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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. Eco nomics has been the first social science interested and able in using some of these results for its own purposes, mainly because of the renewed inter est towards psychology fostered by behavioral economics. Though with some delay, also the legal studies are now showing a growing in terest towards cognitive neuroscience researches. The essay first reviews the major facts of this process, then supports new applications of cognitive neuros cience 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.
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.
Goodenough x Strategic Mechanisms, Functional Modeling and Experimental Design in Neurolaw Oliver R. Goodenough 3rd Annual Property and Psychology Roundtable Workshop, Syracuse University College of Law, June 16, 2011 This paper has four goals. The first is to provide an overview of the emerging sub-discipline of “Neurolaw.” Incorporating the insights of neuroscience into legal analysis and policy-setting is a rapidly expanding enterprise. The second goal is to focus on game theory and mechanism design, which provide useful analytic starting points for applying cognitive neuroscience in a social context. This leads to the third goal. This paper suggests that the formal structures of the mechanisms of sociality may be represented in the structures of the cognitive processes which implement them. The paper does not mean to suggest that there is a simple and direct homology between such mechanisms and any particular physical structures within the brain. It is widely recognized, however, that the brain is a computational device, and the brain processes which carry out a particular type of computation will necessarily reflect the requirements of the computation being made. Finally, the paper suggests an application of this mechanism-based approach to a particular instance: understanding the nature of human moral commitment.
Ha-Redeye x Hotter Heads May Prevail in Ontario Courts: The Use of SPECT Imaging for Evaluating Mild Traumatic Brain Injury Omar Ha-Redeye Traumatic Brain Injury (TBI) is a common condition following Motor Vehicle Collisions (MVCs) in Ontario, costing our society countless amounts of dollars. TBI is a complex condition, difficult to evaluate, and even more challenging to prove in a court of law. The use of Single Photon Emission Tomography (SPECT) is becoming increasingly popular for this purpose. Admission of these images in court will likely increase in the future, but the weight afforded to it will largely depend on the facts specific to the case. This paper outlines the process and criteria the court will use for the admission of SPECT images, and provide an overview of the weight afforded to the studies in courts thus far. It will also highlight some of the challenges of using SPECT for TBI, and potential limitations for its application.
Hatemi x Genetic and Neurocognitive Approaches for Comparative Politics: A Partnership Between Science and Culture Peter K. Hatemi Over the last half century, theoretical and methodological advances in genetics and cognitive neuroscience have changed the way in which we understand human behavior. As the technology to identify neurological processes involved in decision making and preference formation has become widely available, cognitive, developmental, neuroscientific, and genetic approaches have emerged as the dominant paradigms in exploring behavior. Though humans are remarkably similar, we are all also unique. People’s genetic structure, genetic expression, and individual physiological response to stimuli differ; moreover, people’s minds are differently structured and function differently. As a result of either genes, hormones, epigenetic processes, neurology, or physiology, we are different from one another and such differences, in combination with what we experience in life are reflected in our different preferences and behaviors. Understanding the complex interaction of neurobiology and social forces is critical in gaining a more complete understanding of cognition, perception, preferences, and ultimately similarities and differences in behaviors in complex environments.
Humbach x Doubting Free Will: Three Experiments John A. Humbach 2010 Pace Law Faculty Publications, Paper 637 This paper describes three experiments that cast doubt on the existence of free will. All deal with the phenomenon that, for a variety of reasons, people do not consciously experience events (including their own “choices”) at the exact instant they occur. The existence of these delays is sufficient to cast serious doubt on the possibility of conscious free will, i.e., free will as we usually understand it. While these experiments do not definitely exclude the possibility of free will, they do provide affirmative evidence that our brains do not consciously make decisions in quite the way that introspection tells us. As such, they throw into question the factual basis of the freewill justification for purposefully inflicting serious human suffering as punishment.
Kowalski x Toward a Pedagogy for Teaching Legal Writing in Law School Clinics Tonya Kowalski 17 Clinical Law Review 285 One of the major legal skills students use in almost every law school clinic is advanced legal writing. Clinicians spend many hours every week triaging student writing and coaching their students to produce practice-worthy documents. Yet advanced legal writing is not routinely addressed in clinic seminars and there is no clear methodology for teaching advanced legal writing through clinical supervision. This Article is the first to propose a comprehensive pedagogy for teaching and supervising legal writing in clinic. Moreover, clinicians commonly experience the frustration that students seem to come to the clinic deficient in many legal writing skills. This Article identifies one of the causes as the "transfer of learning" phenomenon, in which the mind does not recognize applications for previous learning in new situations due to the change in context. One major premise of this transfer theory is that students need to be taught how to connect their clinical legal writing experiences to their previous legal writing instruction. Accordingly, this Article is also the first not only to introduce "transfer-friendly" teaching methods in the proposed pedagogy, but is also the first to detail a comprehensive, step-by-step model for collaboration between the clinic and legal writing programs. By discussing and practicing the methods described here, clinical programs can craft approaches that work for the unique needs of their clinics, students, and individual teaching philosophies, resulting in an educational experience that leaves students better-prepared for clinical and professional law practice.
Law x Cherry-Picking Memories: fMRI-Based Lie Detection in the U.S. Courts Jonathan R.H. Law U.S. courts have recently begun to consider accepting evidence whether a witness is lying in the form of scientific conclusions drawn on data gathered from functional magnetic resonance imaging (fMRI). This article discusses fundamental fMRI-based research techniques from a scientific basis and applies them to the current jurisprudence of U.S. federal courts. It argues that much of the generally-agreed knowledge in cognitive neuroscience pertinent to neuroimaging-based lie detection does not allow a court to reach the conclusion that evidence is more probative than prejudicial. First, a witness/test-taker can manipulate the outcome of the test using countermeasures. Second, the test administrator can manipulate the outcome of the test using tactical research decisions. Third, the ends of judicial efficiency are not served by allowing both proposing and opposing parties to present data that is scientifically equivocal, wasting the time of both courts and jurors. In a second Part, this article proposes a systematic, scientific approach to the Daubert standard as interpreting Federal Rule of Evidence 702. This approach affords a thorough analysis of the phases of scientific research. Finally, we recommend that while fMRI-based lie detection is not yet ripe for adoption in the U.S. courts at the present time, such testimonial evidence may be admissible when the cognitive neuroscience of lie detection has reached the level of general acceptance such that the principles may be found in undergraduate textbooks.
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."
Sawers x The Buzz Curve; Alcohol, Neuro-Cognitive Deficits, and the Law Brian Sawers Available evidence suggests that alcoholic beverages are consumed for several independent reasons. While flavor and social signaling should not be discounted, the neuro-cognitive deficits created by alcohol appear to be a significant driver of alcohol consumption. Although alcohol sales are a significant portion of consumer spending and government tax revenue, little research has focused on consumer decision-making. This article aims to produce a model of consumer behavior applicable to all drinkers who enjoy alcohol-related neuro-cognitive deficits. The newly-developed framework will then be applied to several open questions in the field of law and economics.
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.
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.
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.
Birke 2010 Neuroscience and Settlement: An Examination of Scientific Innovations and Practical Applications Richard Birke 25 Ohio St. J. on Disp. Resol. 477 .
Bloch 2010 Changing the Topography of Sentencing Kate E. Bloch 7 Hastings Race & Poverty L.J. 185 This article looks at the characteristics that give three models of California correctional crises hope of “reducing recidivism and prison overpopulation” by “enhancing public safety through approaches that are substantially different than those of the prevalent correctional models that have spawned the overcrowding crisis”. This overview gives a brief view of two of the models, the community justice court and neuroscience and drug treatment, as well as the third model, restorative justice, which is the subject of the article following this overview essay.`
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.
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.
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.
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.
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.
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.
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.
Churchill 2010 The Parity Cure: Solving Unequal Treatment of Mental Illness Health Insurance Through Federal Legislation Christopher J. Churchill 44 Ga. L. Rev. 511 .
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ( 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.
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.
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.
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.
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.
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.
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.
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.
