and malingering.
Heilbronner 2008 Neuropsychological Consultation in the Sentencing Phase of Capital Cases Robert L. Heilbronner Criminal Forensic Neuropsychology (Guilford Press, R. Denney & J. Sullivan, eds., 2008)
Heilbronner 2008 Malingering, Mental Retardation, and the Death Penalty Robert L. Heilbronner Neuropsychology of Malingering Casebook (Psychology Press, J. Morgan & J.J. Sweet, eds., 2008)
Heilbronner 2004 A Status Report on the Practice of Forensic Neuropsychology Robert L. Heilbronner 18 The Clinical Neuropsychologist 312 The practice of forensic neuropsychology has experienced tremendous growth over the past two decades, becoming perhaps the most rapidly expanding area of practice within the field of clinical neuropsychology. Indeed, there have been many important advancements in the field that have helped to position neuropsychologists as instrumental participants within the forensic arena. Yet, there is currently no consensus in our field regarding what constitutes competency in forensic neuropsychology and also no specific guidelines or standards of practice to inform neuropsychologists about how to operate in the forensic arena. There are even fewer safeguards to protect the public from questionable methods of practice. This article provides a status report on the practice of forensic neuropsychology. It employs a framework emphasized byOtto and Heilbrun(2002)in their assessment of the field of forensic psychology. Emphasis is directed toward identifying recent advances in the field and documenting some of the inherent flaws and weaknesses in forensic practice to help advance the practice of forensic neuropsychology toward a more established specialty area.
Heilbronner 2003 Neuropsychology and Forensic Psychology: Working Collaboratively in Criminal Cases Robert L. Heilbronner & I.B. Frumkin 3 Journal of Forensic Neuropsychology Where do neuropsychologists draw the line between strictly clinical neuropsychological versus criminal forensic psychological issues? What are the legal questions that each of these disciplines are uniquely qualified to answer and which exceed their capacity to do so? The present article will focus on the role of the clinical neuropsychologist working collaboratively with a forensic psychologist in criminal cases. It is written from the perspective that the reader is primarily a clinical neuropsychologist with some experience in civil litigation (e.g., personal injury, medical malpractice), but limited experience in criminal matters. It offers two models for collaboration between these two disciplines, dictated largely by the needs of the attorney requesting services. This paper is written in the hope that those who practice our respective specialties can better interface, continue to identify important differences between our disciplines, and ultimately work together toward providing the best quality services to legal consumers.
Heilbronner 1997 Presenting Neuropsychological Evidence in Traumatic Brain Injury Litigation Robert L. Heilbronner & T. Karavidas 12 The Clinical Neuropsychologist 445 The purpose of this paper is to educate the reader about some of the issues involved in presenting neuropsychological evidence in cases where a traumatic brain injury (TBI) is either obvious or suspected. Particular emphasis will be directed toward the admissibility of neuropsychological evidence and clarifying the roles of neuropsychologists as treaters and experts. Some strategies will also be presented to assist neuropsychologists in preparing to give opinion testimony.
Heilbronner 1995 Mild Traumatic Brain Injury and the Postconcussion Syndrome: Comment on Some New Definitions Robert L. Heilbronner 5 The Neurolaw Letter 2
Heilbronner 1994 Alternate Diagnoses to Consider in Mild Head Trauma Cases Robert L. Heilbronner 17 Trial Diplomacy Journal 99
Heilbronner 1993 Factors Associated with the Post-Concussion Syndrome: Neurological, Psychological, or Legal? Robert L. Heilbronner 16 Trial Diplomacy 161
Heilbronner 1993 Brain Dysfunction from Electrical Trauma Robert L. Heilbronner & N.H. Pliskin 3 The Neurolaw Letter 1
Heller 2009 The Cognitive Psychology of Mens Rea Kevin J. Heller 99 J. Crim. L. & Criminology 317 Actus non facit reum nisi mens sit rea - the act does not make a person guilty unless the mind is also guilty. Few today would disagree with the maxim; the criminal law has long since rejected the idea that causing harm should be criminal regardless of the defendant's subjective culpability. Still, the maxim begs a critical question: can jurors accurately determine whether the defendant acted with the requisite guilty mind? Given the centrality of mens rea to criminal responsibility, we would expect legal scholars to have provided a persuasive answer to this question. Unfortunately, nothing could be further from the truth. Most scholars simply presume that jurors can mindread accurately. And those scholars that take mindreading seriously have uniformly adopted common sense functionalism, a theory of mental-state attribution that is inconsistent with a vast amount of research into the cognitive psychology of mindreading. Common-sense functionalism assumes that a juror can accurately determine a defendant's mental state by applying commonsense generalizations about how external circumstances, mental states, and physical behavior are causally related. Research indicates, however, that mindreading is actually a simulation-based, not theory-based, process. When a juror perceives the defendant to be similar to himself, he will mindread through projection, attributing to the defendant the mental state that he would have had in the defendant's situation. And when the juror perceives the defendant to be dissimilar to himself, he will mindread through prototyping, inferring the defendant's mental state from the degree of correspondence between the defendant's act and his pre-existing conception of what the typical crime or defense of that type looks like. The goal of this essay is to provide a comprehensive - though admittedly speculative - explanation of how jurors use projection and prototyping to make mental-state attributions in criminal cases. The first two sections explain why jurors are unlikely to use a functionalist method in a case that focuses on the defendant's mens rea. The next three sections introduce projection and prototyping, describe the evidence that jurors actually use to make mental-state determinations, and discuss the cognitive mechanism - perceived similarity between juror and defendant - that determines which one a juror will use in a particular case. The final two sections explain why projection and prototyping are likely to result in inaccurate mental-state determinations and discuss debiasing techniques that may make them more accurate.
Heller 2006 The Cognitive Psychology of Circumstantial Evidence Kevin J. Heller 105 Mich. L. Rev. 241 Empirical research indicates that jurors routinely undervalue circumstantial evidence (DNA, fingerprints, and the like) and overvalue direct evidence (eyewitness identifications and confessions) when making verdict choices, even though false-conviction statistics indicate that the former is normally more probative and more reliable than the latter. The traditional explanation of this paradox, which is based on the probability-threshold model of jury decision-making, is that jurors simply do not understand circumstantial evidence and thus routinely underestimate its effect on the objective probability of the defendant's guilt. That may be true in some situations, but it fails to account for what is known in cognitive psychology as the Wells Effect: the puzzling fact that jurors are likely to acquit in a circumstantial case even when they know the objective probability of the defendant's guilt is sufficient to convict. This article attempts to explain why jurors find circumstantial evidence so psychologically troubling. It begins by using a variety of psychological research into judgment and decision-making - Kahneman & Tversky's simulation heuristic in particular - to argue that jurors decide whether to acquit in a criminal case not through mechanical probability calculations, but on the basis of their ability to imagine a scenario in which the defendant is factually innocent. The article then examines the basic epistemological differences between direct and circumstantial evidence and shows how those differences normally make it easier for jurors to imagine a factually exculpatory scenario in a circumstantial case. Finally, the article concludes by discussing how an ease-of-simulation model of jury decision-making improves our understanding of why false verdicts occur.
Henaghan 2012 Neuroscience and the Law in New Zealand Mark Henaghan, Kate Rouch International Neurolaw (Springer, Tade Spranger, Ed., 2012) The New Zealand Court of Appeal has rejected evidence of neuroimaging to help juries assess the capacity of the accused in an insanity plea. This chapter says the Court of Appeal was right to do so because neuroimaging should not replace the role of the jury. The chapter explains; that neuroscience will help us better understand how the brain functions and what relationship there is between that functioning and how we make decisions. The chapter concludes that neuroscience will be helpful for insight into the human condition but cannot replace the moral choices of what we think is right or wrong or whether we should be culpable or should not be.
Henning 2012 Juvenile Justice After Graham v. Florida: Keeping Due Process, Autonomy, and Paternalism in Balance Kristin Henning 38 Wash. U. J.L. & Pol'y 17 Specifically, this Essay considers Graham's impact on the ever-changing philosophy of the juvenile justice system, which is often at a crossroads between its rehabilitative, punitive, and due process agendas. The Supreme Court's affirmation in Graham of research on the important developmental differences between juveniles and adults may reinvigorate the rehabilitative goal of traditional juvenile courts and challenge the recent trend toward more punitive juvenile justice policies. However, it may also signal a shift back to a more paternalistic approach to children's law and policy, including reduced autonomy for youth and greater state intervention in the lives of children. Part I of this Essay begins by situating Graham within the historical continuum of juvenile justice practice, philosophy, and jurisprudence and considers how the rationale of Graham may be used to advance a more adolescent- appropriate response to youth at all stages of the juvenile justice system. By contrast, Part II reviews the costs associated with an unconstrained return to the rhetoric of rehabilitation and paternalism in juvenile courts, including the risk of unfettered discretion and compromised due process that were pervasive in the late Nineteenth and early Twentieth Centuries. Part III considers the potential impact of Graham on the individual rights and autonomy of youth both inside and outside of the juvenile justice system. Recognizing that the Court's holding in Graham grew partly out of concerns about youths' inability to effectively communicate and consult 38 WAUJLP 17 Page 1 38 Wash. U. J.L. & Pol'y 17 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. with defense counsel, Part III also considers the implications of developmental research on the autonomy and capacity of youth to exercise the right to counsel. Finally, in an effort to sort out the delicate balance among the competing interests of rehabilitative paternalism, due process, and individual autonomy, Part IV distinguishes between protective rights that are necessary to ensure accurate fact-finding and prevent undue coercion by the state, and capacity-based rights that are arguably only appropriate for youth who have sufficient capacity to exercise them. Part IV further recognizes that capacity is not a binary concept, but *19 instead depends significantly on the social and environmental context in which youth make decisions and exercise rights. Returning to the discussion of the role of juvenile counsel, Part IV contends that notwithstanding common deficiencies in the attorney-child relationship, loyal, client-directed defense advocacy is required in delinquency cases as both a protective and a capacity-based right. Like other due process protections, loyal defense advocacy is essential for accurate fact-finding in the juvenile justice system. Further, because capacity is a fluid concept that varies according to context, adult guidance, and individual ability, youth who are counseled in an appropriate setting, with adequate time and support from the lawyer, can effectively exercise the right to counsel.
Herring 2009 Losing? Losing What? The Law and Dementia David J. Herring 3 Child & Fam. L.Q. This article considers the law’s responses to dementia. In particular it argues in favor of a more flexible approach to assessments of capacity. It considers the appropriate legal approach to advance directives. It also examines what weight should be attached to the views of a patient who lacks capacity in determining their best interests.
Herring 2008 Kinship Foster Care: Implications of Behavioral Biology Research Jonathan Herring 56 Buff. L. Rev. 495 Public child welfare systems rely heavily on kin to serve as foster parents, requiring public actors to consider and choose among different types of available kin (e.g. maternal grandmothers, paternal grandfathers, matrilateral aunts). Behavioral biology researchers have been exploring kinship relationships and the expected level of investment in child care for different types of kin. This paper explains the relevance to kinship foster care of behavioral biology research on kinship relationships and expected levels of parental investment. This research allows for the development of a rank listing of second-degree kin in terms of their likely level of investment in a related foster child. The paper describes how the rank listing could serve three beneficial functions within public child welfare systems. First, child welfare researchers could use the listing to formulate and test hypotheses concerning expected levels of investment by different types of kin in order to develop sophisticated kinship foster care placement practices and policies. Second, public actors could use the listing in conjunction with other relevant considerations when choosing among second-degree kin who step forward to serve as a foster parent for a particular child. Third, public actors could consider the listing, along with other factors, when making decisions about the level of monitoring and support services that is appropriate for particular foster care placements.
Hilf 2012 Country Report: Austria Marianne Johanna Hilf, Karl Stoger International Neurolaw (Springer, Tade Spranger, Ed., 2012) In Austria, there has so far not been much research on the impact of neuroscience on the law. As a consequence, this contribution will try to discuss how some of the major neurolegal questions identified in other states might be dealt with under Austrian law. We will focus on the following areas: First, the legal framework for neuroscientific research. In this respect, we will pay most attention to the involvement of ethics committees on the one hand, and to the legal consequences of “incidental findings” on the other hand. Second, we will try to tackle some of the questions arising from the use of neuroscientific assistive technologies and “neuro-enhancement”. Third, we will visit the discussion on whether recent neuroscientific findings on determinism put the concept of prosecution based on individual guilt into question. Finally, the legal framework on the use of neuroscientific techniques in criminal and civil procedure law will be drafted.
Hill 2009 Rationality in an Unjust World: A Research Agenda Claire A. Hill 35 Queen's L.J. 185 The decision to forsake large or long-term benefits, or incur large costs, for small, short-term benefits is often referred to as irrational, as are people who make such a decision. The author suggests that some people making these “irrational” decisions may have a rational basis that derives from a view that the world is unjust or not just. Policy-makers' main tool to influence socially undesirable behavior is to assess penalties such as monetary fines or prison sentences. The author contends that for people who do not hold a just world view, this approach may be less effective than policy-makers believe it to be. Following a detailed examination of the literature on just and unjust world views, the author defines a “just enough” world view, according to which people believe the world is sufficiently just that they behave as if it is just. This, she argues, is the world view that law-makers and policy-makers assume people to have. She then considers how cost-benefit computations differ as between someone with a just enough world view and someone who believes that the world is not just enough. People may assess the benefits of an action offering short-term benefits but long-term costs similarly, whatever their world view. But people who think the world is not just enough may assess the costs of such an action to be much lower. They may think that whatever they do, they could be penalized; they may compute the additional penalty for the action offering the short-term benefit as comparatively small. Policy-makers fail to take this into account. Finally, the author encourages further research to determine how people who do not believe the world is just enough may respond differently to law's attempts to influence their behavior.
Hinde 2006 Law and the Sources of Morality Robert A. Hinde Law and the Brain 37 (Oxford Univ. Press, Semir Zeki & Oliver Goodenough, eds., 2006). This paper argues that morality is a product of basic human psychological characteristics shaped over prehistorical and historical time by diachronic dialectical transactions between what individuals do and what they are supposed to do in the culture in which they live. Some principles are pancultural: individuals are motivated to look after their own interests, to be cooperative and kind to other group members and to look after their children. The moral precepts of every society are based on these principles, but may differ according to the vicissitudes that the society has experienced. Thus the basic principles can be seen as absolute; the precepts based on them may be specific to particular societies. Moral precepts, and the laws derived from them, are mostly such as to maintain the cohesion of the society, but some have been formulated to further the interests of those in power. The evidence suggests that laws have been developed, by common consent or by rulers, from generally accepted moral intuitions. In general, legal systems have been formulated to deal with the more extreme infringements of moral codes. Morality prescribes how people should behave; the law is concerned with how they should not. New laws, if not imposed by force, must generally be in tune with public conceptions of morality.
Hirstein 2010 The Legal Self: Executive Processes and Legal Theory William Hirstein & Katrina Sifferd 20 Consciousness and Cognition 156 When laws or legal principles mention mental states such as intentions to form a contract, knowledge of risk, or purposely causing a death, what parts of the brain are they speaking about? We argue here that these principles are tacitly directed at our prefrontal executive processes. Our current best theories of consciousness portray it as a workspace in which executive processes operate, but what is important to the law is what is done with the workspace content rather than the content itself. This makes executive processes more important to the law than consciousness, since they are responsible for channelling conscious decision-making into intentions and actions, or inhibiting action. We provide a summary of the current state of our knowledge about executive processes, which consists primarily of information about which portions of the prefrontal lobes perform which executive processes. Then we describe several examples in which legal principles can be understood as tacitly singling out executive processes, including principles regarding defendants’ intentions or plans to commit crimes and their awareness that certain facts are the case (for instance, that a gun is loaded), as well as excusatory principles which result in lesser responsibility for those who are juveniles, mentally ill, sleepwalking, hypnotized, or who suffer from psychopathy.
Hoffman 2014 The Punisher’s Brain: An Evolutionary History of Judge and Jury Morris B. Hoffman Cambridge University Press Why do we punish, and why do we forgive? Are these learned behaviors, or is there something deeper going on? This book argues that there is indeed something deeper going on, and that our essential response to the killers, rapists, and other wrongdoers among us has been programmed into our brains by evolution. Using evidence and arguments from neuroscience and evolutionary psychology, Morris B. Hoffman traces the development of our innate drives to punish – and to forgive – throughout human history. He describes how, over time, these innate drives became codified into our present legal systems and how the responsibility and authority to punish and forgive was delegated to one person – the judge – or a subset of the group – the jury. Hoffman shows how these urges inform our most deeply held legal principles and how they might animate some legal reforms.
Hoffman 2013 The Psychology of Mediation David A. Hoffman & Richard N. Wolman 14 Cardozo J. Conflict Resol. 759
Hoffman 2011 Ten legal dissonances Morris B. Hoffman 62 Mercer L. Rev. 989 The law is extraordinarily good at operationalizing our folk psychology. Law is, indeed, common sense writ large. As we have learned more, however, about human nature and how the brain instantiates that nature, it is becoming equally clear that there are some fissures in this picture, some discrete aspects of our presumed natures, that the law consistently gets terribly wrong. In this essay, I briefly discuss ten common and wide-ranging legal dissonances. Although I will touch on some suggested patches, by and large, this Article is a descriptive, rather than prescriptive, exercise.
Hoffman 2011 Mediation, multiple minds, and managing the negotiation within David A. Hoffman 16 Harv. Negot. L. Rev. 297 Mediators, like most people, encounter ambivalence all the time. We encounter it in ourselves and, of course, we see it in the people who come to us with their conflicts. It is a rare dispute in which the parties do not pursue settlement while simultaneously resisting it. In the Shuttlesworth mediation, described below, ambivalence was a major theme.
Hoffman 2011 Problem-Solving Courts and the Psycholegal Error Morris B. Hoffman 160 U. Pa. L. Rev. PENNumbra 129 It has been more than a decade since I began railing against the therapeutic jurisprudence movement in general and drug courts in particular. Much has changed in the world of therapeutic courts in that decade. Every two-stoplight town now has a drug court, and every three-stoplight one, a veterans court. Every town big enough to claim to be a community must have a community court. And every court everywhere dealing with low-level crimes must be called a “problem-solving court.” I guess that makes my felony court a “problem-creating court.”
Hoffman 2010 Evolutionary Jurisprudence: The End of the Naturalistic Fallacy and the Beginning of Natural Reform? Morris B. Hoffman Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter begins by surveying the naturalistic fallacy's philosophical landscape and some of the scientific literature on the evolution of morality. It then proposes a set of principles that legal decision-makers might use to determine what to do, if anything, when our moral intuitions conflict with existing legal doctrine. It concludes by applying those principles to the felony murder rule, arguing that the broadest Anglo-American forms of that rule are dissonant with our intuitions of moral blameworthiness and should be abolished.
Hoffman 2006 The Neuroeconomic Path of the Law Morris B. Hoffman Law and the Brain 3 (Oxford Univ. Press, Semir Zeki & Oliver Goodenough, eds., 2006). Advances in evolutionary biology, experimental economics and neuroscience are shedding new light on age-old questions about right and wrong, justice, freedom, the rule of law and the relationship between the individual and the state. Evidence is beginning to accumulate suggesting that humans evolved certain fundamental behavioural predispositions grounded in our intense social natures, that those predispositions are encoded in our brains as a distribution of probable behaviours, and therefore that there may be a core of universal human law.
Hollander-Blumoff 2012 Crime, Punishment, and the Psychology of Self-Control Rebecca Hollander-Blumoff 61 Emory L.J. 501 Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control. This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment. Two important broad insights come from examining this psychological research. First, by considering self-control failure at the micro level — in a particular moment of action or inaction — psychological research on self-control helps uncouple self-control questions from broader questions about the existence of free will. The roots of failure to control one’s behavior, important though they may be, are separate from the question of an individual’s ability to do so at a specific time and place. Psychology’s robust findings on the fine-grained aspects of self-control suggest that self-control is a concept with meaning and usefulness for the law, regardless of one’s viewpoint about the existence of free will. Second, taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions. That is, acts that the law calls “uncontrolled” are a mere subset of the behavior that psychology would call “uncontrolled.” The mismatch between the scope of self-control as described by psychology and criminal law helps to highlight that notions of self-control in the law are inherently constructed by the law itself, rather than reflecting some empirical reality, and that any efforts to define and understand the concept and role of self-control in law as purely positive, rather than normative, are misguided.
Holley 2009 It's All In Your Head: Neurotechnological Lie Detection and the Fourth and Fifth Amendments Benjamin Holley 28 Dev. Mental Health L. 1 Advances in lie detection technology raise important and tricky new legal questions, especially in terms of criminal procedure. This article examines several types of brain-scan-based lie detection, both those being sold now and those that are still several years away from in-the-field use, in terms of the protections of the Fourth and Fifth Amendments. Focusing on the most developed of the technologies - FMRI - the article concludes that proper use of such lie detectors violates neither the Fourth nor Fifth Amendments.
Holley 2006 How Reversible Is Methamphetamine-Related Brain Damage? Mary Holley 82 N.D. L. Rev. 1135
Holloway 2008 One Image, One Thousand Incriminating Words: Images of Brain Activity and the Privilege Against Self-Incrimination Matthew B. Holloway 27 Temp. J. Sci. Tech. & Envtl. L. 141
Horgan 2010 The Phenomenology of Agency and the Libet Results Terry Horgan Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). This chapter focuses on the phenomenal character of agentive experience—i.e., what it is like to experience oneself as the conscious author of one's behavior. Experiences with this distinctive kind of “what-it's-like-ness,” have representational content—i.e., they represent oneself, to oneself, as willfully generating one's actions. This chapter argues that the representational content of act-commencement experience, as determined by the phenomenal character of such experience, is quite compatible with the possibility that action-triggering neural activity in the motor cortex is already occurring at a point in time prior to the onset of the experience of conscious act-commencement; hence, even if one were to grant that the work of Libet and others really does establish that the acts experienced as willfully produced are causally initiated by brain-events that occur prior to the experienced onset of act-commencement, this presumptive fact would not show that the experience of conscious will is an illusion.
Houston 2012 Neuroscience and Law: Australia Leanne Houston, Amy Vierboom International Neurolaw (Springer, Tade Spranger, Ed., 2012) The Australian legal system has not been receptive to new neuroscientific technology. Current case law and legislative provisions demonstrate the hurdles imposed by the rigorous admissibility standards.
Huang 2008 How Do Securities Laws Influence Affect, Happiness, & Trust? Peter H. Huang 3 J. Bus. & Tech. L. 257 This article advocates that securities regulators promulgate rules based upon taking into consideration their impacts upon investors' and others' affect, happiness, and trust. Examples of these impacts are consumer optimism, financial stress, anxiety over how thoroughly securities regulators deliberate over proposed rules, investor confidence in securities disclosures, market exuberance, social moods, and subjective well-being. These variables affect and are affected by traditional financial variables, such as consumer debt, expenditures, and wealth; corporate investment; initial public offerings; and securities market demand, liquidity, prices, supply, and volume. This article proposes that securities regulators can and should evaluate rules based upon measures of affect, happiness, and trust in addition to standard observable financial variables. This article concludes that the organic statutes of the United States Securities and Exchange Commission are indeterminate despite mandating that federal securities laws consider efficiency among other goals. This article illustrates analysis of affective impacts of these financial regulatory policies: mandatory securities disclosures; gun-jumping rules for publicly registered offerings; financial education or literacy campaigns; statutory or judicial default rules and menus; and continual reassessment and revision of rules. These regulatory policies impact and are impacted by investors' and other people's affect, happiness, and trust. Thus, securities regulators can and should evaluate such affective impacts to design effective legal policy.
Huang 2005 Moody Investing and the Supreme Court: Rethinking the Materiality of Information and the Reasonableness of Investors Peter H. Huang 13 Sup. Ct. Econ. Rev. 99 This article critically analyzes the judicial decisions and reasoning of the United States Supreme Court and lower courts accepting certain defenses in securities fraud litigation. This article develops how and why the core notions of materiality of information and the reasonable investor should be revised in light of recent empirical data, experimental evidence, and theoretical models of moody investing. This article proposes modifying three recent developments in materiality doctrine to take into account moody investing. In particular, this article argues that current judicial treatment of puffery is flawed because it neglects the power of puffery to alter moods. This article also recommends modifying the judicial total mix analysis of the materiality of information to include a total affect analysis of information. Finally, this article proposes refining the judicially created so-called bespeaks caution doctrine and statutory safe harbors codifying it to inquire whether so-called meaningful cautionary language is infused with affect.
Hughes 2011 The Empathic Divide in Capital Trials: Possibilities for Social Neuroscientific Research Emily Hughes 2011 Mich. St. L. Rev. 541 The article discusses empathic divide, a psychological barrier that hampers capital jurors in making genuine decision because of unawareness of the social history of the capital defendant. It discusses the relevance of mitigations investigation by defense attorneys in the case of capital punishment to an individual. It also discusses lawyers can better understand the empathic divide between capital jurors and capital defendants through social neuroscientific research.
Hughes 2010 Science in Court: Head Case Virginia Hughes 464 Nature 340 Last year, functional magnetic resonance imaging made its debut in court. Virginia Hughes asks whether the technique is ready to weigh in on the fate of murderers.
Huntington 2012 Neuroscience and the Child Welfare System Clare Huntington 21 J.L. & Pol’y 37 A growing body of research by neuroscientists demonstrates that a child’s early life experiences and environment literally shape the child’s brain architecture, with lifelong consequences that are very difficult to reverse. Children’s relationships with their primary caregivers are at the core of this brain development, but when this relationship is severely deficient, the developing child’s brain is deeply affected. This research has not gained sufficient recognition in policy debates about the child welfare system because much of the work is complex and hard for non-neuroscientists to decipher with nuance. This essay brings a family law scholar’s perspective to understanding the possibilities and limitations of drawing on this still-emerging science in the development of child welfare policy.
Hurd 2012 Reaching Past Fingertips with Forensic Neuroimaging—Non-"Testimonial" Evidence Exceeding the Fifth Amendment's Grasp Aaron J. Hurd 58 LOY. L. REV. 213
Husak 2013 The Relevance of the Neuroscience of Addiction to the Criminal Law Douglas Husak & Emily Murphy in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds.
Illes 2011 Oxford Handbook of Neuroethics Judy Illes & Barbara J. Sahakian, eds. Oxford Univ. Press The past two decades have seen unparalleled developments in our knowledge of the brain and mind. However, these advances have forced us to confront head-on some significant ethical issues regarding our application of this information in the real world- whether using brain images to establish guilt within a court of law, or developing drugs to enhance cognition. Historically, any consideration of the ethical, legal, and social implications of emerging technologies in science and medicine has lagged behind the discovery of the technology itself. These delays have caused problems in the acceptability and potential applications of biomedical advances and posed significant problems for the scientific community and the public alike - for example in the case of genetic screening and human cloning. The field of Neuroethics aims to proactively anticipate ethical, legal and social issues at the intersection of neuroscience and ethics, raising questions about what the brain tells us about ourselves, whether the information is what people want or ought to know, and how best to communicate it. A landmark in the academic literature, the Oxford Handbook of Neuroethics presents a pioneering review of a topic central to the sciences and humanities. It presents a range of chapters considering key issues, discussion, and debate at the intersection of brain and ethics. The handbook contains more than 50 chapters by leaders from around the world and a broad range of sectors of academia and clinical practice spanning the neurosciences, medical sciences and humanities and law. The book focuses on and provides a platform for dialogue of what neuroscience can do, what we might expect neuroscience will do, and what neuroscience ought to do. The major themes include: consciousness and intention; responsibility and determinism; mind and body; neurotechnology; ageing and dementia; law and public policy; and science, society and international perspectives. Tackling some of the most significant ethical issues that face us now and will continue to do so over the coming decades, The Oxford Handbook of Neuroethics will be an essential resource for the field of neuroethics for graduate students and postdoctoral fellows, basic scientists in the neurosciences and psychology, scholars in humanities and law, as well as physicians practising in the areas of primary care in neurological medicine.
Illes 2009 Identifiable Neuro Ethics Challenges to the Banking of Neuro Data Judy Illes & Sofia Lombera 10 Minn. J.L. Sci. & Tech. 71
Illes 2008 Bridging Philosophical and Practical Implications of Incidental Findings in Brain Research Judy Illes & Vivian Chin 36 J.L. Med. & Ethics 298 Empirical studies and ethical-legal analyses have demonstrated that incidental findings in the brain, most commonly vascular in origin, must be addressed in the current era of imaging research. The challenges, however, are substantial. The discovery and management of incidental findings vary, at minimum, by institutional setting, professional background of investigators, and the inherent differences between research and clinical protocols. In the context of human subjects protections, the challenges of disclosure of unexpected and potentially meaningful clinical information concern privacy and confidentiality, communication, and responsibility for follow-up. Risks, including a blurring of boundaries between research and clinical practice, must be weighed against the possible benefit to subjects and a moral duty to inform. Identification and examination of these challenges have been met by scientific interest and a robust, interdisciplinary response resulting in the pragmatic recommendations discussed here.
Illes 2006 Incidental findings in brain imaging research Judy Illes, Matthew P. Kirschen, Emmeline Edwards, L.R. Stanford, Peter Bandettini, Mildred K. Cho, Paul J. Ford, Gary H. Glover, Jennifer Kulynych, Ruth Macklin, Daniel B. Michael, Susan M. Wolf 311 Science 783 This article summarizes the views presented at a workshop sponsored by the U.S. National Institutes of Health (NIH).
Illes 2005 Neuroethics: Defining the Issues in Theory, Practice and Policy Judy Illes, ed. Oxford University Press Recent advances in the brain sciences have dramatically improved our understanding of brain function. As we find out more and more about what makes us tick, we must stop and consider the ethical implications of this new found knowledge. Will having a new biology of the brain through imaging make us less responsible for our behavior and lose our free will? Should certain brain scan studies be disallowed on the basis of moral grounds? Why is the media so interested in reporting results of brain imaging studies? What ethical lessons from the past can best inform the future of brain imaging? These compelling questions and many more are tackled by a distinguished group of contributors to this, the first-ever volume on neuroethics. The wide range of disciplinary backgrounds that the authors represent, from neuroscience, bioethics and philosophy, to law, social and health care policy, education, religion and film, allow for profoundly insightful and provocative answers to these questions, and open up the door to a host of new ones. The contributions highlight the timeliness of modern neuroethics today, and assure the longevity and importance of neuroethics for generations to come.
Illes 2005 A Picture is Worth 1000 Words, but Which 1000? Judy Illes, Eric Racine & Matthew P. Kirschen Neuroethics: Defining the Issues in Theory, Practice and Policy 149 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter provides a brief review of technological capabilities for imaging the brain with an emphasis on functional methods, and explores the range of applications for which they have been used. It then examines the epistemological issues associated with this research. It proposes a set of new dimensions for responsibility to accompany the still-emerging field as it realizes increasingly greater potential, continues to grapple with the technology, and faces unprecedented ethical and social challenges.
Illes 2004 A Fish Story? Brain Maps, Lie Detection, and Personhood Judy Illes 6 Cerebrum 73 Generations of brain-imaging studies have provided increasingly detailed information about the complexity of human behavior, but few lines of investigation better illustrate the intricacy of the brain's workings than the neural processes involved in lying or deceiving. And perhaps none make clearer the difficulty of accurately distinguishing between truthfulness and untruthfulness with new imaging technology. Moreover, we must ask ourselves if we are laying a foundation of risk regarding the very idea of creating brain maps of behavior and personal identity and whether these maps are ready for such real-world applications as law, employment, and insurance. When technology of this kind moves out of the hands of researchers and becomes available for practical uses, the lives of individuals and future of our society may be profoundly affected.
Illes 2003 From Neuroimaging to Neuroethics Judy Illes, Matthew P. Kirschen & John D. E. Gabrieli 5 Nature Neuroscience 205
Imwinkelried 2011 Serendipitous timing: the coincidental emergence of the new brain science and the advent of an epistemological approach to determining the admissibility of expert testimony Edward J. Imwinkelried 62 Mercer L. Rev. 959 This Article deals with the adjudicative use of brain science data. At the same time that the scientific community is concentrating more attention on brain science, the legal community has been fashioning a new approach to determining the admissibility of expert testimony, including testimony based on the latest theories and techniques being developed by brain scientists.
Insel 2010 Rethinking Mental Illness Thomas R. Insel, Philip S. Wang 303 J. Am. Med. Ass'n 19 In the first 2010 issue of Nature, the editor, Philip Campbell, suggested that the next 10-year period is likely to be the “decade for psychiatric disorders.” This was not a prediction of an epidemic, although mental illnesses are highly prevalent, nor a suggestion that new illnesses would emerge. The key point was that research on mental illness was, at long last, reaching an inflection point at which insights gained from genetics and neuroscience would transform the understanding of psychiatric illnesses. The insights are indeed coming fast and furious. In this Commentary, we suggest ways in which genomics and neuroscience can help reconceptualize disorders of the mind as disorders of the brain and thereby transform the practice of psychiatry.
Intrieri 2010 Neuroscienze e diritto: una nuova teoria giuridica sulla mente [Neuroscience and the law: a new legal theory of the mind] Cataldo Intrieri 2 Sistemi intelligenti 255
Iselin 2009 Maturity in Adolescent and Young Adult Offenders Anne-Marie R. Iselin, Jamie DeCoster & Randall T. Salekin 33 Law & Hum. Behav. 455 This study examined the role of cognitive control in explaining the psychosocial maturity of adolescent (n = 43) and young adult male (n = 40) offenders. The authors separated psychosocial maturity into prosocial and criminal components, which were statistically unrelated and were explained by different variables. Individuals with higher levels of prosocial maturity were older, had better proactive cognitive control, and had better short-term memory than those with lower levels of prosocial maturity. Individuals with higher levels of criminal maturity were older and had better reactive cognitive control than those with lower levels of criminal maturity. The authors discuss the implications of these findings with regard to juvenile justice policy and practice.
Jacobs 1998 Neurobiology of Reconstructed Memory W. Jake Jacobs & Lynn Nadel 4 Psychol. Pub. Pol'y & L. 1110 The authors present evidence that normal autobiographical memories and "recovered" autobiographical memories of long-forgotten traumatic events are produced by the same mechanisms. The basic process involves the parallel storage of information in a set of independent modules, the selective retrieval and reaggregation of this dispersed information within an appropriate spatiotemporal context, and the organization of this aggregate by a narrative. The result is a seamless blend of retrieved information (that which is recalled) and knowledge (that which is inferred) experienced as an autobiographical memory. The critical difference between normal and recovered memories, by this account, is the impact of trauma on the storage process: The physiological consequences of trauma can include a disabling of the neural module responsible for encoding the appropriate spatiotemporal context. Recovered memory involves retrieval of memory fragments, confabulation (innocent or not) driven by inference, and the fitting of a context to this incomplete aggregate. This too is experienced as an autobiographical memory. The implications of this view for estimating the veridicality of recovered memories are discussed.
Jacobson 2010 Paying Attention or Fatally Distracted? Concentration, Memory, and Multi-Tasking in a Multi-Media World M.H. Sam Jacobson 16 J. Legal Writing Inst. 419 Success in law school requires intense and sustained cognitive effort. To successfully engage in this cognitive heavy-lifting, students must be able to pay attention and concentrate. Law professors often bemoan that students are not engaged in the classroom discussion when they surf the web or answer e-mail instead of marveling at the intricacies of joinder, justiciability, or executory interests. Some law professors respond that this situation is no different from the doodling and mind-wandering of the pre-laptop era. Both are right, and both are wrong. They are right in stating that wandering minds existed before laptops, and they are right that students whose minds are wandering are not engaged in the classroom discussion. However, they are wrong in thinking that this does not present a problem in learning, or that the problem will be solved simply by banning laptops. This article discusses the role of attention in learning, what limits attention, and how to improve the ability to pay attention and concentrate. Attention requires ignoring stimuli that are not relevant to the task at hand. This is especially important because of the severely limited capacity of working memory, the cognitive function essential to inputting information into long term memory and to extracting information from long term memory. Effective learning will not occur if the limited capacity of working memory is diverted from the task at hand to irrelevant stimuli. What determines successful performance on reasoning and other higher-order cognitive tasks, such as legal analysis, is the ability to control attention. Our attention is undermined by multi-tasking, stress and anxiety, and fatigue. People can improve attention by managing distractions, dividing tasks into manageable chunks, managing stress, and getting sleep.
Jaworska 2005 Ethical Dilemmas in Neurodegenerative Disease: Respecting the Margins of Agency Agnieszka Jaworska Neuroethics: Defining the Issues in Theory, Practice and Policy 87 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter presents a case study that illustrates the interplay between ethical conceptual analysis and neuroscientific findings in the resolution of moral dilemmas that arise in Alzheimer's disease. It defends the philosophical view that the immediate interests of an individual cannot be overridden as long as the individual possesses the capacity to value. In the context of each particular neurodegenerative disease, this recommendation must be guided by a scientifically informed assessment of when in the course of the disease the capacity to value could possibly be lost, and when it is likely to be retained. In the case of Alzheimer's disease, neuroscientific evidence indicates that the capacity to value is slowly and gradually weakened, and in some cases may not be completely lost until relatively far along in the disease's progression. Similar neuroethical analyses must be carried out for other diseases and disorders, and will probably yield different results.
Jensen 2013 When are Damages Tax Free?: The Elusive Meaning of "Physical Injury" Ronald H. Jensen 10 Pitt. Tax Rev. 87 Part I of this article traces the evolution in the tax treatment of litigation damages from 1918 through the enactment of the 1996 Amendments and reviews the various rationales that have been offered for such treatment. In Part II, I set forth a number of hypothetical cases illustrating some of the issues created by the 1996 Amendments. In Parts III through Part VI, I set forth my analyses of these issues. Finally, In Part VII, I critique the 1996 Amendments and make a proposal that would eliminate much of the uncertainty and inequity that the 1996 Amendments created while satisfying an apparent concern that led to their enactment.
Jewel 2010 Through a Glass Darkly: Using Brain Science and Visual Rhetoric to Gain a Professional Perspective on Visual Advocacy Lucille A. Jewel 19 S. Cal. Interdisc. L.J. 237 American legal culture, tracking the trend within the media culture as a whole, has become inherently more visual. Visual competency is now required for effective persuasion in the courtroom and in a variety of other advocacy settings. The central thesis of this Article is that visual advocacy is here to stay, but that there is a large knowledge gap that prevents advocates from being able to evaluate the professionalism of their own visual arguments and properly respond to the visual arguments submitted by their opposing counsel. Accordingly, this Article offers a detailed outline of the knowledge bases that attorneys need in order to become professional visual advocates. There are two visual advocacy related subjects that all law advocates should gain some understanding of: the brain science of human perception and visual rhetoric. Attorneys should gain a working knowledge of how the mind processes visual information because visual processing differs so markedly from the processing of traditional legal arguments, which are text-based and logo-centric. For instance, with visual information, there is great potential for the mind to rapidly jump to conclusions and be unconsciously influenced by emotion and bias. Recent research on implicit bias and perception only compounds the potential for prejudice within visual arguments. The other discipline that informs visual advocacy is visual rhetoric, a newly emerging area of study that focuses on how images persuade. The Article looks at some common visual rhetoric devices and how they are used in the courtroom, drawing upon well-known cases, such as the Rodney King Assault trial and the Michael Skakel murder trial as well as lesser known cases involving visual advocacy that are just now being reported. After examining the brain science of human perception and visual rhetoric, the Article analyzes the professional issues that arise within visual advocacy. Recent cases have raised some troubling issues with respect to the potential for prejudice within visual arguments. But one reason we are seeing these issues is that attorneys on the other side of visual arguments are not well prepared to counter them. In other words, when one side effectively uses visual advocacy and the other does not, we see unbalanced results. For visual advocacy to flourish, we need a truly adversarial system. However, to develop a professional adversarial system for visual advocacy, the knowledge base for this subject area must expand. Part I of this Article explains the increasing role that visuality is playing in American legal culture. Part II details certain aspects of the brain science that relates to human visual processing. Part III introduces a few basic principles of visual rhetoric, focusing on common visual rhetorical devices and visual logical fallacies. Part II’s explanation of how humans process visual images and Part III’s introduction to visual rhetoric provides the foundation for Part IV of the Article, which summarizes the positive and negative attributes of visual arguments and identifies strategies to encourage a consistent level of balance and professionalism in visual arguments.