Schauer 2010 Can Bad Science Be Good Evidence? Lie Detection, Neuroscience and the Mistaken Conflation of Legal and Scientific Norms Frederick Schauer 95 Cornell L. Rev. 1191 As the capabilities of cognitive neuroscience, in particular functional magnetic resonance imaging (fMRI) 'brain scans,' have become more advanced, some have claimed that fMRI-based lie-detection can and should be used at trials and for other forensic purposes to determine whether witnesses and others are telling the truth. Although some neuroscientists have promoted such claims, most aggressively resist them, and arguing that the research on neuroscience-based lie-detection is deeply flawed in numerous ways. And so these neuroscientists have resisted any attempt to use such methods in litigation, insisting that poor science has no place in the law. But although the existing studies have serious problems of validity when measured by the standards of science, and true as well that the reliability of such methods is significantly lower than their advocates claim, it is nevertheless an error to assume that the distinction between good and bad science, whether as a matter of validity or of reliability, is dispositive for law. Law is not only about putting criminals in jail, and numerous uses of evidence in various contexts in the legal system require a degree of probative value far short of proof beyond a reasonable doubt. And because legal and scientific norms, standards, and goals are different, good science may still not be good enough for some legal purposes, and, conversely, some examples of bad science my, in some contexts, still be good enough for law. Indeed, the exclusion of substandard science, when measured by scientific standards, may have the perverse effect of lowering the accuracy and rigor of legal fact-finding, because the exclusion of flawed science will only increase the importance of the even more flawed non-science that now dominates legal fact-finding. And thus the example of neuroscience-based lie detection, while timely and important in its own right, is even more valuable as a case study suggesting that Daubert v. Merrill-Dow Pharmaceuticals may have sent the legal system down a false path. By inappropriately importing scientific standards into legal decision-making with little modification, Daubert confused the goals of science with those of law, a mistake that it is not too late for the courts to correct.
Schauer 2009 Neuroscience, Lie-Detection, and the Law Frederick Schauer 14 Trends in Cognitive Sciences 101 The possibility of using neuroimaging to detect deception in legal settings has generated widespread resistance. Many neuroscientists insist the research is flawed science, containing weaknesses of reliability (the degree of accuracy), external validity (do laboratory results predict real-world outcomes), and construct validity (do studies test what they purport to test). These flaws are real, but although using neural lie-detection in non-experimental legal settings is premature, the critics are mistaken in believing that scientific standards should determine when these methods are ready for legal use. Law's goals differ from science's, and the legal suitability of neural lie-detection depends on legal standards and not those determining what good science is.
Schleim 2010 From Moral to Legal Judgment: The Influence of Normative Context in Lawyers and Other Academics Stephan Schleim, Tade M. Spranger, Susanne Erk & Henrik Walter 6 Social, Cognitive & Affective Neuroscience 48 Various kinds of normative judgments are an integral part of everyday life. The authors extended the scrutiny of social cognitive neuroscience into the domain of legal decisions, investigating two groups, lawyers and other academics, during moral and legal decision-making. While they found activation of brain areas comprising the so-called ‘moral brain’ in both conditions, there was stronger activation in the left dorsolateral prefrontal cortex and middle temporal gyrus particularly when subjects made legal decisions, suggesting that these were made in respect to more explicit rules and demanded more complex semantic processing. Comparing both groups, the data show that behaviorally lawyers conceived themselves as emotionally less involved during normative decision-making in general. A group × condition interaction in the dorsal anterior cingulate cortex suggests a modulation of normative decision-making by attention based on subjects’ normative expertise.
Stucke 2010 Money, Is That What I Want?: Competition Policy and the Role of Behavioral Economics Maurice E. Stucke 50 Santa Clara L. Rev. 893 Although the behavioral economics and happiness economic literature are hot areas in legal and economic scholarship, the U.S. policymakers, until recently, have not embraced the literature. That is changing with the financial crisis. Policymakers are re-examining the assumptions underlying many neoclassical economic theories embedded in their policies. This article addresses one cornerstone of neoclassical economic theory, namely that rational consumers pursue their economic self-interests. It is commonly associated with Adam Smith’s famous statement: “It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner, but from their regard to their own interest.” This assumption of self-interest has had profound policy implications as it pervades many areas of the law. This article first outlines how this assumption of self-interest has shaped U.S. competition policy over the past thirty years. It next surveys the behavioral experiments, which show that many individuals do not solely pursue their self-interest. Indeed, appealing to self-interest, as several of these experiments demonstrate, may lead to suboptimal outcomes. The assumption also disregards the important effect of social, ethical, and moral norms on human behavior. Because the assumption of self-interest is not descriptive, the article next addresses whether governmental policies should advocate the pursuit of self-interest. Using the recent findings from the happiness economic literature, this article shows why appealing to self-interest may make citizens more, not less, miserable. It then discusses the risks if governmental policies prime individuals to pursue their self-interest. The article has broad implications for U.S. economic and legal policies, as the assumption of self-interest implicates, among other things, environmental concerns, consumerism, the problems Americans face in a debt economy, and privacy concerns.
Swedloff 2010 Tort Damages and the New Science of Happiness Rick Swedloff & Peter H. Huang 85 Ind. L.J. 553 The happiness revolution is coming to legal scholarship. Based on empirical data about the how and why of positive emotions, legal scholars are beginning to suggest reforms to legal institutions. In this article the authors aim to redirect and slow down this revolution. One of their first targets of these legal hedonists is the jury system for tort damages. In several recent articles, scholars have concluded that early findings about hedonic adaptation and affective forecasting undermine tort awards for pain and suffering, mental anguish, loss of enjoyment of life, and other non-economic damages. In the shadow of a broader debate about the propriety of indefinite damages, the legal hedonists argue that these findings provide new support for the argument that jurors cannot award indefinite damages rationally or consistently. The legal hedonists argue that, on the one hand, awards for non-economic tort damages are inappropriate, because individuals will adapt to any negative emotional or physical state. On the other hand, they argue that jurors are incapable of granting these damages, because they systematically predict inaccurately the impact of injuries upon tort victims. The authors conclude that these legal hedonists understate the flexibility of the law and overstate dated empirical research on which their arguments are based. First, the law is more nuanced than these legal hedonists care to admit. To the extent it is appropriate, the law allows jurors to take account of adaptation, and more importantly, the law provides compensation for far more than just emotional changes. It compensates for loss of capabilities, loss of emotional and experiential variety, and lost options. Second, recent studies document the incompleteness and variability of hedonic adaptation. This reinforces concerns about basing legal policy on hedonic adaptation and the belief that judges and juries, acting in combination, appropriately individuate tort awards. That said, the authors conclude that expert testimony may help jurors craft awards by providing information about hedonic and non-hedonic losses.
Tovino 2010 Scientific Understandings of Postpartum Illness: Improving Health Law and Policy? Stacey A. Tovino 33 Harv. J. L. & Gender 99 .
Waldman 2010 Mindfulness, Emotions, and Ethics: The Right Stuff? Ellen A. Waldman 10 Nev. L.J. 513 What role do emotions play in ethical decision-making? Philosophers have long debated the question, disagreeing about both the nature of "the good" and how best to achieve it. Rationalists ground one's capacity for virtue in logic and deliberate cognition, while moral intuitionists look to one's capacity for feeling deeply. Immanuel Kant, for example, maintained that right conduct flowed from a sense of duty that functioned independently of emotion. Conversely, David Hume argued that all right action involved sentiment and that reason, stripped of passion, could not impel ethical choice. Philosophers are not alone in their fascination with the question. Psychologists also have delved into the relationship between emotion and moral development, creating varying models of maturation that either embrace or reject emotion as a critical component of moral discernment. Today, debates in the "soft sciences" of the mind spill into the "hard sciences" of the body. Interest in the biological bases of emotion invigorates neuroscience, and developments in functional magnetic resonance imagery (fMRI) promise methods for mapping the synaptic pathways that induce affective states. Although we can now detect activity in portions of the brain associated with emotional experience, it remains unclear whether those electrical surges push us in "right" or "wrong" directions. In the mediation world, scholars and practitioners frequently treat emotion as the unruly step-child of the problem-solving mind. Professor Leonard Riskin characterizes emotion as a potential negotiation saboteur and offers "mindful practice" as a useful corrective. He argues that mindful mediation can help negotiators gain better control over their wandering minds and negative emotions, and achieve more satisfying, interest-based solutions. This essay celebrates Riskin's call to arms while suggesting some limits to what mindfulness can achieve in the ethical realm. It examines in more detail the relationship Riskin posits between mindful practice and ethical decision-making. It discusses recent developments in neuroethics that imply a prominent role for emotions in establishing ethical restraint. It also surveys a growing body of evidence that suggests the directive power of our emotions remains largely hidden from and impervious to the control of our "reasoning" selves. Lastly, it examines what Riskin has, in an earlier work, described as the ethical "hard case" in light of recent explorations into the emotional wellsprings of deontological versus consequentialist thinking. Although the mediation community need not wade deeply into the debates currently roiling social psychologists, it is useful to reflect on the genesis of our ethical commitments and whether they continue to serve the field’s long-term goals and interests.