Joffe 2007 The Neurological Determination of Death: What Does It Really Mean? Ari R. Joffe 23 Issues L. & Med. 119 The recent Canadian forum's recommendations regarding "neurological determination of death" claim to have determined a "Canadian definition, criteria, and minimum testing requirements for neurological determination of death." In this review the problems with this statement are discussed. The criterion of neurological determination of death does not fulfill the definition of death, because there is continued integration of the organism as a whole. The tests for neurological determination of death do not fulfill the criterion of neurological determination of death because they do not show the irreversible loss of all critical brain functions. The forum has provided no coherent argument for why neurological determination of death should be considered death. The author suggests that one cannot invoke expert opinion to clarify a criterion of death, and tests for this criterion of death, without a clear concept of what death is. The forum has clarified tests for what they call "neurological determination of death," but this is not death itself; rather, it is a neurologically devastating state. Whether this state of "neurological determination of death" is enough to justify the morality of harvesting organs prior to death is the real question. A potential solution to this question is discussed.
Johansen 2010 Was Colonel Sanders a Terrorist? An Essay on the Ethical Limits of Applied Legal Storytelling Steven J. Johansen 7 J. Ass'n Legal Writing Directors 63 This essay explores three characteristics of story that give rise to the concerns that storytelling is unfairly manipulative. To examine these concerns, I consider three stories - two about the law, one about an Irish tour guide. I use these stories to illustrate the three characteristics of story that may raise ethical concerns. There are, undoubtedly, other potential ethical land mines on the road of Applied Legal Storytelling, but I will discuss only these three. My hope is that these stories will encourage others to join in the conversation and that in doing so, we will develop a richer understanding of the appropriate limits of storytelling’s power in a legal context. The first story illustrates that stories do not have to be true to be credible. Narrative coherence and fidelity, not truth, is what makes a story believable. The second story shows how stories are always told from a particular point of view. That necessarily means other points of view are slighted or not told at all. What we leave untold may often be as powerful as the story we tell. If we leave out too much, our story becomes misleading. Finally, the third story examines the ability of story to appeal to emotions as well as to logic. This seems at odds with our traditional concepts of objective, impartial justice. Indeed, it is perhaps this aspect of story - that it allows our emotions to override our objectivity - that creates the most strident objections to its “manipulative” power. Despite these potential pitfalls, I ultimately conclude that Applied Legal Storytelling does not create new ethical dilemmas. Rather, closer inspection of these ethical concerns shows that storytelling is consistent with our existing norms about the ethical practice of law.
Johnson 2009 Guilty or Innocent? Just Take a Look at my Brain - Analyzing the Nexus Between Traumatic Brain Injury and Criminal Responsibility Mark L. Johnson 37 S.U. L. Rev. 25 This article focuses specifically on the effects of traumatic brain injury as it relates to criminal responsibility. Brain injury has many causes. Some people recover; others are not so fortunate. Accordingly, some scholars have concluded that new and improved brain-imaging techniques can elicit information about an accused that otherwise would have gone unnoticed in legal proceedings. The availability of such ground-breaking evidence, akin to the introduction of DNA in the 1990s, could have a drastic impact on the legal system and ultimately be used by both the prosecution and defense in criminal proceedings. Although these recent advances in detecting brain injury and abnormalities do not completely eliminate a human's ability to exercise free will and make choices about their behavior, they do provide a solid argument for why the legal community should take notice of the potential for such evidence to affect a person's level of criminal responsibility. The article begins with the section titled “Understanding and Detecting Traumatic Brain Injury,” which provides a general explanation of the effects of brain injury and how it is detected through neuroimaging techniques. The next section, titled “Reconciling Traumatic Brain Injury and Free Will,” discusses arguments concerning the extent of a brain injury and its effect on a person's free will. The following section, titled “Role of Brain-Imaging Evidence in Criminal Cases,” highlights key case studies and analyzes the role brain-imaging evidence played in those cases, as well as providing insight on how United States and international courts have dealt with this issue of first impression. Finally, the section titled “Establishing Guidelines and Limitations for Brain Imaging as Evidence” scrutinizes how the defense bar has used neurological brain-imaging evidence on behalf of its clients and argued for the establishment of limits and guidelines on how this type of evidence should be used in courtrooms.
Johnson 2007 Mind, Metaphor, Law Lydia D. Johnson 58 Mercer L. Rev. 845 The cognitive science of law is a relatively new orientation that examines the nature of legal understanding, reasoning, and judgment in light of recent empirical research on human mind, thought, and language. This new research reveals that human thought is not a series of disembodied formal rule-like operations on mental representations. Instead, human meaning and conceptual systems emerge from patterns and processes of our sensory-motor engagement with our environment. Abstract concepts and our reasoning about them are imaginative metaphorical extensions from this body-based meaning. This article briefly surveys empirical research on prototypes in conceptual structure, the radial (non-classical) structure of our most basic categories, the operation of image-like structures in human cognition, and the key role of metaphor in abstract thinking. The view of legal reasoning that emerges challenges more traditional accounts of legal concepts and judgments. Although legal concepts are not fixed, static, and univocal in meaning, neither are they infinitely malleable. There are constraints on the growth and development of legal concepts arising jointly from the way the mind processes information and from the nature of the physical, social, and cultural environments we inhabit.
Jones 2013 Seven Ways Neuroscience Aids Law Owen D. Jones Neurosciences and the Human Person: New Perspectives on Human Activities (A. Battro, S. Dehaene & W. Singer, eds.) Scripta Varia 121, Pontifical Academy of Sciences, Vatican City Rapid advances in neuroscience have raised hopes in law, perhaps inevitably, that new techniques for revealing brain function may help to answer perennial questions about the sources, limits, and implications of human behavior, mental states, and psychology. As a consequence, lawyers have sharply increased proffers of neuroscientific evidence in both civil and criminal litigation, and have also invoked neuroscience as relevant to many doctrinal and policy reforms. These new developments make it essential for just legal systems to evaluate and separate legitimate from illegitimate uses of neuroscience. As part of that effort, this forthcoming essay identifies and illustrates seven distinct contexts in which neuroscience – skeptically evaluated but also carefully understood – can be useful to law. The essay is based on a talk delivered at The Vatican, Pontifical Academy of Sciences, November 2012.
Jones 2013 Neuroscientists in Court Owen D. Jones, Anthony D. Wagner, David L. Faigman & Marcus E. Raichle 14 Nature Reviews Neuroscience 730 Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists, including judges and jurors.
Jones 2013 Law and Neuroscience Owen D. Jones, René Marois, Martha J. Farah, Henry T. Greely 33(45) Journal of Neuroscience 17624
Jones 2012 Law and Neuroscience In The United States Owen D. Jones & Francis X. Shen International Neurolaw (Springer, Tade Spranger, Ed., 2011). Neuroscientific evidence is increasingly reaching United States courtrooms in a number of legal contexts. And the emerging field of Law and Neuroscience is being built on a foundation that joins: a) rapidly developing technologies and techniques of neuroscience; b) quickly expanding legal scholarship on the implications of neuroscience; and c) neuroscientific research designed specifically to explore legally relevant topics. Despite the sharply increasing interest in neuroscientific evidence, it remains unclear how the legal system – at the courtroom, regulatory, and policy levels – will resolve the many challenges that new neuroscience applications raise. This chapter – part of an edited volume surveying neurolaw in 18 countries – provides an overview of notable neurolaw developments in the United States through 2011. The chapter proceeds in six parts. Section 1 introduces the development of law and neuroscience in the U.S. Section 2 then considers several of the evidentiary contexts in which neuroscientific evidence has been, and likely will be, introduced. Sections 3 and 4 discuss the implications of neuroscience for the criminal and civil systems, respectively. Section 5 reviews three special topics: lie detection, memory, and legal decision making. Section 6 concludes with brief thoughts about the future of law and neuroscience in the United States.
Jones 2012 The End of (Discussing) Free Will Owen D. Jones The Chronicle of Higher Education, in "Is Free Will an Illusion?"
Jones 2012 Questioning a Juvenile's Capacity for Criminal Liability in Street Gangs Post-J.D.B. v. North Carolina Elizabeth N. Jones 32 Children's Legal Rights Journal 1 This article explores how the recent groundswell of acceptance of adolescent neuroscience has manifested in United States Supreme Court cases involving juveniles, and the resultant implications for children accused of gang-related crimes and enhancements. Juvenile gang convictions proliferate, but the foundation of such prosecutions is precariously – and improperly – based. Though varied in title, predicate offenses, and penalties, most state gang legislation contains language requiring offenders to have at least a tacit understanding, or knowledge, that the group’s common purpose is to commit crimes to benefit the gang. However, this mens rea required for anti-gang statutes, combined with the inability to know, without closer analysis, whether juveniles in fact possess such mens rea, creates a conundrum: children make up a significant proportion of gang membership, but yet lack the capacity to be prosecuted under current anti-gang legislation, especially given the new parameters set forth by the United States Supreme Court.
Jones 2011 Economics, Behavioral Biology, and Law Owen D. Jones, Erin O'Hara O'Connor, Jeffrey Evans Stake 19 Sup. Ct. Econ. Rev. 103 The article first compares economics and behavioral biology, examining the assumptions, core concepts, methodological tenets, and emphases of the two fields. Building on this, the article then compares the applied interdisciplinary fields of law and economics, on one hand, with law and behavioral biology, on the other - highlighting not only the most important similarities, but also the most important differences. The article subsequently explores ways that biological perspectives on human behavior may prove useful, by improving economic models and the behavioral insights they generate. The article concludes that although there are important differences between the two fields, the overlaps between economics and biology warrant even greater congress between these two disciplines, and expanded exchange between the legal thinkers interested in each of them.
Jones 2010 Intuitions of Punishment Owen D. Jones 77 Chicago L. Rev. 1633 Recent work reveals, contrary to wide-spread assumptions, remarkably high levels of agreement about how to rank order, by blameworthiness, wrongs that involve physical harms, takings of property, or deception in exchanges. The Origins of Shared Intuitions of Justice (http://ssrn.com/abstract=952726) proposed a new explanation for these unexpectedly high levels of agreement. Elsewhere in this issue, Professors Braman, Kahan, and Hoffman offer a critique of those views, to which this Article replies. The reply clarifies a number of important issues, such as the interconnected roles that culture, variation, and evolutionary processes play in generating intuitions of punishment.
Jones 2009 Brain Imaging for Legal Thinkers: A Guide for the Perplexed Owen D. Jones, Joshua W. Buckholtz, Jeffrey D. Schall & Rene Marois 2009 Stan. Tech. L. Rev. 5 It has become increasingly common for brain images to be proffered as evidence in civil and criminal litigation. This article offers some general guidelines to legal thinkers about how to understand brain imaging studies--or at least avoid misunderstanding them. And it annotates a published brain imaging study by several of the present authors (and others) in order to illustrate and explain, with step-by-step commentary.
Jones 2008 Law, Biology, and Property: A New Theory of the Endowment Effect Owen D. Jones & Sarah F. Brosnan 49 Wm. & Mary L. Rev. 1935 Recent work at the intersection of law and behavioral biology has suggested numerous contexts in which legal thinking could benefit by integrating knowledge from behavioral biology. In one of those contexts, behavioral biology may help to provide theoretical foundation for, and potentially increased predictive power concerning, various psychological traits relevant to law. This article describes an experiment that explores that context. The paradoxical psychological bias known as the endowment effect puzzles economists, skews market behavior, impedes efficient exchange of goods and rights, and thereby poses important problems for law. Although the effect is known to vary widely, there are at present no satisfying explanations for why it manifests when and how it does. Drawing on evolutionary biology, this article provides a new theory of the endowment effect. Briefly, we hypothesize that the endowment effect is an evolved propensity of humans and, further, that the degree to which an item is evolutionarily relevant will affect the strength of the endowment effect. The theory generates a novel combination of three predictions. These are: (1) the effect is likely to be observable in many other species, including close primate relatives; (2) the prevalence of the effect in other species is likely to vary across items; and (3) the prevalence of the endowment effect will increase or decrease, respectively, with the increasing or decreasing evolutionary salience of the item in question. The authors tested these predictions in a chimpanzee (Pan troglodytes) experiment, recently published in Current Biology. The data, further explored here, are consistent with each of the three predictions. Consequently, this theory may explain why the endowment effect exists in humans and other species. It may also help both to predict and to explain some of the variability in the effect when it does manifest. And, more broadly, the results of the experiment suggest that combining life science and social science perspectives could lead to a more coherent framework for understanding the wider variety of other cognitive heuristics and biases relevant to law.
Jones 2006 Behavioral Genetics and Crime, in Context Owen D. Jones 69 Law & Contemp. Probs. 81 This Article provides an introduction to some of the key issues at the intersection of behavioral genetics and crime. It provides, among other things, an overview of the emerging points of consensus, scientifically, on what behavioral genetics can and cannot tell us about criminal behavior. It also discusses a variety of important implications (as well as complexities) of attempting to use insights of behavioral genetics in legal contexts.
Jones 2006 Law, Evolution, and the Brain: Applications and Open Questions Owen D. Jones Law and the Brain 57 (Oxford Univ. Press, Semir Zeki & Oliver Goodenough, eds., 2006). This paper discusses several issues at the intersection of law and brain science. It focuses principally on ways in which an improved understanding of how evolutionary processes affect brain function and human behavior may improve law's ability to regulate behaviour. It explores sample uses of such 'evolutionary analysis in law' and also raises questions about how that analysis might be improved in the future. Among the discussed uses are: (i) clarifying cost-benefit analyses; (ii) providing theoretical foundation and potential predictive power; (iii) assessing comparative effectiveness of legal strategies; and (iv) revealing deep patterns in legal architecture. Throughout, the paper emphasizes the extent to which effective law requires: (i) building effective behavioural models; (ii) integrating life-science perspectives with social-science perspectives; (iii) considering the effects of brain biology on behaviours that law seeks to regulate; and (iv) examining the effects of evolutionary processes on brain design.
Jones 2005 Law and Behavioral Biology Owen D. Jones & Timothy H. Goldsmith 105 Colum. L. Rev. 405 Society uses law to encourage people to behave differently than they would behave in the absence of law. This fundamental purpose makes law highly dependent on sound understandings of the multiple causes of human behavior. The better those understandings, the better law can achieve social goals with legal tools. In this article, Professors Jones and Goldsmith argue that many long held understandings about where behavior comes from are rapidly obsolescing as a consequence of developments in the various fields constituting behavioral biology. By helping to refine law's understandings of behavior's causes, they argue, behavioral biology can help to improve law's effectiveness and efficiency. Part I examines how and why law and behavioral biology are connected. Part II provides an introduction to key concepts in behavioral biology. Part III identifies, explores, and illustrates a wide variety of contexts in which behavioral biology can be useful to law. Part IV addresses concerns that sometimes arise when considering biological influences on human behavior.
Jones 2001 Time-shifted Rationality and the Law of Law's Leverage: Behavioral Economics Meets Behavioral Biology Owen D. Jones 95 Nw. U. L. Rev. 1141 A flood of recent scholarship explores legal implications of seemingly irrational behaviors by invoking cognitive psychology and notions of bounded rationality. In this article, Jones argues that advances in behavioral biology have largely overtaken existing notions of bounded rationality, revealing them to be misleadingly imprecise - and rooted in outdated assumptions that are not only demonstrably wrong, but also wrong in ways that have material implications for subsequent legal conclusions. This can be remedied. Specifically, Jones argues that behavioral biology offers three things of immediate use. First, behavioral biology can lay a foundation for both revising bounded rationality and fashioning a solid theoretical basis for understanding and predicting many human irrationalities. Second, a principle we may derive from the fundamentals of behavioral biology, which Jones terms "time-shifted rationality," can help us to usefully disentangle things currently lumped together under the label of bounded rationality. Doing so suggests that some seeming irrationalities are not, in fact, the product of conventional bounded rationality but are instead the product of a very different phenomenon. As a consequence and by-product of this analysis, it is possible to reconcile some of the supposed irrationalities with an existing rationality framework in a new, more satisfying, and more useful way. Third, behavioral biology affords the raw material for deriving a new principle, which Jones terms "the law of law's leverage," that can help us to better understand and predict the effects of law on human behavior. Specifically, it can help us to anticipate the comparative sensitivities of various human behaviors to legal changes in incentives. That is, it enables us to anticipate differences in the slopes of demand curves for various law-relevant behaviors. This law of law's leverage therefore can afford us new, coherent, and systematic power in predicting the comparative costs, to society, of attempting to change behaviors through legal means. And the principle also provides a new and powerful tool for explaining and predicting many of the existing and future architectures of legal systems.
Jordan 2011 When the Brain Comes to Court Jean Jordan 33 CDAA Prosecutor’s Brief 5
Jordan 2011 The Role of Neuroscience in Lie Detection Jean Jordan 33 CDAA Prosecutor’s Brief 24
Kai 2012 Neurolaw in Japan Katsunori Kai International Neurolaw (Springer, Tade Spranger, Ed., 2012) In Japan, we are now discussing neuroethics [We can know the detailed contents of neuroethics and the various problems by Illes (Neuroethics-defining the issues in theory, practice and policy, 2006). And concerning the situations of neuroethics in Japan, see Fukushi et al. (Neuroscience Research 57:10–16, 2007)], but have not yet argued on neurolaw in earnest. Right from the beginning, neuroethics in itself is a very new field, which has only begun within the last few years in the world [See Chiaki Kagawa (Gendaishiso (Modernthought), 34(11):188ff, 2006), Chiaki Kagawa (Gendaishiso (Modernthought), 36(7):69ff, 2008)]. Also neurolaw is a newer field and concept of law, so we are now discussing on the problem of free will, the criminal responsibility, and the problem of the limit of intervention into human brain in the field of human experimentation or enhancement as much as possible. In the field of Bioethics, however, we have accumulations of arguments on neuroethics in bioethics in Japan. Therefore, in this paper I must start to follow the situations of arguments on neuroethics in Japan, and then advance toward legal issues in the field of neuroscience in Japan, and finally consider the way to legal regulation. The decisive question is whether it is possible to shift from neuroethics to neurolaw in Japan.
Kalbe 2009 Neuropsychological and Neural Correlates of Autobiographical Deficits in a Mother Who Killed Her Children Elke Kalbe, Matthais Brand, Alexander Thiel, J. Kessler & Hans J. Markowitsch Neuroscience and Crime: A Special Issue of Neurocase (Psychology Press, Hans Markowitsch, ed., 2009). The authors report a case of a delusional patient who had killed two of her children in an attempted 'extended suicide'. She was convinced of a genetic defect that caused autobiographical memory and emotional deficits and made life 'senseless'. Neuropsychological tests revealed dysfunctions in remembering emotional details of personal episodes and theory of mind. Water positron emission tomography (15O) with a paradigm used in a former study by Fink et al. (1996) with healthy controls elicited abnormal activations during autobiographical memory retrieval characterised by a lack of prefrontal and limbic activity. The authors conclude that these imaging findings reflect neural correlates of the self-reported and objectified autobiographical dysfunctions. Furthermore, they indicate that beliefs or prejudices may have a major impact on the brain's processing of the personal past.
Kang 2010 Implicit Bias and the Pushback from the Left Jerry Kang 54 St. Louis U. L.J. 1139 Over the past three decades, the mind sciences have provided remarkable insights about how our brains process social categories. For example, scientists have discovered that implicit biases - in the form of stereotypes and attitudes that we are unaware of, do not consciously intend, and might reject upon conscious self-reflection - exist and have wide-ranging behavioral consequences. Such findings destabilize our self-serving self-conceptions as bias-free. Not surprisingly, there has been backlash from the political Right. This Article examines some aspects of the more surprising pushback from the Left. Part I briefly explains how new findings in the mind sciences, especially Implicit Social Cognition, are incorporated into the law, legal scholarship, and legal institutions, under the banner of “behavioral realism.” Part II describes the pushback from the Left. Part III responds by suggesting that our deepest understanding of social hierarchy and discrimination requires analysis at multiple layers of knowledge. Instead of trading off knowledge, for example, at the cognitive layer for the sociological layer (or vice versa), we should seek understanding at each layer, and then interpenetrate the entire stack.
Kang 2010 Seeing Through Colorblindness: Implicit Bias and the Law Jerry Kang & Kristin Lane 58 UCLA L. Rev. 465 Once upon a time, the central civil rights questions were indisputably normative. What did “equal justice under law” require? Did it, for example, permit segregation, or was separate never equal? This is no longer the case. Today, the central civil rights questions of our time turn also on the underlying empirics. In a post–civil rights era, in what some people exuberantly embrace as post-racial, many assume that we already live in a colorblind society. Is this in fact the case? Recent findings about implicit bias from mind scientists sharply suggest otherwise. This Article summarizes the empirical evidence that rejects facile claims of perceptual, cognitive, and behavioral colorblindness. It then calls on the law to take a “behavioral realist” account of these findings, and maps systematically how it might do so in sensible, nonhysterical, and evidence-based ways. Recognizing that this call may be politically naive, the Article examines and answers three objections, sounding in “junk science” backlash, “hardwired” resignation, and “rational” justification.
Kapp 2010 Legal Issues Arising in the Process of Determining Decisional Capacity in Older Persons Marhsall B. Kapp 11 Care Mgmt. J. 101 There is an increasing incidence of dementia, depression and other affective disorders, delirium, and other mental health problems such as psychoses among older individuals in the United States. Because the severity of mental illness, in terms of cognitive and behavioral impairment and therefore the illness’ impact on functional ability, varies for different patients at different times along a continuum, there is not an automatic correlation between an older person’s clinical diagnosis and a dichotomous determination that the individual does or does not possess sufficient present capacity to personally make various sorts of fundamental life decisions. Decisional capacity assessment in the aged carries important implications both for the official adjudication of legal competence and for patient/client management in the vast majority of cases involving “bumbling through.” There exists many salient, but generally overlooked, legal and ethical concerns immersed in the health care or human services provider’s attempt to evaluate the decisional capacity of a particular older patient/client. This article surveys the most important of those concerns, which arise before we ever get to the point of applying assessment data to the relevant legal and ethical standards of decisional capacity.
Karaktasanis 2002 A Critique on the Concept of “Brain Death” K. G. Karaktasanis & J. N. Tsanakas 18 Issues L. & Med. 127 Since the concept of "brain death" was introduced in medical terminology, enough evidence has come to light to show that the concept is based on an unclear and incoherent theory. The "brain death" concept suffers by internal inconsistencies in both the tests-criterion and the criterion-definition relationships. It is also evident that there are residual vegetative functions in "brain dead" patients. Since the content of consciousness is inaccessible in these patients who are in a profound coma, the diagnosis of "brain death" is based on an unproved hypothesis. A critical evaluation of the role and the limitations of the confirmatory tests in the diagnosis of "brain death" is attempted. Finally it is pointed out that a holistic approach to the problem of "brain death" in humans should necessarily include the inspection of the content of consciousness.
Katt 2009 Roper and the Scientific Amicus William J. Katt 49 Jurimetrics J. 253 In Roper v. Simmons, the Supreme Court held it unconstitutional to execute criminals who were sixteen or seventeen-years-old at the time of their offense. To support this holding, the Court endorsed a scientific argument presented by amici curiae in a so-called Science Brief suggesting that juveniles are too cognitively and psychologically underdeveloped to justify the death penalty. This article examines the scientific claims presented in the Science Brief and the scientific studies cited in the brief to support those claims. Although the Science Brief for the most part relies on solid science, many of the brief's claims go beyond what the cited studies actually prove. After reviewing the brief in detail, this article briefly discusses the inherent conflict between scientific accuracy and legal advocacy and what, if any, procedural truth-testing mechanisms should be in place for evidence presented to the Court by amici curiae.
Kaufmann 2005 Protecting the Objectivity, Fairness, and Integrity of Neuropsychological Evaluations in Litigation Paul M. Kaufmann 26 J. Legal Med. 95
Kaye 2010 Powerful Particulars: The Real Reason the Behavioral Sciences Threaten Criminal Responsibility Anders Kaye 37 Fla. St. U. L. Rev. 539
Kaye 2006 Behavioral Genetics Research and Criminal DNA Databases D. H. Kaye 69 Law & Contemp. Probs. 259 This article examines the current concerns about whether DNA databases may be used for actions other than to apprehend criminals, such as genetic research, in particular, searching for a "crime gene". Part II considers the perspective that these databases may be useful for research. The information within a DNA sample consists of a limited number of DNA base-pair variations, which are important to identification, but not necessarily to genetic research. However, while it may be difficult to conduct genetic research, it is not impossible. Part III examines state and federal database legislation. There are examples of three states' statutes and how they are falsely portrayed or exaggerated as allowing DNA databases to be used for genetic research. Part IV assesses some arguments with regard to allowing this research, including lack of consent from "donors", and the issue of whether or not to save the DNA samples once they have been used for identification.
Keane 2010 Survival of the Fairest? Evolution and the Geneticization of Rights David Keane 30 Oxford J. Legal Stud. 467 The process of evolution is largely absent from philosophical legal literature, to the extent that the possibility of a genetic origin of rights has not been explored. This is striking given that human rights theory stems from natural law and natural rights, which seems to imply a potential link with natural selection. Furthermore, the concept of nature has played a significant role in the philosophical foundations of international legal norms of rights and responsibilities. On the surface it may seem desirable to link rights to genetics. However, this approach can undermine criticism of genetic research and risks subordinating rights-based analysis to a problematic endeavour. The article looks to the discourse of ‘geneticization’ to provide a critique of future research into ‘law as evolution’. It recommends shifting jurisprudential thinking beyond the confines of bioethics, in line with future advances in biological research into the genetic origins of rights.
Keckler 2006 Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment Charles N.W. Keckler 57 Hastings L.J. 509 The last decade has seen remarkable progress in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and this article concludes they have not yet satisfied the foundational requirements for the admissibility of scientific evidence, the potential for use - particularly as a devastating impeachment threat to encourage factual veracity - is a real one that the legal profession should seek to foster through structuring the correct incentives and rules for admissibility. In particular, neuroscience has articulated basic memory processes to a sufficient degree that contemporaneously neuroimaged witnesses would be unable to feign ignorance of a familiar item (or to claim knowledge of something unfamiliar). The brain implementation of actual lies and deceit more generally, is of greater complexity and variability. Nevertheless, the research project to elucidate them is conceptually sound, and the law cannot afford to stand apart from what may ultimately constitute profound progress in a fundamental problem of adjudication.
Keil 2008 Getting to the Truth Frank C. Keil 73 Brook. L. Rev. 1035 One aspect of truth concerns knowing when to trust others when one’s own knowledge is inadequate. This is an ever more common problem in societies where technological and scientific change seems to be constantly accelerating. There is an increasing need to rely on the expertise of others and consequently to know when others are more likely to be offering an objective opinion as opposed to a biased one. Here, I argue that there are systematic and early emerging cognitive heuristics and biases that profoundly influence our patterns of deference, our ways of assessing expertise, and our sense of when testimony is to be trusted. For the most part, the power and pervasiveness of these biases are ignored or greatly underappreciated. These biases and heuristics can both mislead and inform our understanding and use of others’ expertise; it is therefore critical that we acknowledge their presence and know how to work with them.
Keller 2012 Constitutional Sentences for Juveniles Convicted of Felony Murder in the Wake of Roper, Graham & J.D.B. Emily C. Keller 11 Conn. Pub. Int. L.J. 297 This Article analyzes the constitutionality of imposing life without parole, as well as and harsh mandatory sentences, on juveniles convicted of felony murder. This Article argues that juvenile life without parole sentences are unconstitutional for felony murder offenses in light of recent Supreme Court precedent. Additionally, this Article argues that any mandatory sentence for a juvenile convicted of felony murder is inconsistent with precedent. The Article briefly explains the history of the felony murder doctrine and its modern day rationales. The Article discusses the recent U.S. Supreme Court cases highlighting the differences between youth and adults. The Article analyzes the constitutionality of imposing juvenile life without parole sentences on juveniles convicted of felony murder, including an analysis of Supreme Court precedent, the rationales underlying felony murder as applied to juveniles, and the penological purposes of a life without parole sentence for a juvenile convicted of felony murder. Finally, the Article separately assesses the constitutionality of mandatory sentences—both life without parole sentences and mandatory term-of-years sentences—when imposed on juveniles convicted of felony murder. A Postscript addresses the impact of the Miller v. Alabama Supreme Court ruling on the arguments made in the Article.
Keller 2012 Rainmaking Psychology David King Keller 31(2) Legal Mgmt. 44
Kelly 2007 Childhood Neglect and Its Effects on Neurodevelopment: Suggestions for Future Law and Policy Rachael Kelly 8 Hous. J. Health L. & Pol'y 133
Kennett 2013 Addiction, Choice, and Disease: How Voluntary Is Voluntary Action in Addiction? Jeanette Kennett Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) Are drug addicts helpless in the face of their addiction, compelled by cravings too strong to resist, as some recent work in the neuroscience of addiction has claimed to establish? Or is drug taking voluntary activity that can be ceased at will? In this chapter I examine Gene Heyman’s recent argument against the disease model and his analysis of addiction in terms of supposedly universal principles of motivation and choice. Despite the many virtues of Heyman’s account I suggest that it does not succeed in ruling out the disease model, even on the assumption that addictive choices are voluntary. I then question that assumption and the account of motivation on which it rests. I argue there are significant involuntary aspects to addiction which could mitigate the responsibility of addicts for their choices and that neuroscientific evidence may help to distinguish addicts whose choices are compelled from those who are capable of responding to ordinary incentives.
Keren 2013 Consenting Under Stress Hila Keren 64 Hastings L.J. 679 This article highlights a disturbing gap between what is currently known about stress across a range of disciplines and the way stress is treated at law. It does so by focusing on parties who seek relief from harmful contracts, on the grounds that they consented under stress. The article first exposes the leading legal view that stress is merely a subjective feeling and therefore merits no legal recognition. It then provides a pragmatic synthesis of the rich study of stress, in order to counter that misguided legal presumption and to offer a better understanding of the physical, social and psychological dimensions of stress. Exploring both scientifically accepted causes of stress (stressors) and its known outcomes, the article offers a new framing of stress and a set of analytic tools that allow better legal access to the problem. It argues that legal actors can and should use the non-legal scientific understanding of stress to evaluate the arguments of those who claim to have consented to an unwanted contract while under stress. The article concludes that informed evaluation of stress arguments is not only pragmatically necessary, but also conceptually required for any legal system that, like contract law, relies on the power of choice and consent.
Keren 2010 Considering Affective Consideration Hila Keren 40 Golden Gate U. L. Rev. 165 Focusing on the interaction of law and emotions, this article unfolds in three parts. Part I illuminates the connection between the affective background of donative promises and their modern unenforceability. It hypothesizes that rejecting promises that are not supported by consideration can be seen as an effort to distance law from any association with irrational decision-making and to disassociate it from “emotional” spheres. Part II seeks to correct the erroneous way affective giving has been perceived by law in the gifts context. The law must carefully analyze each relevant emotion concretely and separately, rather than treating emotion as an undifferentiated aggregate. This part is dedicated to an interdisciplinary investigation of the leading emotions that play a role in the context of gifts and altruistic behavior: empathy and gratitude. Part III integrates the knowledge gained in Part II with the normative question of the desirable rule for donative promises. It suggests that given the special function of empathy and gratitude in the gift setting, the main justifications for the enforcement of bargained-for promises support the enforcement of donative promises. Part III concludes with the suggestion that enforcement should not be dependent on the motives that led to promising and instead would depend on the intention of promisors to be legally bound by their promises. It is suggested that the freedom to make legally binding promises would be afforded to players in all spheres of life and less biased toward profit-seeking activities. The article ends with a concrete suggestion to move from total refusal to enforce donative promises to a cautious willingness to enforce them “consciously”: only in cases of provable intention to create legally binding promises.
Khoshbin 2007 Imaging the Mind, Minding the Image: A Historical Introduction to Brain Imaging and the Law Laura S. Khoshbin & Shahram Khoshbin 33 Am. J.L. & Med. 171 The article presents a historical overview regarding the development of new medical technologies for imaging the brain in the U.S. Several challenges encountered regarding the use of brain imaging in legal cases are discussed. Key information regarding the periodic reviews conducted by the Institute of Medicine of current brain imaging research is further presented.
Kiehl 2013 Handbook on Psychopathy and Law Kent A. Kiehl & Walter P. Sinnott-Armstrong Oxford 2013 Psychopaths constitute less than 1% of the general population but over 20% of prison populations. They commit a disproportionate amount of crime and violence in society. Given that the economic burden of crime in the United States is estimated to be over $2.3 trillion per year, psychopaths likely constitute one of the most expensive mental health conditions known today. This volume chronicles the latest science of psychopathy and the various ways the condition intersects with the criminal justice system. From the modern techniques to assess the symptoms, to its utility in predicting violent recidivism, to the latest neuroscience youth and adults, and the most promising avenues for treatment, this volume captures the modern science of the condition and discusses ethical and legal issues surrounding psychopaths.
Kiehl 2011 The Criminal Psychopath: History, Neuroscience, Treatment, and Economics Kent A. Kiehl, Morris B. Hoffman 51 Jurimetrics J. 355 This article surveys the history of psychopathic personality, from its origins in psychiatric folklore to its modern assessment in the forensic arena. Individuals with psychopathic personality, or psychopaths, have an enormous impact on society in general and a disproportionate impact on the criminal justice system. Psychopaths are 20 to 25 times more likely than nonpsychopaths to be in prison and four to eight times more likely to violently recidivate--yet they are resistant to most forms of treatment. This article, in addition to presenting the most current clinical efforts and neuroscience research in the field of psychopathy, also highlights a recent, compelling, and cost-effective treatment program that has shown a significant reduction in violent recidivism in youth on a putative trajectory to psychopathic personality.
Kiehl 2010 Can Neuroscience Identify Psychopaths? Kent Kiehl A Judge's Guide to Neuroscience 47 (SAGE Center For the Study of the Mind, 2010).
Kinscherff 2010 Proposition: A Personality Disorder May Nullify Responsibility for a Criminal Act Robert Kinscherff 38 J.L. Med. & Ethics 745 This article argues in support of the proposition that "A Personality Disorder May Nullify Responsibility for a Criminal Act." Building upon research in categorical and dimensional controversies in diagnosis, neurocognitive science and the behavioral genetics of mental disorders, and difficulties in differential diagnosis and co-morbidity with personality disorders, this article holds that a per se rule barring personality diagnosis as a basis for a defense of legal insanity is scientifically and conceptually indefensible. Rather, focus should be upon the severity and impact in specific cases of any legally relevant functional deficits arising from a mental disorder (including personality disorders). Failure to do so risks potentially misleading "battles of the experts" about a defendant's diagnosis in criminal responsibility defenses and improper usurpation of the role of the legal finder of fact as mental health expert witnesses are inserted as gatekeepers indefensibly based upon diagnosis. Implications for practice and public policy are considered, including a "modest proposal" for post-trial management of defendants found not guilty by reason of insanity on the basis of functional deficits arising from personality disorder.
Kitchin 2003 The Fundamental Right to Be Free of Arbitrary Categorization: The Brain Sciences and the Issue of Sex Classification William Kitchin 42 Washburn L.J. 257
Kittay 2007 Admissibility of fMRI Lie Detection: The Cultural Bias Against "Mind Reading" Devices Leo Kittay 72 Brook. L. Rev. 1351
Klaming 2013 Did My Brain Implant Make Me Do It? Questions Raised by DBS Regarding Psychological Continuity, Responsibility for Action and Mental Competence Laura Klaming & Pim Haselager 6(3) Neuroethics 527 Deep brain stimulation (DBS) is a well-accepted treatment for movement disorders and is currently explored as a treatment option for various neurological and psychiatric disorders. Several case studies suggest that DBS may, in some patients, influence mental states critical to personality to such an extent that it affects an individual’s personal identity, i.e. the experience of psychological continuity, of persisting through time as the same person. Without questioning the usefulness of DBS as a treatment option for various serious and treatment refractory conditions, the potential of disruptions of psychological continuity raises a number of ethical and legal questions. An important question is that of legal responsibility if DBS induced changes in a patient’s personality result in damage caused by undesirable or even deviant behavior. Disruptions in psychological continuity can in some cases also have an effect on an individual’s mental competence. This capacity is necessary in order to obtain informed consent to start, continue or stop treatment, and it is therefore not only important from an ethical point of view but also has legal consequences. Taking the existing literature and the Dutch legal system as a starting point, the present paper discusses the implications of DBS induced disruptions in psychological continuity for a patient’s responsibility for action and competence of decision and raises a number of questions that need further research.
Klaming 2012 Neuroscientific Evidence and Criminal Responsibility in the Netherlands Laura Klaming, Bert-Jaap Koops International Neurolaw (Springer, Tade Spranger, Ed., 2012) Insights from neuroscientific research are increasingly advancing our understanding of the neural correlates of human behaviour, cognition and emotion and can therefore be of significant practical use in a legal context. One of the most fundamental legal applications of neuroscience refers to the assessment of criminal responsibility. Recent empirical studies have established links between certain brain structures and antisocial or criminal behaviour. Three areas of brain abnormalities that are relevant for assessments of criminal responsibility can be differentiated: (1) impairments in the frontal lobes and associated problems with impulse control, aggressiveness and the processing of information that is evocative of moral emotions, (2) abnormalities in the limbic system and associated problems in affective processing and (3) the potential side effects of neurotechnologies and associated problems with impulse control, aggressiveness and disinhibited behaviour. This chapter addresses recent research findings in these three areas and how these could affect responsibility assessments. In addition, eight cases are discussed in which insights from neuroscientific research have been used by Dutch courts in responsibility assessments. By illustrating how neuroscientific evidence has already entered the courtroom in the Netherlands, the possible conditions and implications of such practice are addressed.
Klaming 2009 Brushing Up Our Memories: Can We Use Neurotechnologies to Improve Eyewitness Memory? Laura Klaming & Anton H. Vedder 1 Law, Innovation & Tech. 203 Eyewitness testimony plays an important role in the apprehension, prosecution and adjudication of criminals. In their decision-making processes, law enforcement officials rely heavily on eyewitness reports and cases may sometimes be decided exclusively on the basis of eyewitness evidence. Unfortunately, the significance generally assigned to eyewitness evidence does not exactly match the actual accuracy of eyewitness memory. Given the consequences of vague, incomplete or inaccurate eyewitness testimony and the importance of this type of evidence in criminal justice, there is a need for methods to improve the memory of eyewitnesses in order to eventually obtain reliable evidence. Despite the fact that psychological research has improved the collection of eyewitness evidence over the past years, the majority of methods aiming at an enhancement of eyewitness memory, such as hypnosis and the cognitive interview, was found to have no or limited potential in leading to more reliable evidence. It is therefore necessary to explore new and potentially initially controversial methods for the improvement of eyewitness memory. Recent developments within the field of neuroscience provide insights into the possibility of using neurotechnologies for the purpose of cognitive enhancement. These technologies might be effective in improving eyewitness memory. Moreover, since neurotechnologies directly affect brain structures and processes, they may even lead to more reliable eyewitness evidence than current methods. The present paper discusses the possibility of improving eyewitness memory by means of neurotechnologies and addresses some of the considerations such practice would entail.