Zimmerman 2010 Funding Irrationality Adam S. Zimmerman 59 Duke L.J. 1105 This article challenges the conventional wisdom that claimants in class action settlement funds and other settlement funds make independent and rational settlement decisions. Cognitive psychologists and behavioral economists have long examined the way people make judgments and choices. Such studies show that decision-makers routinely change their minds based on their view of the status quo, the timing of the decision, and the presence of seemingly irrelevant choices. Because of these cognitive biases, people will buy things they do not want, save too little for retirement, and make risky choices about their health and well-being based on the timing, context, and framing of the decision. Applying findings from cognitive psychology, this article argues that people will make the same kinds of irrational decisions about their settlement options in a large settlement fund. As a result, cognitive biases threaten to undermine many of the stated purposes of large settlement funds--to provide claimants with access, efficiency, and equity superior to what they could obtain in traditional litigation. Accordingly, “fund designers”--judges, lawmakers, and special masters--should adjust settlement procedures to account for cognitive bias. The author calls this process “funding irrationality”--identifying and, in some cases, capitalizing on people's cognitive biases in large settlement funds by altering the context, timing, and sequence of their settlement options. Fund designers, however, should avoid reforms that unduly eliminate settlement options, or that impose excessive administrative costs. Rather, the benefits of any reform-- preventing avoidable harm to irrational claimants--must outweigh the potential costs, including the value of client autonomy, the chance of error, and the burden on the courts and public administrators.
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.
Ball 2009 Damages and the Reptilian Brain David Ball 45-SEP Trial 24 .
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.
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.
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.
Bloch 2009 Cognition and Star Trek: Learning and Legal Education Kate E. Bloch 42 J. Marshall L. Rev. 959 This article addresses the challenge law professors face when teaching law students how to “think like a lawyer”. Research in education, cognitive and experimental psychology and neuroscience are a few of many fields that can offer insight into legal academic techniques that can be used to improve teaching and learning in the classroom.
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 The article addresses whether or not individuals suffering from schizophrenia should be subject to capital punishment.
Buss 2009 Rethinking the Connection Between Developmental Science and Juvenile Justice Emily Buss 76 U. Chi. L. Rev. 493 .
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.
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.
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 Part I of this article looks at the three main "narratives" that are commonly employed to describe the Schiavo case, and it recounts the basic facts concerning Terri Schiavo's brain injury and the early, but quickly-abandoned, attempt at rehabilitation. Part II is an examination of how the demise of one of the most profoundly harmful dogmas in the history of medicine-the theory that the brain is "hard-wired" and that no amount of rehabilitation can cause the brain to rewire itself-occurred too late in the litigation for the judges or advocates in either Schiavo or Englaro to understand that Terri and Eluana might actually have been able to communicate "cognitively" rather than physically. That too is a cautionary tale about the ways in which "iconoclastic researchers" were able to use state-of-the-art diagnostic imaging and aggressive, but (then) unorthodox, rehabilitation techniques to demonstrate that conventional wisdom in neurology in the 1990s was simply wrong. Part III develops a model of ethical and effective representation and judging brain injury cases, and Parts IV through VII draw lessons from that model based on the facts of the Schiavo case.
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.
Rogers 2009 The Present and Future Impact of Neuroscience Evidence on Criminal Law Kristen Gartman Rogers 33-APR Champion 18 .
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 (, which brings together a unique collaboration of neurobiologists, legal scholars, and policy makers, with the goal of building modern, evidence-based policy.
Ellenberg 2009 Lie Detection: A Changing of the Guard in the Quest for Truth in Court? Cooper Ellenberg 33 Law & Psychol. Rev. 139 .
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.
Erickson 2009 The Neuroscience and Psychology of Moral Decision Making and the Law Steven K. Erickson 27 Behav. Sci. & L. 119 .
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.
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.
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.
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.
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.
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.
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.
Gray 2009 Third Restatement of Torts: Issue Two Articles and Commentary: Commentary Oscar S. Gray 44 Wake Forest L. Rev. 1193
Greely 2009 Law and the Revolution in Neuroscience: An Early Look at the Field Henry T. Greely 42 Akron L. Rev. 687 .
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.
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.
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
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 .
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.
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.
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.
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.
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.
Illes 2009 Identifiable Neuro Ethics Challenges to the Banking of Neuro Data Judy Illes & Sofia Lombera 10 Minn. J.L. Sci. & Tech. 71 .
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.
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.
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.
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.
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.
Knabb 2009 Neuroscience, Moral Reasoning, and the Law Joshua J. Knabb, Robert K. Welsh, Joseph G. Ziebell & Kevin S. Reimer 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 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.
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.
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.
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 .
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.
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.
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 .
Mello 2009 Ford's Delusions - And Our Own: Executing the Insane Michael Mello 45 No. 6 Crim. L. Bull. ART 7 .
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.
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 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 .
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.
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.
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.
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.
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.
Reese 2009 Comment: Using fMRI as a Lie Detector - Are We Lying to Ourselves? Brian Reese 19 Alb. L.J. Sci. & Tech. 205 At this moment, the technology exists to read your mind. If you are like most people, this may come as a shocking concept, but it is a true statement, in a manner of speaking. Specifically, several companies and academics are researching technologies that will read the activity of your brain and attempt to correlate this with deception. While the potential benefits of this technology are obvious to the legal profession, it also raises several thorny ethical and moral questions. Among these are: what are the privacy implications of such a technology, and does the social benefit that might result from the use of this technology justify what could arguably be the most intimate invasion of personal integrity possible? While wrestling with these and other issues, one must note that the technologies being developed as lie detectors are not one hundred percent accurate. The question becomes: how should the data from these tests be used in light of the fact that they are not one hundred percent accurate? These technologies all assume that brain activity correlates with actual thought, but our current knowledge is insufficient to know this for certain. As a result, brain imaging technologies must be critically examined before they become an accepted means of determining truth from lie. The primary focus of this note is how functional magnetic resonance image (fMRI) technology is much more limited as a lie detector than it may at first seem and how, as it is being developed today, it is unlikely to produce valid data for very significant portions of the population. This note will explore the limitations of fMRI technology as a lie detector technology and analyze the development of this tool with an eye towards better tailoring its use to fit the needs of society, the legal profession, and justice itself.
Robinson 2009 Daubert v. Merrell Dow Pharmaceuticals and the Local Construction of Reliability Robert Robinson 19 Alb. L.J. Sci. & Tech. 39 Scholars considering how expert testimony will fare under Daubert often apply the four dicta referenced by Justice Blackmun (testing, peer-review, error rate, and general acceptance) to determine whether such testimony will be admissible. This article critiques this approach, contending that admissibility decisions cannot be adequately predicted by Daubert itself. Daubert has no clear legal rule for judges to apply, has no cognizable position on the degree of scrutiny expert testimony should face, and has no clear stance--even given the dicta--on what constitutes “good science.” When combined with the relative autonomy trial judges possess in making admissibility decisions, Daubert's essential ambiguity leads to what the author calls “local constructions of reliability,” disparate and often competing conceptions of what constitutes reliable expert evidence. What is considered reliable in one area of expert testimony, such as medical causation, will be quite different from what is required for another, such as handwriting expertise. If Daubert leads to such variation among different spheres of expert testimony, how can we generalize or predict judicial decision-making? This article argues that admissibility decisions can and should be modeled empirically. Viewing judges as goal-oriented actors, the author transforms likely goals for judges making Daubert decisions into relevant variables for empirical modeling. These goals include attention to the quality of expert testimony (if not always under the Daubert dicta), maintaining institutional stability and judicial autonomy when faced with controversial scientific claims, and advancing judicial policy preferences. This discussion is intended to serve as a template for further empirical work on Daubert.
Roosa 2009 The Next Generation of Artificial Intelligence in Light of In re Bilski Steven B. Roosa 21 No. 3 Intell. Prop. & Tech. L.J. 6 The next generation of artificial intelligence machines and programs (next generation AI) is different from what came before because these machines and programs seek to emulate characteristics of human intelligence based on insights gained through the reverse engineering of the human brain. The fact that next generation AI operates based on patterns derived from the physical processes and architecture of the biological brain would suggest that perhaps it is on a collision course with existing patent law, in which mental processes and the “processes of human thinking” are presumed to be abstract and non-physical and therefore largely ineligible for patent protection. However, because next generation AI can be entirely specified by its physical processes, there is actually a greater likelihood that it will easily meet the machine-or-transformation criteria articulated in In re Bilski and that the serious issues associated with patenting next generation AI could easily evade meaningful judicial attention altogether.