Klein 2009 Unreasonable: Involuntary Medications, Incompetent Criminal Defendants, and the Fourth Amendment Dora W. Klein 46 San Diego L. Rev. 161 When a criminal defendant who is not competent to stand trial refuses to take voluntarily the antipsychotic medications that might make him become competent, should the government be allowed to administer the medications involuntarily? Increasingly, trial courts are answering “yes.” Since the Supreme Court’s 2003 decision in Sell v. United States, trial courts have almost routinely approved the administration of involuntary antipsychotic medications for the purpose of rendering criminal defendants competent to stand trial. Although most courts acknowledge that antipsychotic medications can cause serious, even life-threatening side effects, this article argues that the test set forth in Sell does not require courts to take adequate account of the potential physical harms of involuntary antipsychotic medications. This fault with the Sell test can be traced back to its roots, as a due process test, in decisions primarily concerned with protecting an individual’s interest in making autonomous choices, not with protecting an individual’s interest in avoiding physical harms. This article compares the Sell due process test to the Fourth Amendment test that courts apply when the government seeks to compel involuntary medical treatment for the purpose of obtaining evidence of a crime from a criminal defendant’s body. In these cases, the medical treatment must be reasonable - that is, the government’s interest that is advanced by the involuntary treatment must be important enough to justify the potential physical harms to the defendant. This article concludes that because Sell does not require courts to balance the government’s interest in rendering a defendant competent to stand trial against the physical harms that the defendant is likely to experience if administered involuntary antipsychotic medications, the Sell test inadequately protects incompetent criminal defendants from physical harms that are unreasonable.
Klitzman 2005 Clinicians, Patients and the Brain Robert Klitzman Neuroethics: Defining the Issues in Theory, Practice and Policy 229 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter focuses on where and how several key neuroethical issues converge and diverge in diagnosis and treatment. First, it examines the broad obstacles that exist to addressing neuroethical problems optimally in clinical settings. Secondly, it explores ways that these barriers manifest themselves specifically in diagnostic tests that use neuroimaging and neurogenomics, and other clinical scenarios that involve treatment interventions. It discusses several sets of predicaments that appear likely to emerge, although others will no doubt confront clinicians as neurotechnology continues to advance.
Kmiec 2012 Engaging Human Nature in Support of Judicial Engagement Douglas W. Kmiec 19 Geo. Mason L. Rev. 989
Knabb 2009 Neuroscience, Moral Reasoning, and the Law Joshua J. Knabb et. al. 27 Behav. Sci. & L. 219 Modern advancements in functional magnetic resonance imaging (fMRI) technology have given neuroscientists the opportunity to more fully appreciate the brain's contribution to human behavior and decision making. Morality and moral reasoning are relative newcomers to the growing literature on decision neuroscience. With recent attention given to the salience of moral factors (e.g. moral emotions, moral reasoning) in the process of decision making, neuroscientists have begun to offer helpful frameworks for understanding the interplay between the brain, morality, and human decision making. These frameworks are relatively unfamiliar to the community of forensic psychologists, despite the fact that they offer an improved understanding of judicial decision making from a biological perspective. This article presents a framework reviewing how event-feature-emotion complexes (EFEC) are relevant to jurors and understanding complex criminal behavior. Future directions regarding converging fields of neuroscience and legal decision making are considered.
Kolber 2014 Will There Be a Neurolaw Revolution? Adam J. Kolber 89 Ind. L.J. 807 The central debate in the field of neurolaw has focused on two claims. Joshua Greene and Jonathan Cohen argue that we do not have free will and that advances in neuroscience will eventually lead us to stop blaming people for their actions. Stephen Morse, by contrast, argues that we have free will and that the kind of advances Greene and Cohen envision will not and should not affect the law. I argue that neither side has persuasively made the case for or against a revolution in the way the law treats responsibility. There will, however, be a neurolaw revolution of a different sort. It will not necessarily arise from radical changes in our beliefs about criminal responsibility but from a wave of new brain technologies that will change society and the law in many ways, three of which I describe here: First, as new methods of brain imaging improve our ability to measure distress, the law will ease limitations on recoveries for emotional injuries. Second, as neuroimaging gives us better methods of inferring people’s thoughts, we will have more laws to protect thought privacy but less actual thought privacy. Finally, improvements in artificial intelligence will systematically change how law is written and interpreted.
Kolber 2012 Criminalizing Cognitive Enhancement at the Blackjack Table Adam J. Kolber Memory and Law (Oxford University Press, Lynn Nadel & Walter Sinnott-Armstrong, Eds., 2012) Blackjack players who “count cards” keep track of cards that have already been played and use this knowledge to turn the probability of winning in their favor. So long as card counters rely on their own memory and computational skills, they have violated no laws and can make sizable profits. When players use a “device” to help them count cards, however, they may be committing a serious crime. This chapter considers whether statutes prohibiting the use of devices at the blackjack table can be justified based either on concerns about cognitive enhancement or thought privacy. Both proposed justifications are deemed lacking.
Kolber 2011 The Experiential Future of the Law Adam J. Kolber 60 Emory L.J. 585 In this Article, I describe how new technologies will improve our assessments of physical pain, emotional distress, and a variety of psychiatric disorders. I also describe more particular techniques to help determine whether: (1) a patient is in a persistent vegetative state, (2) a placebo treatment relieves pain, (3) an alleged victim has been abused as a child, (4) an inmate being executed is in pain, (5) an interrogatee has been tortured, and more. I argue that as new technologies emerge to better reveal people's experiences, virtually every area of the law should do more to take these experiences into account.
Kolber 2011 Give Memory-Altering Drugs a Chance Adam Kolber 476 Nature Several studies suggest that memories can be pharmaceutically dampened. For example, researchers recently showed that a drug called ZIP causes cocaine-addicted rats to forget the locations where they had regularly been receiving cocaine. Other drugs, already tested in humans, may ease the emotional pain associated with memories of traumatic events. Many are alarmed by the prospect of pharmaceutical memory manipulation. In this brief comment, I argue that these fears are overblown. Thoughtful regulation may someday be appropriate, but excessive hand-wringing now over the ethics of tampering with memory could stall research into promising methods of preventing and treating post-traumatic stress.
Kolber 2009 The Subjective Experience of Punishment Adam J. Kolber 109 Colum. L. Rev. 182 Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. Kolber argues that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences. Kolber makes two central claims: First, a successful justification of punishment must take account of offenders' subjective experiences when assessing punishment severity. Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner. Though it may seem impossible or prohibitively expensive to take punishment experience into account, we should not accept this excuse too quickly. In civil litigation, we often make assessments of emotional distress. Even if we cannot calibrate the punishments of individual offenders, we could enact broad policies that are better at taking punishment experience into account than those we have now. Kolber does not argue that more sensitive offenders should receive shorter prison sentences than less sensitive offenders who commit crimes of equal blameworthiness. He does, however, argue that when they are given equal prison terms, more sensitive offenders receive harsher punishments than less sensitive offenders and that it is a mistake to believe that both kinds of offenders receive punishments proportional to their desert.
Kolber 2009 Legal Implications of Memory-Dampening Adam J. Kolber Law, Mind and Brain 215 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009). Over the past 20 years, cognitive neuroscience has revolutionized our ability to understand the nature of human thought. Working with the understandings of traditional psychology, the new brain science is transforming many disciplines, from economics to literary theory. These developments are now affecting the law and there is an upsurge of interest in the potential of neuroscience to contribute to our understanding of criminal and civil law and our system of justice in general. The international and interdisciplinary chapters in this volume are written by experts in criminal behaviour, civil law and jurisprudence. They concentrate on the potential of neuroscience to increase our understanding of blame and responsibility in such areas as juveniles and the death penalty, evidence and procedure, neurological enhancement and treatment, property, end-of-life choices, contracting and the effects of words and pictures in law. This collection suggests that legal scholarship and practice will be increasingly enriched by an interdisciplinary study of law, mind and brain and is a valuable addition to the emerging field of neurolaw.
Kolber 2007 Pain Detection and the Privacy of Subjective Experience Adam J. Kolber 33 Am. J.L. & Med. 433 Pain is a fundamentally subjective experience. We have uniquely direct access to our own pain but can only make rough inferences about the pain of others. Nevertheless, such inferences are made all the time by doctors, insurers, judges, juries, and administrative agencies. Advances in brain imaging may someday improve our pain assessments by bolstering the claims of those genuinely experiencing pain while impugning the claims of those who are faking or exaggerating symptoms. These possibilities raise concerns about the privacy of our pain. This article suggests that while the use of neuroimaging to detect pain implicates significant privacy concerns, our interests in keeping pain private are likely to be weaker than our interests in keeping private certain other subjective experiences that permit more intrusive inferences about our thoughts and character.
Kolber 2006 Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening Adam J. Kolber 59 Vand. L. Rev. 1561 Neuroscientists have made significant advances in identifying drugs to dampen the intensity of traumatic memories. Such drugs hold promise for victims of terrorism, military conflict, assault, car accidents, and natural disasters who might otherwise suffer for many years from intense, painful memories. In 2003, the President's Council on Bioethics released a report entitled Beyond Therapy: Biotechnology and the Pursuit of Happiness, which analyzed memory dampening in some detail. While the Council acknowledged the potential benefits of memory dampening, some Council members were concerned that it may: (1) discourage us from authentically coping with trauma, (2) tamper with personal identity, (3) demean the genuineness of human life and experience, (4) encourage us to forget memories that we are obligated to keep, and (5) inure us to the pain of others. This article describes possible legal and ethical implications of memory dampening. For example, it notes that traumatic events frequently lead to legal proceedings that rely on memories of those events. Drugs that dampen traumatic memories may someday test the boundaries between an individual's right to medically modify his memories and society's right to stop him from altering valuable evidence. More broadly, it responds to the Council by arguing that many of its concerns are founded on controversial premises that unjustifiably privilege our natural cognitive abilities. While memory dampening may eventually require thoughtful regulation, broad-brushed restrictions are unjustified: we have a deeply personal interest in controlling our own minds that entitles us to a certain freedom of memory.
Kolla 2012 Application of Neuroimaging in Relationship to Competence to Stand Trial and Insanity Nathan J. Kolla & Jonathan D. Brodie Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) Two of the most common and important questions addressed by forensic psychiatrists working in the criminal court system are competence to stand trial (present mental capacity) and legal insanity (mental state at the time of the crime). Neuroimaging studies of criminal defendants have been used to assist in answering these questions with increasing frequency over the last two decades. It is critical for forensic practitioners to appreciate the numerous potential obstacles to the productive use of neuroimaging techniques with respect to questions of competency and sanity. Perhaps most problematic is the attempt to infer a capacity for moral deliberation – or lack thereof – from an imaging study performed months or years after a criminal offense. Despite such concerns, an increase in the use of neuroimaging at various stages of criminal proceedings can be anticipated in the future.
Korn 2011 Neurolaw: Differential brain activity for Black and White faces predicts damage awards in hypothetical employment discrimination cases Harrison A. Korn, Micha A. Johnson, Marvin M. Chun 6 Social Neuroscience 1 Currently, potential jurors' racial biases are measured by explicit questioning––a poor measure because people often hide their views to adhere to social norms, and people have implicit views they are not consciously aware of. In this experiment, we investigated whether two alternative methods of measuring racial bias––a standard Black/White, good/bad Implicit Association Test (IAT) and neural activity, measured by fMRI, in response to seeing faces of Black and White individuals––could predict how much money subjects would award Black victims in hypothetical employment discrimination cases. IAT scores failed to predict how much money subjects awarded victims. However, in right inferior parietal lobule (BA 40) and in right superior/middle frontal gyrus (BA 9/10)––which have both previously been implicated in measuring biases and implicit preferences––the difference in neural activity between when subjects viewed Black faces paired with neutral adjectives and when subjects viewed White faces paired with neutral adjectives was positively correlated with the amount of money the subjects awarded victims. This suggests that brain activity measures racial bias with more practical validity, at least in this situation and with our sample size, than a common behavioral measure (the IAT).
Korobkin 2009 Libertarian Welfarism Russell Korobkin 97 Cal. L. Rev. 1651 In a series of publications, Cass Sunstein and Richard Thaler, and Colin Camerer et al., have proposed an approach to legal policy that encourages individuals to pursue actions that will maximize their expected utility while not imposing on those individuals' decisional autonomy. In this article, the author contends that this policy approach - which has been called "libertarian paternalism" - implies a complementary approach as well, which he calls "libertarian welfarism." Libertarian welfarism relies on the same set of policy tools as does libertarian paternalism but with a different goal: to encourage individuals to act in a way that maximizes social welfare. The author shows that libertarian welfarism leads to different policy prescriptions than does libertarian paternalism, and he argues that the former approach rests on a stronger normative foundation and is less subject to problems of indeterminacy than the latter.
Kostiuk 2012 After GINA, NINA? Neuroscience-Based Discrimination in the Workplace Stephanie A. Kostiuk 65 Vand. L. Rev. 933 The article discusses neuroscience-based discrimination in the U.S. workplace as of April 2012 in the aftermath of the Human Genome Project and U.S. President George W. Bush's signing of the Genetic Information Nondiscrimination Act (GINA) in May 2008. As the field of neuroscience continues to grow, a proposed legislative bill entitled the Neuro Information Nondiscrimination Act (NINA) is mentioned as a potential deterrent to employers who wish to obtain genetic information from employees.
Kowalski 2010 True North: Navigating for the Transfer of Learning in Legal Education Tonya Kowalski 34 Seattle U. L. Rev. 51 As lifelong learners, we all know the feelings of discomfort and bewilderment that can come from being asked to apply existing skills in a completely new situation. As legal educators, we have also experienced the frustration that comes from watching our students struggle to identify and transfer skills from one learning environment to another. For example, a first-semester law student who learns to analogize case law to a fact pattern in a legal writing problem typically will not see the deeper applications for those skills in a law school essay exam several weeks later. Similarly, when law students learn how an equitable doctrine like unclean hands applies to a particular torts problem in one class, only the smallest percentage will then see the potential application for the doctrine in a contracts course with another professor. Fortunately, research in “transfer of learning” offers the legal academy tools to help students encode knowledge – whether doctrine or skills – in such a way that they know better when and how to retrieve it for later use. This Article is the first to offer legal educators a comprehensive approach to the transfer of learning across the entire curriculum. It is also the first to propose that law schools should employ maps based on schema theory to help students encode knowledge for future transfer, as well as to conceptually integrate their courses. This approach uses meta-schema based on core lawyering skills - in both their abstract and applied forms - in order to help students attain a basic sense of orientation and to know how particular skills will manifest, depending on the contexts in which they are used. This “Core Skills Approach” then goes beyond the use of maps to encourage students to use maneuvers, including a wide array of transfer strategies, to cue previous knowledge across the conceptual bridges that span the distance between school and practice.
Kozel 2009 Developing a Neuropsychiatric Functional Brain Imaging Test F. Andrew Kozel Neuroscience and Crime: A Special Issue of Neurocase (Psychology Press, Hans Markowitsch, ed., 2009). A number of critical issues must be addressed in order to develop and properly apply a functional brain imaging test. Diagnostic tests involve making a judgment for a single person. As a result, functional brain imaging tests must also be evaluated at the individual level. The population examined in determining the evidence for the accuracy of the test and the specific question being tested should be clearly described so that the test can be applied appropriately. The accuracy of the test must also be established in order to know the degree of confidence to accord a result. Incorporating what has been learned with medical diagnostic test development will enable legitimate and significant neuropsychiatric functional brain imaging tests to be developed in the future.
Krauss 2010 Neuroscience and Institutional Choice in Federal Sentencing Law Rebecca Krauss 120 Yale L.J. 367 In this article, the author discusses the impact of a functional magnetic resonance imaging (fMRI) study by Joshua Buckholtz entitled "The Neural Correlates of Third-Party Punishment" on federal sentencing law and institutional choice. She explains how the study describes the results of a neuroimaging study wherein subjects were scanned while examining culpability and finding suitable punishments in hypothetical criminal cases. The link of the study to legal decisionmaking is discussed.
Kraut 2008 Die Hirnforschung und der gefährliche Mensch: Über die Gefahren einer Neuauflage der biologischen Kriminologie Stefan Kraut Münster, Westfälisches Dampfboot Die Interventionen der Hirnforschung richten sich nicht nur gegen die Annahme des freien Willens, sondern fordern einen neuen Umgang mit dem so genannten "gefährlichen Menschen". Im Raum steht die neurobiologische Identifizierung derer, die vom traditionellen Strafrecht nicht zu erfassen seien. Mit dem Topos der "Verteidigung der Gesellschaft" stößt die Hirnforschung an die Grenzen des Schuldstrafrechts. Entsprechend überschneiden sich die kriminalpolitischen Forderungen der Hirnforschung mit dem Ruf nach der Ausweitung schuldunabhängiger Sicherungsmaßnahmen. Der Autor zeigt, wie das neurobiologische Wissen um die "Nichtregierbaren" und "Unfreien" dabei aus den Anforderungen der bürgerlichen Gesellschaft an die Selbstorganisation ihrer Mitglieder erwächst: Der Zwang, einen freien Willen haben zu müssen, erst eröffnet die Möglichkeit der neurobiologischen Bewältigung abweichenden Verhaltens. Die Optimierung der körperlichen Grundlage sozialer Kontrolle entsteht folgerichtig als bio-politische Forderung.
Krueger 2013 An fMRI Investigation of the Effects of Belief in Free Will on Third-Party Punishment Frank Krueger, Morris Hoffman, Henrik Walter, & Jordan Grafman Soc Cogn Affect Neurosci The relationship between belief in free will (BFW) and third-party punishment (TPP) of criminal norm violations have been the subject of great debates among philosophers, criminologists, and neuroscientists. We combined a TPP task with functional MRI (fMRI) to investigate how lay people's BFW might affect their punishment of hypothetical criminal offenses varying in affective content. Our results revealed that people with strong BFW only punished more harshly than people with weak BFW in low affective cases likely driven by a more robust commitment to moral responsibility. This effect was mirrored by a stronger activation in the right temporo-parietal junction, a region presumably involved in attentional selection to salient stimuli and attribution of temporary intentions and beliefs of others. But for high affective cases, the BFW-based behavioral and neural differences disappeared. Both groups similarly punished high affective cases and showed higher activation in the right insula. The right insula is typically activated during aversive interoceptive-emotional processing for extreme norm violations. In conclusion, our results demonstrated that the impact of BFW on TPP is context-dependent, suggesting why the philosophical debate between free will and determinism is so stubbornly persistent.
Kulich 2009 Functional Magnetic Resonance Imaging (FMRI) and Expert Testimony Ronald Kulich, Raymond Maciewicz & Steven J. Scrivani 10 Pain Med. 373 Medical experts frequently use imaging studies to illustrate points in their court testimony. This article reviews how these studies impact the credibility of expert testimony with judges and juries. The apparent "objective" evidence provided by such imaging studies can lend strong credence to a judge's or jury's appraisal of a medical expert's testimony. However, as the court usually has no specialized scientific expertise, the use of complex images as part of courtroom testimony also has the potential to mislead or at least inappropriately bias the weight given to expert evidence. Recent advances in brain imaging may profoundly impact forensic expert testimony. Functional magnetic resonance imaging and other physiologic imaging techniques currently allow visualization of the activation pattern of brain regions associated with a wide variety of cognitive and behavioral tasks, and more recently, pain. While functional imaging technology has a valuable role in brain research and clinical investigation, it is important to emphasize that the use of imaging studies in forensic matters requires a careful scientific foundation and a rigorous legal assessment.
Kulynych 2007 The Regulation of MR Neuroimaging Research: Disentangling the Gordian Knot Jennifer Kulynych 33 Am. J.L. & Med. 295 The article examines the regulation of Magnetic Resonance (MR) Neuroimaging research at federal level in the U.S. The regulation regarding the use of human subjects on MR Imaging (MRI) was taken into account. Brief description and information regarding the provisions of several regulations is further presented.
Kulynych 2007 Some Thoughts about the Evaluation of Non-Clinical Functional Magnetic Resonance Imaging Jennifer J. Kulynych 7 Am. J. Bioethics 57
Kulynych 1997 Psychiatric Neuroimaging Evidence: A High-Tech Crystal Ball? Jennifer J. Kulynych 49 Stan. L. Rev. 1249 Neuroimages, which may appear to be deceptively similar to photographs of a person's brain, have been used as evidence in court cases to support psychiatric diagnosis. These images are scientific evidence, and courts should evaluate the admissibility of such evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc. But psychiatric evaluations of a person's mental state are "soft" science, which may or may not be evaluated as scientific evidence. When a psychiatrist's testimony makes reference to "hard" science evidence such as neuroimages, there is a danger of undue prejudice because the finder of fact may be confused. In this note, Jennifer Kulynych describes this problem and proposes a two-pronged evidentiary standard as a solution. She suggests that courts evaluate the hard science aspects of neuroimaging evidence under established doctrine, and evaluate the soft science evidence under a social science framework. Given the current state of psychiatric neuroimaging research, Ms. Kulynych concludes that the amount of neuroimaging evidence admitted under her proposed standard would appropriately be quite small.
Kulynych 1996 Brain, Mind, and Criminal Behavior: Neuroimages as Scientific Evidence Jennifer Kulynych 36 Jurimetrics J. 235
Kvaale 2013 The ‘Side Effects’ of Medicalization: A Meta-Analytic Review of How Biogenetic Explanations Affect Stigma Erlend P. Kvaale, Nick Haslam, & William H. Gottdiener 33 Clinical Psychology Review 782 Reducing stigma is crucial for facilitating recovery from psychological problems. Viewing these problems biomedically may reduce the tendency to blame affected persons, but critics have cautioned that it could also increase other facets of stigma. We report on the first meta-analytic review of the effects of biogenetic explanations on stigma. A comprehensive search yielded 28 eligible experimental studies. Four separate meta-analyses (Ns = 1207–3469) assessed the effects of biogenetic explanations on blame, perceived dangerousness, social distance, and prognostic pessimism. We found that biogenetic explanations reduce blame (Hedges g = −0.324) but induce pessimism (Hedges g = 0.263). We also found that biogenetic explanations increase endorsement of the stereotype that people with psychological problems are dangerous (Hedges g = 0.198), although this result could reflect publication bias. Finally, we found that biogenetic explanations do not typically affect social distance. Promoting biogenetic explanations to alleviate blame may induce pessimism and set the stage for self-fulfilling prophecies that could hamper recovery from psychological problems.
Lack 2012 The Neurophysiology of ADR and Process Design: A New Approach to Conflict Prevention and Resolution? Jeremy Lack & François Bogacz 14 Cardozo J. Conflict Resol. 33
Lacy 2013 The Neuroscience of Memory: Implications for the Courtroom Joyce W. Lacy & Craig E. L. Stark 14 Nature Reviews Neuroscience 649 Although memory can be hazy at times, it is often assumed that memories of violent or otherwise stressful events are so well encoded that they are effectively indelible and that confidently retrieved memories are almost certainly accurate. However, findings from basic psychological research and neuroscience studies indicate that memory is a reconstructive process that is susceptible to distortion. In the courtroom, even minor memory distortions can have severe consequences that are partly driven by common misunderstandings about memory — for example, that memory is more veridical than it may actually be.
Lamar 2012 Dementia Melissa Lamar Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) Dementia is a devastating condition with increasing prevalence. It has a dramatic impact on the family of the patient as well as on society as a whole. For example, in the United States, the direct and indirect healthcare costs for Alzheimer's disease, the most common type of dementia, are greater than the costs associated with stroke, heart disease and cancer combined. Impairments in cognition, judgment and impulse control due to dementia often lead to the need for forensic evaluation in civil or criminal proceedings, such as assessments of decision-making capacities, competence to stand trial, or criminal responsibility. As our understanding of the pathophysiology of the dementias increases, structural and functional neuroimaging modalities, including new techniques for mapping white matter pathways, will play an increasingly important role in the forensic evaluation of individuals with dementia.
Lamb 2009 Behavioral Biology: The Impact of Neuroimaging and Brain Dysfunction on the Sentencing of Sexual Offenders Cassandra M. Lamb 35 New Eng. J. on Crim. & Civ. Confinement 421
Lamparello 2012 Using Cognitive Neuroscience to Provide a Procedure for the Involuntary Commitment of Violent Criminals as a Part of or Following the Duration of their Sentence (Part II of a Two-Part Series) the Model Statute Adam Lamparello 11 Hous. J. Health L. & Pol'y 267 Violent behavior is at least partly based on biology. Violent propensities have been shown to correlate with abnormalities in the structure and function of the brain and the central nervous system . . . . These abnormalities, combined with environmental factors --such as stress or drug and alcohol abuse --can increase the chances that a particular individual will become violent. Indeed, many of the risk factors measured by actuarial assessments of violence risk . . . may be tied to underlying biological function. Thus, biology may explain the statistical correlations between *268 violence and risk factors.
Lamparello 2012 Neuroscience and Post-Sentence Civil Commitment: A Response to Professors Erickson and Goldberg Adam Lamparello 11 Hous. J. Health L. & Pol'y 347 Professors Erickson and Goldberg present compelling and powerful arguments against the proposed statutory scheme outlined in my prior article. Specifically, the statute is designed to provide for the involuntary commitment of individuals based upon the satisfaction of two criteria: (1) a finding of dangerousness due to the lack of volitional control; and (2) proof of some additional factor, such as a mental illness or abnormality. Detailed procedural safeguards are contained in the statute to protect the important liberty interests at stake. In both Kansas v. Hendricks and Kansas v. Crane, the Supreme Court held that a similar statute, which provided for the postsentence civil confinement of sexual predators, was constitutional. 1 Specifically, the Court stated that involuntary commitment is permissible when limited to “those who suffer from a volitional impairment rendering them dangerous beyond their control.” 2 The *348 proposed statute seeks to do nothing more, but instead of relying upon expert testimony or actuarial assessments, it relies upon those aspects of neuroscience that can arguably predict whether a person is likely to engage in further violent acts. It is worth noting that, in both Professor Erickson's and Goldberg's outstanding articles, they spend the majority of their discussion criticizing neuroscience generally, without an accompanying analysis of the proposed statute, which is designed to address precisely the types of concerns that they raise. This response will address the arguments set forth by Professor Erickson, followed by those contained in Professor Goldberg's article.
Lamparello 2011 Using Cognitive Neuroscience To Provide A Procedure For The Involuntary Commitment Of Violent Criminals: The Model Statute Adam Lamparello 11 Hous. J. Health L. & Pol’y 267
Lamparello 2011 Using Cognitive Neuroscience to Predict Future Dangerousness Adam Lamparello 42 Colum. Hum. Rts. L. Rev. 481 This Article discusses current difficulties in determining “future dangerousness,” addresses recent findings by neuroscientists, and proposes a means by which those suffering from frontal lobe disorder and/or amygdalar injury should be treated differently in the criminal system. As a threshold matter, what this article does not do is argue that brain-damaged individuals should avail themselves of the insanity defense, or otherwise be considered to lack the mens rea necessary for commission of a particular crime. Research has demonstrated that individuals with frontal lobe disorder and/or limbic system damage still know “right” from “wrong” and still retain the ability to form the requisite intent prior to committing a particular criminal offense. However, their judgment and reasoning are so impaired such that their knowledge that a certain act is wrongful does not prevent them from doing it. This inability to control their actions often leads to violent or aggressive behavior, including “rage” attacks, creating a biological blueprint for criminal behavior. Based upon neuroscientific data showing that brain-disordered individuals suffer from impulse control problems and violent tendencies, this Article proposes that the criminal justice system can now more accurately predict “future dangerousness,” namely, which criminal offenders are more likely to commit criminal attacks upon the termination of their sentence. We can now demonstrate that most offenders with damaged or impaired frontal lobes (1) suffer from a cognizable mental illness; and (2) remain a danger to themselves or others upon release. Since the state can now prove these two factors, it has a legitimate basis to confine “high risk” offenders involuntarily either during or after completion of their sentence. The purpose of involuntary confinement is both utilitarian and rehabilitative: to protect the public by reducing recidivism rates, and to treat--to the best extent possible--the offender's mental illness. Part II of this Article discusses the difficulty of predicting “future dangerousness” in the courts. Part III discusses cognitive neuroscience and its implications for the criminal justice system. Part IV proposes that the state may properly petition the court for the involuntary commitment of brain-injured criminal offenders, provided that certain procedural safeguards are provided.
Lamparello 2011 Neuroscience, Brain Damage, and the Criminal Defendant: Who Does It Help and Where in the Criminal Proceeding is It Most Relevant? Adam Lamparello 39 Rutgers L. Rec. 161 Individuals with brain injuries such as frontal lobe disorder may be legally responsible, but they are less culpable and less blameworthy. For these individuals, a different type of sentence, namely, one that utilizes some retributive principles but also contains rehabilitative and utilitarian aspects, is appropriate. This approach is consistent with the goals of individualized sentencing and accurately reflects what neuroscience is telling us about the brain and human conduct.
Langleben 2012 Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide Daniel D. Langleben, Jane Campbell Moriarty Psychology, Public Policy, and Law Progress in the use of functional magnetic resonance imaging (fMRI) of the brain to differentiate lying from truth-telling has created an expectation of a breakthrough in the search for objective methods of lie detection. In the last few years, litigants have attempted to introduce fMRI-based lie detection evidence in courts. Both the science and its possible use as courtroom evidence have spawned much scholarly discussion. This article contributes to the interdisciplinary debate by identifying the missing pieces of the scientific puzzle that need to be completed if fMRI-based lie detection is to meet the standards of either legal reliability or general acceptance. The article provides a balanced analysis of the current science and the cases in which litigants have sought to introduce fMRI-based lie detection. Identifying the key limitations of the science as expert evidence, the article explores the problems that arise from using scientific evidence before it is proven valid and reliable. We conclude that the Daubert’s “known error rate” is the key concept linking the legal and scientific standards. We suggest that properly controlled clinical trials are the most convincing means to confirm or disprove the relevance of this promising laboratory research. Given the controversial nature and potential societal impact of this technology, collaboration of several government agencies may be required to sponsor impartial and comprehensive clinical trials that will guide the development of forensic fMRI technology.
Langleben 2012 Brain Imaging of Deception Daniel D. Langleben Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) Determining truth is an essential part of many human interactions and endeavors. Unfortunately, lying and deception are common in society, and generally difficult to identify. A scientific, objective means of distinguishing truth from lies would have profound implications for the legal system as well as for society as a whole. The traditional polygraph is fraught with problems, and is typically excluded from court proceedings. In the last decade, researchers have developed functional magnetic resonance imaging techniques that suggest the possibility of accurately identifying the neural activation patterns associated with lying. However, at present many questions about the feasibility of these techniques for real-world use remain, and it would be premature to allow their use in court.
Lanza 2010 Diritto, Processo e Neuroscienze [The Law, the trial and neuroscience] Luigi Lanza, Luca Sammicheli, & Giuseppe Sartori 3 Giustizia insieme 39
Larson 2013 Miller v. Alabama: Implications for Forensic Mental Health Assessment at the Intersection of Social Science and the Law Kimberly Larson, Frank DiCataldo, & Robert Kinscherff 39 New Eng. J. on Crim. & Civ. Confinement 319
Lavazza 2012 Il delitto nel cervello. La scienza tra mente e diritto [The brain's crime] Andrea Lavazza & Luca Sammicheli Codice Edizioni
Lavazza 2011 Neuroetica [Neuroethics] Andrea Lavazza & Giuseppe Sartori Bologna, Il Mulino
Lavazza 2010 Il nuovo rapporto tra diritto e neuroscienze: il caso dello psicopatico [The new relationships between law and neuroscience: the psychopatic issue] Andrea Lavazza & Luca Sammicheli 2 Sistemi intelligenti 241
Lavazza 2008 Neuroscienze e persona. Nuova prospettiva o minaccia? [Neuroscience and the subject. A new perspective or a threat?] Andrea Lavazza 3 Medicina e morale 569
Law 2011 Cherry-Picking Memories: Why Neuroimaging-Based Lie Detection Requires a New Framework for the Admissibility of Scientific Evidence Under FRE 702 and Daubert J.R.H. Law 14 Yale J. L. & Tech. 1 Neuroimaging techniques have been in heavy rotation in the news lately. Increasingly, companies have used neuroimaging techniques--specifically, functional magnetic resonance imaging (fMRI)--in an attempt to determine whether an individual is telling a falsehood. More troublingly, these companies have proffered factual conclusions for use in jury trials. This Article discusses the capabilities and limitations of the technique. In doing so, the Article also discusses why the technology will require the federal judiciary to reevaluate its current interpretation of Federal Rule of Evidence 702 and the Daubert doctrine for admitting novel sources of scientific evidence.
Leal 2008 Why There Is Disobedience of Court Orders: Contempt of Court and Neuroeconomics Manuel D. Leal 26 QLR 1015
Lederman 2011 From Lab Bench to Court Bench: Using Science to Inform Decisions in Juvenile Court Cindy S. Lederman Cerebrum 2011 Juvenile court judges are asked to determine what is in the best interest of the child in every case they hear. As Judge Cindy S. Lederman writes, making these decisions without an awareness of the science of child development can be detrimental to the mental and physical well-being of the child. Yet until about a decade ago, court decisions were routinely made without taking into consideration the needs of toddlers and infants. The Miami Child Well-Being Court™ (MCWBC) program, a partnership of clinicians and judges, has brought science into the courtroom, making it integral to the decision-making process and working to ensure that the needs of the child are met.
Leentjens 2004 Manipuleerbare wilsbekwaamheid: een ethisch probleem bij elektrostimulatie van de nucleus subthalamicus voor ernstige ziekte van Parkinson [Manipulable capacity to make up one's mind An ethical problem of electrostimulation of the nucleus subthalamicus for the serious illness of Parkinson] A.F.G. Leentjens, V. Visser-Vandewalle, Y. Temel, & F.R. J. Verhey 148(28) Ned Tijdschr Geneeskd 1394
Lekovic 2008 Neuroscience and the Law Gregory P. Lekovic 69 Surgical Neurology 99
Lelling 1993 Eliminative Materialism, Neuroscience and the Criminal Law Andrew E. Lelling 141 U. Pa. L. Rev. 1471
Lerner 2012 Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases Craig S. Lerner 20 Geo. Mason L. Rev. 25 In Miller v. Alabama, 132 S. Ct. 2455 (2012), the Supreme Court held unconstitutional roughly 2,000 life-without-parole (LWOP) sentences, which had been imposed on juveniles by twenty-eight states and the federal government. The Miller Court held that the Eighth Amendment permits the imposition of LWOP on juveniles, but only after what it airily calls an “individualized sentencing.” Justice Kagan, writing for the majority, presents the decision as a modest one, and as an exercise of the judicial craft she is successful in deflecting some of the criticisms of the dissenting Justices, and in portraying the majority opinion as following ineluctably from precedent, principally Graham v. Florida, 130 S. Ct. 2011 (2010). Yet Graham suffers from the faulty premises that juveniles who commit heinous crimes are typical juveniles, and that they are categorically less culpable than young adult offenders. The Miller Court adopts and then compounds these errors. The Essay questions whether LWOP, as opposed to other harsh sentences, and juveniles, as opposed to young adult offenders, are really so distinct as to merit special constitutional treatment. The Essay also draws attention to some of the potential areas of uncertainty after Miller: the ambiguity as to what qualifies as “individualized sentencing”; the possible expansion of Miller’s exemption from mandatory sentencing to offenders who are not juveniles; and unresolved questions about the constitutionality of long prison sentences that are the practical equivalent of LWOP.
Lerner 2011 Juvenile Criminal Responsibility: Can Malice Supply the Want of Years? Craig S. Lerner 86 Tul. L. Rev. 309 Can the young be held accountable for their crimes? At common law, juveniles were entitled to a presumption of incapacity, but were subject to criminal liability on an individualized basis: demonstrated malice supplied the want of years. In Graham v. Florida, the United States Supreme Court rejected this principle and held that juveniles categorically could not be sentenced to life without parole for crimes other than homicide. This Article argues that embedded in the Court's holding is a simplifying assumption about the relative maturity of juveniles and adults and a moral claim about the culpability of homicides and nonhomicides--both this assumption and this claim are demonstrably false in a nontrivial number of cases. This Article focuses on the facts of some of these cases. One cannot assess the culpability of particular defendants unless one considers, without artful euphemisms or convenient elisions, what they did. And what certain crimes reveal is that there are violent juvenile offenders--fortunately rare--who are at least as mature and culpable as the typical adult violent offender. The Article also considers lower court applications of Graham and finds, in many instances, marked skepticism. The Supreme Court's general theory of juvenile immaturity has failed to impress judges confronting particular cases. The Court's central claim about the relative culpability of adult and juvenile offenders originates from a failure to confront inconvenient facts and a belief that human nature is sufficiently captured by the three standard deviations that surround one's own experience in the world. Lower court judges have access to a wider data set in reaching contrary conclusions.
Lerner 2004 Using Our Brains: What Cognitive Science and Social Psychology Teach Us About Teaching Law Students to Make Ethical, Professionally Responsible, Choices Alan M. Lerner 23 QLR 643 Throughout our lives, below the level of our consciousness, each of us develops values, intuitions, expectations, and needs that powerfully affect both our perceptions and our judgments. Placed in situations in which we feel threatened, or which implicate our values, our brains, relying on those implicitly learned, emotionally weighted, memories, may react automatically, without reflection or the opportunity for reflective interdiction. We can "downshift," to primitive, self-protective problem solving techniques. Because these processes operate below the radar of our consciousness, automatic, "emotional" reaction, rather than thoughtful, reasoned analysis may drive our responses to stressful questions of ethics and professional responsibility
Leslie 2008 Understanding Addiction, Helping Clients and Colleagues Jeanne M. Leslie 69 Ala. Law. Assistance Program 348
Lettieri 2010 Fuori da uno splendido isolamento. Le scienze cognitive negli orizzonti della scienza giuridica [Breaking a splendid isolation: cognitive science in the horizon of legal science] Nicola Lettieri 2 Sistemi intelligenti 323
Levick 2012 The Eighth Amendment Evolves: Defining Cruel and Unusual Punishment Through the Lens of Childhood and Adolescence Marsha Levick, Jessica Feierman, Sharon Messenheimer Kelley, Naomi E. S. Goldstein, Kacey Mordecai 15 U. Pa. J. L. & Soc. Change 285
Levinson 2007 Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering Justin D. Levinson 57 Duke L.J. 345 This article argues that judges and jurors unknowingly propagate racism through their legal decisions because they misremember case facts in implicitly biased ways. Such an argument bridges discourse in implicit social cognition, memory studies, and legal decision-making. Social cognition research indicates that implicit racial biases are automatic, pervasive, and often operate without conscious awareness. Memory studies demonstrate that memory errors are meaningful and systematic, and are often facilitated by stereotypes. Decision-making theory teaches that memory errors can not only affect the results of individual decision-making processes, but also that group deliberations are unlikely to resolve these errors. The author argues that these three areas converge, resulting in a model that explains how implicit memory errors are made unconsciously and in racially biased ways. These unconscious and pervasive implicit memories biases consequently have the ability to affect a variety of legal outcomes. To test the theory, the author conducted an empirical study that examined how people remember legally relevant facts. In the study, participants read two short stories resembling legal cases - one about a fight and another about an employment termination. The race of the characters in the stories was varied so that some participants read about African Americans, some read about Hawaiians, and others read about Caucasians. Participants were later asked to recall facts of the stories. Results of this recall task indicated that people systematically misremembered legally relevant facts in racially biased ways. For example, participants who read about an African American or Hawaiian involved in a fight were significantly more likely to remember aggressive actions from the fight, compared to participants who read about a Caucasian. Participants even sometimes generated false memories about an African American, erroneously believing that he had engaged in aggressive behaviors when he had not. Other results indicated that implicit memory biases are not related to consciously racist attitudes or preferences - even less "racist" people manifested systematic implicit racial biases. The results strongly support the theory that implicit memory biases operate in the legal setting, and that they operate without the conscious knowledge of judges or jurors. The extension of an implicit racial bias model to legal decision-making raises concerns about the legal system's ability to achieve social justice. It also indicates that a stereotype-driven and historically discriminatory culture may still be causing harms through implicit memory biases in legal decision-making. Responding to such a systemic problem requires a multifaceted effort. Attempts to "debias" implicit racism have been mixed - reducing harms temporarily is possible but longer-term change is resistant to scientific efforts. The only foolproof suggestion for eliminating implicit racial biases is for cultural change to occur over time and through coordinated efforts. In the meantime, however, the author argues that a variety of temporary debiasing measures must be pursued.
Levy 2013 Moral Responsibility and Consciousness: Two Challenges, One Solution Neil Levy Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) Until recently, most philosophers seem implicitly to have assumed that consciousness is necessary for moral responsibility; this is, moreover, an assumption that seems built into the law. Under the pressure of scientific evidence and independent philosophical argument, some philosophers now reject that assumption. Against these philosophers, I argue that we need to be conscious of the facts that make our actions morally significant in order to be morally responsible for them. I present two separate defences of this claim. First, I argue that actions caused by unconscious attitudes do not express good or ill will toward others. Second, I argue that such actions do not express our evaluative agency. Finally, I turn to some alleged empirical evidence against the claim that we can be conscious of our volitions, and show how the defence offered is immune to this challenge.
Levy 2013 Addiction and Self-Control Neil Levy Oxford University Press, Neil Levy, ed. This book brings together a set of papers, many which grow out of presentations at a conference in Oxford in 2009 on addiction and self-control, by a set of thinkers who are united in believing that understanding agency and failures of agency requires engagement with the best science. The papers it collects attempts to illuminate the mechanisms involved in addiction and thereby to understand to what degree and in what ways actions driven by addiction are controlled by the agent, express his or her will or values, and the extent to which addicts are responsible for what they do. Some of the papers focus on the neuropsychological mechanisms involved, especially on the role of the midbrain dopamine system. Others focus on features of the behavior and the extent to which we can infer psychological mechanisms from behavior. The authors debate the best interpretation of the scientific evidence and how the scientific evidence bears upon, or can only be understand in the light of, philosophical theorizing about agency, control and responsibility.
Levy 2013 Punishing the Addict: Reflections on Gene Heyman Neil Levy in The Future of Punishment, OUP, Thomas Nadelhoffer, ed. Gene Heyman has recently and influentially argued that addiction is a disorder of choice. He amasses a great deal of evidence that addicts respond to incentives to use drugs, in the same way as nonaddicts. This claim generates a puzzle: why are addicts often unresponsive to costs—legal penalties, impairment of relationships, loss of job or health, and so on—which seem sufficient motivation to abstain? I argue that although addicts are responsive to incentives, this responsiveness is patchy. Addicts are relatively insensitive to delayed and uncertain punishments. They are more responsive to rewards than punishments. Addicts can be motivated to change their behavior by incentives, positive and negative. I suggest that the most effective response to addiction may involve the imposition of swift and certain, but relatively light, penalties, coupled with rewards for abstention. The claims put forward here also have a philosophical upshot: they indicate that the common philosophical view that capacities are perfectly general-purpose must be rethought. Negative and positive rewards are not treated alike by the brain, and they are differentially motivating for the addict.
Libet 2010 Do We Have Free Will? Benjamin Libet Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). This chapter presents a classic essay in which Benjamin Libet lays out his basic experimental results and draws philosophical lessons regarding free will and responsibility. He argues that the existence of free will is at least as good, if not a better, scientific option than is its denial by determinist theory. Given the speculative nature of both determinist and nondeterminist theories, why not adopt the view that we do have free will (until some real contradictory evidence may appear, if it ever does). Such a view would at least allow us to proceed in a way that accepts and accommodates our own deep feeling that we do have free will. We would not need to view ourselves as machines that act in a manner completely controlled by the known physical laws. Such a permissive option has also been advocated by the neurobiologist Roger Sperry.
Lidsky 1998 The Neuropsychologist in Brain Injury Cases Theodore I. Lidsky, Jay S. Schneider & Dennis D. Karpf 34-JUL Trial 70
Lijtmaer 2008 The Felony Murder Rule in Illinois: The Injustice of the Proximate Cause Theory Explored via Research in Cognitive Psychology Martin Lijtmaer 98 J. Crim. L. & Criminology 621 The felony murder rule has long been the subject of intense criticism by the legal scholar community. Illinois abides by the proximate cause theory of the felony murder rule. The proximate cause theory holds felons accountable for any foreseeable deaths that occur during the commission or attempted commission of a felony. This includes deaths of innocent bystanders caused by third parties, and even, as in two recently decided Illinois Supreme Court cases, the deaths of co-felons at the hands of police officers. Illinois courts have justified using proximate cause, a concept borrowed from tort law, on the grounds that the foreseeability requirement would temper the innate harshness of the felony murder rule. However, in practice, instead of placing a restriction on the felony murder rule, it has been applied expansively, extending liability even to those defendants whose actions appeared attenuated from their co-felon's death. This Comment explores why the proximate cause theory has failed in its purported purpose to limit the felony murder rule, and employs cognitive psychology as a means to explain the rule's expansive application.
Linden 2008 Brain Evolution and Human Cognition: The Accidental Mind David J. Linden 45 Willamette L. Rev. 17
Lindenberg 2013 Cognition and Governance: Why Incentives Have to Take the Back Seat Siegwart M. Lindenberg in Handbook of Economic Organization: Integrating Economic and Organization Theory, A. Grandori, ed., Edward Elgar Can we get by with “thin” notions of cognition and motivation as microfoundations for a theory of governance inside firms? This question is considered crucial for the development of the field and the answer given in this chapter is: no, we can not. The paper takes Williamson’s elaboration of an interest alignment approach with private orderings as one of the two prototypes of organizational governance. The underlying notions of cognition (as information impactedness) and motivation (as guile) are shown to be too thin to deal with the problems that arise in the kind of governance that gives pride of place to interest alignment, let alone to come up with solutions for alternative forms of governance. The paper presents microfoundations that are much thicker with regard to cognitions and motivation by focusing on overarching goals and by being informed by the state of the art in cognitive (social) psychology and sociology, neuroscience and evolutionary theory. It is shown that on the basis of such microfoundations, it is possible to pinpoint the shortcomings of the interest alignment approach (cum private orderings) and to formulate an alternative prototype of governance structures that is based on goal integration rather than interest alignment. A central feature deriving from the microfoundations that helped construct this prototype is that it is essential to base governance on the collaborative nature of organizations and on the precariousness of the collective orientation of their members.
Link 2012 Assessing Voting Competence and Political Knowledge: Comparing Individuals with Traumatic Brain Injuries and “Average” College Students Jessica N. Link, Martha Kropf, Mark Alexander Hirsch, Flora M. Hammond, Jason Karlawish, Lisa Schur, Douglas Kruse, Christine S. Davis 11 Election L.J. 52 The majority of U.S. states have constitutional language, statutes, or court decisions that if applied as worded, could bar individuals with traumatic brain injury (TBI) from voting. Here, we investigate the difference between the voting competence and political knowledge of individuals with TBI and that of “average” college students using measures of voting capacity and election-specific political knowledge. We recruited 14 individuals with TBI who are participating in a larger study on the relationship between disability and political participation at Carolinas Medical Center. We compared their responses to healthy controls (HC) (students at a large public university in North Carolina; n=22) on voting competency and political knowledge using the Competency Assessment Tool for Voting (designed by Appelbaum, Bonnie, and Karlawish), as well as measures of 2008 election information and questions drawn from the United States Citizen and Immigration Services citizenship exam. To the best of our knowledge, this is the first study to compare election-specific knowledge of persons with TBI and HCs. We find that those with TBI scored similarly to the healthy controls on competence to vote and election-specific knowledge. We conclude suffrage laws should not be based on overly broad, general assumptions regarding the cognitive capacity of citizens, but on whether or not they express a desire to vote.
Linton 2012 Scholastic Steroids: Is Generation Rx Cognitively Cheating? Kelline R. Linton 39 Pepp. L. Rev. 989
Locker 2011 Grow Up Georgia . . . It's Time to Treat Our Children as Children Elizabeth Locker 4 J. Marshall L.J. 85 Childhood is about growth and development. The human brain grows just as the body does. In fact, research shows that human brains continue to develop into our early twenties. Additionally, our key executive functions of judgment, forethought, and delayed gratification are last to develop fully. The recognition that those under the age of eighteen are qualitatively different from adults is not a blank check for teenagers to run amok, nor is it a path that leaves communities unprotected or without recourse for wrongs. Rather, it is the recognition that with correct guidance many children can be steered into a productive, law-abiding adulthood. Thirty-seven states grant exclusive jurisdiction to juvenile courts for children until they turn eighteen, leaving Georgia in a small minority. Georgia law generally limits delinquency jurisdiction to children under seventeen and further identifies seven felonies that, if a child as young as thirteen is alleged to have committed, are excluded from original juvenile court jurisdiction. The Georgia General Assembly is currently considering a major rewrite of the state's juvenile code. The original Proposed Model Juvenile Code includes provisions to bring Georgia in-line with the nation by: (1) raising the age of juvenile court jurisdiction to eighteen, and (2) allowing transfer to adult criminal court for those accused of committing certain serious felony acts, but only after a sufficient evaluation is undertaken in the juvenile court. Unfortunately, as introduced, the Child Protection and Public Safety Act omitted those provisions, and in doing so missed an important opportunity to modernize Georgia law. In its current form, the bill ignores the prevailing legal direction, including Supreme Court jurisprudence recognizing the inherent differences between children and adults. Further, it ignores social science research, undermines historical goals of juvenile courts, and ultimately, leaves in question the future of the rising generation.
Loftus 2010 Processi cognitivi, testimonianza dell'esperto e teorie su eventi di pertinenza legale [Cognitive processes, expert’s testimony and theories on legally relevant events] Geoffrey Loftus 2 Sistemi intelligenti 193
Logothetis 2008 What we can do and what we cannot do with fMRI Nikos K. Logothetis 453 Nature 869 Functional magnetic resonance imaging (fMRI) is currently the mainstay of neuroimaging in cognitive neuroscience. Advances in scanner technology, image acquisition protocols, experimental design, and analysis methods promise to push forward fMRI from mere cartography to the true study of brain organization. However, fundamental questions concerning the interpretation of fMRI data abounds, as the conclusions drawn often ignore the actual limitations of the methodology. Here I give an overview of the current state of fMRI, and draw on neuroimaging and physiological data to present the current understanding of the haemodynamic signals and the constraints they impose on neuroimaging data interpretation.
Lokhorst 2010 Mens Rea, Logic, and the Brain Gert-Jan Lokhorst Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter discusses some recent work in the artificial intelligence and law community on the logic of mens rea ascriptions. It extends this work to give an account of quantified mens rea ascriptions in the sense in which they have been discussed in the legal literature. It studies the consequences of this work for neuroscience. The chapter argues that it is logically impossible to derive de re ascriptions of mens rea — as opposed to de dicto ascriptions — from neuroscientific evidence. In other words: the distinction between wide and narrow scopes in propositional attitude ascriptions, of which logicians have been aware for a long time, has dramatic consequences for the scope and limits of neuroscience in areas that are of interest to the law.
Looney 2010 Neuroscience's New Techniques For Evaluating Future Dangerousness: Are We Returning To Lombroso's Biological Criminality? J. W. Looney 32 U. Ark. Little Rock L. Rev. 301
Loue 2007 Legal and Ethical Issues in Heroin Diagnosis, Treatment, and Research Sana Loue & Beatrice Ioan 28 J. Legal Med. 193 The article discusses the legal and ethical issues related to heroin diagnosis, treatment, and research. It explores the issues of capacity and voluntariness common to heroin-related research and clinical care. The risks and benefits are also discussed with an overview of the mechanics and causes of heroin use and dependence. Treatments are presented in brief.
Loue 2003 The Criminalization of the Addictions Sana Loue 24 J. Legal Med. 281 Significant conflicts exist in our legal approach to substance dependence and abuse. Reliance on substances such as alcohol, marijuana, and heroin, once portrayed as a moral lapse or character defect, has become medicalized within a disease framework. Concurrent with the development of this disease perspective, we have implemented increasingly harsh criminal penalties for the use of these substances, which may be, but are not necessarily, linked to the context and consequences of that use. Our current approaches include the following: (1) criminalization of specified behaviors or consequences associated with the use of a legal substance, such as alcohol; (2) criminalization of use in most, but not all, circumstances and in most, but not all, forms, such as marijuana; and (3) criminalization of any use of a specific substance, such as heroin. This approach, however, is not always congruent with our current state of knowledge about the drug, about dependence, and about recovery from dependence. The article first defines addiction and the related concepts of substance abuse and substance dependence. The second portion of the discussion utilizes alcohol, marijuana, and heroin as case studies illustrative of the vacillation and inconsistency with which we have approached substance use. The third section reviews various strategies that have been used in the criminal context to address substance use or criminal acts associated with the substance use, such as possession. The article concludes with recommendations for the integration of current knowledge relating to addiction and behavior change with criminal justice processes.
Luce 2012 Proving a "Mild" Traumatic Brain Injury: A Complex But No Longer Impossible Task Robert Luce 38 SPG Vt. B.J. 12 Traumatic Brain Injury, especially brain injury categorized as “mild” (MTBI), has historically presented one of the biggest challenges for trial lawyers because there often are no visible markers or clear signs of brain injury. Three important areas of development — research on brain injuries and veterans conducted by the Department of Defense, research on brain injuries and athletes conducted by the Center for the Study of Traumatic Encephalopathy, and ongoing study conducted by the Centers for Disease Control and Prevention (CDC) — have provided critical advances in both understanding the signs and the long-term effects of brain injury and in increasing public awareness and acceptance that invisible injuries to the brain can have devastating consquences. While proving MTBI is still a highly sophisticated, complex area of law, the new research and the public attention it has brought, combined with advances in brain imaging technology, mean that it is no longer an impossible task.
Luna 2012 The Relevance of Immaturities in the Juvenile Brain to Culpability and Rehabilitation Beatriz Luna 63 Hastings L.J. 1469 The overreaching aim of this Article is to describe how developmental cognitive neuroscience can inform juvenile law. Fundamental to culpability and responsibility is the ability to effectively execute voluntary executive behavior. Executive function, including cognitive control and working memory, has a protracted development with key aspects continuing to mature through adolescence. These limitations in executive control are due in great part to still maturing brain processes. Gray and white matter changes are still becoming established in adolescence, enhancing efficiency and the speed of brain processing supporting executive control. Dopamine, a neurotransmitter that underlies reward processing and learning, peaks in adolescence—supporting known increases in sensation seeking but also in adaptable learning. Functional Magnetic Resonance Imaging (“fMRI”) studies show that adolescent limitations in recruiting brain systems that support response planning, error processing, the ability to sustain an executive state, and top-down prefrontal executive control of behavior underlie limitations in executive control in adolescence. Moreover, adolescents show over-reactivity to reward incentives, thus engaging response systems that may contribute to impulsive responses in situations with high motivation. Neurobiological evidence indicating that adolescence is a transitional stage of limited executive control in the context of increased vulnerability to sensation seeking can inform culpability, long-term sentencing, and greater amenability for rehabilitation. Finally, it is important to note that executive control, while limited in its efficiency, is available in adolescence, and given time to deliberate with guidance from mature adults, adolescents can make responsible decisions.
Macer 2012 Neurolaw and UNESCO Bioethics Declarations Darryl Macer International Neurolaw (Springer, Tade Spranger, Ed., 2012) This paper presents an analysis of the bioethics Declarations agreed by all member countries of UNESCO with reference to neurosciences. The texts, the 1997 Universal Declaration on the Human Genome and Human Rights, and the 2005 Universal Declaration on Bioethics and Human Rights, provide a number of useful points for countries considering policy for use of knowledge of neurosciences, and in the education of society of the issues that arise from our increased understanding of neurosciences.
Macioce 2012 Le neuroscienze. Vecchie domande e nuove sfide per il diritto [Neuroscience: old questions and new endeavors for the law] Fabio Macioce 1 Archivio giuridico "Filippo Serafini" 25
MacIver 2011 Suicide Causation Experts in Teen Wrongful Death Claims: Will They Assist The Trier of Fact? Andrea MacIver 45 J. Marshall L. Rev. 51
MacKenzie 2010 The Neuroscience of Cruelty as Brain Damage: Legal Framings of Capacity and Ethical Issues in the Neurorehabilitation of Motor Neurone Disease Robin MacKenzie & Mohamed Sakel Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter explores some ethical and legal issues arising from the impact of the neuroscience of decision-making and emotion on end-of-life decisions of patients with certain neurodegenerative disorders. It suggests that the current means of assessing capacity to make decisions over medical treatment should be read as measuring emotional as well as cognitive factors; that the ethics of clinician/carer relations should be monitored carefully to minimize conflicts of interest and exploitation; and that behavioural variant frontotemporal dementia (bvFTD) exemplifies certain difficulties arising with advance decisions to refuse treatment (ADRTs) that must be resolved.
Mackenzie 2009 Reframing the Good Death: Enhancing Choice in Dying, Neuroscience, End-of-Life Research and the Potential of Psychedelics in Palliative Care Robin Mackenzie Law, Mind and Brain 239 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009).
Mackintosh 2011 Brain Waves 4: Neuroscience and the Law Nicholas Mackintosh, Alan Baddeley, Roger Brownsword, Lisa Claydon, John Harris, Geraint Rees, Nikolas Rose, Sir Michael Rutter, Wolf Singer The Royal Society Neuroscientists seek to determine how brain function affects behaviour, and the law is concerned with regulating behaviour. It is therefore likely that developments in neuroscience will increasingly be brought to bear on the law. This report sets out some of the areas where neuroscience might be of relevance, along with some of the limits to its application. Specific issues discussed include risk assessment in probation and parole decisions; detecting deception; assessing memory; understanding pain; and Non-Accidental Head Injury NAHI).
Mackor 2013 What Can Neuroscience Say About Responsibility? Taking the Distinction Between Theoretical and Practical Reason Seriously Anne Ruth Mackor Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) This chapter focuses on the question what neurosciences can say about responsibility. First I argue that the claim that neurosciences can show the practices of holding oneself and others responsible to be untenable or at least pointless is self-contradictory. Next I discuss the question whether neurosciences might change the conception of responsibility. I argue that although neurosciences do not have a ‘final say’ on this matter, they can offer viable arguments for and against changing the conception as well as for and against applying the conception to particular persons or categories of persons. Finally, I argue that neuroscientific findings do not necessarily result in a reduction of the category (and number) of people we can hold responsible. On the contrary, neuroscientific findings might just as well have the opposite result. Via a construction of culpa in causa, they might result in hyper-responsibility.
MacMillan 2010 Weighing the Evidence: Neuroimagery Evidence of Brain Trauma or Disorder in Courts Scott N. MacMillan & Michael S. Vaughn 46 No. 3 Crim. L. Bull. ART 5 This article addresses the admission of neurological evidence at trial, specifically neuroimaging. In recent years, neuroimaging has begun to be accepted by the courts. Through a review of U.S. Supreme Court, as well as federal and state court cases where neurological evidence was admitted, the article examines the impact of such evidence on trial outcomes. Implications for police, prosecutors, public defenders, and judges are explored. The article concludes that the criminal justice system will use more imaging devices as technological advances make it more affordable and accessible.
Mahlmann 2011 Neuroscience and the Law: Concerns, Questions and Promises Matthias Mahlmann Bulletin Vereinigung der Schweizerischen Hochschuldozierenden 44 In recent years there has been increasing interest in the relation of neuroscience and the law. Far reaching questions are asked about the forensic use of neuroscientific insights. Fundamental conceptions of the law have been questioned as well in the light of what appears to be known in cognitive science. Debates have focused on freedom and responsibility but are in no way limited to these issues. The article explores what appear to be central topics in this field.
Mahlmann 2007 Ethics, Law and the Challenge of Cognitive Science Matthias Mahlmann 8 German L.J. 577
Mandel 2010 Left-Brain Versus Right-Brain: Competing Conceptions of Creativity in Intellectual Property Law Gregory N. Mandel 44 U.C. Davis L. Rev. 283 An ongoing debate at the heart of intellectual property law pits those who argue for efficiency objectives versus those who seek to advance other social goals. Proponents of the former model focus on the need for intellectual property regimes to provide incentives, while proponents of the latter aspire to protect natural rights or secure an environment for greater human flourishing. Typically lost to both observers and participants in these disputes is that most conceptions of intellectual property actually share a common ambition - the desire to promote creativity. Promoting creativity serves both the incentive goals of intellectual property and advances more holistic personal, cultural, and social interests. Psychological, neurobiological, and cultural research now provide a wealth of information on how to actually promote creativity. Unfortunately, intellectual property law has failed to recognize these insights, instead remaining moored in doctrine derived from archaic stereotypes about creativity and the creative process. We see these distorting stereotypes, for example, in the law concerning joint authors and joint inventors. Based on historical, textual, temporal, and comparative law evidence, this article argues that joint creator law has evolved, at least in part, not from its traditionally identified sources, but from commonly held stereotypes about left-brain scientists versus right-brain artists. Modern research shows that these stereotypes of creativity are not only false, but that as a result, joint creator law specifically, and intellectual property law more generally, likely do not promote progress to the extent feasible, hindering both creativity and valuable collaboration in important contexts. Leveraging these interdisciplinary teachings yields valuable insight for how to revise patent and copyright law to better serve their creative objectives.
Markowitsch 2009 Neuroscience and Crime Hans J. Markowitsch Neuroscience and Crime: A Special Issue of Neurocase (Psychology Press, Hans Markowitsch, ed., 2009). Jurisprudence will profit considerably from methods and applications of the neurosciences. In fact, it is proposed that the neurosciences will provide unique possibilities and advantages in understanding motivations and causes for staying lawful or for becoming unlawful. Neuroscientific models on brain-behavior interactions have profited considerably from the advent of neuroimaging techniques and genetic analyses. Furthermore, advances in interdisciplinary investigations, which combine conventional psychological and sociological explorations with biological examinations, provide refined insights into the question 'What makes us tick?' (Weiskrantz, 1973, British Journal of Psychology, 64, 511-520). The search for such interactions from the time of the nineteenth century to the present is briefly surveyed and it is concluded that the interdisciplinary approaches within and across neuroscientific fields will lead and have already led to a considerable expansion of our knowledge. The articles in this issue devoted to highlighting the latest neuroscience research related to criminal behavior underline the power of this new approach.
Marks 2008 Interrogation Using Functional MRI and Cognitive Engrams Donald H. Marks J. Inst. Just. Int'l Stud. 31
Marks 2007 Interrogational Neuroimaging In Counterterrorism: A “No-Brainer” or a Human Rights Hazard? Jonathan H. Marks 33 Am. J.L. & Med. 483 Recent fMRI studies have generated a great deal of excitement about the potential for neuroimaging technologies to support the U.S. counterterrorism mission post-9/11 and, in particular, to assist with the interrogation of suspected terrorists. Advocates of the technology claim that fMRI could be used (a) to detect deception and/or (b) to monitor recognition of an audio or visual stimulus - recognition that the examination subject might otherwise wish to suppress. At least two corporations in the U.S. are aggressively marketing the technology for lie detection purposes. Although the use of fMRI in the war on terror has been mainly conjecture until now, this paper cites statements by an experienced U.S. interrogator suggesting the technology may already have been deployed in the field. Some advocates claim fMRI has the potential to eliminate torture and other violations of fundamental human rights. (If we can read the minds of terrorists, so the argument goes, we won't need to torture them.) This essay responds to that claim by sounding a note of caution. Drawing on recent work from scholars in science, technology and society (STS), social neuroscience and bioethics, this paper argues that fMRI may lead to the abuse of detainees - including those who are innocent - as a result of overconfidence in the technology and the profound social construction of the data it produces. The risk of abuse is particularly acute in highly-charged counterterrorism scenarios because fMRI will be deployed extrajudicially and behavioral drift is likely.
Maroney 2012 Angry Judges Terry A. Maroney 65 Vand. L. Rev. 1207 Judges get angry. Law, however, is of two minds as to whether they should; more importantly, it is of two minds as to whether judges’ anger should influence their behavior and decision making. On the one hand, anger is the quintessentially judicial emotion. It involves appraisal of wrongdoing, attribution of blame, and assignment of punishment — precisely what we ask of judges. On the other, anger is associated with aggression, impulsivity, and irrationality. Aristotle, through his concept of virtue, proposed reconciling this conflict by asking whether a person is angry at the right people, for the right reasons, and in the right way. Modern affective psychology, for its part, offers empirical tools with which to determine whether and when anger conforms to Aristotelian virtue. This Article weaves these strands together to propose a new model of judicial anger: that of the righteously angry judge. The righteously angry judge is angry for good reasons; experiences and expresses that anger in a well-regulated manner; and uses her anger to motivate and carry out the tasks within her delegated authority. Offering not only the first comprehensive descriptive account of judicial anger but also the first theoretical model for how such anger ought to be evaluated, the Article demonstrates how judicial behavior and decision making can benefit by harnessing anger — the most common and potent judicial emotion — in service of righteousness.
Maroney 2011 The persistent cultural script of judicial dispassion Terry A. Maroney 99 Cal. L. Rev. 629 In contemporary Western jurisprudence it is never appropriate for emotion--anger, love, hatred, sadness, disgust, fear, joy--to affect judicial decision making. A good judge should feel no emotion; if she does, she puts it aside. To call a judge emotional is a stinging insult, signifying a failure of discipline, impartiality, and reason. Insistence on judicial dispassion is a cultural script of unusual longevity and potency. But not only is the script wrong as a matter of human nature--emotion does not, in fact, invariably tend toward sloppiness, bias, and irrationality--it is also not quite so monolithic as it appears. Legal theorists, and judges themselves, sometimes have asserted that judicial emotion is inevitable and, perhaps, to be welcomed. But these dissents have neither eroded the script's power nor blossomed into a robust theory of how emotion might coexist with, or even contribute to, judicial decision making. Close examination of this hidden intellectual history reveals why. Scholars and judges consistently have stumbled over foundational questions of emotion's nature and value. Fortunately, the history reveals cures as well as causes. We can move forward by way of disciplined, sustained recourse to a newly vibrant emotional epistemology, a project that will create a distinct space for the story of judicial emotion.
Maroney 2011 Emotional Regulation and Judicial Behavior Terry A. Maroney 99 Cal. L. Rev. 1485 Judges are human and experience emotion when hearing cases, though the standard account of judging long has denied that fact. Though in the post-Realist era it is possible to acknowledge that judges have emotional reactions to their work, our legal culture continues to insist that a good judge firmly puts them aside. Thus, we expect judges to regulate their emotions, either by preventing emotion’s emergence or by walling off its influence. But judges are given precisely no direction as to how to engage in emotional regulation. This Article proposes a model for judicial emotion regulation that goes beyond a blanket admonition to "put emotion aside." While legal discourse on judicial emotion has been stunted, scientific study of the processes of emotion regulation has been robust. By bringing these literatures together for the first time, the Article reveals that law does nothing to promote intelligent judicial emotion regulation and much to discourage it. An engagement model for managing judicial emotion promises to reverse this maladaptive pattern. It provides concrete tools with which judges may prepare realistically for emotional situations they necessarily will encounter, respond thoughtfully to emotions they cannot help but feel, and integrate lessons from such emotions into their behavior. Importantly, medicine has begun to pursue just such a program to promote competent emotion regulation by doctors. The engagement model is far superior to all its alternatives. Other regulation strategies, such as avoidance, are fundamentally incompatible with judges’ professional responsibilities. Suppressing the expression and experience of emotion - encouraged by the status quo - is costly and normatively undesirable. Suppression is unrealistic, exacerbates cognitive load, impairs memory, and can paradoxically increase emotion’s influence while rendering that influence less transparent. The judicial engagement model, in contrast, leverages the best of what the psychology of emotion regulation has to offer. It puts a name to what extraordinary judges already are doing well and makes it available to all judges. By setting aside not judicial emotion but, rather, the crude manner in which we have asked judges to manage it, we stand materially to improve the quality of judging.
Maroney 2010 Adolescent Brain Science and Juvenile Justice Terry Maroney Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter first traces the ascendance of developmental neuroscience within juvenile justice. It then demonstrates that, despite optimistic projections, adolescent brain science has had, is likely to have, and should have, only moderate impact in the courts. Neuroscience can, however, play a limited role in juvenile justice policy. It reinforces the (once) noncontroversial idea that, as a group, young people differ from adults in systematic ways directly relevant to their relative culpability, deterrability, and potential for rehabilitation. Therefore, legal decision-makers exercising a policy-making role — usually legislatures but sometimes the courts — ought to consider developmental neuroscience one source among many upon which to draw when making legally relevant assumptions about adolescents as a group.
Maroney 2010 Adolescent Brain Science after Graham v. Florida Terry A. Maroney 86 Notre Dame L. Rev. 765 In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits a sentence of life without possibility of parole for a non-homicide crime committed when the offender was under the age of eighteen. In an earlier Article, The False Promise of Adolescent Brain Science in Juvenile Justice, this author noted the pendency of Graham and its companion case, in which petitioners and their amici offered neuroscientific arguments closely paralleling those made by the defendant in Roper v. Simmons. Kennedy’s opinion in Graham clarified what his opinion in Roper had left ambiguous: the Court believes neuroscience relevant to general propositions as to the normal developmental course of adolescence. As the cases’ potential impact was set to one side in False Promise, the Essay both supplements that Article and reflects on its conclusions. I predict that Graham’s most dramatic effects will have little to do with developmental neuroscience. Its most significant downstream effects likely will manifest in evaluation of term-of-years sentencing and opportunities for parole. As to adolescent brain science, I argue that the Graham Court gave it the maximum weight it presently can bear. The decision therefore provides welcome support for legal policy-makers – whether in courts or legislatures – who seek to draw modestly on such science in reinforcing commitments to the special legal status of youth. But the predictable post-Graham temptation to place even greater weight on developmental neuroscience should – for the many reasons articulated in False Promise, which remain unaltered – be resisted.
Maroney 2009 The False Promise of Adolescent Brain Science in Juvenile Justice Terry A. Maroney 85 Notre Dame L. Rev. 89 Recent scientific findings about the developing teen brain have both captured public attention and begun to percolate through legal theory and practice. Indeed, many believe that developmental neuroscience contributed to the U.S. Supreme Court’s elimination of the juvenile death penalty in Roper v. Simmons. Post-Roper, scholars assert that the developmentally normal attributes of the teen brain counsel differential treatment of young offenders, and advocates increasingly make such arguments before the courts. The success of any theory, though, depends in large part on implementation, and challenges that emerge through implementation illuminate problematic aspects of the theory. This article tests the legal impact of developmental neuroscience by analyzing cases in which juvenile defendants have attempted to put it into practice. It reveals that most such efforts fail. Doctrinal factors hamstring most claims — for example, that persons with immature brains are incapable of forming the requisite mens rea for serious crimes. Limitations intrinsic to the science itself — for example, individual variation — also hinder its relevance and impact. These factors both explain why developmental neuroscience has had minimal effects on juvenile justice in the courts and illustrate why it generally should. Moreover, direct reliance on neuroscience as the metric for juvenile justice policy may jeopardize equality and autonomy interests, and brain-based arguments too frequently risk inaccuracy and overstatement. The cases also strongly suggest that neuroscience does not materially shape legal decision-makers’ beliefs and values about youthful offenders but instead will be read through the lens of those beliefs and values. Developmental neuroscience nonetheless can play a small role in juvenile justice going forward. Legislatures and courts may regard that science as one source among many upon which to draw when basing policy choices on assumptions about juveniles as a group. To go further is unwarranted and threatens to draw attention away from critical legal and environmental factors — good schools, strong families, economic opportunities, mental health care, humane sentencing regimes, and rehabilitative services — that are both more important and subject to greater direct control.
Maroney 2009 Emotional Competence and "Rational Understanding": A Guide for Defense Counsel Terry A. Maroney 33-APR Champion 36 The legal standards for adjudicative competence1 appear simple: as the U.S. Supreme Court declared in Dusky v. United States, the substantive test is whether a criminal defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings.” It is clear, too, that the defendant has a fundamental constitutional right not to be tried, convicted, sentenced, or executed while incompetent, and the procedure by which competence is raised and determined is relatively straightforward. But this apparent clarity is deceiving. Despite its evident importance5 and solid historical pedigree, adjudicative competence remains surprisingly ill-defined. The substantive meaning of Dusky — notably the distinction between “rational” and “factual” understanding — has escaped significant elaboration. Implementation of Dusky is also highly unpredictable, as it generally falls
Maroney 2009 Emotional Common Sense as Constitutional Law Terry A. Maroney 62 Vand. L. Rev. 851 In Gonzales v. Carhart the Supreme Court invoked post-abortion regret to justify a ban on a particular abortion procedure. The Court was proudly folk-psychological, representing its observations about women's emotional experiences as "self-evident." That such observations could drive critical legal determinations was, apparently, even more self-evident, as it received no mention at all. Far from being sui generis, Carhart reflects a previously unidentified norm permeating constitutional jurisprudence: reliance on what this article coins "emotional common sense." Emotional common sense is what one unreflectively thinks she knows about the emotions. A species of common sense, it seems obvious and universal to its holder - but this appearance is misleading. This article articulates and evaluates the Court's reliance on emotional common sense in constitutional law. It demonstrates that emotional common sense sometimes imports into law inaccurate accounts of the world. Justices of every ideological orientation invoke it in a manner that comports with their desired ends. Emotional common sense colors interpretation of evidence, manifests in selective perspective-taking, and shapes jurisprudential choices. Common-sense evaluation of the emotions also necessarily embodies underlying beliefs and values; enforcing them on others under the guise of simple truth silently forces a false consensus. Emotional common sense has a limited place in constitutional law. It may be cautiously embraced where an emotional phenomenon is relatively basic and universal. In all other cases the embrace should be withheld. Evaluating isolated instances in which the Court has looked beyond emotional common sense, the article shows that a superior path exists.
Maroney 2006 Emotional Competence, “Rational Understanding,” and the Criminal Defendant Terry A. Maroney 43 Am. Crim. L. Rev. 1375 Adjudicative competence, more commonly referred to as competence to stand trial, is a highly undertheorized area of law. Though it is well established that, to be competent, a criminal defendant must have a rational as well as factual understanding of her situation, the meaning of such rational understanding has gone largely undefined. Given the large number of criminal prosecutions in which competence is at issue, the doctrine's instability stands in stark contrast to its importance. This article argues that adjudicative competence, properly understood, asks whether a criminal defendant has capacity to participate meaningfully in the host of decisions potentially required of her. Further, sound assessment of such capacity requires attention to both the cognitive and emotional influences on rational decision-making in situations of personal relevance and risk. The role of emotion has been neglected, both in traditional accounts of decision-making and in assessments of adjudicative competence, and merits particular attention. This article explores two examples of potentially competence-threatening emotional dysfunction - severe psychiatric mood disorder and organic brain damage - either of which may interfere unreasonably with decision-relevant emotional perception, processing, and expression. Existing legal theory and forensic testing methods, which reflect a predominantly cognitive approach, do not account adequately for such dysfunction. Shifting the adjudicative competence inquiry away from a general search for rationality and toward a more finely-grained examination of the cognitive and emotional influences on rational decision-making processes offers our best hope for giving meaning to rational understanding.
Martell 2009 Neuroscience and the Law: Philosophical Differences and Practical Constraints Daniel A. Martell 27 Behav. Sci. & L. 123 Controversies surrounding the value of neuroscience as forensic evidence are explored from the perspective of the philosophy of mind, as well as from a practical analysis of the state of the scientific research literature. At a fundamental philosophical level there are profound differences in how law and neuroscience view the issue of criminal responsibility along the continuum from free will to determinism. At a more practical level, significant limitations in the current state of neuroimaging research constrain its ability to inform legal decision-making. Scientifically supported and unsupported forensic applications for brain imaging are discussed, and recommendations for forensic report writing are offered.
Martell 1996 Causal Relation Between Brain Damage and Homicide: The Prosecution Daniel A. Martell 1 Seminars in Clinical Neuropsychiatry 184
Martell 1992 Forensic Neuropsychology and the Criminal Law D.A. Martell 16 Law & Hum. Behav. 313 This article explores theoretical and empirical issues in the application of clinical neuropsychological evidence to forensic issues in the criminal law. The nature of forensic neuropsychological evaluations is discussed with reference to issues of competency to stand trial, criminal responsibility, and other competencies in the criminal process. Examples of specific disorders relevant to criminal law standards are presented, together with data estimating the prevalence of brain dysfunction in criminal and forensic populations. Research is also reviewed on the role of neuropsychological brain dysfunction in the etiology of violence and criminally relevant behavior. Finally, empirical and ethical issues concerning the applicability and admissibility of forensic neuropsychological data in the criminal context are discussed.
Martinez 1992 A Cognitive Science Approach to Teaching Property Rights in Body Parts John Martinez 42 J. Legal Educ. 290 In this article Martinez discusses the utility of a cognitive approach to teaching property law. He examines Moore v. Regents of the University of California, in which the California Supreme Court considered whether a person whose blood sample has been used to develop a valuable serum has a property right to any of the profits derived from its manufacture. The crucial question for the court in Moore was whether rules of property should be used to resolve the dispute. Martinez suggests that cognitive thinking can inform and improve both analysis and teaching in such evolving areas of the law.
Mayberg 2010 Does Neuroscience Give Us New Insights Into Criminal Responsibility? Helen Mayberg A Judge's Guide to Neuroscience 37 (SAGE Center For the Study of the Mind, 2010).
Mayberg 1996 Medical-Legal Inferences from Functional Neuroimaging Evidence Helen S. Mayberg 1 Seminars in Clinical Neuropsychiatry 195 Positron emission (PET) and single-photon emission tomography (SPECT) are validated functional imaging techniques for the in vivo measurement of many neuro-phsyiological and neurochemical parameters. Research studies of patients with a broad range of neurological and psychiatric illness have been published. Reproducible and specific patterns of altered cerebral blood flow and glucose metabolism, however, have been demonstrated and confirmed for only a limited number of specific illnesses. The association of functional scan patterns with specific deficits is less conclusive. Correlations of regional abnormalities with clinical symptoms such as motor weakness, aphasia, and visual spatial dysfunction are the most reproducible but are more poorly localized than lesion-deficit studies would suggest. Findings are even less consistent for nonlocalizing behavioral symptoms such as memory difficulties, poor concentration, irritability, or chronic pain, and no reliable patterns have been demonstrated. In a forensic context, homicidal and sadistic tendencies, aberrant sexual drive, violent impulsivity, psychopathic and sociopathic personality traits, as well as impaired judgement and poor insight, have no known PET or SPECT patterns, and their presence in an individual with any PET or SPECT scan finding cannot be inferred or concluded. Furthermore, the reliable prediction of any specific neurological, psychiatric, or behavioral deficits from specific scan findings has not been demonstrated. Unambiguous results from experiments designed to specifically examine the causative relationships between regional brain dysfunction and these types of complex behaviors are needed before any introduction of functional scans into the courts can be considered scientifically justified or legally admissible.
Mazzoni 2010 Scienza cognitiva, memoria e psicologia della testimonianza: il loro contributo per la scienza e la prassi forense [Cognitive science, memory and psychology of the witness: their contribution to the science and the trial] Giuliana Mazzoni 2 Sistemi intelligenti 181
McCabe 2011 The Influence of fMRI Lie Detection Evidence on Juror Decision Making D.P. McCabe, A.D. Castel & M.G. Rhodes 29 Behavioral Sciences and the Law 566 In the current study, we report an experiment examining whether functional magnetic resonance imaging (fMRI) lie detection evidence would influence potential jurors assessment of guilt in a criminal trial. Potential jurors (N = 330) read a vignette summarizing a trial, with some versions of the vignette including lie detection evidence indicating that the defendant was lying about having committed the crime. Lie detector evidence was either based on evidence from the polygraph, fMRI (functional brain imaging), or thermal facial imaging. Results showed that fMRI lie detection evidence led to more guilty verdicts than lie detection evidence based on polygraph evidence, thermal facial imaging, or a control condition that did not include lie detection evidence. However, when the validity of the fMRI lie detection evidence was called into question on cross examination, guilty verdicts were reduced to the level of the control condition. These results provide important information about the influence of lie detection evidence in legal settings.