Sanchirico 2009 What Makes the Engine Go? Cognitive Limitations and Cross-Examination Chris W. Sanchirico 14 Widener L. Rev. 507 This essay is an attempt to shed light on one of the essential processes that drives the engine of cross-examination. Specifically, the essay puts forward several hypotheses regarding the important positive role that human cognitive limitations play in the functioning of cross-examination. In the process, the paper also offers a perspective on such mental limitations that is distinct from predominant approaches in cognitive psychology and law.
Sasso 2009 Criminal Responsibility in the Age of "Mind-Reading" Peggy Sasso 46 Am. Crim. L. Rev. 1191 While academics debate whether advances in the neurosciences eviscerate notions of guilt and innocence precipitating the demise of the criminal justice system as we know it, in the courtroom practitioners on both sides are busy exploiting the novelty and ambiguities of emerging research to advance arguments the nascent data cannot now, and may never, support. This article contends that the significance of the neurosciences to the criminal law can only be assessed in the context of a given theory of punishment. In other words, assumptions about what justifies who and how much we punish and, indeed, the very practice of punishment itself, must be made explicit. Yet, this essential threshold analysis is all but missing from the debate. This article concludes that advances in the neurosciences have a limited but potentially critical role to play in the criminal courtroom. It reaches that conclusion, however, only after first articulating a mixed theory of punishment with expressionistic and retributivist elements that comports with our current criminal justice practices and has the capacity to accommodate emerging scientific knowledge.
Seaman 2009 Black Boxes: fMRI Lie Detection and the Role of the Jury Julie Seaman 42 Akron L. Rev. 931 The metaphor of the black box has often been used to describe the qualities of the human mind; likewise, the jury box is frequently referred to as a black box. In both contexts, the metaphor is apt because of the inscrutability of the process that gives rise to the outputs that emanate from each. Recent advances in brain imaging techniques have now begun to crack open the black box that is the human mind by illuminating the physical manifestations - the "neural correlates" - of a wide range cognitive processes. In particular, research into the neural correlates of deception presents the genuine prospect of a reliable, forensically practicable lie detector within the foreseeable future. Here, I proceed in the nature of a thought experiment to explore the ramifications for the jury system of a highly reliable lie detection technique. In particular, I suggest that opening the black box of the mind would have the effect of opening the black box of the jury room. Conventional wisdom has it that the jury's primary - if not singular - function is to determine the historical facts of the case. Yet it is clear that in addition to finding facts, juries also operate in the much more controversial realm of making law. At its extreme, this law-making role may result in jury nullification, whereby the jury issues a verdict intentionally contrary to the law as instructed by the court applied to the facts as found by the jury. Whereas the jury's power to nullify is well-settled, its right to nullify is highly contested. Thus, much of the scholarly and judicial discussion has focused on the issue of whether the jury may or must be instructed that it has the ability to return a verdict contrary to the applicable law. Though scholars are divided, courts have uniformly held that juries should not be told of their power to nullify. To the extent that brain imaging lie detection techniques (along with other technological advances in forensics) diminish the need for jury fact-finding, the jury's law-making role would become more transparent to the public and, perhaps more important, to the jury itself. In cases where the facts were clear, the possibility and the actuality of nullification also would become clear. Thus would arise the questions: Is the black box quality of jury decision-making integral to the nature of the jury system itself? Would opening the black box destroy it? Should even highly accurate lie-detection evidence be excluded in order to preserve the black box nature of jury decision-making? This Article offers a framework within which to begin to think about these questions.
Silva 2009 Forensic Psychiatry, Neuroscience, and the Law J. Arturo Silva 37 J. Am. Acad. Psychiatry L. 489 The rise of modern neuroscience is transforming psychiatry and other behavioral sciences. Neuroscientific progress also has had a major impact in forensic neuropsychiatric practice, resulting in the increased use of neuroscientific technologies in cases of a psychiatric-legal nature. This article is focused on the impact of neuroscientific progress in forensic psychiatry in relation to criminal law. Also addressed are some emerging questions involving the practice of forensic neuropsychiatry. These questions will be reframed by providing alternative perspectives consistent with the objectives of forensic neuropsychiatric practice. The last part of the article is a discussion of potential developments that may facilitate the integration of neuroscientific knowledge in forensic neuropsychiatric practice.
Skene 2009 Neuroimaging and the Withdrawal of Life-Sustaining Treatment from Patients in Vegetative State Loane Skene, Dominic Wilkinson, Guy Kahane, & Julian Savulescu 17 Med. L. Rev. 245 In a recent English case before the Family Division of the English High Court, the Official Solicitor objected to the withdrawal of treatment from a patient diagnosed as being in vegetative state (VS) despite agreement between the NHS Trust and the patient’s family that treatment should be withdrawn: An NHS Trust v. J. One objection arose from the possibility, based on a recent medical article, that a functional magnetic resonance imaging test (fMRI, commonly called a brain scan) might indicate that the patient retained a degree of consciousness. This seems to be the first objection of this kind and in this case, after a short time, the Official Solicitor agreed with the family and the Trust that treatment should be withdrawn without performing fMRI. However, all cases involving the withdrawal of life-sustaining treatment from patients in VS must come before a court (now the Court of Protection) and the issue is likely to be raised again. Indeed, given the significant advances in neuroimaging studies of VS since 2006, and probable further scientific progress in the near future, questions about the legal significance of fMRI are likely to become increasingly important. This paper assesses the possible effects on decision-making about the withdrawal of life-sustaining treatment if fMRI suggests that a patient in VS has some level of consciousness. It focuses on the principles set out in the Mental Capacity Act 2005 (UK) (which has come into force since the case mentioned above), the Mental Capacity Act Code of Practice (CoP) and the common law. Relevant legal factors include the patient’s wishes expressed in an ‘advance decision to refuse medical treatment’ under the Act, decisions by a donee of a lasting power of attorney appointed under the Act, both of which are binding under the Act if they apply in the circumstances; and, if there is no such provision, the patient’s best interests, taking account of the patient’s wishes inferred from general evidence and the futility of continuing treatment. Current research suggests that neuroimaging will at most establish that some patients diagnosed as being in VS are in fact in a condition that clinicians describe as a ‘minimally conscious state’ (MCS). The patients reported to date have not recovered beyond that state and, indeed, may revert to VS. However, applications for fMRI when judicial approval is sought from the Court of Protection to withdraw treatment from patients in VS may delay the process and raise issues for the Court in assessing the relevance of fMRI to the patient’s interests. This paper outlines legal principles relevant to judicial review and discusses underlying philosophical issues, including the limited availability of resources for health care.
Slobogin 2009 Juvenile Justice: The Fourth Option Christopher Slobogin & Mark R. Fondacaro 95 Iowa L. Rev. 1 The current eclectic mix of solutions to the juvenile-crime problem is insufficiently conceptualized and too beholden to myths about youth, the crimes they commit, and effective means of responding to their problems. The dominant punitive approach to juvenile justice, modeled on the adult criminal justice system, either ignores or misapplies current knowledge about the causes of juvenile crime and the means of reducing it. But the rehabilitative vision that motivated the progenitors of the juvenile court errs in the other direction, by allowing the state to assert its police power even over those who are innocent of crime. The most popular compromise theory of juvenile justice - which claims that developmental differences between adolescents and adults make the former less blameworthy - is also misguided because it tends to de-emphasize crime-reducing interventions, overstate the degree to which adolescent responsibility is diminished, and play into the hands of those who would abolish the juvenile justice system, since it relies on the same metric - culpability - as the adult criminal justice system. This article argues that, with some significant adjustments that take new knowledge about the psychological, social, and biological features of adolescence into account, the legal system should continue to maintain a separate juvenile court, but one that is single-mindedly focused on the prevention of criminal behavior rather than retributive punishment.