McCauliff 2009 Cognition and Consensus in the Natural Law Tradition and in Neuroscience: Jacques Maritain and the Universal Declaration of Human Rights C.M.A. McCauliff 54 Vill. L. Rev. 435
McConnell 1994 The Sevin Made Me Do It: Mental Non-Responsibility and the Neurotoxic Damage Defense David B. McConnell 14 Va. Envtl. L.J. 151 The average American is exposed to thousands of different natural and synthesized toxic substances over a lifetime. The vast majority of those chemicals have not been tested, either alone or in combination, for their effects on human neurological systems. Researchers, however, have established some linkage between neurological damage and exposure to particular substances even within the small subset of tested chemicals. The resulting neuropathy can lead to behavioral or cognitive aberration. The philosophical and legal framework of Anglo-American criminal jurisprudence provides a niche of non-responsibility for behavior, which is the product of mental disease. Since punishment is predicated on the free will of the actor, we do not punish those who have not freely chosen to commit bad acts and may be undeterred by the prospect of punishment. Even if a neurologically damaged defendant is ultimately held responsible for his actions, the impairment should be considered a mitigating factor in sentencing. This article suggests that if a defendant can draw a causative, physiological connection between exposure to a toxin, consequential neurological damage, and a correlative behavioral/cognitive deficit which is relevant to the offense, a valid claim of non-responsibility should lie. Such defendants should be permitted to present etiological evidence so that fact-finders will have a more informed basis for determining culpability.
McCormack 2000 Applying the Basic Principles of Cognitive Science to the Standard State Zoning Enabling Act Michael J. McCormack 27 B.C. Envtl. Aff. L. Rev. 519 Cognitive Science studies cognition by examining problem-solving, establishing general conceptual tools and guidelines by which novices may become experts. Available to problem-solvers of all disciplines, including legislators, these tools offer a means for evaluating legislation. For example, by using these tools to assess the problem-solving effort in Euclidean zoning as embodied in the Standard State Zoning Enabling Act, it becomes clear that this Act could be improved in several ways: first, by shifting more of the decision-making power to those with the most experience; and, second, by mitigating the electoral and judicial constraints upon these decision-makers. These steps will ensure that Euclidean zoning, as a problem-solving process with distinct phases, represents an effective problem-solving effort.
McCormick 2006 Your Thoughts May Deceive You: The Constitutional Implications of Brain Fingerprinting Technology and How It May Be Used to Secure Our Skies Brian McCormick 30 Law & Psychol. Rev. 171
McDonald 2009 Campaign Finance Regulation and the Marketplace of Emotions Barry McDonald 36 Pepp. L. Rev. 395 This essay examines the validity, in light of new empirical research, of the free speech theory the U.S. Supreme Court uses to justify the doctrines it currently employs to assess the constitutionality of campaign finance regulations. The Court’s model, which Professor McDonald terms the theory of 'stimulated democratic deliberation,' assumes that an unlimited quantity of campaign-related communications will result in increased public deliberation about ideas and better informed citizens, which in turn will result in better decisions about candidates for political office. In short, this model assumes that rational thought and deliberation about important issues of the day drive voter decision-making. McDonald examines new research by neuroscientists, political psychologists and political scientists which suggests that this model is neither an accurate description of the nature of campaign-related communications nor their affect on average voters. These studies conclude that human emotion, and not reason, plays the dominant role in voter decision-making, and that political strategists are increasingly taking advantage of such findings to target and manipulate voter decisions with emotional appeals contained in political advertising. McDonald argues that the Court should update its theoretical model to more accurately reflect these realities, which in turn would warrant doctrinal modifications to give the government greater constitutional latitude to impose reasonable campaign finance regulations.
McEwen 2011 Effects of stress on the developing brain Bruce S. McEwen Cerebrum Here, Dr. Bruce S. McEwen looks at that science in depth, discussing how early-life stress can lead to long-lasting behavioral, mental, and physical consequences. Fortunately, preventive measures can improve health outcomes, and while interventions for those who have already experienced debilitating early-life stress require considerable effort, they remain possible, thanks to the brain’s plasticity.
McGee 2007 Should There Be A Law? Brain Chips: Ethical and Policy Issues Ellen M McGee 24 T.M. Cooley L. Rev. 81 In the not so distant future, we will probably witness the emergence of humans who are essentially coupled with bioelectronic devices, science fiction’s “cyborgs.” Innovations in semiconductor devices, cognitive science, bioelectronics, nanotechnology and applied neural control technologies are facilitating breakthroughs in these hybrids of humans and machines. Noteworthy ethical and legal concerns are raised by three future possibilities: 1) the prospect of using these technologies to improve and augment human capabilities, 2) the prospect of achieving a type of immortality through cloning of an individual and implanting the clone with a chip that contains the uploaded memories, emotions and knowledge of the clone’s source, and 3) the chance that humankind, as we know it, may eventually be phased out, or become just a step in guided evolution. There is a need to address the risks inherent in these enhancement technologies. This article proposes regulation through scientific societies, medical boards, state legislatures, federal agencies and United Nation policies. For the United States, a new agency to monitor enhancement technologies, along with a new governing principle and restructured requirements is recommended. Ultimately, the world community, through the United Nations, needs to address through debate and treaty, these enhancement possibilities.
McKenna 2007 Can a brain scan prove you're telling the truth? Phil McKenna 193 New Scientist Feb. 10-16 In what amounted to the world's first commercial lie-detection test using function magnetic resonance imaging (fMRI), technicians at No lie mapped blood flow within Nathan's brain while he answered a battery of questions about the deli fire and compared the results to control tests during which Nathan was asked to lie.
McLachlan 1997 Medical Conditions & Driving: Legal Requirements & Approach Of Neurologists Richard S. McLachlan 16 Med. & L. 269 Licensing of drivers with health problems, particularly epilepsy, has medical, social and legal implications that vary from country to country. Legislation and medical guidelines are based as much on empirical as on statistical data. A questionnaire regarding neurological disorders and driving was given to all adult neurologists in Canada (n = 494) and an assessment made of opinions of neurologists working under mandatory reporting legislation compared to those in a discretionary reporting environment. Of 289 (59%) neurologists responding, 50% reported patients with seizures to the Department of Motor Vehicles compared to only 4% for stroke/TIA, 26% for dementia and 8% for other neurological disorders (p < .0001). In the five provinces with mandatory reporting laws, seizures were reported most of the time by 84% compared to only 19% in the five provinces with discretionary reporting laws (p < .0001). An overall minority agreed with mandatory reporting (44%) but this percentage differed in the provinces with and without mandatory reporting legislation (63% vs. 37%, p < .0001). Seizure disorders are selectively reported more often than other neurological conditions. There is considerable variability in the attitude and practice of neurologists in regard to reporting of medical conditions.
McMorris 1999 A Critical Race Theory Discourse: Critical Race Theory, Cognitive Psychology, and the Social Meaning of Race: Why Individualsim Will Not Solve Racism Greta A. McMorris 67 UMKC L. Rev. 695
McNeal 2013 Slow Lawyering: Representing Seniors in Light of Cognitive Changes Accompanying Aging Mary Helen McNeal 117 Penn St. L. Rev. 1081 As an increasing number of lawyers represent clients who are elderly, it is imperative that lawyers become more knowledgeable about the aging process and how it impacts our clients. Although it is difficult to generalize, many seniors experience numerous and diverse cognitive changes that accompany the aging process. Existing literature offers various frameworks for addressing capacity issues and techniques for assessing diminished capacity. However, current legal scholarship provides little guidance for lawyers on how to accommodate these changes when they do not rise to the level of diminished capacity or dementia, and when the changes may, in fact, result in increased wisdom and “developmental intelligence.” This article seeks to fill that void. It summarizes selected cognitive developments that impact memory, outlining various types of memory and how they evolve during the aging process. This article also discusses current literature on decision-making capacity and different decision-making models and strategies that seniors may rely upon. The article concludes with recommendations on methods for enhancing communications with aging clients, while simultaneously acknowledging and accommodating cognitive changes and enabling seniors to play a prominent role in the representational process.
Meixner 2012 Liar, Liar, Jury's the Trier? The Future of Neuroscience-Based Credibility Assessment and the Court John B. Meixner 106 Nw. U. L. Rev. 1451 Neuroscience-based creditability tests have recently become increasingly mainstream, claiming to be able to determine whether an individual is lying to a certain set of questions (the Control Question Test), or whether an individual recognizes information that only a liable person would recognize (the Concealed Information Test). Courts have hesitated to admit these tests as evidence for two primary reasons. First, following the general standard that credibility assessment is a matter solely for the trier of fact, courts exclude the evidence because it impinges on the province of the jury. Second, because these methods have not been rigorously tested in realistic scenarios, courts rule that they do not meet the Daubert criteria for admissibility of expert testimony. This Comment argues that while neuroscience-based credibility assessment methods are not currently admissible under the Daubert standard, they may become admissible with more research, and the courts should avoid creating precedent that would preclude their admissibility once reliability issues are addressed. Specifically, credibility assessment should not be left entirely to the trier of fact because social science evidence indicates that laypeople are poor at making credibility assessment judgments based on behavioral cues. Additionally, even if courts continue to rule that evidence assessing whether a witness is telling the truth invades the province of the jury, this should not preclude neuroscience-based credibility assessment that merely shows that an individual recognizes something related to the issue at hand.
Meixner 2012 A Mock Terrorism Application of the P300-Based Concealed Information Test John B. Meixner & J. Peter Rosenfeld Psychophysiology 1 Previous studies examining the P300-based concealed information test typically tested for mock crime or autobiographical details, but no studies have used this test in a counterterrorismscenario. Subjects in the present study covertly planned a mock terrorist attack on a major city. They were then given three separate blocks of concealed information testing, examining for knowledge of the location, method, and date of the planned terrorist attack, using the Complex Trial Protocol (Rosenfeld et al., 2008). With prior knowledge of the probe items, we detected 12/12 guilty subjects as having knowledge of the planned terrorist attack with no false positives among 12 innocent subjects. Additionally, we were able to identify 10/12 subjects and among them 20/30 crime-related details with no false positives using restricted a priori knowledge of the crime details, suggesting that the protocol could potentially identify future terrorist activity.
Mele 2013 Free Will, Science, and Punishment Alfred Mele in The Future of Punishment, OUP, Thomas Nadelhoffer, ed. Scientific arguments for the nonexistence of free will use data to support empirical propositions that are then conjoined with a proposition about the meaning of “free will” to yield the conclusion that free will is an illusion. In Effective Intentions, I argued that various empirical propositions put forward for this purpose are not warranted by the evidence offered to support them. It might be replied that the only empirical proposition needed in this connection is that substance dualism is false, because free will depends on the existence of immaterial minds or souls. This theoretical proposition about free will seems to have more adherents among present-day neuroscientists and biologists than among present-day philosophers. But the fact that one is a neuroscientist or biologist (or both) does not give one any special insight into what the expression “free will” means. Some may say that the same is true when one is a philosopher—or, more specifically, a philosopher who has written a lot about free will. So, using techniques of experimental philosophy, I look for evidence about whether mainstream use of “free will” makes substance dualism a necessary condition for having it.
Mele 2010 Libet on Free Will: Readiness Potentials, Decisions, and Awareness Alfred R. Mele Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). Benjamin Libet contends both that “the brain ‘decides’ to initiate or, at least, prepare to initiate [certain actions] before there is any reportable subjective awareness that such a decision has taken place” and that “if the ‘act now’ process is initiated unconsciously, then conscious free will is not doing it.” He also contends that once we become conscious of our proximal decisions, we can exercise free will in vetoing them. This chapter provides some conceptual and empirical background and then discusses three major problems regarding Libet's findings.
Mello 2009 Ford's Delusions - And Our Own: Executing the Insane Michael Mello 45 No. 6 Crim. L. Bull. ART 7
Merikangas 2008 Functional MRI Lie Detection James R. Merikangas 36 J. Am. Acad. Psychiatry L. 499 Functional brain imaging with magnetic resonance is a useful research tool for showing regional metabolic changes with ongoing brain activity. Use of functional imaging to study the anatomy and function of various brain areas has recently been applied to the examination of the emotional life of patients including those with anxiety, panic, or depression. The application of this technology to the complex problem of lie detection is the subject of an article by Joseph R. Simpson, MD, PhD, in this issue of The Journal. The present article concludes that the use of functional imaging to discriminate truth from lies does not meet the Daubert criteria for courtroom testimony.
Merkel 2007 Intervening in the Brain: Changing Psyche and Society Reinhard Merkel, G. Boer, J. Fegert, T. Galert, D. Hartmann, B. Nuttin, S. Rosahl, & F. Wuetscher Ethics of Sci. and Tech. Assessment, Springer, Carl Friedrich Gethmann, ed. The preceding decade has witnessed tremendous progress in clinical as well as theoretical neuroscience. In its wake, powerful new instruments of neuromodulation acting directly on the brain have been developed: potent neuro-pharmaceuticals, deep brain stimulation, transcranial magnetic stimulation, various methods of neurotransplantation, central neural prostheses, and others. However, few areas of scientific development seem to exhibit as close a connection between dreams of progress and nightmares of disaster as contemporary neuroscience. This Janus-faced character relates to the core function of the brain as the "organ of the mind". Methods of intervening in the brain easily draw the suspicion of possibly altering fundamental features of personhood, thus posing a threat to preconditions of human dignity and to the normative structure of our societies. This suspicion has been fuelled by the discovery that most of the newly developed neurotherapeutic instruments might also be used for purposes of enhancement of certain mental features. "Mind doping" is a populist slogan at hand, suggesting a deprecatory parallel to the practice of doping in sports. The present book subjects the whole range of questions associated with these problems to a thorough exploration. Extensive state-of-the-art accounts of the relevant clinical and theoretical neurosciences are followed by an in-depth philosophical analysis of the problems of personal identity and a comprehensive disquisition on legal and ethical questions posed by present and foreseeable future practices of neuroenhancement. A concluding chapter presents the study’s main results as recommendations, addressing clinical practitioners and researchers in the field as well as to politicians, legislators, law courts, philosophers, lawyers, and anybody fascinated by or concerned about the dawning era of intervening in the brain.
Merzagora Betsos 2012 Colpevoli si nasce? Criminologia, determinismo, neuroscienze Isabella Merzagora Betsos Raffaello Cortina Editore
Merzagora Betsos 2011 De servo arbitrio ovvero: le neuroscienze ci liberano dal pesante fardello della libertà? [De servo arbitrio: is neuroscience freeing ourself from the heavy burden of freedom?] Isabella Merzagora Betsos 1 Rassegna italiana di criminologia 7
Merzagora Betsos 2011 Il colpevole è il cervello. Imputabilità, neuroscienze, libero arbitrio: dalla teorizzazione alla realtà [Guilty is the brain. Responsibility, neuroscience, free will: from theory to practice] Isabella Merzagora Betsos 1 Rivista italiana di medicina legale 175
Messina 2012 I nuovi orizzonti della prova (neuro)scientifica nel giudizio sull'imputabilità [On the new horizons of the neuroscientific probation in the assessment of personal chargeability] Giulia Messina 1 Rivista italiana di medicina legale 251
Messina 2012 Il contributo delle neuroscienze nel giudizio sull'imputabilità [Neuroscience’s contribution to the assessment of chargeability]` Giulia Messina 1 Il Corriere del Merito 70
Meszaros 2011 Achieving Peace of Mind: The Benefits of Neurobiological Evidence for Battered Women Defendants Jozsef Meszaros 23 Yale J.L. & Feminism 117 Despite its potential to diminish the culpability of battered women accused of crimes, neurobiological evidence has yet to be meaningfully deployed in the interest of these defendants. This Article describes how neurobiological evidence can provide insights into the effects of battering, at both an individual and ecological level. Domestic violence prevention advocates and medical professionals are becoming increasingly conscious of the neurobiological consequences of battering, producing a wellspring of evidence with potential relevance to the battered woman's case. By distilling this evidence into tangible assertions admissible in myriad legal settings, this Article lays a foundation for the integration of neurobiological evidence into the defense of battered women. Breaking rank with contemporary literature on the subject, this Article adopts a position of pragmatic acquiescence to the continued use of the embattled battered woman syndrome. Unlike previous reforms advanced, neurobiological evidence does not necessitate the creation of new law nor does it entail the recognition of an archetypal battered woman. The evidence works cooperatively with existing defense strategies to provide a holistic account of battering for the purposes of reducing the battered woman defendant's culpability. Scholarship is sharply divided about the role of neurobiology in the criminal law. Skepticism abounds about the philosophical relevance of neurobiological evidence to the law. The delicate balancing of legal norms reflected in criminal law's current use of neurobiology is placed in a distinctly new light when viewed from the perspective of a battered woman's legal defense.
Meyer 2009 Brain, Gender, Law: A Cautionary Tale Carlin Meyer 53 N.Y.L. Sch. L. Rev. 995 The author suggests that the biggest dilemma for those who would marry neuroscience and law may be that of keeping advocates -- drawing from often overheated media writing -- from promoting “shoddy science,” and judges and juries from drawing unwarranted conclusions. She argues that this is of particular concern in the area of gender difference. Meyer reviews instances in which scientific misunderstandings have been incorporated into legal determinations, ratifying spurious gender difference. Pointing to the historical use of junk brain science and scientific misunderstanding to justify inferior treatment of women, she notes that some contemporary writers of popular non-fiction are similarly drawing unwarranted conclusions from gender differences in brain composition and structure. Addressing the controversy over male and female innate aptitude for math and science, Meyer hypothesizes a lawsuit involving a female denied tenure in a science or math department to illustrate the pitfalls of seeking to explain social and behavioral phenomena using neuroscience. She notes the tendency of juries to be swayed by science’s charts, graphs, and pictures -- including the colorful imagery of brain fMRIs. Emphasizing the difference between the goal of science (open-ended and ongoing inquiry taking in a wide and unlimited field of evidence) and that of law (finality and closure within a defined universe of issues and facts), she urges caution in deploying neuroscience data to resolve legal questions.
Meynen 2013 A Neurolaw Perspective on Psychiatric Assessments of Criminal Responsibility: Decision-Making, Mental Disorder, and the Brain Gerben Meynen 36(2) International Journal of Law and Psychiatry 93 In some criminal law cases, the defendant is assessed by a forensic psychiatrist or psychologist within the context of an insanity defense. In this article I argue that specific neuroscientific research can be helpful in improving the quality of such a forensic psychiatric evaluation. This will be clarified in two ways. Firstly, we shall adopt the approach of understanding these forensic assessments as evaluations of the influence of a mental disorder on a defendant's decision-making process. Secondly, I shall point to the fact that researchers in neuroscience have performed various studies over recent years on the influence of specific mental disorders on a patient's decision-making. I argue that such research, especially if modified to decision-making in criminal scenarios, could be very helpful to forensic psychiatric assessments. This kind of research aims to provide insights not merely into the presence of a mental disorder, but also into the actual impact of mental disorders on the decisions defendants have made in regard to their actions.
Mikhail 2011 Emotion, Neuroscience, and Law: A Comment on Darwin and Greene John Mikhail 3 Emotion Rev. 1 Darwin’s observation that evolution has produced in us certain emotions responding to right and wrong conduct that lack any obvious basis in individual utility is a useful springboard from which to clarify the role of emotion in moral judgment. The problem is whether a certain class of moral judgments is “constituted” or “driven by” emotion (Greene 2008, p. 108) or merely correlated with emotion while being generated by unconscious computations (e.g., Huebner et al. 2008). With one exception, all of the “personal” vignettes devised by Greene and colleagues (2001, 2004) and subsequently used by other researchers (e.g., Koenigs et al. 2007) in their fMRI and behavioral studies of emotional engagement in moral judgment involve violent crimes or torts. These studies thus do much more than highlight the role of emotion in moral judgment; they also support the classical rationalist thesis that moral rules are engraved in the mind.
Milano 2009 Tecniche di visualizzazione del cervello e identità: evidenze scientifiche e quesiti etici Gianna Milano Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 163
Miller 2005 Protecting Human Subjects in Brain Research: A Pragmatic Perspective Franklin G. Miller & Joseph Fins Neuroethics: Defining the Issues in Theory, Practice and Policy 123 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter elucidates ethical considerations in designing and carrying out clinical research on people with brain disorders based on an approach to research ethics derived from American philosophical pragmatism. Focusing on placebo-controlled trials of pharmacological treatments and deep-brain stimulation for psychiatric and neurological disorders, the chapter reflects how moral principles and standards can conflict when applied to contextually complex situations. To guide ethical judgment, it calls for a careful balancing of morally relevant considerations and an understanding of moral norms rather than categorical or absolute rules.
Millstein 1999 The Science of Addiction: Research and Public Health Perspectives Richard A. Millstein & Alan I. Leshner 3 J. Health Care L. & Pol'y 151 Drug abuse and addiction are among the most serious and costly problems facing our society. Fortunately, advances in science made over the last several decades have dramatically increased our understanding of these disorders and led to the development of effective strategies for their prevention and treatment. This article focuses on the biological, behavioral, and social mechanisms of drug abuse and addiction and their implications for prevention, treatment and policy. The role of the family as a potential risk or protective factor for drug use is also discussed.
Milstein 2008 Research Malpractice and the Issue of Incidental Findings Alan C. Milstein 36 J.L. Med. & Ethics 356 Human subject research involving brain imaging is likely to reveal significant incidental findings of abnormal brain morphology. Because of this fact and because of the fiduciary relationship between researcher and subject, board-certified or board-eligible radiologists should review the scans to look for any abnormality, the scans should be conducted in accordance with standard medical practice for reviewing the clinical status of the whole brain, and the informed consent process should disclose the possibility that incidental findings may be revealed and what consequences will follow. In the event such findings are revealed, qualified physicians should explain to the subject the significance of the findings and the alternatives available.
Mishler 2007 How Functional Magnetic Resonance Imaging (fMRI) Will Change the Legal Profession - A View from the United States of America Carl F. Mishler 9 Eur. J.L. Reform 17
Mitchell 2006 Antidiscrimination Law and the Perils of Mindreading Gregory Mitchell & Philip E. Tetlock 67 Ohio St. L.J. 1023 Recent legal scholarship challenges the default psychological assumption in antidiscrimination law that discrimination is a function of psychological processes under the conscious control of the discriminator, and replaces it with the assumption that discrimination is the result of unconscious, or implicit, psychological processes that operate automatically, beyond conscious control. However, this challenge is only as persuasive as the research on which it is predicated, and the authors document that this research fails to satisfy key scientific tests of validity. They conclude that implicit prejudice research should be accepted as neither legislative authority nor litigation evidence until there is more: (1) rigorous investigation of the error rates of the new implicit measures of prejudice (and of how investigators balance Type I errors of false accusations against Type II errors of failing to identify prejudice); (2) thorough analysis of how well implicit measures of prejudice predict discriminatory behavior under realistic workplace conditions; (3) open debate about the societal consequences of setting thresholds of proof for calling people prejudiced so low that the vast majority of the population qualifies as prejudiced.
Mobbs 2009 Law, Responsibility and the Brain Dean Mobbs, Hakwan C. Lau, Owen D. Jones & Christopher D. Frith Law, Mind and Brain 1 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009). This article addresses new developments in neuroscience, and their implications for law. It explores, for example, the relationships between brain injury and violence, as well as the connections between mental disorders and criminal behaviors. It discusses a variety of issues surrounding brain fingerprinting, the use of brain scans for lie detection, and concerns about free will. It considers the possible uses for, and legal implications of, brain-imaging technology. And it also identifies six essential limits on the use of brain imaging in courtroom procedures.
Moenssens 2002 Brain Fingerprinting - Can It Be Used to Detect the Innocence of Persons Charged With a Crime? Andre A. Moenssens 70 UMKC L. Rev. 891 "Brain Fingerprinting," is a process for detecting instrumentally whether certain knowledge is stored in the brain of a test subject. Based on a vast body of well accepted research in psychophysiology about the P-300 wave, an event-related brain potential identified as early as 1965, the originator of the detection process described herein, Lawrence Farwell, sought to utilize it as a "lie detector" to determine the truthfulness of statements by a person being tested by using criteria which are much different from those utilized by other popular deception detection techniques. Because of multiple impediments to widespread utilization of the technique for the purpose of obtaining incriminating evidence about a subject, Dr. Farwell sought recently to examine its usefulness as a device to determine innocence of a crime. He proposes to obtain such a result inferentially by establishing that knowledge of factual information about an event that a guilty person would without a doubt possess was not possessed by the test subject. This article explores what is currently known about the process' foundations and scientific validity, to determine whether test results would be admissible in prosecutions for a crime as exonerating opinion evidence on behalf of the defense. To examine this premise, the author evaluates what is known about "brain fingerprinting" to the two prevailing legal tests for admissibility of scientific opinion evidence: (1) the "general acceptance" test of Frye v. United States, and (2) the federal approach, also followed by many states, that is based on Federal Rule of Evidence 702 as interpreted by the United States Supreme Court regarding admissibility of expert opinion evidence. In the absence of existing court precedents, the author opines that the Frye test of "general acceptance" in a scientific discipline cannot be satisfied at this time. He also opines that when using the federal test the outcome is much closer in that admissibility in that environment is based on the requirement a court find that the opinion is derived from methodology that has solid scientific underpinnings, has been peer reviewed and is published. The focus in federal test jurisdictions is less on "general agreement" about reliability of the result among other scientists, than it is on the scientific validity of the underlying methodology utilized to obtain the result. It is possible that, in a future case, a court may determine that the criteria for admissibility of opinion evidence using the federal test are satisfied.
Moffatt 2007 Childhood Exposure to Conjugal Violence: Consequences for Behavioral and Neural Development Gregory K. Moffatt & Savannah L. Smith 56 DePaul L. Rev. 879 The effects of exposure to violence in the home are both dramatic and measurable. Children living in homes where violence is present are not only at risk of personal injury or death, but also a wide range of short-term and long-term psychological and physical symptoms. These children suffer from a host of side effects, including trauma, physical ailments, academic difficulties, relational complications, and a heightened risk of becoming aggressors in future relationships. Even infants, who are seemingly unaware of the violence occurring in their midst, may suffer long-term effects. Research indicates that infants and toddlers up to three years old are at higher risk for permanent damage than older children due to the plasticity of their developing brains. Measurable structural differences exist in the brains of children who have witnessed conjugal violence as infants or toddlers; these changes may be the source of a host of adolescent and adult psychiatric disorders. This article examines the physical and psychological effects of exposure to violence on the brain of the developing child. It addresses basic neurodevelopment, the chemical makeup of the brain, the role of the limbic system, and the effects of stress and maternal depression on attachment. Finally, it presents research on the short-term and long-term outcomes for children who view domestic violence.
Monsen 2005 The Mind in the Movies: A Neuroethical Analysis of the Portrayal of the Mind in Popular Media Maren Grainger-Monsen & Kim Karetsky Neuroethics: Defining the Issues in Theory, Practice and Policy 297 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter focuses on one aspect of the media — the film industry — and looks at its effect on the public's perception of how the mind works, both in mental illness and in the neuroscience enhancement technologies that the future holds. It outlines some of the stereotypes of psychiatric illness revealed in popular Hollywood films and highlights the impact that these stereotypes have on both the public and the mentally ill. It examines some of the new independent documentary films addressing mental illness that have been successful in breaking down some of these stereotypes by showing more realistic portrayals of mentally ill patients and families. Finally, it examines how the new frontiers of neuroscience are being portrayed in motion pictures and explore the neuroethical issues that are brought up, as well as questioning the impact that science fiction films have on the public consciousness.
Montague 2010 How Is Neuroscience Likely to Impact Law in the Near Future? Read Montague A Judge's Guide to Neuroscience 60 (SAGE Center For the Study of the Mind, 2010).
Moore 2014 The Neuroscience of Volitional Incapacity Michael S. Moore Law and Neuroscience (Oxford U. Press, Dennis Patterson, ed., 2014)
Moore 2014 Stephen Morse on the Fundamental Psycho-Legal Error Michael S. Moore Crim Law and Philos Stephen Morse has long proclaimed there to be a “fundamental psycho-legal error” (FPLE) that is regularly made by legal and social/psychological/medical science academics alike. This is the error of thinking that causation of human choice by factors themselves outside the chooser’s control excuses that chooser from moral responsibility. In this paper, I examine Morse’s self-labelled “internalist” defense of his thesis that this is indeed an error, and finds such internalist defense incomplete; needed is the kind of externalist defense of Morse’s thesis that can only be provided by a worked-out compatibilist moral philosophy. The body of the paper outlines the kinds of compatibilisms that are plausible, contrasting them with two less plausible attempts to salvage responsibility in the face of an advancing neuroscientific determinism. These two less plausible rescue attempts, libertarianism and fictionalism, each seek to salvage responsibility even while not disavowing the FPLE.
Moore 2013 The Can't/Won't Distinction: Making Sense of Volitional Excuse Michael S. Moore Crime, Punishment, and Responsibility: The Legal Philosophy of Antony Duff (Oxford U. Press, Rowan Cruft and Sandra Marshall, eds., 2013)
Moore 2012 Responsible Choices, Desert-Based Legal Institutions, and the Challenges of Contemporary Neuroscience Michael S. Moore 29 Soc. Phil. & Pol. 233 Neuroscience is commonly thought to challenge the basic way we think of ourselves in ordinary thought, morality, and the law. This paper: (1) describes the legal institutions challenged in this way by neuroscience, including in that description both the political philosophy such institutions enshrine and the common sense psychology they presuppose; (2) describes the three kinds of data produced by contemporary neuroscience that is thought to challenge these commonsense views of ourselves in morals and law; and (3) distinguishes four major and several minor kinds of challenges that that data can reasonably be interpreted to present. The major challenges are: first, the challenge of reductionism, that we are merely machines; second, the challenge of determinism, that we are caused to choose and act as we do by brain states that we do not control; third, the challenge of epiphenomenalism, that our choices do not cause our actions because our brains are the real cause of those actions; and fourth, the challenge of fallibilism, that we do not have direct access to those of our mental states that do cause our actions, nor are we infallible in such knowledge as we do have of them.
Moore 2011 Intention as a Marker of Moral Responsibility and Legal Punishability Michael Moore in The Philosophical Foundations of Criminal Law, Antony Duff and Stuart Green, eds., Oxford University Press 179 This chapter examines the role that intention plays in defining the most serious forms of criminality. It argues that the criminal law as it now exists presupposes what is essentially a ‘folk psychology’ of intention, and proposes as an alternative a more nuanced and complex conception of intention that would take into account recent developments in philosophy of mind, cognitive science, and moral psychology.
Moore 2010 Libet's Challenge(s) to Responsible Agency Michael S. Moore Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). This chapter examines the neuroscientific challenges stemming from the kind of experiments begun in the early 1980s by Benjamin Libet and his associates. It argues that Libet's work is philosophically challenged rather than challenging. According to Libet's own characterizations of his challenges to the folk psychology: “If the ‘act now’ process is initiated unconsciously, then conscious free will is not doing it.” Three things run together in the phrase, “conscious free will”: firstly, maybe a conscious will is initiating action, but it isn't a free will doing the work; secondly, maybe there is consciousness and freedom at the time of action initiation, but there is no will doing any action initiation; and thirdly, maybe there is a free will operating to initiate actions, but there is no consciousness of that will or its operations at the time it is initiating actions. The chapter shows that Libet elided these three distinct challenges together.
Moreno 2011 Brain Trust: Neuroscience and National Security in the Twenty-First Century Jonathan D. Moreno Oxford Handbook of Neuroethics (Oxford Univ. Press, Judy Illes & Barbara J. Sahakian, eds., 2011). Neuroethics has developed rapidly, driven in large part by developments in neuroscience. This article reviews neuroethics from the standpoint of its growing real-world relevance. It opens up with an analysis of the history of neuroscience that suggests the reason for the emergence of neuroethics now, in the early twenty-first century. It proceeds to survey current applications of neuroscience to diverse real-world problems. Published research in the field of neuromarketing is more focused on academic issues, such as the nature of the brain activity underlying consumer behavior and the accuracy of brain-behavior predictions, than it is on the real-world utility of neuromarketing for improving business. Finally, this article concludes with a discussion of the ethical issues raised by these developments, and outlines three general challenges for society in the age of neuroscience.
Moreno 2009 The Future of Neuroimaged Lie Detection and the Law Joelle A. Moreno 42 Akron L. Rev. 717 Neuroscience will certainly change law. In fact, neuroscience research has the potential to influence a vast range of legal decisions. To the extent that neuroscientists increasingly make claims that neuroimaging reveals cognition, even the most unimaginative prognosticator might predict: (1) the preliminary investigative use of neuroimages to enhance witness interviews and police interrogations (including but not limited to lie-detection), (2) jury selection based on neuroimages that appear to reveal jurors' unconscious stereotypes or biases, and (3) arguments about intent or sentencing based on neuroimage-enhanced explanations of behavior and predictions of dangerousness. In anticipation of a brave new world of neuroscience 'enhanced' law, this article suggests that if we want to predict or control future social and legal responses to cognitive neuroscience research, we must carefully and explicitly consider two basic preexisting realities: (1) our shared assumptions about the validity of the medical field of neuroscience and the accuracy of diagnostic neuroimaging technologies; and (2) our increasingly frequent exposure (even within the mainstream media) to uncritical reports of cognitive neuroscience research that purports to correlate brain activity with cognition, deception, or social behavior. The risk is that if we ignore these realities, judges, jurors, and the general public will likely view all or most neuroscience-based evidence as legitimate 'hard' science because researchers rely on technologically sophisticated neuroimaging tools of demonstrated accuracy. The problem is that judges and jurors will mistakenly assume that technologies that are demonstrably valid medical diagnostic tools yield equally valid conclusions when they are used to map the neural correlates of deception and other forms of cognition.
Moriarty 2013 Brain Trauma, PET Scans and Forensic Complexity Jane Campbell Moriarty, Daniel D. Langleben, & James Provenzale Behavioral Sciences and the Law Positron Emission Tomography (PET) is a medical imaging technique that can be used to show brain function. Courts have admitted PET scan evidence in cases involving brain damage, injury, toxic exposure, or illness ("brain trauma") and to support claims of diminished cognitive abilities and impulse control. Despite the limited data on the relationships between PET, brain trauma and behavior, many courts admit PET scan evidence without much critical analysis. This article examines the use of PET as proof of functional impairment and justification of abnormal behavior by explaining its diagnostic use and limitations, the limited support for claims of its relationship to behavior, and evidentiary considerations that should govern its admission into court as evidence. The authors urge courts to consider PET evidence, claims of experts, and the scope of the proposed testimony with greater deference to the clinical scope of PET, as outlined by the American College of Radiology's appropriateness criteria and the Working Group Report of the American Psychiatric Association.
Moriarty 2009 Visions of Deception: Neuroimages and the Search for Truth Jane C. Moriarty 42 Akron L. Rev. 739 The historical use of science in the search for truth has posed consistent evidentiary problems of definition, causation, validity, accuracy, inferential conclusions unsupported by data, and complications of real-world applications. As the Innocence Project exoneration data show and the National Academy of Science Report on Forensic Science suggest, our reach in this area may well exceed our grasp. This article argues that the neuroimaging of deception - focusing primarily on the functional magnetic resonance imaging (fMRI) studies done to date - may well include all of these problems. This symposium article reviews briefly the types of neuroimaging used to detect deception, describes some of the specific criticisms leveled at the science, and explains why these small group of studies are not yet courtroom-ready. Arguing that the studies meet neither the general acceptance nor reliability standards of evidence, the article urges courts to act with restraint, allowing time for further studies, further robust criticism of the studies, additional replication studies, and sufficient time for moral, ethical, and jurisprudential rumination about whether the legal system really wants this type of evidence.
Moriarty 2009 Forward to the Neuroscience, Law & Government Symposium Jane C. Moriarty 42 Akron L. Rev. 681
Moriarty 2008 Flickering Admissibility: Neuroimaging Evidence in the U.S. Courts Jane Campbell Moriarty 26 Behav. Sci. & L. 29 This article explores the admissibility of neuroimaging evidence in U.S. courts, recognizing various trends in decisions about such evidence. While courts have routinely admitted some neuroimages, such as CT scans and MRI, as proof of trauma and disease, they have been more circumspect about admitting the PET and SPECT scans and fMRI evidence. With the latter technologies, courts have often expressed reservations about what can be inferred from the images. Moreover, courts seem unwilling to find neuroimaging sufficient to prove either insanity or incompetency, but are relatively lenient about admitting neuroimages in death penalty hearings. Some claim that fMRI and ‘‘brain fingerprinting’’ are able to detect deception. Other scholars argue that brain fingerprinting is a dubious concept and that fMRI is not yet sufficiently reliable. Moreover, there are substantial concerns about privacy and the perils of mind reading implicit in such technology. Yet, there is a movement to try to make these new technologies ‘‘courtroom ready’’ in the near future, raising a host of legal, policy, and ethical questions to be answered.
Morse 2013 Responsibility and Mental Capacity Stephen J. Morse Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) The thesis of this chapter is that criminal law is a thoroughly folk-psychological enterprise that is completely consistent with the truth of determinism or universal causation. It argues that if determinism or something quite like it is true, as I assume it is, then compatibilism, which is a defensible, plausible view in the metaphysical debate about determinism, free will and responsibility, provides the only secure basis for criminal responsibility. The chapter demonstrates that free will is neither a criminal law criterion nor foundational for responsibility because the distinctions the law draws are consistent with the truth of determinism and moral and political positions we have good reason to endorse. The chapter also addresses external challenges to responsibility and finds them wanting. It concludes that common law compatibilism is normatively desirable because it takes people seriously as moral agents worthy of respect.
Morse 2013 A Primer on Criminal Law and Neuroscience Stephen J. Morse & Adina L. Roskies Oxford University Press, Stephen J. Morse & Adina L. Roskies, Eds.
Morse 2013 Compatibilist Criminal Law Stephen J. Morse in The Future of Punishment, OUP, Thomas Nadelhoffer, ed. The thesis of this chapter is simple and straightforward. The criminal law is a thoroughly folk psychological enterprise that is completely consistent with the truth of determinism or universal causation. My goal is to demonstrate that it provides an accurate positive account of criminal law and that compatibilist criminal law is normatively desirable. The chapter begins with a brief account of desert–disease jurisprudence that explains under what conditions the state may constrain a person's liberty. The purpose is to situate in legal context the place of criminal justice as a means of social control. Next, the chapter offers an introduction to the criminal law's implicit psychology and view of the person that underpins desert–disease jurisprudence. Following that, the chapter offers a nutshell summary of foundational assumptions of criminal law and of criminal law doctrine. The next section demonstrates that the doctrines and practices we have are fully consistent with the truth of determinism. Then, the chapter turns to the external challenges to compatibilist criminal law and demonstrates why they do not succeed and would lead to normatively undesirable doctrines and practices. The final section addresses the normative desirability of compatibilist criminal law.
Morse 2013 Criminal Responsibility, Criminal Competence and Criminal Law Prediction Stephen J. Morse & William T. Newsome in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds.
Morse 2013 The Future of Law and Neuroscience Stephen J. Morse & Adina L. Roskies in Primer on Criminal Law and Neuroscience, OUP, Adina L. Roskies & Stephen J. Morse, eds.
Morse 2013 Brain Overclaim Redux Stephen J. Morse 31 Law & Ineq. 509
Morse 2012 Legal Regulation of Addictive Substances and Addiction Stephen J. Morse Addiction Neuroethics: The Ethics of Addiction Neuroscience Research and Treatment (Adrian Carter, Wayne Hall, Judy Illes, eds., Elsevier) The law regulates addiction in two primary ways: by limiting access to controlled substances and by criminal and civil law doctrines pertaining to addicts. This chapter first addresses the basic definitional and conceptual issues concerning addiction. Then it turns to the justification of substance regulation in the USA and public policy issues. It suggests that the right to use substances recreationally, even at the risk of negative consequences such as addiction, is weighty and that regulation of substances and addiction-related behavior by criminal law is problematic. Next, it considers whether addiction should be a mitigating or excusing condition for crime and whether addicts can be involuntarily civilly committed. It describes the current state of the law and proposes that, in most cases, addiction should not excuse criminal offending and addicts should not be civilly committed. A final section considers social and criminal justice policies that could alleviate the costs of addiction.
Morse 2012 New Therapies, Old Problems, or, a Plea for Neuromodesty Stephen J. Morse American Journal of Bioethics: Neuroscience, Vol. 3, No. 1, p. 60 This article suggests that investigational deep brain stimulation (DBS) for mental disorders raises few new bioethical issues. Although the scientific basis of the procedure may be both complex and largely unknown, addressing informed consent in such situations is a familiar problem. After reviewing the legal and moral background for investigating DBS and the scientific difficulties DBS faces as a potential treatment for mental disorders, the article focuses on informed consent and makes two primary suggestions. The study of DBS may proceed, but "hyper-disclosure" of the complexities should be required for competent subjects or proper surrogates if the candidate is not competent, and the most rigorous standard for competence should be employed. Throughout, neuromodesty and caution are urged.
Morse 2012 Neuroimaging Evidence in Law: A Plea for Modesty and Relevance Stephen J. Morse Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) Introduction; The current use of neuroimaging data; Scientific limitations; Relevance: translating neuroimaging into legally relevant evidence; Illustrative cases; Conclusion; References
Morse 2011 An Accurate Diagnosis, but Is There a Cure? An Appreciation of the Role of Science in Law by Robin Feldman Stephen J. Morse 3 Hastings Sci. & Tech. L.J. 157
Morse 2011 Mental disorder and criminal law Stephen J. Morse 101 J. Crim. L. & Criminology 885 Mental disorder among criminal defendants affects every stage of the criminal justice process, from investigational issues to competence to be executed. As in all other areas of mental health law, at least some people with mental disorders, especially severe disorders, are treated specially by the criminal law. The underlying thesis of this Article is that people with mental disorder should, as far as is practicable and consistent with justice, be treated just like everyone else. In some areas, the law is relatively sensible and just. In others, too often the opposite is true and the laws sweep too broadly. I believe, however, that special rules to deal with at least some people with mental disorder are justified because they substantially lack rational capacity, a condition that justifies disparate treatment. Treating people with mental disorder specially is a two-edged sword. Failing to do so when it is appropriate is unjust, but the opposite is demeaning, stigmatizing, and paternalistic. The central normative question is when special treatment is justified, a question the next Part addresses. This Article will focus mainly on United States Supreme Court cases to review the current state of the law, with special attention to the many criminal mental health law contexts in which preventive detention is an issue. It makes no pretense to covering every issue, to providing a complete analysis of these cases, or to comprehensive coverage of all the arguments concerning the issues raised. The Court's cases are simply a vehicle for organizing the overview. To celebrate the one-hundredth anniversary of the Journal of Criminal Law and Criminology, I will survey the landscape from the vantage of four decades of working in this field as a scholar, legislative drafter, advocate, and practitioner in both law and mental health. The goal is to explore what I consider the most just approach in each area. In some cases, my preferences are foreclosed by constitutional constraints; in others, the preferred approach could be achieved by statute or by state supreme court decisions. Part II provides an analysis of the concept of mental disorder, both in the fields of mental health, primarily psychiatry and psychology, and in law. I consider why the law treats some people with severe mental disorders specially and I address confusions and distractions about this issue. Then I turn to the legal survey, beginning in Part III with pretrial issues, including competence to waive constitutional rights during pretrial investigation, the right to a court-appointed mental health expert, competence to stand trial, commitment to restore trial competence, the right of the state to involuntarily medicate an incompetent defendant to restore competence, and competence to plead guilty. Part IV considers trial-related procedural issues, including the right to represent oneself, and culpability issues, including negation of mens rea (so-called diminished capacity), partial responsibility mitigations, such as the Model Penal Code's “extreme mental or emotional disturbance” doctrine, the defense of legal insanity, the “guilty but mentally ill” verdict, and the potential for adopting a generic mitigating doctrine of partial responsibility. Part V next addresses post-trial issues, including competence to be sentenced, the role of mental disorder in setting sentences, including the imposition of capital punishment, involuntary medication of prisoners, transfer of prisoners to mental hospitals, competence to be executed, and the right of the state to involuntarily medicate an incompetent prisoner to restore competence to be executed. Part VI considers two forms of involuntary civil commitment that are used primarily for preventive detention, commitment of so-called mentally abnormal sexually violent predators and commitment after a defendant is found not guilty by reason of insanity. The last substantive section, Part VII, briefly considers the challenge to criminal law from the new neuroscience, a challenge that threatens the very foundation of criminal responsibility for all defendants and not just for those who suffer from severe mental disorder. A brief conclusion follows.
Morse 2011 Avoiding irrational neurolaw exuberance: a plea for neuromodesty Stephen J. Morse 62 Mercer L. Rev. 837 In a 2002 editorial published in The Economist, the following warning was given: "Genetics may yet threaten privacy, kill autonomy, make society homogeneous and gut the concept of human nature. But neuroscience could do all of these things first." The genome was fully sequenced in 2001, and there has not been one resulting major advance in therapeutic medicine since. Thus, even in its most natural applied domain-medicine-genetics has not had the far-reaching consequences that were envisioned. The same has been true for various other sciences that were predicted to revolutionize the law, including behavioral psychology, sociology, psychodynamic psychology, and others. This will also be true of neuroscience, which is simply the newest science on the block. Neuroscience is not going to do the terrible things The Economist fears, at least not for the foreseeable future. Neuroscience has many things to say but not nearly as much as people would hope, especially in relation to law. At most, in the near to intermediate term, neuroscience may make modest contributions to legal policy and case adjudication. Nonetheless, there has been irrational exuberance about the potential contribution of neuroscience, an issue I have addressed previously and referred to as "Brain Overclaim Syndrome." I first consider the law's motivation and the motivation of some advocates to turn to science to solve the very hard normative problems that law addresses. Part III discusses the law's psychology and its concepts of the person and responsibility. The next Part considers the general relation of neuroscience to law, which I characterize as the issue of "translation." Part V canvasses various distractions that have bedeviled clear thinking about the relation of scientific, causal accounts of behavior to responsibility. The following Part examines the limits of neurolaw and Part VII considers why neurolaw does not pose a genuinely radical challenge to the law's concepts of the person and responsibility. Part VIII makes a case for cautious optimism about the contribution neuroscience may make to law in the near and intermediate term. A brief conclusion follows.
Morse 2011 Gene-Environment Interactions, Criminal Responsibility, and Sentencing Stephen J. Morse Gene-Environment Interactions in Developmental Psychopathology (Kenneth A. Dodge & Michael Rutter, eds. Guildord Press 2011). This chapter in Gene-Environment Interactions in Developmental Psychopathology (K. Dodge & M. Rutter, eds. 2011), considers the relevance of GxE to criminal responsibility and sentencing. It begins with a number of preliminary assumptions that will inform the analysis. It then turns to the law’s view of the person, including the law’s implicit psychology, and the criteria for criminal responsibility. A few false starts or distractions about responsibility are disposed of briefly. With this necessary background in place, the chapter then turns specifically to the relation between GxE and criminal responsibility. It suggests that GxE causes of criminal behavior have no relation to responsibility per se, but they may be relevant to culpability if valid research discloses an association between GxE and a genuine excusing or mitigating condition. The chapter then turns to sentencing and considers whether GxE is relevant to mitigation and aggravation, and proposes that the same considerations governing responsibility ascriptions apply to mitigation and that the prediction of future danger will be the most common application for aggravation. It concludes by considering briefly how knowledge of GxE might otherwise influence criminal justice policy and practice.
Morse 2011 The Future of Neuroscientific Evidence Stephen J. Morse The Future of Evidence: How Science & Technology Will Change the Practice of Law (Carol Henderson & Jules Epstein, eds. ABA 2011).
Morse 2011 Genetics and criminal responsibility Stephen J. Morse Trends in Cognitive Sciences, Forthcoming; U of Penn Law School, Public Law Research Paper No. 11-34. Some believe that genetics threatens privacy and autonomy and will eviscerate the concept of human nature. Despite the astonishing research advances, however, none of these dire predictions and no radical transformation of the law have occurred.
Morse 2011 Addiction and Criminal Responsibility Stephen J. Morse Addiction and Responsibility (George Graham & Jeffrey Poland, eds., MIT Press, 2011).
Morse 2011 Protecting Liberty and Autonomy: Desert/Disease Jurisprudence Stephen J. Morse 48 San Diego L. Rev. 1077 This contribution to a symposium on the morality of preventive restriction on liberty begins by describing the positive law of preventive detention, which I term "desert/disease jurisprudence." Then it provides a brief excursus about risk prediction (estimation), which is at the heart of all preventive detention practices. Part IV considers whether proposed expansions of desert jurisprudence are consistent with retributive theories of justice, which ground desert jurisprudence. I conclude that this is a circle that cannot be squared. The following Part canvasses expansions of disease jurisprudence, especially the involuntary civil commitment of mentally abnormal, sexually violent predators, and the use of post-insanity acquittal involuntary commitment. This Part also considers whether disease jurisprudence might justifiably be extended to problematic classes of agents such as psychopaths. I argue that sexual predator commitments are blatantly punishment by other means despite the Supreme Court's approval of them as forms of civil commitment and that other attempts to expand disease jurisprudence are artificial or unworkable. Next, I consider frankly consequentialist approaches to preventive detention. I suggest that they are conceptually coherent but politically and practically unacceptable. A brief conclusion suggests that the respect for liberty and autonomy is best guaranteed by genuine desert and disease limitations on detention, although there will be a cost to public safety.
Morse 2011 The status of NeuroLaw: A plea for current modesty and future cautious optimism Stephen J. Morse Journal of Psychiatry & Law 39 Legislators, jurists, and advocates often turn to science to solve complicated normative problems addressed by the law. This article addresses what motivates these parties, surveys the psychology of law and its concepts of the person and responsibility, and describes the general relation of neuroscience to law in terms of the issue of "translation." Numerous distractions have clouded our understanding of the relationship between scientific, causal accounts of behavior and responsibility. The notion of "NeuroLaw" is examined here in detail, with the conclusion that a cautious optimism regarding the contributions of neuroscience to the law is warranted.
Morse 2010 Lost in Translation? An Essay on Law and Neuroscience Stephen J. Morse Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). The rapid expansion in neuroscientific research fuelled by the advent of functional magnetic resonance imaging [fMRI] has been accompanied by popular and scholarly commentary suggesting that neuroscience may substantially alter, and perhaps will even revolutionize, both law and morality. This essay, a contribution to, Law and Neuroscience (M. Freeman, Ed. 2011), will attempt to put such claims in perspective and to consider how properly to think about the relation between law and neuroscience. The overarching thesis is that neuroscience may indeed make some contributions to legal doctrine, practice and theory, but such contributions will be few and modest for the foreseeable future. The first part of this essay describes the law’s implicit folk psychological view of human behavior and why any other model is not possible at present. It then turns to dangerous distractions that have clouded clear thinking about the relation between scientific explanations of human behavior and law. Next, the essay considers how to translate the mechanistic findings of neuroscience into the folk psychological concepts the law employs. Finally, illustrative case studies of the legal relevance of neuroscience studies are presented. The discussion and all the examples focus on criminal law and on competence for the sake of simplicity and coherence, but the arguments are almost all generalizable to other legal contexts.
Morse 2009 Actions Speak Louder Than Images Stephen J. Morse Using Imaging to Identify Deceit 23 (American Academy of Arts and Sciences, 2009).
Morse 2009 Addiction, Science, and Criminal Responsibility Stephen J. Morse The Impact of Behavioral Sciences on Criminal Law 241 (Oxford Univ. Press, Nita Farahany, ed., 2009). This chapter has two simple underlying theses. The first is that it is impossible to understand the relation of any variable to criminal responsibility without having in place an account of criminal responsibility. The second is that discovery of genetic, neuroscientific, or any other physical or psychosocial cause of action raises no new issues concerning responsibility, and discovery of such causes does not per se create an excusing or mitigating condition for criminal conduct or any other type of behavior. The chapter begins in Part II with a brief description of the phenomenology of addiction, describing generally what is known about the behavioral aspects of addiction in addition to the basic criteria of craving, seeking, and using. Part III addresses the contrast between the legal and scientific images of behavior, using the disease concept of addiction, now fueled by discoveries of genetic predisposition and altered neural systems of reward, as prime examples of the contrast. Part IV offers a general model of criminal responsibility to guide the analysis of responsibility for addiction-related criminal behavior, offering the best positive account of the present system. Part V deals with persistent confusions about responsibility. Part VI describes those aspects of addiction, if any, for which persons might be held morally or legally responsible, concluding that only actions related to addiction are appropriate objects for ascribing criminal responsibility. Part VII addresses the causal role genetics and neural systems of reward play in explaining addiction. Finally, Part VIII considers individual and social responsibility for the addiction-related actions.
Morse 2009 The Neuroscientific Challenges to Criminal Responsibility Stephen J. Morse Santosuosso, Amadeo (Hrsg.), Le Neuroscienze E Il Diritto 93
Morse 2008 Determinism and the Death of Folk Psychology: Two Challenges to Responsibility from Neuroscience Stephen J. Morse 9 Minn. J.L. Sci. & Tech. 1 Recent discoveries in neuroscience present two distinct challenges to traditional western moral and legal conceptions of responsibility. The first is based on the increased scientific understanding of brain functioning that powerfully suggests that human beings, like the other material phenomena of the universe, are deterministic mechanisms. The presentation argues that this challenge is precisely the familiar challenge to responsibility that determinism has always presented, whether the determinism was rooted in God's omniscience or psychological or sociological explanations. Neuroscience presents no greater challenge than previous claims from determinism and the answers to the challenge, such as compatibilism, are also no different and no more unpersuasive. In contrast, the second challenge based on neuroscientific discoveries claims that we are not the type of conscious, intentional and potentially rational creatures that we take ourselves to be and that mental states play little or no role in explaining our behavior. If these alleged discoveries are valid, traditional notions of responsibility are in doubt because they presuppose a model of the responsible person that depends on mental causation. This presentation argues, however, that current neuroscientific discoveries do not undermine the traditional view of the person as a creature capable of acting for reasons that explain the person's behavior. In conclusion, neuroscience does not yet undermine traditional concepts of responsibility.
Morse 2008 Vice, Disorder, Conduct and Culpability Stephen J. Morse 5 Philosophy, Psychiatry, & Psychology 47
Morse 2008 Psychopathy and Criminal Responsibility Stephen J. Morse 1 Neuroethics 205 This article considers whether psychopaths should be held criminally responsible. After describing the positive law of criminal responsibility in general and as it applies to psychopaths, it suggests that psychopaths lack moral rationality and that severe psychopaths should be excused from crimes that violate the moral rights of others. Alternative forms of social control for dangerous psychopaths, such as involuntary civil commitment, are considered, and the potential legal implications of future scientific understanding of psychopathy are addressed.
Morse 2007 Criminal Responsibility and the Disappearing Person Stephen J. Morse 28 Cardozo L. Rev. 2545 Free will, personhood, and action are allegedly foundational for ascriptions of criminal responsibility and desert. In his newest book, George Fletcher courageously addresses each of these topics. This article suggests that recent challenges to standard conceptions of all three are profound, threatening to undermine the justification of criminal law as we know it. If we do not have free will, and if the laws implicit conception of the person and explanation of action are radically misguided, then traditional conceptions of responsibility and desert are apparently impossible. If the person disappears, the law's justifications for punishment and punishment practices should change accordingly. This article addresses these claims and considers Professor Fletcher's position. Part I briefly draws a distinction between an external and internal challenge to an institution, practice or doctrine. Part II argues that there is no genuine free will problem in positive law, but that the metaphysical free will problem does pose a complete, external challenge to the possibility of responsibility and desert. In particular, Fletcher's attempt to root free will in a Chomskian account of language does not solve the problem. Part III considers the questions of action and personhood. It first addresses the law's current dominant conception of action, the folk psychological model. Then it turns to Fletcher's communicative, holistic, contextualized theory of action. It concludes that Fletcher's theory, although interesting, offers no conceptual, empirical or normative reason to substitute it for the law's current theory.
Morse 2007 The Uneasy Entente Between Legal Insanity and Mens Rea: Beyond Clark v. Arizona Stephen J. Morse & Morris B. Hoffman 97 J. Crim. L. & Criminology 1071 This article considers the meaning and relation of legal insanity and mens rea, using the Supreme Court's recent decision, Clark v. Arizona, which addressed both, as the focus of discussion. It suggests that rules limiting the introduction of evidence of mental disorder to negate mens rea are unjust and that fair blame and punishment require retaining an insanity defense. Alternatives to the insanity defense are rejected because they are analytically unconvincing or unfair. The article also addresses recent challenges to the very possibility of criminal responsibility that are based on new discoveries in neuroscience and behavioral science. It concludes that these challenges are conceptually, empirically, and normatively unjustified. Finally, it proposes that legal insanity cannot be consensually defined morally or scientifically, but that the human capacity for rationality is the key to the normative debate about responsibility.
Morse 2007 The Non-Problem of Free Will in Forensic Psychiatry and Psychology Stephen J. Morse 25 Behav. Sci. & L. 203 This article demonstrates that there is no free will problem in forensic psychiatry and psychology by showing that free will or its lack is not a criterion for any legal doctrine and it is not an underlying general foundation for legal responsibility doctrines and practices. There is a genuine metaphysical free will problem, but the article demonstrates why it is not relevant to forensic practice. Forensic practitioners are urged to avoid all usage of free will in their forensic thinking and work product because it is irrelevant and spawns confusion.
Morse 2006 Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note Stephen J. Morse 3 Ohio St. J. Crim. L. 397 This brief diagnostic note identifies a cognitive pathology, Brain Overclaim Syndrome [BOS], that often afflicts those inflamed by the fascinating new discoveries in the neurosciences. It begins by suggesting how one should think about the relation of neuroscience (or any other material explanation of human behavior) to criminal responsibility, distinguishing between internal and external critiques based on neuroscience. It then describes the signs and symptoms of BOS, the essential feature of which is to make claims about the implications of neuroscience for criminal responsibility that cannot be conceptually or empirically sustained. It then applies the diagnostic lens of BOS to the claims in Roper v. Simmons. Finally, the article recommends Cognitive Jurotherapy [CJ] as the therapy of choice for BOS.
Morse 2006 Addiction, Genetics and Criminal Responsibility Stephen J. Morse 69 Law & Contemp. Probs. 165 This paper has two simple underlying theses. The first is that it is impossible to understand the relation of any variable to criminal responsibility without having in place an account of criminal responsibility. Otherwise, one simply begs questions. The second is that discovery of genetic or of any other physical or psychosocial cause of action raises no new issues concerning responsibility, and discovery of such causes does not per se create an excusing or mitigating condition for criminal conduct or any other type of behavior. The paper begins with a brief description of the phenomenology of addiction, describing generally what we know about the behavioral aspects of addiction in addition to the basic criteria of craving, seeking and using. It then addresses the contrast between the legal and scientific images of behavior, using the disease concept of addiction as a prime example of the contrast. The paper next offers a general model of criminal responsibility to guide the analysis of responsibility for addiction-related criminal behavior. It suggests that the essential criteria are behavioral, broadly understood to refer to actions and mental states. The next part deals with persistent confusions about responsibility. The paper then describes those aspects of addiction, if any, for which persons might be held morally or legally responsible. It concludes that only actions related to addiction are appropriate objects of legal responsibility ascription. Next, it addresses the causal role genetics plays in explaining addiction. This discussion is deferred until this point because, as earlier parts explain, no particular causal explanation of any behavior, including biological explanation, entails necessary legal consequences. The following part addresses individual and social responsibility for the addiction-related actions. It begins by considering in detail the meaning of those features of addiction - subjective craving and compulsion - that seem the most likely predicates for excuse or mitigation. It argues that understanding the biological roots of craving does not yet yield valid information concerning the strength of craving and seemingly compulsive behavior. This part next addresses the two leading theoretical and legal candidates for an excusing condition, internal coercion and lack of the capacity for rationality. It concludes that most addicts should be responsible for most criminal behavior motivated by addiction, but that addiction can in some cases affect the agent's ability to grasp and be guided by reason. The last section of this part considers whether society is responsible for addiction-related actions. I conclude that even if most addicts should be held responsible for addiction-related behavior, sensible social policy can do much to reduce both the prevalence of addiction and concomitant criminal behavior. The final part of the paper discusses three legal proposals for reducing the costs associated with addictions and for treating addicts fairly.
Morse 2005 Moral and Legal Responsibility and the New Neuroscience Stephen J. Morse Neuroethics: Defining the Issues in Theory, Practice and Policy 33 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter argues that neuroscience is largely irrelevant if the concept of responsibility is properly understood and evaluated. It begins with a positive description of the dominant conception of personhood and responsibility in Western law and morality. It then considers and rejects the challenge to this conception that any materialist scientific understanding of behavior, including neuroscientific explanation, creates. It argues that unless brain science evolves to such a stage that it radically undermines current conceptions of personhood, the brain will largely be irrelevant to ascriptions of moral and legal responsibility. The chapter concludes by returning to Roper and suggesting the proper way that the case should be argued.
Morse 2004 New Neuroscience, Old Problems Stephen J. Morse Neuroscience and the Law: Brain, Mind, and the Scales of Justice 157 (Dana Foundation, Brent Garland, ed., 2004). Despite a large and growing interest in applying brain science to the ends of justice, the implications of neuroscience for the law are still unclear. But Stephen Morse argues that, unless discoveries about the brain radically change our conception of ourselves, they are unlikely to fundamentally alter legal doctrine. For most challenges the findings might raise to justice, equality, and liberty, he writes, the law has rich theoretical resources with which to address them. On the other hand, the author acknowledges, one can easily imagine substantial changes in particular doctrines.
Morse 2003 Inevitable Mens Rea Stephen J. Morse 27 Harv. J.L. & Pub. Pol'y 51 The thesis of this essay is simple: As long as we maintain the current conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, the mens rea requirement in criminal law is both inevitable and desirable. This article begins with the challenge to personhood, action and responsibility that recent work in psychology and neuroscience allegedly present. Then it turns to some dangerous distractions that are often confused with the questions of personhood, action and responsibility. The next section explains why the genuine challenge from neuroscience can be met. Finally, it turns to the positive case for mens rea. It does not argue for any particular categorization or hierarchy of mens rea terms. Instead, it argues more generally that mens rea, which is understood to be the mental state element that is part of the definition of most criminal offenses, is crucial to culpability and central to our value as moral beings.
Morse 1996 Brain and Blame Stephen J. Morse 84 Geo. L.J. 527 This article addresses the law's concept of the person and its relation to responsibility and the excusing conditions. It demonstrates that causation of behavior in general, even pathological biological causation, is not itself an excuse and suggests that the incapacity for rationality is the genuine basis of moral and legal excuse. The paper concludes by applying its theses to the case of Spyder Cystkopf, a man with a confirmed subarachnoid cyst, who killed his wife during a heated argument with her.
Mosteller 2006 Evidence History, the New Trace Evidence, and Rumblings in the Future of Proof Robert P. Mosteller 3 Ohio St. J. Crim. L. 523 This paper is in two parts. The first part is about developments in the rules of evidence and particularly about developments in the federal rules of evidence, which has had a major impact on evidence rules in many states. This part turns out to be largely about the past because my sense is that the impact of changes in the formal rules of evidence, which were substantial, are largely historic. To be sure future changes in the formal rules, particularly those that may be made as a result of the Supreme Court's decision in Crawford v. Washington (2004) that dramatically changed confrontation and may unleash hearsay reformulation, may be significant. The second part deals with my sense that technological and scientific advances may make have a dramatic impact in altering the way cases, particularly criminal cases, are proved and evaluated in the future. For example, the development and proliferation of a new type of "trace evidence" - electronic "trace evidence" - is providing dispositive proof of a larger and larger group of cases. As jurors come to understand such dispositive proof exists in many cases, they are suggestions they may come to expect it in all, potentially changing how proof in criminal cases is evaluated. Of course, this speculation - these rumblings in the future of proof - is just speculation. However, there are reasons to suspect at least that as a result of the accumulation of events brought on by scientific and technological change, something significant is beginning to occur.
Müller 2013 When Benefitting a Patient Increases the Risk for Harm for Third Persons - The Case of Treating Pedophilic Parkinsonian Patients with Deep Brain Stimulation Sabine Müller, Henrik Walter, & Markus Christen Int J Law Psychiatry This paper investigates the question whether it is ethically justified to treat Parkinsonian patients with known or suspected pedophilia with deep brain stimulation - given increasing evidence that this treatment might cause impulse control disorders, disinhibition, and hypersexuality. This specific question is not as exotic as it looks at a first glance. First, the same issue is raised for all other types of sexual orientation or behavior which imply a high risk for harming other persons, e.g. sexual sadism. Second, there are also several (psychotropic) drugs as well as legal and illegal leisure drugs which bear severe risks for other persons. We show that Beauchamp and Childress' biomedical ethics fails to derive a veto against medical interventions which produce risks for third persons by making the patients dangerous to others. Therefore, our case discussion reveals a blind spot of the ethics of principles. Although the first intuition might be to forbid the application of deep brain stimulation to pedophilic patients, we argue against such a simple way out, since in some patients the reduction of dopaminergic drugs allowed by deep brain stimulation of the nucleus subthalamicus improves impulsive control disorders, including hypersexuality. Therefore, we propose a strategy consisting of three steps: (1) risk assessment, (2) shared decision-making, and (3) risk management and safeguards.
Müller 2011 Machen die Neurowissenschaften einen Paradigmenwechsel im Strafrecht erforderlich? Sabine Müller & Henrik Walter in Brauchen wir eine neue Moral? Herausforderungen der Ethik durch die Neurowissenschaft (Taschenbuch)
Muramatsu 2013 Neuropsychological Testing in Medicolegal Cases T. Muramatsu 115(10) Seishin Shinkeigaku Zasshi 1051 Because the assessment of cognitive function is among the most important diagnostic evaluations in medicolegal cases, neuropsychological testing, the optimal scientific method available to determine the manifestation of brain dysfunction, is a potentially very strong tool in those cases. However, the use of neuropsychological testing in a medicolegal setting should be done with caution. Firstly, the nature of any neuropsychological testing is complex, and cannot be simplified as "Test A measures Function A' ". Oversimplified explanation of a test is misleading, resulting in serious misjudgment in the legal procedure. Secondly, the result of the test shows someone's cognitive function at the time of the test, not the time of the act in question (i. e., a crime). Finally and most importantly, the cognitive function measured by neuropsychological testing does not directly correspond to the legal questions being asked, even when the terms used in the fields of law and neuroscience are similar. In determining whether an individual meets a specified legal standard (e. g., criminal responsibility), the results of neuropsychological testing are far from sufficient and substantial additional information is required. With these caveats in mind, an expert witness should carefully choose the neuropsychological testing battery in each case, which may greatly help to understand the individual's mental state at the time of the act in question.
Murphy 2013 Paved with Good Intentions: Sentencing Alternatives from Neuroscience and the Policy of Problem-Solving Courts Emily Murphy 37 Law and Psychology Review 83 The brain-invasive nature of certain novel therapies provokes discussion of the proper institutional role and competencies of a drug court and its participants; centrally, the setting-aside of the traditional adversarial model for a therapeutic team-based model leveraged by the criminal justice system. Advances in basic and clinical neuroscience will soon present novel options for prediction, treatment, and prevention of antisocial behavior, particularly drug addiction. These hard-won advances have significant potential to improve public health and safety and increase efficiency in delivery of treatment and rehabilitation. Such therapies will undoubtedly find a large portion of their target population in the criminal justice system as long as drug possession remains criminalized. Improvements, however, are not without risks. The risks stem not only from the safety and side effect profile of such treatments, but also their insertion into a specialized criminal justice and sentencing system of “problem-solving courts” that may be overburdened, overpoliticized, undertheorized, and lacking sufficient checks and balances on institutional competency. While offering substantial therapeutic benefits, such developments might also short-circuit a critical policy discussion about the nature of drug use and its criminalization. New neuroscience treatments for addiction and antisocial behavior should force a deep examination of the legal, social, political, and ethical roots of drug and problem-solving courts, and particularly the mixed criminal justice/public health model they rest on. As technologies to control behavior become more direct, targeted, and powerful, so do the risks of their misuse and potential harms to constitutional rights, individual autonomy, and institutional competency and legitimacy. This paper presents the anticipated therapeutic options from neuroscience and outlines critical issues with respect to their potential integration into criminal justice and sentencing law and policy. Part I introduces forthcoming neuroscience technologies related to antisocial behavior prediction, treatment, and prevention, with an emphasis on therapies to treat drug addiction. Part II outlines a cost-benefit analysis of integrating such therapies into the current criminal justice system, recognizing that the entry point is likely to be through non-adversarial “problem-solving” courts such as drug courts, and considers the implications for currently used intermediate sanctions and diversionary programs. Part III then argues that beyond such a cost-benefit or evidence-based policy analysis, the unique characteristics of novel treatments and therapies from neuroscience raise fundamental questions about the nature of coerced treatment at the heart of drug courts and the policy and jurisprudential justifications thereof. The opportunity to directly manipulate a person’s brain reignites debate about the proper composition, procedures, and theory behind drug courts, and indeed more fundamental questions about drug criminalization policy. Central to the proposed policy analysis is the idea that ‘beneficence is not enough’ when mixing medicine and the threat or consequence of criminal punishment, and that the good intentions for good outcomes should not override important fundamental legal principles such as due process and separation of powers that function to preserve individual rights and autonomy.
Murphy 2013 Cognitive Neuroscience, Moral Responsibility, and Punishment Nancey Murphy in The Future of Punishment, OUP, Thomas Nadelhoffer, ed. This chapter addresses the worry that contemporary findings in the cognitive neurosciences call moral and legal responsibility into question. I first focus on the question of whether and how science helps explain, and thereby justify, belief in responsibility, using Alasdair MacIntyre's account of morally responsible action. It may be expressed as follows: one is capable of moral responsibility if one has the capacity to evaluate that which moves one to act in light of some concept of the good. The central focus of the chapter, then, is a cognitive-science analysis of the intellectual and affective capacities that enable morally responsible action, with brief mention of neural systems and structures that are taken to subserve these capacities. On the basis of this analysis, I address briefly some of the arguments from neuroscience (by Benjamin Libet and John-Dylan Haynes) that are taken to call free will into question. Finally, I consider the implications of the chapter for the role of punishment, arguing that a restorative rather than retributive justice system has great potential for enhancing moral (and therefore legal) responsibility.
Murphy 2011 What Will Be the Limits of Neuroscience-Based Mindreading in the Law? Emily R. Murphy & Henry T. Greely Oxford Handbook of Neuroethics (Oxford Univ. Press, Judy Illes & Barbara J. Sahakian, eds., 2011). Much of the legal and social interest in new neuroimaging techniques stems from the belief that they can deliver on the materialist understanding of the relationship between the brain and the mind. This article looks at predictions about the future both of scientific advances and of social reactions to those predictions. It looks at the likely technical limits on neuroscience-based mindreading, then at the likely limits in how the law might use such technologies. It describes three kinds of technical barriers to detailed and useful mindreading: the likely impossibility of making a complete and accurate model of a human brain in light of its incredible complexity, the problems of interpersonal and intrapersonal plasticity, and the problem of trying to read, now, someone's past mental state. The potential changes to the operation of the law, through the use of mindreading as evidence of pain, deception, or bias, among other things, could be extremely important.
Murphy 2007 Did My Neurons Make Me Do It? Philosophical and Neurobiological Perspectives on Moral Resonsibility and Free Will Nancey Murphy & Warren S. Brown Oxford Univ. Press If humans are purely physical, and the brain does the work formerly assigned to the mind or soul, then how can it fail to be the case that our thoughts and actions are determined by the laws of neurobiology, and that free will, moral responsibility, and reason itself are in jeopardy? Bringing together insights from both philosophy and neuroscience, this book defends a non-reductive version of physicalism whereby humans are (sometimes) the authors of their own thoughts and actions. One resource is an account of mind as embodied and constituted by action-feedback-evaluation-action loops in the environment, ‘scaffolded’ by culture. Another is a non-mysterious account of downward (mental) causation explained in terms of a complex, higher-order system exercising constraints on lower-level processes. These resources are utilized to take on two problems in philosophy of mind: the meaningfulness of language, and the causal efficacy of the mental. Solutions to these problems are a prerequisite to addressing the central problem of the book: how can biological organisms be free and morally responsible? The book argues that the real problem is not neurobiological determinism, but neurobiological reductionism. The relevant question is whether humans, as whole persons, exert downward causation over some of their own parts and processes. If all organisms do this to some extent, what needs to be added to this animalian flexibility to constitute free and responsible action? The keys are sophisticated language and hierarchically ordered cognitive processes allowing (mature) humans to evaluate their own actions, motives, goals, and moral principles.
Murphy 2006 Neurocongress Richard W. Murphy 37 Seton Hall L. Rev. 221 This mercifully brief excursion into the philosophy of the (congressional) mind starts with the premise that, although it is common to speak of legislative intent, an entity cannot form an intent without a mind to generate it. For those of a speculative bent who find themselves in work-voidance mode, this observation may spark questions concerning the mind/legislative-body problem. These questions apply broadly to all legislative bodies, but, without loss of generality and for ease of reference, one can focus them on Congress. Could Congress have a mind of its own? If it does, what is the qualitative nature of its mental experience - i.e., with due apologies to Professor Nagel, what is it like to be Congress? And what can reflection on the nature of such experience teach us about congressional intent? Some short answers: Given how little we know about why some bits of organized matter generate consciousness, we cannot exclude the logical possibility that Congress does lead some sort of mental life. But, alas, we will never be able to determine with any clarity what it is like to be Congress - the nature of its intents, sense impressions, or feelings will remain forever obscure. That said, there is no good reason to think that being Congress is like being Albert Einstein, John Malkovich, or any particular congressperson. And, in the cheap-shot department, there is a tempting argument to be made that Congress's intents are about as rich and complex as a roundworm's.
Murray 2013 In Need of a Fix: Reforming Criminal Law in Light of a Contemporary Understanding of Drug Addiction Patrick Eoghan Murray 60 UCLA L. Rev. 1006 This Comment challenges the assumption that actions associated with drug addiction can be easily classified as either voluntary or involuntary. As an alternative to this black-and-white distinction, this Comment advances the concept of a semi-voluntary act category to describe more accurately a drug addict’s choice to use drugs. When limited appropriately to drug addicts rather than all drug users, this category provides an avenue for a partial affirmative defense that would result in a verdict of not guilty but responsible. This verdict would more fairly treat drug addicts who commit crimes while intoxicated by reducing the stigma of a finding of guilt and by demanding that the defendant take responsibility for their drug addiction and seek effective treatment.
Murrow 2012 A Biosemiotic Body of Law: The Neurobiology of Justice Gail Bruner Murrow and Richard Murrow International Journal for the Semiotics of Law/Revue Internationale de Semiotique Juridique We offer a theory regarding the symbolism of the human body in legal discourse. The theory blends legal theory, the neuroscience of empathy, and biosemiotics, a branch of semiotics that combines semiotics with theoretical biology. Our theory posits that this symbolism of the body is not solely a metaphor or semiotic sign of how law is cognitively structured in the mind. We propose that it also signifies neurobiological mechanisms of social emotion in the brain that are involved in the social and moral decision-making and behavior that law generally seeks to govern. Specifically, we hypothesize that the symbol of a collective human body in the language of law signifies neural mechanisms of pain empathy which generate a virtual, neurally simulated, emotional sense of sharing the feelings or pain of others and of thereby being one-in-body with or virtually equal to them. We speculate that this may be the neural basis of what is signified in legal and political theory as the “body politic” or “sense of equality,” because neuroscience and psychiatry further suggest that such pain empathy may provide the natural, emotional motivation to think and act in a rights-based manner. We conclude that misunderstanding of these neural mechanisms of pain empathy and related misinterpretation of this corporeal symbolism for the same may have long resulted in legal discourse that misinterprets the function of “pain” in the law and misinterprets the associated positive law, specifically the law regarding individual, equality-based rights and criminal justice, in particular, punishment theory.
Mushlin 2009 Getting Real About Race and Prisoner Rights Michael B. Mushlin & Naomi R. Galtz 36 Fordham Urb. L.J. 27 This Article explores the nexus of two stories central to contemporary American jurisprudence and—for tens of millions of citizens—central to the American experience: the rise of the “carceral state” through steep increases in the incarceration of non-whites, and the decline, over the very same period, in legal protections for prisoners. The Article suggests that these two stories cannot be considered in isolation from one another. Nearly everything we know about race from the social sciences suggests that, in the highly pressured context of prison life, racial tensions will play a role in the decisions that guards and administrators make concerning prisoner welfare. Social geography tells us concretely that the communities from which non-white prisoners are drawn are the ones least able to advocate for prisoner well-being. And the sociology of citizenship reveals that citizenship itself has always been deeply “raced” in America, making it doubly challenging for a largely non-white prison population to be seen as worthy of humane treatment. Yet the law is not currently equipped to acknowledge or confront the possibility that mistreatment of prisoners is systemically bound to race-based tensions and structural inequities. This is a critical gap that cannot, we argue, be remedied until the courts adopt a more realistic understanding of the workings of race in the corrections world.
Myers 2010 The Moment of Truth for fMRI: Will Deception Detection Pass Admissibility Hurdles in Oklahoma? Julie E. Myers 6 Okla. J. L. & Tech. 47 Functional magnetic resonance imaging, or fMRI, as a lie-detector is especially promising, despite the fact that other forms of lie detection technology have been held inadmissible for over eighty years. Although there is some debate over the exact accuracy of fMRI, to date, this technology has even demonstrated the ability to recognize a specific item - such as a screwdriver or a window - that a person is thinking of merely by reading the computerized images of that person’s brain activity. Proponents claim the ability of fMRI technology to discern truth from deception will soon be absolute. Case law on these advanced deception detection technologies is sparse at best, but the Oklahoma Court of Criminal Appeals has had one of the few unique opportunities to confront the early use of neuro-lie-detection evidence. Because the Oklahoma Evidence Code parallels the Federal Rules of Evidence regarding expert testimony, an understanding of federal interpretation concerning novel science will be significant for fMRI evidence in Oklahoma. In fact, early cases of neuro scanning evidence in Oklahoma may have great influence on the outcome of the battle over fMRI admissibility in many jurisdictions. This comment will discuss fMRI and its chances at admissibility in Oklahoma courts and in the Tenth Circuit, which both follow the Daubert decision when evaluating novel scientific evidence, and propose an explanation of why it should be admitted as reliable.
Nadel 2012 Memory and Law Lynn Nadel & Walter Sinnott-Armstrong Oxford University Press, Lynn Nadel & Walter Sinnott-Armstrong, Eds. The legal system depends upon memory function in a number of critical ways, including the memories of victims, the memories of individuals who witness crimes or other critical events, the memories of investigators, lawyers, and judges engaged in the legal process, and the memories of jurors. How well memory works, how accurate it is, how it is affected by various aspects of the criminal justice system -- these are all important questions. But there are others as well: Can we tell when someone is reporting an accurate memory? Can we distinguish a true memory from a false one? Can memories be selectively enhanced, or erased? Are memories altered by emotion, by stress, by drugs? These questions and more are addressed by Memory and Law, which aims to present the current state of knowledge among cognitive and neural scientists about memory as applied to the law.
Nadelhoffer 2013 Is Psychopathy a Mental Disease? Thomas Nadelhoffer & Walter P. Sinnott-Armstrong Neuroscience and Legal Responsibility (Oxford University Press, Nicole A. Vincent, ed., 2013) Whether psychopathy is a mental disease or illness can affect whether psychiatrists should treat it and whether it could serve as the basis for an insanity defense in criminal trials. Our understanding of psychopathy has been greatly improved in recent years by new research in psychology and neuroscience. This illuminating research enables us to argue that psychopathy counts as a mental disease on any plausible account of mental disease. In particular, Szasz's and Pickard's eliminativist views and Sedgwick's social constructivist account of mental illness that might exclude psychopathy are not plausible, and there is no reason to exclude psychopathy under Boorse's and Scadding's biomedical accounts, Wakefield's harmful dysfunction account, and the DSM-IV-TR objective harm account of mental disease. The basic reason is that psychopathy involve neural dysfunction that increases risk of serious harm and loss to people with psychopathy.