Slocum 2009 The Dilemma of the Vengeful Client: A Prescriptive Framework for Cooling the Flames of Anger Robin W. Slocum 92 Marq. L. Rev. 481 Lawyers are presented with a challenging dilemma when counseling angry clients who seek to use the legal system as a weapon for vengeance. Legal scholars have argued that lawyers should, where appropriate, dissuade their angry clients from litigation strategies that are immoral or arguably unethical. However, angry clients are remarkably resistant to appeals based on morality and reason. Thus, it is not surprising that lawyers have been largely ineffective in their efforts to dissuade angry clients from using the legal system as a battlefield. Instead, lawyers often reluctantly defer to clients whose judgment is impaired by their emotional reactivity. This article takes an interdisciplinary approach to understanding and resolving this important problem. Building on studies in the fields of neuroscience, medicine and psychology, I argue that when lawyers serve as hired guns for vengeful clients, the litigation process becomes an escalating cycle of war that inflicts psychological, emotional and even physiological harm on the client. I then shed light on why vengeful clients are so resistant to rational appeals based on morality and even economic self-interest. Finally, I provide a prescriptive framework for lawyers to use in helping vengeful clients significantly reduce the anger that otherwise impairs lawyers' ability to engage in effective client counseling.
Spellman 2009 Embodied Rationality Barbara A. Spellman 35 Queen's L.J. 117 Standard law and economics theory relies on the assumption that human beings act as ideal rational decision-makers. However, significant psychological research has undermined the view that individuals act completely rational. The author details a recent approach to the human mind known as “embodied cognition”, which maintains that mental processes are grounded in actual bodily states. This link between the mind and body is not captured in the standard view of the rational human. Studying the mind in relation to the body can help us better understand and predict seemingly irrational actions. The author describes the precursors to the embodied cognition movement, and notes that although embodied cognition is similar to earlier approaches that considered heuristics, it offers a more complete theory of human behavior. The author uses embodied cognition as the basis for an expanded notion of embodied rationality that goes beyond the domain of affect and actions into the domain of judgments. The concept of embodied rationality can be applied to reasoning and decision-making processes central to Behavioral Law and Economics. In particular, the author suggests that it can enhance our understanding of decisions involving risk and time, decisions about oneself, and judgments about others.
Spranger 2009 Legal Implications in Connection with the Generation and Usage of Neuro-Scientific Findings Tade M. Spranger 6 J. Int'l Biotechnology L. 228 .
Stronge 2009 Absolute Truth or Deus Ex Machina? The Legal and Philosophical Ramifications of Guilt-Assessment Technology Aaron M. Stronge 10 J. High Tech. L. 113
Sunstein 2009 Some Effects of Moral Indignation on Law Cass R. Sunstein 33 Vt. L. Rev. 405 Moral intuitions operate in much the same way as other intuitions do; what makes the moral domain distinctive is the frequent foundation of moral judgments in the emotions, beliefs, and response tendencies that define indignation. The intuitive system of cognition, System 1, is typically responsible for indignation; the more reflective system, System 2, may or may not provide an override. An understanding of indignation helps to explain many phenomena of interest to law and politics: the outrage heuristic, the severity shift, the puzzling centrality of harm, moral framing, and the act-omission distinction. The operation of System 1 also helps to explain moral dumbfounding, understood as intense moral opprobrium that people are unable to justify, and moral numbness, understood as moral indifference that people know on reflection to be unwarranted. Both moral dumbfounding and moral numbness play a significant role in law and politics. Because of the nature of indignation, it is extremely difficult for people to achieve coherence in their moral intuitions, and the absence of coherence appears to be replicated in several areas of law. Legal and political institutions usually aspire to be deliberative, to check intuitions that misfire, and to pay close attention to System 2; but even in deliberative institutions, System 1 can make some compelling demands. A general implication is that judges may not be aware of the actual causes of their moral judgments and of the legal conclusions that rely on them.
Torrance 2009 Neurobiology and Patenting Thought Andrew W. Torrance 50 IDEA 27 Many have argued that thought should constitute per se unpatentable subject matter, and some have even suggested that any patent claim that includes a mental step should lie outside patentability. Many courts have long disagreed with such a draconian rule, and have instead upheld myriad patent claims that include mental steps. Recently there has been renewed interest in the venerable Mental Steps Doctrine, and in patents claiming thoughts or aspects of thoughts, by the courts, including, most notably, the Court of Appeals for the Federal Circuit and the United States Supreme Court. Insights from neurobiology about how to differentiate categories of thought can offer useful criteria for deciding between patentable and unpatentable mental steps, and for setting more coherent and defensible boundaries on the patenting of thought. In particular, this article argues that thoughts subject to "executive control" should be situated more towards the patentable end of the spectrum, whereas "default thoughts" should be situated closer to the unpatentable end of the spectrum. This schema represents somewhat of a departure from the traditional view that First Amendment interests should privilege sophisticated, expressive thought by protecting it from patentability. Nevertheless, it accords well with Thirteenth Amendment interests, privileging thoughts that cannot be avoided by protecting them from patentability, and thus preventing the iniquity of involuntary patent servitude.
Tovino 2009 Neuroscience and Health Law: An Integrative Approach Stacey A. Tovino 42 Akron L. Rev. 469 Clinicians and scientists use functional magnetic resonance imaging (fMRI) to map sensory, motor, and cognitive function and to study the neural correlates of a range of physical and mental conditions, behaviors, characteristics, and preferences. Due to its move outside the clinical and research contexts, fMRI raises a number of ethical, legal, and social issues that are being examined within the overlapping fields of neuroethics and neurolaw. The early neuroethics and neurolaw scholarship focused heavily on the implications of fMRI for evidence law, criminal law, criminal procedure, and constitutional law. Little attention has been paid, however, to the implications of advances in neuroscience for more traditional civil and regulatory health law issues. In this Article, I explore the ways in which neuroscience impacts a range of health, disability, and benefit law issues, including the scope of public and private health insurance benefits (Part II), the mental health parity debate (Part III), protected status under federal and state disability law (Part IV), and the distribution of benefits under social security and other benefit programs (Part V). I find that patients, patient advocacy organizations, litigants, lobbyists, legislatures, and scholars are relying on advances in neuroscience to characterize mental health conditions as brain-based conditions worthy of insurance coverage, protected civil status, and disability and other benefits. I conclude that advances in neuroscience give us reason to revisit age-old health, disability, and benefit law questions although I clarify that neuroscience does not yet answer these questions. Because I anticipate that neuroscience will continue to play a role in the development and shaping of health, disability, and benefit law and policy, I recommend that lawyers and scholars who work in these areas be mindful of the ways in which stakeholders will continue to use neuroscience to bear on the formulation and interpretation of such law.
Vincent 2009 Neuroimaging and Responsibility Assessments Nicole A. Vincent 1 Neuroethics 35 Could neuroimaging evidence help us to assess the degree of a person’s responsibility for a crime, which we know that they committed? This essay defends an affirmative answer to this question. A range of standard objections to this high-tech approach to assessing people’s responsibility is considered and then set aside, but it also brings to light and then rejects a novel objection — an objection which is only encountered when functional (rather than structural) neuroimaging is used to assess people’s responsibility.
Vincent 2009 On the Relevance of Neuroscience to Criminal Responsibility Nicole A. Vincent 4 Crim. L. & Philosophy 77 Various authors debate the question of whether neuroscience is relevant to criminal responsibility. However, a plethora of different techniques and technologies, each with their own abilities and drawbacks, lurks beneath the label ‘‘neuroscience’’; and in criminal law responsibility is not a single, unitary and generic concept, but it is rather a syndrome of at least six different concepts. Consequently, there are at least six different responsibility questions that the criminal law asks — at least one for each responsibility concept — and, Vincent suggests, a multitude of ways in which the techniques and technologies that comprise neuroscience might help us to address those diverse questions. In a way, neuroscience is relevant to criminal responsibility in many ways, but Vincent hesitates to state her position like this because doing so obscures two points which she would rather highlight: one, neither neuroscience nor criminal responsibility are as unified as that; and two, the criminal law asks many different responsibility questions and not just one generic question.
Young 2009 Bilski and the Transformation of the Brain Jeffrey E. Young 2 Landslide 46 In the Federal Circuit's en banc Bilski decision, the “machine or transformation” test is offered as a way to assure that a patent on a process will not encroach upon territory prior Supreme Court precedent has marked off limits to patent protection under 35 U.S.C. § 101. And any comprehensive discussion of permitted patentable subject matter under 35 U.S.C. § 101 points out that “mental processes” are not patentable. In the Bilski decision and subsequent debate, the “mental process” prohibition tends to be taken as noncontroversial, its parameters as given. But neuroscientists consider the brain to be a machine, and mental functions to involve changes in brain structure. Can the “machine or transformation” test account for mental processes if they are implemented by a machine and involve transformation of physical structures? As the Supreme Court prepares to reconsider the law of patentable subject matter, answering this question becomes important. To assist in the analysis, this article compares a method of advertising to the method of medical treatment recently found patentable by the Federal Circuit in its Prometheus decision.