Nadelhoffer 2013 The Future of Punishment Thomas A. Nadelhoffer Oxford University Press The goal of the present volume is to provide philosophers, neuroscientists, psychologists, and legal theorists with an opportunity to examine the cluster of related issues that will need to be addressed as we struggle to come to grips with the picture of human agency that is being pieced together by researchers in the biosciences. Each contributor was asked to shed light on the important issues he or she takes to be essential when it comes to the future of punishment and retribution. Given the complexity and breadth of both the empirical and conceptual issues that arise in this context, contributors understandably cover a lot of ground. In addition to exploring the sorts of issues that have traditionally been discussed when it comes to free will and punishment, this volume also contains several exciting new articles on the relevance (or lack thereof) of advances in the biosciences to our conceptions of agency and responsibility. Although some contributors defend the philosophical status quo, others advocate no less than a total revaluation of our fundamental beliefs about moral and legal responsibility.
Nadelhoffer 2013 The Mind, the Brain, and the Law: A Philosophical and Psychological Investigation Thomas A. Nadelhoffer, Dena Gromet, Geoffrey Goodwin, Edward Nahmias, Chandra Sripada, Walter Sinnott-Armstrong in The Future of Punishment, OUP, Thomas Nadelhoffer, ed. In this chapter, we explore the potential influence that advances in neuroscience may have on legal decision makers and present the findings from some recent studies that probe folk intuitions concerning the relationships among neuroscience, agency, responsibility, and mental illness. We first familiarize the reader with some of the early research in experimental philosophy on people's intuitions about agency and responsibility. Then, we focus on a more specific issue—namely, whether people respond to explanations of human behavior framed in neuroscientific terms differently than they respond to explanations framed in more traditional folk psychological terms. Next, we discuss some new findings which suggest that explanations of criminal behavior that are couched in neural terms appear to make people less punitive than explanations couched in mental terms, especially in the context of mental illness. Finally, we offer what we take to be the best explanation of these differences in people's intuitions—namely, when people are presented with neural explanations of human behavior, they tend to think that the agent's “deep self” (the values and beliefs the agent identifies with) is somehow left out of the causal loop or bypassed, which in turn mitigates the agent's responsibility.
Nadelhoffer 2011 Neuroscience, Free Will, Folk Intuitions, and the Criminal Law Thomas Nadelhoffer 36 T. Marshall L. Rev. 157
Nadelhoffer 2011 Neural Lie Detection, Criterial Change, and Ordinary Language Thomas Nadelhoffer 4 Neuroethics 205 Michael Pardo and Dennis Patterson have recently put forward several provocative and stimulating criticisms that strike at the heart of much work that has been done at the crossroads of neuroscience and the law. My goal in this essay is to argue that their criticisms of the nascent but growing field of neurolaw are ultimately based on questionable assumptions concerning the nature of the ever evolving relationship between scientific discovery and ordinary language. For while the marriage between ordinary language and scientific discovery is admittedly not always a happy one, it is an awkward union that nevertheless seems to work itself out with the passage of time. In the following pages, I will try to show that Pardo and Patterson’s primary argumentative strategy ultimately depends on basic assumptions concerning the fixity of language that we should reject.
Nadelhoffer 2010 The Threat of Shrinking Agency and Free Will Disillusionism Thomas Nadelhoffer Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). Whereas the traditional free will debate focused on the free part of “free will”—with an emphasis on alternative possibilities and the ability to do otherwise—many of the new threats from psychology pose potential problems for the will part as well. This chapter attempts to shed some light on the nature of these potential psychological threats. It first sets the stage by explaining and clarifying some key terms and exploring some of the key issues from the free will debate. It then examines several potential threats to free will collectively referred to as the Threat of Shrinking Agency. In piecing this general threat together, it discusses the work of several prominent psychologists including Jonathan Bargh, Benjamin Libet, Daniel Wegner, and others. The goal is not to argue that these threats actually do undermine free will and responsibility, but simply to trace the boundaries of the potential threats examined and show that they are not dependent on other potential threats such as determinism, mechanism, reductionism, and the like.
Nadelhoffer 2010 Neuroprediction, violence, and the law: setting the stage Thomas Nadelhoffer, Stephanos Bibas, Scott Grafton, Kent A. Kiehl, Andrew Mansfield, Walter Sinnott-Armstrong & Michael Gazzaniga 5 Neuroethics 67 In this paper, our goal is to (a) survey some of the legal contexts within which violence risk assessment already plays a prominent role, (b) explore whether developments in neuroscience could potentially be used to improve our ability to predict violence, and (c) discuss whether neuropredictive models of violence create any unique legal or moral problems above and beyond the well worn problems already associated with prediction more generally. In “Violence Risk Assessment and the Law”, we briefly examine the role currently played by predictions of violence in three high stakes legal contexts: capital sentencing (“Violence Risk Assessment and Capital Sentencing”), civil commitment hearings (“Violence Risk Assessment and Civil Commitment”), and “sexual predator” statutes (“Violence Risk Assessment and Sexual Predator Statutes”). In “Clinical vs. Actuarial Violence Risk Assessment”, we briefly examine the distinction between traditional clinical methods of predicting violence and more recently developed actuarial methods, exemplified by the Classification of Violence Risk (COVR) software created by John Monahan and colleagues as part of the MacArthur Study of Mental Disorder and Violence. In “The Neural Correlates of Psychopathy”, we explore what neuroscience currently tells us about the neural correlates of violence, using the recent neuroscientific research on psychopathy as our focus. We also discuss some recent advances in both data collection (“Cutting-Edge Data Collection: Genetically Informed Neuroimaging”) and data analysis (“Cutting-Edge Data Analysis: Pattern Classification”) that we believe will play an important role when it comes to future neuroscientific research on violence. In “The Potential Promise of Neuroprediction”, we discuss whether neuroscience could potentially be used to improve our ability to predict future violence. Finally, in “The Potential Perils of Neuroprediction”, we explore some potential evidentiary (“Evidentiary Issues”), constitutional (“Constitutional Issues”), and moral (“Moral Issues”) issues that may arise in the context of the neuroprediction of violence.
Nelson 2008 Incidental Findings in Magnetic Resonance Imaging (MRI) Brain Research Charles A. Nelson 36 J.L. Med. & Ethics 315 The use of magnetic resonance imaging (MRI) to investigate brain structure ("structural MRI") and function (so-called "functional MRI") has become increasingly common among neuroscientists, psychologists, and even economists in recent years. Yet, despite this increase in use, relatively little attention has been paid to the issue of incidental findings. The current paper discusses these issues, and anticipates the future of incidental findings in the context of other neuroimaging tools currently being used to investigate the living brain.
Neuckranz 1999 Refuting Diagnostic and Neuropsychological Testing in Toxic Tort Cases Thomas H. Neuckranz & Bradley C. Nahrstadt 23 Am. J. Trial Advoc. 19 In the last twenty years, there has been an explosion in toxic tort litigation. Plaintiffs from all walks of life are making claims that their exposure to various chemicals have led to serious personal injuries. One of the most common claims that is associated with toxic tort cases is the claim of “indirect” brain damage. And the most prevalent way of “diagnosing” this indirect brain damage is through the use of neuropsychological testing. In order to effectively defend toxic tort cases, and refute claims of chemically induced brain damage, defense counsel must understand the types of diagnostic tests that are often used to support a claim of toxic brain injury and the limitations and procedural drawbacks of those particular tests. Defense counsel must also understand the nature, strengths, and weaknesses of a plaintiff’s main diagnostic tool in the toxic tort brain injury case: neuropsychological testing. The purpose of this article is to provide defense counsel with the information they need to effectively defend against and ultimately refute claims of toxic brain injury.
Nevins-Saunders 2010 Incomprehensible Crimes: Defendants with Mental Retardation Charged with Statutory Rape Elizabeth Nevins-Saunders 85 N.Y.U. L. Rev. 1067 Criminal law norms assume that all defendants are alike. But social science research has demonstrated that most defendants with mental retardation are unlike their peers of average intelligence in their cognitive and behavioral capacity, a difference with profound effects on their blameworthiness. The law acknowledges this difference in a few limited areas, most notably in the Supreme Court’s categorical exclusion of defendants with mental retardation from the death penalty. But while that decision has begun to percolate into the rest of criminal law, it has not yet reached the law of statutory rape. When prosecuted as a strict liability offense, statutory rape precludes the fact-finder from considering the defendant’s state of mind altogether. The total exclusion of mens rea is an anomaly in criminal law, where a finding of guilt typically requires proof not only of an “evil act,” but also of an “evil mind.” Commentators have criticized the strict liability doctrine, but have ignored how the standard is especially unjust when applied to defendants with mental retardation. A close analysis of statutory rape law reveals certain assumptions which allow such a low standard of proof for such a significant offense: would-be defendants are presumed to have notice that sex with underage partners is unlawful; to be in the best position to prevent any harm from occurring; and to be deviant, immoral aggressors. When examined in light of research about mental retardation, however, these assumptions collapse. Indeed, punishing a person with mental retardation without regard to his awareness of the law, social cues, and the nature of his conduct may also run afoul of constitutional due process and proportionate sentencing principles. This article therefore argues that the prosecution of statutory rape should be modified for defendants with mental retardation. The government should have to prove that a defendant with mental retardation had the mens rea to commit the offense. In addition, this article recommends formalizing the existing ways of addressing the difference in culpability of this population through charging and sentencing. The failure to account for defendants’ mental retardation in the context of statutory rape provides just one example of the theoretical and constitutional problems when criminal law disregards people who cannot comprehend the significance of their conduct.
New 2008 If You Could Read My Mind: Implications of Neurological Evidence for Twenty-First Century Criminal Jurisprudence John G. New 29 J. Legal Med. 179 The advent of new technologies has permitted cognitive neuroscientists to explore the neural mechanisms underlying deceptive behaviors. Lawyers and law enforcement entities have shown great interest in exploring the legal consequences of employing such technologies; indeed such interest extends back to the days of phrenology and the advent of polygraphy. This article recounts current advances in the development of “truth telling” technologies, particularly functional magnetic resonance imaging (fMRI) and Brain Fingerprinting and recent attempts to introduce the latter into court as scientific evidence. The second part of the article explores the challenges to constitutional jurisprudence, especially to the Fifth and Fourth Amendments, that the introduction of evidence based on these technologies poses.
Niehoff 2007 Invisible Scars: The Neurobiological Consequences of Child Abuse Debra Niehoff 56 DePaul L. Rev. 847
Nisco 2012 Il confronto tra neuroscienze e diritto penale sulla libertà di volere [The struggle between neuroscience and criminal law on free will] Attilio Nisco 4 Diritto penale e processo 499
Nolan 2005 High-Tech Proof in Brain Injury Cases: New Developments in Biomechanical Animation and Brain Imaging Can Help Jurors 'See' the Damage Caused by Head Trauma Donald J. Nolan & Tressa A. Pankovits 41-JUN Trial 27
Nugent 2012 Practical Legal Concerns Kristen M. Nugent Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) Forensic neuroimaging evidence is subject to various federal and state rules of evidence and procedure and precedential case law, which will affect the strategic approach of counsel in civil and criminal trials. This chapter addresses practical, legal, and evidentiary concerns associated with physical evidence and expert testimony, as related particularly to the admissibility of forensic neuroimaging examinations in American courts. These practical considerations include (1) demonstrating validity and reliability of scientific expert witness testimony under Federal Rule of Evidence 702 and the Daubert and Frye standards; (2) the Rule 403 balancing test between probative value and unfair prejudice that trial judges undertake to determine whether proffered forensic neuroimaging evidence is admissible; and (3) restrictions relating to character evidence, relevance, and expert opinion on ultimate issues of fact. The implications of neuroimaging-based lie detection technology on traditional eyewitness testimony, ineffective assistance of counsel claims, and the importance of thorough cross-examination also are discussed.
Nugent 2012 Neuroimaging and the Constitution Kristen M. Nugent Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) This chapter examines how U.S. constitutional history and Supreme Court precedent influence the use of forensic neuroimaging techniques during criminal investigations, involuntary civil psychiatric commitment proceedings, and criminal trials. Defense counsel's right to proffer neuroimaging evidence is strongest when the defendant's fundamental rights are implicated: for example, in establishing competency to stand trial or to waive certain rights sufficient to comport with Due Process, or in capital sentencing determinations as a mitigating factor pursuant to the Eighth Amendment. In contrast, states are under no constitutional mandate to provide for an insanity defense or to allow neuroimaging evidence for the purpose of negating mens rea during the case-in-chief. The Fifth Amendment privilege against self-incrimination and the Fourth Amendment privilege against unreasonable searches may constrain government investigators and prosecutors from compelling unwilling suspects to submit to examinations as forensic neuroimaging technology further improves and becomes more widespread.
Nutt 2013 Effects of Schedule I Drug Laws on Neuroscience Research and Treatment Innovation David J. Nutt, Leslie A. King, & David E. Nichols 14 Nature Reviews Neuroscience 577 Many psychoactive drugs are used recreationally, particularly by young people. This use and its perceived dangers have led to many different classes of drugs being banned under national laws and international conventions. Indeed, the possession of cannabis, 3,4-methylenedioxy-N-methylamphetamine (MDMA; also known as ecstasy) and psychedelics is stringently regulated. An important and unfortunate outcome of the controls placed on these and other psychoactive drugs is that they make research into their mechanisms of action and potential therapeutic uses — for example, in depression and post-traumatic stress disorder — difficult and in many cases almost impossible.
Oberstar 2006 Cognitive and Moral Development, Brain Development, and Mental Illness: Important Considerations for the Juvenile Justice System Joel V. Oberstar, Elise M. Anderson & Jonathan B. Jensen 32 Wm. Mitchell L. Rev. 1051
O'Hanlon 2009 Toward a More Reasonable Approach to Free Will in Criminal Law Stephen O'Hanlon 7 Cardozo Pub. L. Pol'y & Ethics J. 395 This paper questions criminal law's strong presumption of free will. Part I assesses the ways in which environment, nurture, and society influence human action. Part II briefly surveys studies from the fields of genetics and neuroscience, which call into question strong assumptions of free will and suggest explanations for propensities toward criminal activity. Part III discusses other "causes" of criminal activity including addiction, economic deprivation, gender, and culture. In light of Parts I through III, Part IV assesses criminal responsibility and the legitimacy of punishment. Part V considers the possibility of determining propensity from criminal activity based on assessing causal factors and their effects on certain people. In this context, the concept of dangerous individuals and possible justifications for preventative detention of such individuals in order to protect society is assessed. The concluding section suggests that the law should take a broader view of factors that could have determinant effects on agents' actions.
O'Hara 2006 How Neuroscience Might Advance the Law Erin A. O'Hara Law and the Brain 21 (Oxford Univ. Press, Semir Zeki & Oliver Goodenough, eds., 2006). This essay discusses the strengths and limitations of the new, growing field of law and biology and suggests that advancements in neuroscience can help to bolster that field. It also briefly discusses some ways that neuroscience can help to improve the workings of law more generally.
O'Hara 2001 Brain Plasticity and Spanish Moss In Biolegal Analysis Erin A. O'Hara 53 Fla. L. Rev. 905
Oldershaw 1997 Persistent Vegetative State: Medical, Ethical, Religious, Economic and Legal Perspectives John B. Oldershaw et al. 1 DePaul J. Health Care L. 495 Certain neurological conditions are refractory to known present day treatment. At the same time, technological advances make it possible for patients with these conditions to be maintained for long periods of time on support systems, despite the fact those patients have no real hope of any cure or improved quality of life. This anguishing dilemma gives rise to several complex medical, ethical, economic, religious and legal issues. Persistent Vegetative State (PVS) is the neurological disorder through which these issues are considered. Specifically, the principal issues include: diagnostic criteria for PVS; futility analysis and its inherent limitations; religious perspectives on ethical behavior and on death; assessment of the costs and benefits of alternative therapies and of maintaining life versus alleviating suffering; definition of “quality of life”; the role of ethics committees; state and national legislative enactments; and representative case examples. The article concludes with an algorithm to guide decisions for withdrawal or termination of treatment for PVS patients. The algorithm begins with a comprehensive assessment of the patient’s neurophysiological status. If results corroborate severe impairment such that the prior human qualities of the patient are no longer evident and there are no known effective therapies to redress the condition, a methodical, multi-faceted approach to discontinuing treatment is outlined. Over time, the algorithm will be revised as technological capacities for understanding human brain structure and function continue to advance.
O'Neill 2010 Mirror Neurons, the New Neuroscience, and the Law: Some Preliminary Observations Timothy P. O'Neill 39 Sw. L. Rev. 499 V.S. Ramachandran has written that we are in the midst of a new revolution of scientific thought: the neuroscience revolution. Since 1995, a group of scientists have studied what they refer to as "mirror neurons," certain nerve cells in the brain that enable a person to see the world from another person's perspective. These scientists believe that mirror neurons may provide a neurobiological explanation for precisely how humans empathize. This Essay first applies this insight to the role of empathy in judging. The concept of mirror neurons shows that the issue is not whether empathy has a role in judging, but rather how significant a role empathy actually plays. In reaching judicial decisions, "reason" and "emotion" complement, rather than oppose, one another. As Jonah Lehrer has stated, "Reason without emotion is impotent." Mirror neurons provide a tool for beginning a more sophisticated discussion of the nature of judging. The Essay then turns to how mirror neurons can aid in understanding the decision-making of juries. It considers a closing argument technique called "channeling," in which the lawyer pretends to actually be the victim in the case who is describing his personal pain and suffering. Mirror neurons suggest that the profound effect this technique can have on jurors may be less rhetorical than it is neurobiological. The Essay posits that the role played by mirror neurons may indeed suggest a scientific basis for Plato's argument in "The Republic" that all imitative poets should be banned from the city. The Essay concludes by encouraging legal theorists to consider the role neuroscience can play in legal reform.
Orme 2003 Clinical Neuropsychologists: Training, Credentials and Courtroom Credibility Daniel R. Orme & George Johnstone 59 J. Mo. B. 184
Osburn 2008 Immunizing Against Addiction: The Argument for Incorporating Emerging Anti-Addiction Vaccines into Existing Compulsory Immunization Statutes Alexis Osburn 56 Clev. St. L. Rev. 159
Ouss 2013 When Punishment Doesn't Pay: 'Cold Glow' and Decisions to Punish Aurelie Ouss & Alexander Peysakhovich Forthcoming Economic theories of punishment focus on determining the levels of punishment that will provide maximal social material payoffs. In calculating these levels, several parameters are important: total social costs, total social benefits and the probability that defectors are apprehended. However, often times social levels of punishment are determined by aggregates of individual decisions. Research in behavioral economics, psychology and neuroscience shows that individuals appear to treat punishment as a private good ("cold glow") and so individual decisions may be inappropriately responsive to the above parameters. This means that, depending on environment, aggregate punishment levels can be predictably above or below optimally deterring benchmarks and final social outcomes (e.g.. levels of cooperation and total social costs incurred) can be highly inefficient. We confirm these predictions in a series of experiments. Our research highlights the importance of understanding the psychology of punishment for understanding economically important outcomes and for designing social mechanisms.
Overbeck 2011 No Match for the Police: An Analysis of Miranda's Problematic Application to Juvenile Defendants Zoe Overbeck 38 Hastings Const. L.Q. 1053 In Fare v. Michael C. and Yarborough v. Alvarado, the Supreme Court affirmed the use of adult standards in determining whether a juvenile is under custodial interrogation and whether the juvenile has “knowingly and intelligently” waived her Miranda rights. Due to differences in juvenile cognition, young people's limited comprehension of the words and substance of the Miranda rights, and their vulnerability to police interrogation techniques, states should go beyond the baseline established by the Supreme Court, as some have already, to offer juvenile suspects the following protections: Age should always be taken into account when applying the Miranda custody test; and there should be a per se rule that law enforcement may not administer Miranda warnings to juvenile suspects in the absence of defense counsel.
Pacherie 2010 What are Intentions? Elisabeth Pacherie & Patrick Haggard Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). This chapter makes a distinction between prospective and immediate intentions. Many authors have insisted on a qualitative difference between these two regarding the type of content, with prospective intentions generally being more abstract than immediate intentions. However, the main basis of this distinction is temporal: prospective intentions necessarily occur before immediate intention and before action itself, and often long before them. In contrast, immediate intentions occur in the specific context of the action itself. Yet both types of intention share a common purpose, namely that of generating the specific information required to transform an abstract representation of a goal-state into a concrete episode of instrumental action directed toward that goal. To this extent, the content of a prospective and of an immediate intention can actually be quite similar. The main distinction between prospective and immediate intentions becomes one of when, i.e., how early on, the episodic details of an action are planned. The conscious experience associated with intentional action comes from this process of fleshing out intentions with episodic details.
Paglieri 2010 La struttura temporale dell'azione intenzionale: illusione della volontà o illusione delle neuroscienze? [The temporal structure of intentional action: free will’s illusion od neuroscience’s illusion?] Fabio Paglieri 2 Sistemi intelligenti 347
Parasidis 2012 Justice and Beneficence in Military Medicine and Research Efthimios Parasidis 73 Ohio St. L.J. 723 This Article examines the extent to which U.S. law promotes justice and beneficence in military medicine and research. I begin by reviewing the historical development of experimental studies in the military and the egregious research methods employed by the U.S. government under the guise of national security. I then analyze socio-medical implications of contemporary military medicine by evaluating investigational use of medical products and biomedical enhancements. I conclude by proposing reforms that aim to harmonize national security interests with fundamental principles of patient autonomy and human dignity. The proposals include amendments to the legal and regulatory framework governing military medicine and research, enhanced medical monitoring and post-research care, and statutory limitations to sovereign immunity.
Pardo 2013 Neuroscience, Normativity, and Retributivism Michael S. Pardo, Dennis Patterson in The Future of Punishment, OUP, Thomas Nadelhoffer, ed. Advocates for the increased use of neuroscience in law have made bold and provocative claims about the power of neuroscientific discoveries to transform the criminal law in ways large and small. Perhaps the boldest and most provocative of these claims are made in an influential article by Joshua Greene and Jonathan Cohen. They claim that neuroscience will reveal that criminal defendants are not morally responsible for their actions and that this revelation will thereby undermine retributivist justifications for criminal punishment. In the process of resolving previously intractable debates between consequentialism and retributivism, neuroscience will also, they contend, resolve age-old debates about free will. In this essay, we discuss several serious problems with their argument. We maintain that no neuroscientific discoveries will lead to the sorts of changes predicted by Greene and Cohen and, even if they did, those changes would not be the product of neuroscientific insight but result from unwarranted and problematic inferences which ought to be resisted.
Pardo 2013 Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience Michael S. Pardo & Dennis Patterson Oxford University Press Cognitive neuroscientists have deepened our understanding of the complex relationship between mind and brain and complicated the relationship between mental attributes and law. New arguments and conclusions, based on functional magnetic resonance imaging (fMRI), electroencephalography (EEG), and other increasingly sophisticated technologies, are being applied to debates and processes in the legal field, from lie detection to legal doctrine surrounding criminal law, including the insanity defense, to legal theory. In Minds, Brains, and Law, Michael S. Pardo and Dennis Patterson analyze questions that lie at the core of implementing neuroscientific research and technology within the legal system. They examine the arguments favoring increased use of neuroscience in law, the scientific evidence available for the reliability of neuroscientific evidence in legal proceedings, and the integration of neuroscientific research into substantive legal doctrines. The authors also explore the basic philosophical questions that lie at the intersection of law, mind, and neuroscience. In doing so, they argue that mistaken inferences and conceptual errors arise from mismatched concepts, such as the disconnect between lying and what constitutes "lying" in many neuroscientific studies. The empirical, practical, ethical, and conceptual issues that Pardo and Patterson seek to redress will deeply influence how we negotiate and implement the fruits of neuroscience in law and policy in the future.
Pardo 2011 Minds, Brains, and Norms Michael S. Pardo, Dennis Patterson 4 Neuroethics 179 Arguments for the importance of neuroscience reach across many disciplines. Advocates of neuroscience have made wide-ranging claims for neuroscience in the realms of ethics, value, and law. In law, for example, many scholars have argued for an increased role for neuroscientific evidence in the assessment of criminal responsibility. In this article, we take up claims for the explanatory role of neuroscience in matters of morals and law. Drawing on our previous work together, we assess the cogency of neuroscientific explanations of three issues that arise in these domains: rule following, interpretation, and knowledge. We critique these explanations and in general challenge claims as to the efficacy of the neuroscientific accounts.
Pardo 2011 More on the Conceptual and the Empirical: Misunderstandings, Clarifications, and Replies Michael S. Pardo, Dennis Patterson 4 Neuroethics 215 At the invitation of the Editors, we wrote an article (entitled, “Minds, Brains, and Norms”) detailing our views on a variety of claims by those arguing for the explanatory power of neuroscience in matters of law and ethics. The Editors invited comments on our article from four distinguished academics (Walter Glannon, Carl Craver, Sarah Robins, and Thomas Nadelhoffer) and invited our reply to their critique of our views. In this reply to our commentators, we correct some potential misunderstandings of our views and further clarify our positions with discussions of the conceptual-empirical distinction, rule-following, explanations at the personal and subpersonal levels, memory, and lie detection. Although we acknowledge many of the criticisms advanced by our distinguished colleagues, we conclude that, in several important respects, their criticisms confirm the points made in our original article.
Pardo 2010 Philosophical Foundations of Law and Neuroscience Michael S. Pardo & Dennis Patterson 2010: 4 U. Ill. L. Rev. 1211 According to a wide variety of scholars, scientists, and policymakers, neuroscience promises to transform law. Many neurolegalists - those championing the power of neuroscience for law - proceed from problematic premises regarding the relationship of mind to brain. This Article makes the case that their accounts of the nature of mind are implausible and that their conclusions are overblown. Thus, their claims of the power of neuroscience for law cannot be sustained. The Article discusses a wide array of examples including lie detection, criminal-law doctrine, economic decision-making, moral decision-making, and jurisprudence.
Pardo 2006 Neuroscience Evidence, Legal Culture, and Criminal Procedure Michael S. Pardo & Dennis Patterson 33 Am. J. Crim. L. 301 Proposed lie-detection technology based on neuroscience poses significant challenges for the law. The law must respond to the science with an adequate understanding of such evidence, its significance, and its limitations. This paper makes three contributions toward those ends. First, it provides an account of the preliminary neuroscience research underlying this proposed evidence. Second, it discusses the nature and significance of such evidence, how such evidence would fit with legal practices and concepts, and its potential admissibility. Finally, it analyzes the constitutional protections that may limit the compelled production of such evidence.
Parens 2005 Creativity, Gratitude and the Enhancement Debate: On the Fertile Tension Between Two Ethical Frameworks Erik Parens Neuroethics: Defining the Issues in Theory, Practice and Policy 75 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter describes two ethical frameworks out of which people seem to come to the academic debate about enhancement technologies. It argues that the impulse to creativity (or self-transformation) can be thought of as the organizing commitment for one framework, and that the impulse to gratitude (or letting things be) can be thought of as the organizing commitment of the other. It also describes some of the different sets of reasons that seem to cluster around each of those commitments. Different reasons seem most salient, depending on one's framework.
Patel 2007 The Role of Imaging in United States Courtrooms Purvak Patel et al. 17 Neuroimaging Clinics N. Am. 557 The rapid evolution of brain imaging techniques has increasingly offered more detailed diagnostic and prognostic information about neurologic and psychiatric disorders and the structural and functional brain changes that may influence behavior. Coupled with these developments is the increasing use of neuroimages in courtrooms, where they are used as evidence in criminal cases to challenge a defendant's competency or culpability and in civil cases to establish physical injury or toxic exposure. Several controversies exist, including the admissibility of neuroimages in legal proceedings, the reliability of expert testimony, and the appropriateness of drawing conclusions in individual cases based on the findings of research uses of imaging technology. This article reviews and discusses the current state of these issues.
Patel 2007 The Role of Imaging in United States Courtrooms P. Patel, C.C. Meltzer, H.S. Mayberg, K. Levine 17 (4) Neuroimaging Clin N Am 557 The rapid evolution of brain imaging techniques has increasingly offered more detailed diagnostic and prognostic information about neurologic and psychiatric disorders and the structural and functional brain changes that may influence behavior. Coupled with these developments is the increasing use of neuroimages in courtrooms, where they are used as evidence in criminal cases to challenge a defendant's competency or culpability and in civil cases to establish physical injury or toxic exposure. Several controversies exist, including the admissibility of neuroimages in legal proceedings, the reliability of expert testimony, and the appropriateness of drawing conclusions in individual cases based on the findings of research uses of imaging technology. This article reviews and discusses the current state of these issues.
Pearson 2006 Lure of lie detectors spooks ethicists Helen Pearson 441 Nature 918 US companies are planning to profit from lie-detection technology that uses brain scans, but the move to commercialize a little-tested method is ringing ethical and scientific alarm bells.
Pellegrini 2010 Siamo davvero liberi? Il comportamento tra geni e cervello [Are we really free? Human behavior between genes and brain] Silvia Pellegrini & Pietro Pietrini 2 Sistemi intelligenti 281
Penney 2013 Irresistible Impulse and the Mental Disorder Defence: The Criminal Code, the Charter, and the Neuroscience of Control Steven Penney 30(2) Criminal Law Quarterly ___ As in many other jurisdictions, Canada’s "mental disorder" defense rests on the uncontroversial premise that people incapable of choosing whether to do wrong do not deserve punishment. Most defendants benefiting from this defense suffered from delusions that prevented them from understanding either the physical consequences or moral wrongfulness of their actions. There is little debate that these people should be found "not criminally responsible" (NCR). What is less clear (and what has long divided commentators, courts, and legislators) is whether the defense can excuse defendants who had a general ability to understand consequences and wrongfulness, but suffered from a mental disorder that rendered them incapable of resisting an impulse to commit the offense. To answer this question, I first review the jurisprudence on impulse control, noting that the cases allow more room for irresistible impulse than is commonly understood. Second, I argue that by deeming the concepts of "voluntariness" and "moral voluntariness" to be principles of fundamental justice under section 7 of the Charter, the Supreme Court of Canada has opened up even more space for the defense. Third, I examine what science and law teach us about the existence and diagnosibility of irresistible impulses, concluding that the phenomenon is very likely real and that recognizing the defense is likely to generate few undeserved NCR dispositions. Lastly, I explore how the defense should be defined and limited, arguing that it should succeed only when it is proved that the accused experienced a total incapacity to control conduct in the circumstances.
Penney 2012 Impulse Control and Criminal Responsibility: Lessons from Neuroscience Steven Penney International Journal of Law and Psychiatry Almost all of the world’s legal systems recognize the “M’Naghten” exception to criminal responsibility: the inability to appreciate the wrongfulness of action. This exception rests on the assumption that punishment is morally justified only if the defendant was able to choose whether to do wrong. Jurists and jurisdictions differ, however, on whether to extend M’Naghten’s logic to cases where the defendant understood the wrongfulness of an act but was incapable of resisting an impulse to commit it. In this article I ask whether contemporary neuroscience can help lawmakers to decide whether to adopt or retain this defence, known variously as the “irresistible impulse” defense or the “control” or “volitional” test for insanity. More specifically, I ask firstly, whether it is empirically true that a person can understand the wrongfulness of an act yet be powerless to refrain from committing it; and second (assuming an affirmative answer to the first), whether the law of criminal responsibility can practically accommodate this phenomenon? After canvassing the relevant neuroscientific literature, I conclude that the answer to the first question is “yes.” After examining the varied treatment of the defence in the United States and other nations, I also give an affirmative answer to the second question, but only in limited circumstances. In short, the defence of irresistible impulse should be recognized, but only when it can be shown that the defendant experienced a total incapacity to control his or her conduct in the circumstances.
Peraino 2011 Psychological considerations in direct filing Joseph M. Peraino, Patrick J. Fitz-Gerald 40 MAY Colo. Law. 41 This article reviews the history of the juvenile justice system in America, as well as recent changes in the direct filing law. It discusses recent neuroscience and behavioral science findings about the adolescent brain that weigh significantly on the maturity level of the adolescent The article also discusses how psychological assessment data can assist the court with the new direct filing law.
Perlin 2011 Considering Pathological Altruism in the Law from Therapeutic Jurisprudence and Neuroscience Perspectives Michael L. Perlin PATHOLOGICAL ALTRUISM (Oxford Univ. Press, Barbara Oakley et al., ed., 2011) One of the most important legal theoretical developments of the past two decades has been the creation and dynamic growth of therapeutic jurisprudence (TJ). TJ presents a new model by which we can assess the ultimate impact of case law and legislation that affects mentally disabled individuals, studying the role of the law as a therapeutic agent, recognizing that substantive rules, legal procedures and lawyers' roles may have either therapeutic or anti-therapeutic consequences, and questioning whether such rules, procedures, and roles can or should be reshaped so as to enhance their therapeutic potential, while not subordinating due process principles. In recent years, scholars have considered a vast range of topics through a TJ lens, including, but not limited to, all aspects of mental disability law, domestic relations law, criminal law and procedure, employment law, gay rights law, and tort law. At the same time, legal scholars have also turned their attention to the relationship between neuroscience and the law, mostly, but not exclusively, in the contexts of criminal law and procedure.
Perlin 2010 "Good and Bad, I Defined These Terms, Quite Clear No Doubt Somehow": Neuroimaging and Competency to be Executed After Panetti Michael L. Perlin 28 Behavioral Sciences and the Law 671 There has been little consideration, in either the caselaw or the scholarly literature, of the potential impact of neuroimaging on cases assessing whether a seriously mentally disabled death row defendant is competent to be executed. The Supreme Court's 2007 decision in Panetti v. Quarterman significantly expanded its jurisprudence by ruling that such a defendant had a constitutional right to make a showing that his mental illness "obstruct[ed] a rational understanding of the State's reason for his execution." This article considers the impact of neuroimaging testimony on post-Panetti competency determination hearings, and looks at multiple questions of admissibility of evidence, adequacy of counsel, availability of expert assistance, juror attitudes, trial tactics, and application of the Daubert doctrine, and also considers the implications of the lesser-known Panetti holding (that enhances the role of expert witnesses in all competency-to-be-executed inquiries). It warns that the power of the testimony in question has the capacity to inappropriately affect fact-finders in ways that may lead "to outcomes that are both factually and legally inaccurate and constitutionally flawed."
Perlin 2009 "And I See Through Your Brain": Access to Experts, Competency to Consent, and the Impact of Antipsychotic Medications in Neuroimaging Cases in the Criminal Trial Process Michael L. Perlin 2009 Stan. Tech. L. Rev. 4 This paper considers the implications of neuroimaging in three under discussed aspects of criminal procedure - the implications of Ake v. Oklahoma (an indigent defendant's access to expert testimony) in cases where neuroimaging tests might be critical, (2) the defendant's competency to consent to the imposition of a neuroimaging test or examination; and (3) the impact of medications - specifically, antipsychotic medications - on a defendant's brain at the time that such a test is performed. Given the warning signals that have been raised by commentators as to the potentiality of juror misuse and misinterpretation of neuroimaging testimony, it is critical that we take seriously the issues raised here. The article concludes that there are hidden landmines inevitably present when we think about the use of neuroimaging in criminal trials - landmines that go can infect the fairness of the trial process itself. If an indigent criminal defendant is refused access to an independent expert in an area where jurors may uncritically accept neuroimaging testimony (because of its visual appeal and its apparent lack of falsifiability), the fairness of the entire trial remains in question. If no attention is paid to the difficult and complex ethical issues that should surface if the question of the defendant's competency to consent to being tested is not raised, trial fairness is a concern. And finally, if we ignore the reality that the neuroimaging evidence shown to jurors may not be an accurate depiction of the defendant's brain at the time of the offense - but rather, a depiction of his brain at a later time when his brain biochemistry has been altered by the imposition of medication - we willfully blind ourselves to the possibility (perhaps "likelihood") that the database presented to the jury is potentially fatally flawed.
Perlin 2009 "His Brain Has Been Mismanaged With Great Skill": How Will Jurors Respond to Neuroimaging Testimony in Insanity Defense Cases? Michael L. Perlin 42 Akron L. Rev. 885 The robust debate over neuroimaging has highlighted a series of law-and-policy questions dealing primarily with reliability, admissibility and availability. When we consider the topic that will be addressed in this paper - the impact of this evidence on juror decision-making in insanity defense cases - we need to recalibrate our focus so as to incorporate other questions that are as essential (most likely, more essential) to the resolution of the underlying dilemma: (1) to what extent will such evidence - apparently, less inherently easy to falsify - have on jurors whose inherent suspicion of mental state opinion testimony is well-documented, (2) will this falsifiability issue even matter to jurors whose personal values/moral codes reject the motion of any non-responsibility verdict because it is dissonant with their heuristics-driven false ordinary common sense, (3) will there now be some shred of truth in one of the standard insanity defense myths (that the insanity defense is a rich man's ploy); that is, will the rich and famous be able to disproportionately rely on neuroimaging testimony in their trials?, (4) to what extent will sanism and pretextuality drive juror behavior in such cases, and (5) what are the therapeutic jurisprudence implications of the answers to all of these questions? This presentation addresses, though it does not fully answer, all of these questions in the hopes that other legal scholars will be stimulated to consider them each in depth in the future.
Perlin 2009 Unasked (and Unanswered) Questions About the Role of Neuroimaging in the Criminal Trial Process Michael L. Perlin & Valerie R. McClain 28 Am. J. Forensic Psychol. The robust neuroimaging debate has dealt mostly with philosophical questions about free will, responsibility, and the relationship between brain abnormalities, violence, and crime. This debate, however, obscures several important issues of criminal procedure to which little attention has as of yet been paid: an indigent defendant's right of access to expert testimony in cases where neuroimaging tests might be critical; a defendant's competency to consent to the imposition of a neuroimaging test; and the impact of antipsychotic medications on a defendant's brain at the time that such a test is performed. This article considers these questions from the perspectives of both law and neuropsychology, and, from a clinical perspective, also focuses on identifying cases appropriate for referrals for neuroimaging studies, including preliminary testing based on neuropsychological assessment; understanding the importance of brain impairment as it relates to criminality and violence; establishing criteria for determining competency to consent to such tests, and the potential impact of medications on brain functioning when neuroimaging tests are conducted.
Pettit 2007 fMRI and BF Meet FRE: Brain Imaging and the Federal Rules of Evidence Mark Pettit, Jr. 33 Am. J.L. & Med. 319 The article examines the legal application of brain imaging results in the U.S. Several existing brain-imaging methods are discussed, including Functional Magnetic Resonance Imaging (FMRI) and Positive Emission Tomography. Key information about the provision of the Federal Rule of Evidence (FRE) 702 and other legal standards is further presented.
Pfaff 2010 Possible Legal Implications of Neural Mechanisms Underlying Ethical Behaviour Donald W. Pfaff Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter suggests that recent work in neuroscience pointing towards a physical/hormonal basis for moral reciprocity — the ‘do unto others’ dictum commonly called the Golden Rule — may have implications for how legal concepts have developed and should be applied. It starts from the assumption, however, that while neuroscience can now perhaps demonstrate that moral reciprocity is the product of how human brains have evolved, it would be facile to argue that the law simply reflects this evolution, and incorporates (or should incorporate) a ‘do unto others’ ideology into its basic, jurisprudential structure.
Phillips 2013 Empathy for Psychopaths: Using fMRI Brain Scans to Plea for Leniency in Death Penalty Cases Kimberly D. Phillips 37 Law & Psychol. Rev. 1 Most of the public agrees that society is safer without psychopaths. However, a new sentencing strategy for psychopaths facing the death penalty has erupted from both mental health researchers and defense lawyers--imploring juries to view a defendant's psychopathy as a consideration of sentencing mitigation, and, consequently, urging juries to impose life imprisonment instead of the death penalty. This article explains the frightening nature of psychopaths, how neuroscience and neuroimaging intersects with the study of psychopathy, and, specifically, whether an fMRI brain scan is appropriate mitigating evidence in death penalty sentencing hearings when the convicted defendant is a diagnosed psychopath.