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.
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.
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 and practical efficacy of the notions of free will and criminal responsibility and threatens to dominate the entire legal system. The notion of 'folk psychology" - popular explanations of behaviour of which criminal responsibility and its analogues may be a manifestation - is considered in light of the challenges posed by eliminative materialism and deterministic neuroscience. The question that is posed is whether the concept of criminal responsibility will be able to withstand the imperious advances of modern science inherent in cognitive neuroscience and other reductionist accounts of human 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 least for the foreseeable future) that neuroscience will undermine the libertarian concept of free will on which the retributivist system of criminal law depends.
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.
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 .
Choi 2008 Brain Death Revisited: The Case for a National Standard Eun-Kyoung Choi, Valita Fredland, Carla Zachodni, J. Eugene Lammers, Patricia Bledsoe & Paul R. Helft 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.
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.
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.
Eagleman 2008 Neuroscience and the Law David M. Eagleman 45-APR Hous. Law. 36
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.
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.
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.
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.
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.
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.
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 .
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.
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.
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.
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 .
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.
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.
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.
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.
Leal 2008 Why There Is Disobedience of Court Orders: Contempt of Court and Neuroeconomics Manuel D. Leal 26 QLR 1015 .
Lekovic 2008 Neuroscience and the Law Gregory P. Lekovic 69 Surgical Neurology 99 .
Leslie 2008 Understanding Addiction, Helping Clients and Colleagues Jeanne M. Leslie 69 Ala. Law. Assistance Program 348 .
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 .
Marks 2008 Interrogation Using Functional MRI and Cognitive Engrams Donald H. Marks J. Inst. Just. Int'l Stud. 31 .
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.
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.
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 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.
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.
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.
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 .
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.
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.
Richland 2008 Ethnography and Cognitive Psychology: Shared Dilemmas of the Local and Unlocatable Lindsey Richland 31 PoLAR: Pol. & Legal Anthropology Rev. 48 Is there a productive intersection between ethnographic knowledge practices and the search for perduring structures of cognition within psychological inquiry? This article employs a brief ethnography of cognitive psychological experimentation to reveal that like ethnographers, experimental psychologists engage in a complex relationship between local particulars and generalized processes. In particular, it focuses on the relationship between notions of “local” space and time and “unlocatable,” abstract cognitive processes to explore how psychological inquiry, like critical ethnography, is at once concerned with identifying abstract processes and intimately tied to the particulars of the research context.
Roskies 2008 Neuroimaging and Inferential Distance Adina Roskies 1 Neuroethics 1874 Brain images are used both as scientific evidence and to illustrate the results of neuroimaging experiments. These images are apt to be viewed as photographs of brain activity, and in so viewing them people are prone to assume that they share the evidential characteristics of photographs. Photographs are epistemically compelling, and have a number of characteristics that underlie what the author calls their inferential proximity. This article explores the aptness of the photography analogy, and argues that although neuroimaging does bear important similarities to photography, the details of the generation and analysis of neuroimages significantly complicate the relation of the image to the data. Neuroimages are not inferentially proximate, but their seeming so increases the potential for misinterpretation. This suggests caution in appealing to such images in the public domain.
Royal 2008 The Risks and Benefits of Searching for Incidental Findings in MRI Research Scans Jason M. Royal & Bradley S. Peterson 36 J.L. Med. & Ethics 305 The authors weigh the presumed benefits of routinely searching all research scans for incidental findings (IFs) against its substantial risks, including false-positive and false-negative findings, and the possibility of triggering unnecessary, costly evaluations and perhaps harmful treatments. They argue that routinely searching for IFs may not maximize benefits and minimize risks to participants.
Schmeiser 2008 The Ungovernable Citizen: Psychopathy, Sexuality, and the Rise of Medico-Legal Reasoning Susan R. Schmeiser 20 Yale J.L. & Human. 163 While law and the behavioral sciences operate on generally disparate, and often incommensurable, assumptions about human character, they have found occasions for collaboration nonetheless. One such occasion arose in the middle decades of the twentieth century around the problem of regulating antisocial behavior in subjects who did not meet conventional criteria for insanity, and yet seemed undeterred by existing legal sanctions. This Article undertakes a genealogical analysis that focuses on rhetoric and reasoning to illuminate the evolving relationship between two authoritative disciplines. It also offers an historical account that links the rise of medico-legal reasoning to new forms of sexual regulation and the emergence of sexual identities.
Sifferd 2008 Nanotechnology and the Attribution of Responsibility Katrina L. Sifferd 5 Nanotechnology L. & Bus. 177 To attribute responsibility, including criminal responsibility, one must use commonsense psychology. Commonsense psychology allows us to understand and predict behavior via attribution of mental states, and thus to assess the relationship between a person's desires and any harm they have caused. This article discusses how nanotechnological advances, particularly in neuroscience, may affect our commonsense attribution of mental states, and thus affect assessments of responsibility. Neuroscientific nanotechnology may have this effect by providing new information about the mental states relevant to responsibility, or by allowing us to alter, inhibit, or 'implant' the mental states relevant to responsibility. The article concludes that these possibilities of neuroscientific nanotechnology pose no unique threat to criminal responsibility except with regard to implantation of desires (the least likely possibility).
Simpson 2008 Functional MRI Lie Detection: Too Good to Be True? Joseph R. Simpson 36 J. Am. Acad. Psychiatry L. 491 Neuroscientists are now applying a 21st-century tool to an age-old question: how can you tell when someone is lying? Relying on recently published research, two start-up companies have proposed to use a sophisticated brain-imaging technique, functional magnetic resonance imaging (fMRI), to detect deception. The new approach promises significantly greater accuracy than the conventional polygraph—at least under carefully controlled laboratory conditions. But would it work in the real world? Despite some significant concerns about validity and reliability, fMRI lie detection may in fact be appropriate for certain applications. This new ability to peer inside someone's head raises significant questions of ethics. Commentators have already begun to weigh in on many of these questions. A wider dialogue within the medical, neuroscientific, and legal communities would be optimal in promoting the responsible use of this technology and preventing abuses.
Sinnott-Armstrong 2008 Brain Images as Legal Evidence Walter Sinnott-Armstrong, Adina Roskies, Teneille Brown & Emily Murphy 5 Episteme 359 This paper explores whether brain images may be admitted as evidence in criminal trials under Federal Rule of Evidence 403, which weighs probative value against the danger of being prejudicial, confusing, or misleading to fact finders. The paper summarizes and evaluates recent empirical research relevant to these issues. It argues that currently the probative value of neuroimages for criminal responsibility is minimal, and there is some evidence of their potential to be prejudicial or misleading. It also proposes experiments that will directly assess how jurors are influenced by brain images.
Tonsing 2008 Truth Detection via Polygraphs and fMRIs Michael J. Tonsing 55-AUG Fed. Law. 10 .
Tovino 2008 Neuroimaging Research into Disorders of Consciousness: Moral Imperative or Ethical and Legal Failure? Stacey A. Tovino 13 Va. J.L. & Tech. 2 This article explores the ethical and legal implications of enrolling individuals with disorders of consciousness (DOC) in neuroimaging research studies. Many scientists have strongly emphasized the need for additional neuroimaging research into DOC, characterizing the conduct of such studies as morally imperative. On the other hand, institutional review boards charged with approving research protocols, scientific journals deciding whether to publish study results, and federal agencies that disburse grant money have limited the conduct, publication, and funding of consciousness investigations based on ethical and legal concerns. Following a detailed examination of the risks and benefits of neuroimaging research involving individuals with DOC, the author urges IRBs, scientific journals, and funding agencies to no longer stall the conduct, publication, and funding of neuroimaging research into DOC if certain criteria designed to protect the health and safety of individuals with DOC are satisfied.
Tovino 2008 The Impact of Neuroscience on Health Law Stacey A. Tovino 1 Neuroethics 73 Advances in neuroscience have implications for criminal law as well as civil and regulatory law, including health, disability, and benefit law. The role of the behavioral and brain sciences in health insurance claims, the mental health parity debate, and disability proceedings is examined.
Tripathi 2008 Advances in Neuroscience and Evidentiary Value of Brain Mapping: A Legal Debate Surya M. Tripathi 29 Indian J. Criminology & Criminalistics 1 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 but these processes have not yet satisfied the foundational requirements for the admissibility of scientific evidence. Advances in neuroscience seem likely to cause major changes in our society in the next few decades, for better and for worse. And when society changes, the law must change - whether to guide those social changes or merely to respond to them. This article attempts to provide a rough sketch of the concept of neurological tests, its process, its legal aspects and recent position in India and in some developed countries of the world. This paper has also tried to show the inconsistent relationship between neurological tests and constitutional principles.
Tushnet 2008 Gone In Sixty Milliseconds: Trademark Law and Cognitive Science Rebecca Tushnet 86 Tex. L. Rev. 507 Trademark dilution is a cause of action for interfering with the uniqueness of a trademark. For example, consumers would probably not think that "Kodak soap" was produced by the makers of Kodak cameras, but its presence in the market would diminish the uniqueness of the original Kodak mark. Trademark owners think dilution is harmful but have had difficulty explaining why. Many courts have therefore been reluctant to enforce dilution laws, even while legislatures have enacted more of them over the past half-century. Courts and commentators have now begun to use psychological theories, drawing on associationist models of cognition, to explain how a trademark can be harmed by the existence of similar marks even when consumers can readily distinguish the marks from one another and thus are not confused. Though the cognitive theory of dilution is internally consistent and appeals to the authority of science, it does not rest on sufficient empirical evidence to justify its adoption. Moreover, the harms it identifies do not generally come from commercial competitors but from free speech about trademarked products. As a result, even a limited dilution law should be held unconstitutional under current First Amendment commercial-speech doctrine. In the absence of constitutional invalidation, the cognitive explanation of dilution is likely to change the law for the worse. Rather than working like fingerprint evidence - which ideally produces more evidence about already-defined crimes - psychological explanations of dilution are more like economic theories in antitrust, which changed the definition of actionable restraints of trade. Given the empirical and normative flaws in the cognitive theory, using it to fill dilution's theoretical vacuum would be a mistake.
Vincent 2008 Responsibility, Dysfuncton and Capacity Nicole A. Vincent 1 Neuroethics 199 The way in which we characterize the structural and functional differences between psychopath and normal brains – either as biological disorders or as mere biological differences – can influence our judgments about psychopaths’ responsibility for criminal misconduct. However, Marga Reimer (Neuroethics 1(3):198, 2008) points out that whether our characterization of these differences should be allowed to affect our judgments in this manner “is a difficult and important question that really needs to be addressed before policies regarding responsibility... can be implemented with any confidence”. This paper is an attempt to address Reimer’s difficult and important question; it argues that irrespective of which of these two characterizations is chosen, our judgments about psychopaths’ responsibility should not be affected, because responsibility hinges not on whether a particular difference is (referred to as) a disorder or not, but on how that difference affects the mental capacities required for moral agency.
Vrij 2008 Increasing Cognitive Load to Facilitate Lie Detection: The Benefit of Recalling an Event in Reverse Order Aldert Vrij, Samantha A. Mann, Ronald P. Fisher, Sharon Leal, Rebecca Milne & Ray Bull 32 Law & Hum. Behav. 253 In two experiments, the authors tested the hypotheses that (a) the difference between liars and truth tellers will be greater when interviewees report their stories in reverse order than in chronological order, and (b) instructing interviewees to recall their stories in reverse order will facilitate detecting deception. In Experiment 1, 80 mock suspects told the truth or lied about a staged event and did or did not report their stories in reverse order. The reverse order interviews contained many more cues to deceit than the control interviews. In Experiment 2, 55 police officers watched a selection of the videotaped interviews of Experiment 1 and made veracity judgments. Requesting suspects to convey their stories in reverse order improved police observers’ ability to detect deception and did not result in a response bias.
Weisberg 2008 The Seductive Allure of Neuroscience Explanations Deena S. Weisberg, Frank C. Keil, Joshua Goodstein, Elizabeth Rawson & Jeremy R. Gray 20 J. Cognitive Neuroscience 470 Explanations of psychological phenomena seem to generate more public interest when they contain neuroscientific information. Even irrelevant neuroscience information in an explanation of a psychological phenomenon may interfere with people’s abilities to critically consider the underlying logic of this explanation. We tested this hypothesis by giving naive adults, students in a neuroscience course, and neuroscience experts brief descriptions of psychological phenomena followed by one of four types of explanation, according to a 2 (good explanation vs. bad explanation) x 2 (without neuroscience vs. with neuroscience) design. Crucially, the neuroscience information was irrelevant to the logic of the explanation, as confirmed by the expert subjects. Subjects in all three groups judged good explanations as more satisfying than bad ones. But subjects in the two nonexpert groups additionally judged that explanations with logically irrelevant neuroscience information were more satisfying than explanations without. The neuroscience information had a particularly striking effect on nonexperts’ judgments of bad explanations, masking otherwise salient problems in these explanations.
Wells 2008 Field Experiments on Eyewitness Identification: Towards a Better Understanding of Pitfalls and Prospects Gary L. Wells 32 Law & Hum. Behav. 6 The Illinois pilot program on lineup procedures has helped sharpen the focus on the types of controls that are needed in eyewitness field experiments and the limits that exist for interpreting outcome measures (rates of suspect and filler identifications). A widely-known limitation of field experiments is that, unlike simulated crime experiments, the guilt or innocence of the suspects is not easily known independently of the behavior of the eyewitnesses. Less well appreciated is that the rate of identification of lineup fillers, although clearly errors, can be a misleading measure if the filler identification rate is used to assess which of two or more lineup procedures is the better procedure. Several examples are used to illustrate that there are clearly improper procedures that would yield fewer identifications of fillers than would their proper counterparts. For example, biased lineup structure (e.g., using poorly matched fillers) as well as suggestive lineup procedures (that can result from non-blind administration of lineups) would reduce filler identification errors compared to unbiased and non-suggestive procedures. Hence, under many circumstances filler identification rates can be misleading indicators of preferred methods. Comparisons of lineup procedures in future field experiments will not be easily accepted in the absence of double-blind administration methods in all conditions plus true random assignment to conditions.
White 2008 Brave New World: Neurowarfare and the Limits of International Humanitarian Law Stephen E. White 41 Cornell Int'l L.J. 177 For the past several years, the Defense Advanced Research Projects Agency (DARPA) has researched direct neurological control of weapon systems. The use of such weapons raises novel legal issues and significantly complicates conventional approaches to the actus reus and mens rea requirements of criminal accountability. Developments in neuroscience, particularly the experiments of Benjamin Libet, suggest that the brain activity guiding weapons employing brain-machine interfaces likely occurs before the will to move exists. Consequently, prosecuting alleged war crimes caused by the misuse of these weapons will likely require the resolution of two unsettled issues regarding the actus reus requirement: what is an act, and is an act the object of criminal law or merely a necessary precondition for finding criminal liability? The use of such weapons will also raise questions about the sufficiency of present conceptions of intent and criminal recklessness because the military personnel controlling these weapons may inflict serious harm or death in violation of international criminal law without ever possessing the requisite mens rea necessary to establish criminal liability. This Note suggests that the use of brain-machine interfaces may challenge foundational notions of free will in the context of criminal law and argues that the doctrine of command responsibility should play an increasing role in international criminal and humanitarian law lest advances in technology undermine long-established principles of criminal responsibility.
Wolf 2008 Managing Incidental Findings in Human Subjects Research: Analysis and Recommendations Susan M. Wolf 36 J.L. Med. & Ethics 219 No consensus yet exists on how to handle incidental findings (IFs) in human subjects research. Yet empirical studies document IFs in a wide range of research studies, where IFs are findings beyond the aims of the study that are of potential health or reproductive importance to the individual research participant. This paper reports recommendations of a two-year project group funded by NIH to study how to manage IFs in genetic and genomic research, as well as imaging research. We conclude that researchers have an obligation to address the possibility of discovering IFs in their protocol and communications with the IRB, and in their consent forms and communications with research participants. Researchers should establish a pathway for handling IFs and communicate that to the IRB and research participants. We recommend a pathway and categorize IFs into those that must be disclosed to research participants, those that may be disclosed, and those that should not be disclosed.
Wolf 2008 The Challenge of Incidental Findings Susan M. Wolf 36 J. L. Med. & Ethics 216 .