Pickersgill 2011 Connecting Neuroscience and Law: Anticipatory Discourse and the Role of Sociotechnical Imaginaries Martyn Pickersgill 30 New Genetics & Soc. 27 In recent years, attempts have increasingly been made to connect neuroscience and law. Scientists and lawyers are imagining and actively fostering the realization of futures in which neuroscience will play a prominent role in the activity of courts. In this article I take these debates as my empirical object. I trace the emergence of neurolegal discourse, explore its focus on free will and lie detection, and show how expectations about the potential role neuroscience might play in the law are being embedded in new research programs and funding streams. In so doing, I analyze the role of particular “sociotechnical imaginaries” in stimulating, directing and restricting neurolegal discourse and highlight the ways in which new visions of law, science and scientists are produced in the process. Sociotechnical imaginaries are shown to be salient in structuring anticipatory discourse, and represent a key target for social scientific intervention in such debates.
Picozza 2012 Cosa è il Neurodiritto [What is neurolaw] Eugenio Picozza Il Diritto Amministrativo nella prospettiva di un ripensamento epistemologico dei saperi giuridici A paper presented to the meeting Il Diritto Amministrativo nella prospettiva di un ripensamento epistemologico dei saperi giuridici, held at Lucera, October 19-20, 2012.
Picozza 2011 Neurodiritto. Una introduzione [Neurolaw. An introduction] Eugenio Picozza, Laura Capraro, Vera Cuzzocrea & David Terracina Turin, Giappichelli
Pierce 2012 Implications of the Biomedical Paradigm for Criminal Responsibility Robin Pierce Delft University of Technology This work addresses the implications of the “biomedical paradigm” for criminal responsibility. Both descriptive and normative distinctions are frequently made about criminal responsibility based on what may be described as “the biomedical paradigm”, i.e. whether the underlying cause of criminal behavior was due to illness or disease or to some flaw in personality or character. The result of applying this biomedical inquiry in this way is that our sense of criminal responsibility tends to track that which happens to us (as in the case of disease or illness), rather than who we are. Similarly, treatment issues can be closely linked to sentencing in that whether and to what an individual is sentenced appears to hinge significantly on whether the underlying motivation for the criminal behavior (as assessed by the court) is rooted in a “treatable condition." Indeed, a biological deficit has tended (at least intuitively) to suggest motivation linked to incapacity, whereas an absence of biological correlate has tended to suggest motivation linked to badness. As neuroscience increasingly points to neurobiological correlates of what has previously been regarded as “behavioral dispositions” not recognized as biological conditions, the distinction between illness and disease on the one hand and badness on the other, becomes more difficult to define and harder to ascertain, presenting a challenge to the validity of such a distinction in the first place. Given that biomedical treatment is offered, and in restricted circumstances, compelled, within the context of the criminal justice system, critical questions emerge about the implications for treatment of a blurred, shifting, or invalid distinction between illness and character flaw or deficit. This essay explores three questions regarding this phenomenon: 1) How should the biomedical paradigm inform this distinction?; 2) In view of the apparent persistence of a biomedical paradigm, what are the implications for treatment of this continued distinction? That is, if both incapacity and bad character can be “treated”, should that treatment take place within the context of the criminal justice system and 3) Should sentencing take into consideration treatment options for criminal behavior motivated by illness and disease or character deficits or flaws, regardless of the merits of such a distinction? This policy analysis addresses both criminal behavior and non-compliant behavior with negative effects on others. As such, this analysis aims to be relevant to a number of policy questions as neuroscience increasingly comes within the purview of the law.
Pietrini 2009 Homo Ferox: The Contribution of Functional Brain Studies to Understanding the Neural Bases of Aggressive and Criminal Behavior Pietro Pietrini & Valentina Bambini 32 Int'l J.L. & Psychiatry 259 The body of knowledge gained in recent years thanks to the astonishing development of neuroscience seems to have an impact far beyond the province of biomedical research and clinical applications, reaching the legal system by way of ethico-philosophical thinking. Since the 19th century it has been well known that lesions to the cerebral cortex may lead to impairments in specific cognitive functions and in the ability to regulate behavior. The modern methodologies for investigating brain function, including positron emission tomography (PET), functional magnetic resonance imaging (fMRI) and electroencephalography have made it possible to investigate the neural circuits implicated not only in cognitive processes such as perception, attention, memory and language, but also in more complex and elusive mental functions such as emotion, impulse control, aggressive behavior and moral judgment. In this paper we will discuss the contribution from functional brain studies to the comprehension of the relationship between brain and behavior, specifically between brain and aggressive and antisocial impulses. We will focus on the role of certain parts of the frontal cortex in inhibition of aggression and on the hypothesis that these regions may exhibit anomalies in aggressive and criminal subjects. Then, we will briefly turn to some ethical and legal aspects that need to be rethought in light of the recent findings from neuroscience. We will not argue for any neuro-reductionstic conception of criminality. Instead, we will suggest that the individual’s control of his or her actions may be diminished due to anomalies in brain morphology and/or functioning.
Pietrini 2008 La macchina della verità alla luce delle recenti acquisizioni delle neuroscienze [Lie-detection and new neuroscience’s knowledge] Pietro Pietrini 1 Cassazione penale 407 The ability to recognize truthful from false statements has always attracted human interest since the early days. For the law as well, this is certainly a topic of the utmost relevance. Several strategies have been proposed time by time in an attempt to obtain an objective validation for the validity of a statement. Measures of physiological parameters by the means of polygraphic techniques - best known as lie detector - have proven themselves not to be reliable, mostly because of their low specificity and sensitivity. The modern methodologies for the functional exploration of the brain, commonly known as neuroimaging, have reinvigorated this field of research, in in an attempt to become able to read the lying mind. In this paper, I will provide a critical examination of the potential contribution of the most recent acquisitions from neuroscience in relation to the development of reliable systems for the measurement of objective indices of truth and lie.
Piquero 2013 Youth Matters: The Meaning of Miller for Theory, Research, and Policy Regarding Developmental/Life-Course Criminology Alex R. Piquero 39 New Eng. J. on Crim. & Civ. Confinement 347
Pizzetti 2012 Neuroscienze forensi e diritti fondamentali: spunti costituzionali [Forensic neuroscience and fundamental rights: a constitutional overview] Federico Gustavo Pizzetti Torino, Giappichelli The book analyzes the use of forensic neuroscience in criminal trials for the insanity defence, deception detection and memory detection under the point of view of the respect of constitutional rights. In particular, the book argued that the admissibility of neuroscientific evidence shall be considered a mean to increase the protection of the right of self-defence. However, the respect of the due process of law and the guarantee of the rights of “habeas corpus”, health, bodily integrity and freedom of thought operate as a limitation to an uncontrolled use of this new and highly specialized mean of proof. In order to try to find a balancing between all the above mentioned different rights, the book puts under light the role played by the paramount principle of respect for human dignity. In particular, it is underlined that the constitutional protection of human dignity does forbid the “reduction” of man: to a unqualified “instrument” for the pursuing of public interests, event the one of justice; to a mere “object” in the hands of the State that can be, therefore, put under an unsafe neuroscientific experiment; to one of its characters, even the genetic or neuroscientific one. Therefore, the book lastly underline that a judicial sentence, that it is based only on the neuroscientific evidence, without any evaluation of the facts, ascertained in the trial, and without any autonomous appreciation, by the court, of the results provided by the same neuroscientific expert shall be considered constitutionally unfair.
Pizzetti 2011 In Quest of Constitutional Principles of Neurolaw Federico Gustavo Pizzetti 23(3) Medicina nei secoli 963 The growing use of brain imaging technology and the developing of cognitive neuroscience place enormous challenges to legal systems. Until now, while the fields of Law much affected are civil and criminal law and procedure, the constitutional significance of “neurolaw” cannot be easily underestimated. As the capacity to study brain mechanisms and functional neural activity increases, it becomes critical the identification and analysis of the unalienable rights and fundamental values that must be guaranteed and safeguarded at “the constitutional level” of norms. Among these the essay identifies (and explains) human dignity, personal identity, authenticity and the pursuit of personal “happiness”. At the same as for the law regulating research and experimentation on the human genome adopted in the past years, it may also be argued if the above mentioned fundamental principles of “neurolaw” must be fixed and disciplined not only at National level (constitutional and statutory) of laws, but also at International level (treaties and declaration of rights).
Pizzetti 2011 Libertà di autodeterminazione e protezione del malato nel “Brain-Computer interfacing”: un nuovo ruolo per l’amministratore di sostegno? [Liberty of Self-determination and protection of patient in the “Brain-Computer interfacing”: a new role of the guardian under guardianship laws?] Federico Gustavo Pizzetti 29(1) Rivista critica del diritto privato 31 New experiments and devices that use FMRI or EEG in order to ascertain the self-modulation of brain activity in answering a question and to translate it into a signal that can be processed pose unknown problems to guardianship laws. On one side, indeed, this new technology seems to increase the exercise of personal rights by impaired people, who can express their will, by using the new communicative device, without any substitution by the guardian. On the other side, because of the peculiar intrusion of the communicative machinery in the brain circuits of a handicapped person, that may be in a condition not to control or disconnect him/herself from the interface, the compelling state interest of protection of the same weak people must be kept into account. Under this point of view, the article argued that a new role may be opened for a guardian. The guardian does not have to exercise the rights of the impaired person in a substituted judgement, but has to supervise, in the name of the ward and his/her interests, that the communicative brain-computer interface is working properly; that it is correctly used by the beneficiary; and that the signals carried are properly interpreted, especially when the same patient asks for an “opt-out” from the device.
Pizzi 2011 The Need to Overrule Mapp v. Ohio William T. Pizzi 82 U. Colo. L. Rev. 679 This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on “reasons” that they can articulate and which disparages actions based on “hunches” or “feelings.” This assumption runs counter to a large body of neuroscience research suggesting that humans often “feel” or “sense” danger, sometimes even at a subconscious level, and these feelings may provide a valid basis for action. The Article's main attack on Mapp, however, is an attack on the assumption behind the rule--that a harsh sanction will deter undesirable behaviors. This is not consistent with classic deterrence theory, which insists that deterrence results from the consistent imposition of proportional punishment, not the occasional imposition of very harsh punishments. Moreover, our experience with deterrence, especially the death penalty, demonstrates that the deterrent effect of harsh sanctions will always be speculative and uncertain. Unfortunately, having given harsh deterrent sanctions its imprimatur in Mapp, the Court is not in a position to challenge the many deterrent sanctions that push criminal sentences in the United States higher and higher, setting the United States apart from other Western countries. The Article concludes that it is time for the Court to overrule Mapp and rebuild the exclusionary rule on a proportional basis, such as one finds in other common law countries.
Pockett 2010 Are Voluntary Movements Initiated Preconsciously? The Relationships Between Readiness Potentials, Urges, and Decisions Susan Pockett & Suzanne Purdy Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). Libet's data show that EEG readiness potentials begin before the urge to move is consciously felt. This result has been widely interpreted as showing that spontaneous voluntary movements are initiated preconsciously. This chapter reports two new findings relevant to this conclusion. First, the question of whether readiness potentials (RPs) are precursors of movement per se or merely indicators of general readiness has always been moot. On the basis of both new experimental evidence and an inspection of the literature, it is argued that Libet's type II RPs 1 are neither necessary nor sufficient for spontaneous voluntary movement. Secondly, it argues that RPs often do not occur at all before movements initiated as a result of decisions, as opposed to spontaneous urges. When RPs do occur before decision-based movements, they are much shorter than urge-related RPs, and usually start at the same time as or slightly after the reported decision times. Thus, even if this third, shorter type of RP could be considered to relate specifically to movement rather than to general readiness, movements resulting from conscious decisions (as opposed to spontaneous urges) are unlikely to be initiated preconsciously.
Pockett 2007 The Concept of Free Will: Philosophy, Neuroscience and the Law Susan Pockett 25 Behav. Sci. & L. 281 Various philosophical definitions of free will are first considered. The compatibilist definition, which says simply that acts are freely willed if they are not subject to constraints, is identified as much used in the legal system and essentially impervious to scientific investigation. A middle-ground incompatibilist definition, which requires that freely willed acts be consciously initiated, is shown to be relevant to the idea of mens rea and in the author's view not actually incompatible in principle with a fully scientific worldview. Only the strong libertarian definition, which requires that freely willed acts have no physical antecedents whatsoever, makes the existence of free will very hard to swallow scientifically. However, with regard to the middle-ground incompatibilist definition, three different lines of scientific experimental evidence are then described, which suggest that, in fact, consciousness is not the real cause of much of what is generally considered as voluntary behavior. Many voluntary actions are initiated preconsciously, with consciousness kept informed only after the neural events leading to the act have begun. It is suggested that a reasonable way of integrating these experimental findings with the idea that persons do have a somewhat more than compatibilist version of free will is to acknowledge explicitly that a person is a mixture of conscious and unconscious components. In this scenario, the mind in mens rea would have to be judged guilty if it contained either conscious or unconscious intentions to perform the guilty act.
Pokempner 2012 The Legal Significance of Adolescent Development on the Right to Counsel: Establishing the Constitutional Right to Counsel for Teens in Child Welfare Matters and Assuring a Meaningful Right to Counsel in Delinquency Matters Jennifer K. Pokempner, Riya Saha Shah, Mark F. Houldin, Michael J. Dale, Robert G. Schwartz 47 Harv. C.R.-C.L. L. Rev. 529 In this Article, we address how that developmental analysis should affect youths' rights to counsel. We argue that the Supreme Court's recent jurisprudence supports finding a constitutional right to counsel for teens in child welfare matters. We also argue that the same jurisprudence requires that the constitutional right to counsel already provided in juvenile delinquency matters under Gault include a prohibition of waiver of counsel by youth. Part I will describe the essential characteristics of adolescents as explained by developmental research and how science should inform the right to counsel in the child welfare and juvenile justice contexts. Furthermore, we address how this science has already influenced jurisprudence on youth issues. Part II argues for an adolescent's constitutional right to counsel in child welfare proceedings using jurisprudential and social science developments to revisit that traditional Mathews v. Eldridge procedural due process analysis. This constitutional right rests on theories of attachment and bonding, the unique aspects of youth, as well as the distinct characteristics of state action that removes youth from their homes and separates them from their parents to place them in substitute care. A youth's physical liberty interest, as well as her interest in family integrity and privacy, are at stake at every level of these proceedings. This Part argues that given the fundamental interests at stake in these proceedings, increasing the level of due process protections afforded to an adolescent by providing counsel is necessary to ensure more accurate fact-finding as well as full consideration of the voice of the youth.
Pontius 2008 Neuro-Image and Crime Kindled Nonconvulsive Behavioral Seizures in 24th Case of "Limbic Psychotic Trigger Reaction" with Bizarre Infanticide by Parent: Is His Nonvoluntariness Testable by LPTR's Primate Model? Anneliese A. Pontius Neuroscience and Crime: A Special Issue of Neurocase (Psychology Press, Hans Markowitsch, ed., 2008, pp 29-43). Limbic psychotic trigger reaction' (LPTR) is analogous to seizure kindling in primates. In general, kindling is elicited by /intermittent rexposure to merely mild/modedrate stressful stimulii (vs. LPTRi) (electrical, chemical or experiential(!). All LPTR patients had been social loners ruminating on their hurts by themselves until they met a highly individualized stimulus actually or symbolically reviving the memories of their hurts. LPTR appears in 3-seizure-like phases : aura, ictus, post-ictus. LPTR includes paroxysmal out-of-character. Motiveless, unplanned felonies (or similarly bizarre social misbehaviors), all committed during flat affect, autonomic arousal and a fleeting de novo psychosis (hallucinations, mostly visual, formed or unformed, and/or delusions frequently fo grandiosity). A transient limbic hypertactivation is implicated that briefly impairs prefrontal monitoring (judgment, planning, intent, volition, emotional participation) but preserved memory for the acts. It is hypothesized that LPTR is associated with an atavistic regression to a limbic 'paleo-consciousness' , exemplified by a 24th patient (parental infanticide). He had had a closed head injury and borderline abnormality on EEG and CT in the right temporo-occipital region.
Prata 2012 Brainzil Imaging: Challenges for the Largest Latin American Country Henrique Moraes Prata, Marcia Arajuo Sabino de Freitas International Neurolaw (Springer, Tade Spranger, Ed., 2012) This article investigates the neurolaw in Brazil, the largest country in Latin America. It concludes that though studies in neuroscience have great exponents in the country, there is not, still, a Brazilian neurolaw – probably owing to the traditional distance the Brazilian law has in relation to sciences and the social reality. But, already counting with several mentions of aspects of neuroscience in court decisions, albeit low qualified, and in face of some recent studies on neurolaw that are being produced, there are signs of a promising future development of the area. This article also brings an overview of the country to foreigners: its organizational structure, the way some of its important institutions acts, recent data about scientific research, and the main rules that must be followed by those who wish to do research in the country.
Prohaska 2007 Obtaining Neuropsychological Test Data: Why Is This So Hard? Mark L. Prohaska & David P. Martin 68 Ala. Law. 216
Ptacek 2010 What Is Neurogenetics? Louis J. Ptacek A Judge's Guide to Neuroscience 26 (SAGE Center For the Study of the Mind, 2010).
Pulice 2010 The Right to Silence at Risk: Neuroscience-based Lie Detection in the United Kingdom, India, and the United States Erin B. Pulice 42 Geo. Wash. Int'l L. Rev. 865 Neuroscience-based lie detection tests (NBLD) such as BEOS have quickly established a presence in our society. Its presence is everywhere from criminal law to pop-culture. 27 At the nomination hearing of John Roberts to be Chief Justice of the U.S. Supreme Court in 2005, then-Senator Joe Biden commented that as Chief Justice, Roberts will have to decide whether it is legally permissible for brain scans to be used to determine whether a person is inclined toward criminality or violent behavior. 28 Presently, the answer to that question is unresolved. Although the future uses of NBLD are uncertain, it is clear that this new technology is going to become a more permanent part of the criminal justice system.
Purdy 2006 The Promise (and Limits) of Neuroeconomics Jedediah S. Purdy 58 Ala. L. Rev. 1 Neuroeconomics - the study of brain activity in people engaged in tasks of reasoning and choice - looks set to be the next behavioral economics: a set of findings about how people make decisions that casts both light and doubt on widely accepted premises about rationality and social life. This essay explains what is most exciting about the new field and lays out some specific research tasks for it. By enabling researchers to view the mind at work, neuroeconomics calls into question the value of a methodological premise of twentieth-century empiricism, sometimes called positivism or behaviorism: that people are black boxes to one another, and scientific social inquiry must observe only their objective behavior, what they say and do. This premise came to the center of neoclassical economic method via the 1930s work of the economist Lionel Robbins, and it occasioned a methodological split in social inquiry. Positivists (most importantly, economists) follow the strictures of studying observable behavior, while interpretivists insist that we cannot understand social life without interpreting the minds and intentions of others, even though we cannot view them directly. The limits of these two methods have restricted progress in understanding three critical issues for legal scholarship: 1) how people solve collective-action problems, 2) why some people are more susceptible than others to extremist political appeals, and 3) whether "commodification" creates a conflict between economic rationality and other values. I show how the progress already made in neuroeconomics could make each of these questions more tractable than it has recently seemed, with potentially significant payoffs.
Pustilnik 2013 Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law Amanda C. Pustilnik The Constitution and the Future of the Criminal Law, John Parry & Song Richardson, eds. Cambridge University Press, 2013 Forthcoming The rapid development of neurotechnologies poses novel constitutional issues for criminal law and criminal procedure. These technologies can identify directly from brain waves whether a person is familiar with a stimulus like a face or a weapon, can model blood flow in the brain to indicate whether a person is lying, and can even interfere with brain processes themselves via high-powered magnets to cause a person to be less likely to lie to an investigator. These technologies implicate the constitutional privilege against compelled, self-incriminating speech under the Fifth Amendment and the right to be free of unreasonable search and seizure under the Fourth Amendment of the United States Constitution. Law enforcement use of these technologies will not just require extending existing constitutional doctrine to cover new facts but will challenge these doctrines’ foundations. This short chapter discusses cognitive privacy and liberty under the Fourth and Fifth Amendments, showing how current jurisprudence under both amendments stumbles on limited and limiting distinctions between the body and the mind, the physical and the informational. Brain processes and emanations sit at the juncture of these categories. This chapter proposes a way to transcend these limitations while remaining faithful to precedent, extending these important constitutional protections into a new era of direct access to the brain/mind.
Pustilnik 2012 Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law Amanda C. Pustilnik 97 Cornell Law Review 801 Legal statuses, prohibitions, and protections often turn on the presence and degree of physical pain. In legal domains ranging from tort to torture, pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. The omnipresence of pain in law suggests that the law embodies an intuition about the ontological primacy of pain. Yet, for all the work done by pain as a term in legal texts and practice, it has had a confounding lack of external verifiability. As with other subjective states, we have been able to impute pain’s presence but have not been able to observe it directly. Now, pain is about to become visible. Neuroimaging is rendering pain, and potentially myriad other subjective states, at least partly ascertainable and quantifiable. How will – and how should – pain neuroimaging influence areas of legal doctrine that turn on presence and degree of physical pain? This emerging ability to ascertain and quantify subjective states is prompting a “hedonic” or a “subjectivist” turn in legal scholarship, which has sparked a vigorous debate among scholars as to whether, and why, the quantification of subjective states might affect legal theory and practice. Subjectivists argue that neuroimaging will lead to broad changes in legal theory: They contend that much values-talk in law has merely been a necessary but poor substitute for quantitative determinations of subjective states – determinations that will be possible in the law’s “experiential future.” This Article argues the converse: that pain discourse in law frequently is a heuristic for values. Drawing on the author’s interviews and laboratory visits with pain neuroimaging researchers, this Article first shows the current and in-principle limitations of pain quantification through neuroimaging. It then presents close readings of statutes, case law, and treatises in two sets of case studies to show the heuristic role of pain discourse. The first set of case studies compares definitions of torture in criminal torture-murder and in state torture, while the second explores the role of pain rhetoric in recent Eighth Amendment challenges to execution by lethal injection and legislative restrictions on abortion based on putative fetal pain. Attempting to solve normatively-freighted legal problems through simple quantification would be profoundly misguided. Instead, the Article proposes a novel theory, the theory of “embodied morality,” to explain why statements about physical pain in law often serve a heuristic function. In describing the relationship between pain and empathy, the Article shows how moral conceptions of rights and duties are necessarily informed by human physicality and constrained by the limits of empathic identification. Pain measurement thus serves as the archetypal example of why it is necessary to understand embodied morality within the law to properly understand if, when, and how to adapt the findings of brain imaging to bodies of legal doctrine. Attempting to resolve values-laden issues with hedonic measurement techniques would be to buy into a measurement fallacy; this in turn would produce policy prescriptions as morally unconvincing as they would be practically infeasible.
Pustilnik 2012 Introduction: Adolescent Medical Decision Making and the Law of the Horse Amanda C. Pustilnik & Leslie Meltzer Henry 15 Journal of Health Care Law & Policy 1 Legal and ethical regimes relating to adolescent medical decision making resemble what Judge Frank H. Easterbrook derisively called “the Law of the Horse”: Many laws deal with horses, he wrote, but there is no such field as “horse law.” Similarly, even though the United States has juvenile and family courts, as well as pediatric and adolescent medical departments, there is not a distinct field of “adolescent medical decision-making law” or ethics; there are just many disparate policies that implicate or impinge upon decisions made by adolescents. These include state laws ranging from those that permit minors to seek treatment for substance misuse or mental illness without parental consent to those that prohibit tattoo parlors from serving minors even with parental consent. They also include ethical norms that inform hospital and clinic policies about whether minors may refuse life-extending medical treatment over their parents’ objections or whether parents may compel their children to have cosmetic procedures without the child’s agreement. At first glance, this range of policies might seem less coherent and productive to mine as a unified body of legal and ethical norms than even “horse law.” But there is a deeper connection between adolescent decision-making law and ethics and “the Law of the Horse,” one that suggests that adolescent decision making may not be the disparate collection of regimes that it appears to be. The legal and ethical norms relating to adolescent decision making illuminate more general issues about how legal and ethical doctrines incorporate scientific information about human cognition and development. Since the existence of separate laws and ethical norms for adolescents and adults is premised on actual differences between them, some kind of consensus about the nature of those differences ought to unify the “law and ethics of adolescent medical decision making.” But it does not. By working through examples of how legal and ethical doctrines interact with issues of adolescent decision making, we can elucidate a set of general questions about doctrinal reliance, or lack thereof, on neuroscientific evidence about human development and behavior. This piece serves as the Introduction to a symposium issue of the Journal of Health Care Law & Policy, which presents a collection of essays that coalesce around the regulation of adolescent decision making in light of current research on brain development.
Pustilnik 2009 Violence on the Brain: A Critique of Neuroscience in Criminal Law Amanda C. Pustilnik 44 Wake Forest L. Rev. 183 Is there such a thing as a criminally “violent brain”? Does it make sense to speak of “the neurobiology of violence” or the “psychopathology of crime”? Is it possible to answer on a physiological level what makes one person engage in criminal violence and another not, under similar circumstances? Current research in law and neuroscience is promising to answer these questions with a “yes.” Legal scholars working in this area claim that we are close to realizing the “early criminologists’ dream of identifying the biological roots of criminality.” In the grip of a “neuroeverything” craze, legal scholars, practitioners, and lawmakers have already begun incorporating new “neurolaw” into criminal adjudications, lawmaking, and criminal law scholarship. These breathless hopes for a neuroscientific transformation of the criminal law, although based in the newest research, are part of a very old story. Criminal law and neuroscience have been engaged in an ill-fated and sometimes tragic affair for over two hundred years. Two failures have appeared in current work that mirror precisely the prior failures. First is the claim that the various phenomena we call “criminal violence” comprise a single entity, which arises causally from dysfunction within specific locations in the brain (“localization”). Second is that violent crimes are committed by people who are essentially biologically different from typical people (“otherization”). This article first demonstrates the parallels between current neurolaw claims and past movements in law and neuroscience: phrenology, Lombrosian biological criminology, and lobotomy. It then engages in a scientific critique of the shortcomings of current neurolaw claims about the neurological bases of criminal violence. Drawing on research and interviews with leading neuroscientists, this article shows that causally localizing what we call “criminal violence” to bits of the brain is highly scientifically contestable and epistemologically untenable. In viewing the criminal law-neuroscience relationship through the lens of history of science, this article hopes to offer caveats to legal users of “neurolaw” and a realistic and constructive portrait of how current neuroscience might inform criminal law discourse about regulating violence.
Rachlinski 2002 Cognitive Psychology and Optimal Government Design Jeffrey J. Rachlinski & Cynthia R. Farina 87 Cornell L. Rev. 549 This article argues that the cognitive limitations of government actors can produce inefficient regulations. Government officials are human beings with limited cognitive abilities, which can produce systematic errors in judgment. Several features of modern governance in the United States, however, provide mechanisms for reducing the tendency to enshrine these errors into regulatory policy. Notably, regulatory decisions in the U.S. tend to be made initially by expert bodies (regulatory agencies and congressional committees), who are less apt to rely on misleading cognitive processes than those governmental officials who are not experts (judges, the Congress as a whole, and the President). The novices, however, play an important role in correcting errors common to experts (notably overconfidence) through the limited forms of review of expert decisions. This feature of governance is thus particularly well suited to reducing erroneous regulation. Furthermore, this article argues that the existence of this system is best explained as a nuanced effort to correct error than a crude effort to restrain self-serving behavior by governmental actors.
Racine 2010 "Contemporary neuroscience in the media" Eric Racine, Sarah Waldman, Jarett Rosenberg, Judy Illes 41 Soc. Sci. Med. 725 Technological innovations in neuroscience have opened new windows to the understanding of brain function and the neuronal underpinnings of brain activity in neuropsychiatric disorders and social behavior. Public interest and support for neuroscience research through initiatives like the Decade of the Brain project and increasingly diverse brain-related initiatives have created new interfaces between neuroscience and society. Against this backdrop of dynamic innovation, we set out to examine how different features of neuroscience are depicted in print media. We used the ‘guided news’ function of the LexisNexis Academic database with keyword searches to find news articles published between 1995 and 2004 in major U.S. and U.K. English-language news sources. We performed searches on headlines, lead paragraphs, and body terms to maximize search yields. All articles were coded for overall tone of coverage, details on reported studies, presence of ethical, legal, and social discussion as well as the emerging interpretations of neuroscience – in the form of neuro-essentialism, neuro-realism, and neuro-policy. We found that print media coverage of the use of neurotechnology for diagnosis or therapy in neuropsychiatric disorders was generally optimistic. We also found that, even within articles that were identified as research reports, many did not provide details about research studies. We also gained additional insights into the previously identified phenomena of neuro-essentialism, neuro-realism, and neuro-policy showing some profound impacts of neuroscience on personal identity and policy-making. Our results highlight the implications of transfer of neuroscience knowledge to society given the substantial and authoritative weight ascribed to neuroscience knowledge in defining who we are. We also discuss the impact of these findings on neuroscience and on the respective contributions of the social sciences and the biological sciences in contemporary psychiatry and mental health policy.
Racine 2007 Emerging ethical challenges in advanced neuroimaging research: review, recommendations and research agenda Eric Racine, Judy Illes 2 J. Empirical Research on Human Research Ethics 1 The dynamic and ever-evolving nature of neuroimaging research creates important ethical challenges. New domains of neuroscience research and improving technological capabilities in neuroimaging have expanded the scope of studies that probe the biology of the social and ethical brain, the range of eligible volunteers for research, and the extent of academic-industry relationships. Accordingly, challenges in informed consent and subject protection are surfacing. In this context, we provide an overview of the current landscape for neuroimaging and discuss specific research ethics topics arising from it. We suggest preliminary approaches to tackle current issues, and identify areas for further collaboration between neuroimagers and institutional review boards (research ethics committee).
Racine 2006 fMRI In the Public Eye Eric Racine, Ofek Bar-Ilan & Judy Illes 6 Nature 159 The wide dissemination and expanding applications of functional MRI have not escaped the attention of the media or discussion in the wider public arena. From the bench to the bedside, this technology has introduced substantial ethical challenges. Are the boundaries of what it can and cannot achieve being communicated to the public? Are its limitations understood? And given the complexities that are inherent to neuroscience, are current avenues for communication adequate?
Racine 2006 Brain imaging: a decade of coverage in the print media Eric Racine, Ofek Bar-Ilan, Judy Illes 28 Sci. Commun. 122 This study is an analysis of press coverage of an advanced technology for brain imaging, functional magnetic resonance imaging, that has gained significant public visibility over the past ten years. Discussion of issues of scientific validity and interpretation dominated over ethical content in both the popular and specialized press. Coverage of research on higher order cognitive phenomena specifically attributed broad personal and societal meaning to neuroimages. The authors conclude that neuroscience provides an ideal model for exploring science communication and ethics in a multicultural context.
Radulovic 2007 Genetic Determinants of Emotional Behavior: Legal Lessons from Genetic Models Jelena Radulovic & Bratislav Stankovic 56 DePaul L. Rev. 823 The past decade of neuroscience research has been dedicated to the elucidation of the genetic heritability of mental processes and the role of specific genes in their regulation. A long reluctance to tackle questions related to the molecular basis of behavior has been overcome; genetic technologies and approaches to the question have developed and expanded. Psychology, which historically belongs to the social sciences, became more and more connected to the biological sciences, not only on a neuroanatomical but also on a genetic level. By using animal models—rodents, in particular—the genetic basis of behavior has been examined in a large number of experiments. This article attempts to summarize what we have learned from animal models, and suggests which critical questions still need to be answered if we are to further elucidate the relationship between genetics and behavior. It focuses predominantly on the genetic determinants of stress-induced behavior, such as fear and anxiety, and we explain how these behaviors relate to aggression in rodents. Although convincing evidence demonstrates the role of genes in evolutionary conserved or species strains and gender-specific behavior, it has become increasingly clear that the gene-environment interactions shaping emotional behavior are extremely complex. The rules applying to these interactions seem to be diverse and flexible, enabling adaptation to the external demands of our social environment and the rigid rules of our legal system. Genetic abnormalities, however, may cause maladaptive behavior that significantly impairs the ability of that individual to integrate into the social system. A society’s capacity for emotion may even influence the evolution of social norms—and thus the law.
Raichle 2010 What is an fMRI? Marcus Raichle A Judge's Guide to Neuroscience 5 (SAGE Center For the Study of the Mind, 2010).
Raine 2013 The Anatomy of Violence: The Biological Roots of Crime Adrian Raine Random House Why do some innocent kids grow up to become cold-blooded serial killers? Is bad biology partly to blame? For more than three decades Adrian Raine has been researching the biological roots of violence and establishing neurocriminology, a new field that applies neuroscience techniques to investigate the causes and cures of crime. In The Anatomy of Violence, Raine dissects the criminal mind with a fascinating, readable, and far-reaching scientific journey into the body of evidence that reveals the brain to be a key culprit in crime causation. Raine documents from genetic research that the seeds of sin are sown early in life, giving rise to abnormal physiological functioning that cultivates crime. Drawing on classical case studies of well-known killers in history—including Richard Speck, Ted Kaczynski, and Henry Lee Lucas—Raine illustrates how impairments to brain areas controlling our ability to experience fear, make good decisions, and feel guilt predispose us to violence. He contends that killers can actually be coldhearted: something as simple as a low resting heart rate can give rise to violence. But arguing that biology is not destiny, he also sketches out provocative new biosocial treatment approaches that can change the brain and prevent violence. Finally, Raine tackles the thorny legal and ethical dilemmas posed by his research, visualizing a futuristic brave new world where our increasing ability to identify violent offenders early in life might shape crime-prevention policies, for good and bad. Will we sacrifice our notions of privacy and civil rights to identify children as potential killers in the hopes of helping both offenders and victims? How should we punish individuals with little to no control over their violent behavior? And should parenting require a license? The Anatomy of Violence offers a revolutionary appraisal of our understanding of criminal offending, while also raising provocative questions that challenge our core human values of free will, responsibility, and punishment.
Rakoff 2009 Lie Detection in the Courts: The Vain Search for the Magic Bullet Jed Rakoff Using Imaging to Identify Deceit 40 (American Academy of Arts and Sciences, 2009).
Rakoff 2008 Science and the Law: Uncomfortable Bedfellows Jed S. Rakoff 38 Seton Hall L. Rev. 1379
Ram 2008 Tiered Consent and the Tyranny of Choice Natalie Ram 48 Jurimetrics 253 Regulations and doctrine governing human tissue research are facing immense pressure to ensure respect for the interests of tissue providers and of researchers. Tiered consent presents tissue providers with a menu of research categories to which they may consent, and it is a recognized best practice. Yet, evidence in consumer psychology suggests that abundant choice causes decision-makers to experience information overload, make arbitrary choices, refrain from choosing altogether, and experience regret following decision-making. These patterns result in systematically lower quality decision-making. This article fleshes out the potential limitations of expanded choice in tiered consent situations so that use of this best practice, and the laws and doctrine governing it, best approaches the ethical paradigm of informed consent.
Rangone 2012 Il contributo delle scienze cognitive alla qualità delleregole [The contribution of cognitive science to the quality of the administrative rules] Nicoletta Rangone 14 Mercato concorrenza regole 151
Rapp 2013 Suicide, Concussions, and the NFL Geoffrey Christopher Rapp 8 FIU Law Review ___ This contribution to a FIU Law Review symposium on concussions in the NFL explores the state of the science and the possibility that the family of a former NFL player could recover from the NFL in the event that the former player committed suicide. While the link between brain injury, depression and suicide is both logical and supported by some emerging science, the paper suggests that significant legal obstacles would confront any such claim.
Rapp 2012 The Brain of the College Athlete Geoffrey Christopher Rapp 8 DePaul Journal of Sports Law & Contemporary Problems 151 These remarks, presented at a 2012 DePaul symposium on college athletes, explore the link between rule infractions and the continuing development of students' brains. As the higher order mental functions -- including the ability to regulate emotions and respond to "hot" stimuli -- may not develop fully until the mid-20's, one explanation for why athletes violate NCAA rules for seemingly irrational reasons may have to with brain science. This could have implications for how universities counsel and communicate with student-athletes about compliance issues.
Rapp 2008 The Wreckage of Recklessness Geoffrey Rapp 86 Wash. U. L. Rev. 111 "Recklessness" is one of the oldest concepts in Anglo-American tort law, but also one of the most poorly understood. Often identified as a tort falling somewhere between negligence and intentional misconduct, recklessness has evaded precise judicial interpretation for two hundred years. The Restatement of Torts defines recklessness as conscious disregard of a substantial risk of serious harm, but courts have been unable to interpret consistently the key elements of this definition. This article suggests that judicial confusion is not simply the product of linguistic imprecision on the part of the ALI. Rather, the Restatement version of recklessness is inconsistent with the actual behavioral and cognitive processes humans employ in the face of risk and uncertainty. Recent work in behavioral economics and neuroeconomics indicates that individuals fail to process risk in the way the black-letter-law definition of recklessness presumes, and calls into question the degree to which decisions can easily be classified as conscious or unconscious. Rather than continue to struggle to add clarity to an already convoluted articulation of doctrine, law reformers should reconceptualize the tort concept of recklessness not in terms of what it is, but in terms of what it does: allow a particular plaintiff to recover for a defendant's carelessness where ordinary negligence doctrine would bar relief.
Ray 2010 Waiver, Certification, and Transfer of Juveniles to Adult Court: Limiting Juvenile Transfers in Texas Emily Ray 13 SCHOLAR 317 Although the juvenile system is far from perfect, the adult criminal justice system is astoundingly worse for juveniles who commit crimes. A common theme in this Comment is that the underlying principles upon which the juvenile justice system was founded remain viable and worthy goals, and Texas law should reflect that understanding. Part II traces the development of juvenile justice in this country, including the evolution of the first American juvenile courts, and summarizes the due process rights afforded to juveniles by the U.S. Supreme Court. In Part III, I argue juvenile transfers to adult court should be limited in Texas by highlighting the scientific, sociological, and psychological research that exists on adolescents, with a special emphasis on young peoples' development, decision-making and reasoning abilities, and the resulting insights the research provides into the process of judging juveniles' culpability. Part III also addresses the Supreme Court case of Roper v. Simmons. The reasoning in Roper lends support to the contention that juveniles should be treated separately from adults. Part IV contains three specific reforms to Texas law that will significantly improve the delivery of fundamental elements of juvenile justice: individual consideration, rehabilitation, and treatment. I argue for the need for written, individualized findings during transfer hearings, the importance of the opportunity for immediate appeal of a certification order, and a reversal of the 2007 amendment lowering the age limit for TYC inmates from twenty-one to nineteen. This Comment concludes with the assertion that transferring juveniles to adult court is only appropriate in rare and exceptional situations. Texas must revisit the idea of juvenile transfer and financially prioritize rehabilitation for youths. The policy of treating juveniles like adults fails both the juvenile and the public.
Reagu 2012 Practical Legal Concerns: The England and Wales Context Shuja M. Reagu & Pamela J. Taylor Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Wiley-Blackwell, Joseph R. Simpson & Henry Greely eds., 2012) Despite the lack of clinical applications of neuroimaging in psychiatry, attempts have been made to introduce neuroimaging data in court proceedings. In the United Kingdom, reform efforts are underway to more precisely define standards of admissibility for scientific evidence in general. The Daubert criteria used in many American jurisdictions have been proposed as a model for these standards. There is also a move towards training lawyers and judges specifically in matters of science and technology for the purpose of making sure that admitted scientific evidence is relevant, non-prejudicial and probative. Recent research suggests that neuroimaging may be of value in identifying abnormalities associated with violent behavior in psychotic disorders and antisocial personality disorder. However, it would be premature to allow such findings to be used in court.
Redding 2006 The Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-First Century Richard E. Redding 56 Am. U. L. Rev. 51 Brain-damaged defendants are seen everyday in American courtrooms, and in many cases, their criminal behavior appears to be the product of extremely poor judgment and self-control. Some have a disorder in the frontal lobes, the area of the brain responsible for judgment and impulse control. Yet because defendants suffering from frontal lobe dysfunction usually understand the difference between ri