Wortzel 2008 Amnesia and Crime: A Neuropsychiatric Response Hal S. Wortzel & David B. Arciniegas 36 J. Am. Acad. Psychiatry L. 218 Bourget and Whitehurst's "Amnesia and Crime," published in a prior issue of the Journal, addresses a conceptually complex and clinically challenging subject. Their treatment emphasizes psychiatric conditions in which memory disturbances may arise that are relevant to criminal proceedings. However, their consideration of the neurobiology of memory, memory disturbances, and the neurobiological bases of interactions between psychiatric symptoms and memory merit further elaboration. The relevance of memory impairment to criminal matters requires forensic psychiatric experts to possess a basic understanding of the phenomenology and neurobiology of memory. The present authors describe briefly the phenomenology and neuroanatomy of memory, emphasizing first that memory is not a unitary cognitive domain, clinically or neurobiologically. The assertion that psychotic delusions produce memory impairment is challenged, and the description of "organic" amnesia, both semantically and in terms of its clinical features, is reframed. Resources on which to build a neuropsychiatric foundation for forensic psychiatric opinions on memory impairment surrounding criminal behavior are offered.
Wright 2008 Preserving the Social Contract: Translating Academic Education into Professional Practice Through Contemporary Cognitive Theories Beth Ann Wright 11 T.M. Cooley J. Prac. & Clinical L. 17 .
Yang 2008 Brain Abnormalities in Antisocial Individuals: Implications for the Law Yaling Yang, Andrea L. Glenn & Adrian Raine 26 Behav. Sci. & L. 65 With the increasing popularity in the use of brain imaging on antisocial individuals, an increasing number of brain imaging studies have revealed structural and functional impairments in antisocial, psychopathic, and violent individuals. This review summarizes key findings from brain imaging studies on antisocial/aggressive behavior. Key regions commonly found to be impaired in antisocial populations include the prefrontal cortex (particularly orbitofrontal and dorsolateral prefrontal cortex), superior temporal gyrus, amygdala–hippocampal complex, and anterior cingulate cortex. Key functions of these regions are reviewed to provide a better understanding on how deficits in these regions may predispose to antisocial behavior. Objections to the use of imaging findings in a legal context are outlined, and alternative perspectives raised. It is argued that brain dysfunction is a risk factor for antisocial behavior and that it is likely that imaging will play an increasing (albeit limited) role in legal decision-making.
Allen 2007 Law Firm Leadership on the Neuro Frontier Stephanie W. Allen 26 No. 2 Of Counsel 10 By peering inside the brain, we can see how its owner takes in information, makes decisions, changes and resists change, remembers and recalls, and responds to people. What we are learning about the brain affects three factors critical to law firms and to each individual lawyer: control, communication, and competence. This article gives a tour of some of what’s been learned and sees how the new information can be useful.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 .
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 .
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.
Kittay 2007 Admissibility of fMRI Lie Detection: The Cultural Bias Against "Mind Reading" Devices Leo Kittay 72 Brook. L. Rev. 1351 .
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.
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 .
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.
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.
Mahlmann 2007 Ethics, Law and the Challenge of Cognitive Science Matthias Mahlmann 8 German L.J. 577 .
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.
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.
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 .
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.
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.
Niehoff 2007 Invisible Scars: The Neurobiological Consequences of Child Abuse Debra Niehoff 56 DePaul L. Rev. 847 .
Patel 2007 The Role of Imaging in United States Courtrooms Purvak Patel, Carolyn Cidis Meltzer, Helen S. Mayberg & Kay Levine 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.
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.
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.
Prohaska 2007 Obtaining Neuropsychological Test Data: Why Is This So Hard? Mark L. Prohaska & David P. Martin 68 Ala. Law. 216 .
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.
Roberts 2007 Everything New is Old Again: Brain Fingerprinting and Evidentiary Analogy Alexandra J. Roberts 9 Yale J.L. & Tech. 234 Brain Fingerprinting uses electroencephalography to ascertain the presence or absence of information in a subject's brain based on his reaction to particular stimuli. As a new forensic tool, Brain Fingerprinting technology stands poised to exert a tremendous impact on the presentation and outcome of selected legal cases in the near future. It also provides a fertile case study to examine the role of analogical reasoning in the process by which lawyers, experts, judges, and the media influence how fact-finders perceive and evaluate unfamiliar types of proof. When juridical metaphor disguises, distorts, or destroys ideas, it ceases to serve as an aid to understanding and functions instead as an obstacle to knowledge. This Note explores the ways in which evidentiary analogy may insidiously shape how courts treat novel forms of scientific evidence.
Robinson 2007 The Origins of Shared Intuitions of Justice Paul H. Robinson, Robert O. Kurzban & Owen D. Jones 60 Vand. L. Rev. 1633 Contrary to the common wisdom among criminal law scholars, empirical evidence reveals that people's intuitions of justice are often specific, nuanced, and widely shared. Indeed, with regard to the core harms and evils to which criminal law addresses itself-physical aggression, takings without consent, and deception in transactions-the shared intuitions are stunningly consistent across cultures as well as demographics. It is puzzling that judgments of moral blameworthiness, which seem so complex and subjective, reflect such a remarkable consensus. What could explain this striking result? The authors theorize that one explanation may be an evolved predisposition toward these shared intuitions of justice, arising from the advantages that they provided, including stability, predictability, and the facilitation of beneficial exchange-the cornerstones to cooperative action and its accompanying survival benefits. Recent studies in animal behavior and brain science are consistent with this hypothesis, suggesting that moral judgment not only has biological underpinnings, but also reflects the effects of evolutionary processes on the distinctly human mind. Similarly, the child development literature provides evidence of predictable stages in the development of moral judgment within each individual, from infancy through adulthood, that are universal across all demographics and cultures. The current evidence does not preclude alternative explanations. Shared views of justice might arise, for example, through general social learning. However, a social learning explanation faces a variety of difficulties. It assumes that individuals will adopt norms good for the group at the expense of self-interest. It assumes an undemonstrated human capacity to assess extremely complex issues, such as what will be an efficient norm. It predicts that the significant variation in circumstances among different groups would give rise to commensurately different norms and variation in the effectiveness of teaching them. It is inconsistent with the developmental data that show intuitions of justice appearing early, before social learning of such complexity is possible. And, finally, a general social learning explanation predicts views of justice as accessible, reasoned knowledge, rather than the inaccessible, intuitive knowledge that we know them commonly to be. Whatever the correct explanation for the consensus puzzle, intuitions of justice seem to be an inherent part of being human and this, in turn, can have important implications for criminal law and criminal justice policy.
Robinson 2007 Intuitions of Justice: Implications for Criminal Law and Justice Policy Paul H. Robinson & John M. Darley 81 S. Cal. L. Rev. 1 Recent social science research suggests that many if not most judgments about criminal liability and punishment for serious wrongdoing are intuitional rather than reasoned. Further, such intuitions of justice are nuanced and widely shared, even though they concern matters that seem quite complex and subjective. While people may debate the source of these intuitions, it seems clear that, whatever their source, it must be one that is insulated from the influence of much of human experience because, if it were not, one would see differences in intuitions reflecting the vast differences in human existence across demographics and societies. This article explores the serious implications of this reality for criminal law and criminal policy. For example, it may be unrealistic to expect the government to reeducate people away from their unhealthy interest in punishing serious wrongdoing, as is urged by some reformers, for it seems unlikely that the shared intuition that serious wrongdoing should be punished can be changed through social engineering, at least not through methods short of coercive indoctrination that liberal democracies would find unacceptable. Second, a criminal justice system that adopts rules that predictably and regularly fail to do justice or that regularly do injustice, will inevitably be widely seen as failing in a mission thought important by the community, even foundational, unless the system's unjust operation can be hidden, something that would be hard to do without breaching notions of press freedom and government transparency to which liberal democracies aspire. Finally, an understanding of the nature of people's intuitions of justice can provide more effective strategies for changing them. For example, it appears that legal and social reformers would do better not to fight people's shared intuitions of justice but rather to harness them in service of their reform programs.
Sasso 2007 Implementing the Death Penalty: The Moral Implications of Recent Advances in Neuropsychology Peggy Sasso 29 Cardozo L. Rev. 765 Atkins v. Virginia, 536 U.S. 304 (2002), categorically exempted the mentally retarded from the death penalty. The Court reasoned that because of certain observable social cognitive deficits, the mentally retarded can never qualify as our most morally culpable offenders. By failing, however, to appreciate the complex neurological processes - or "substrates" - that sustain our capacity to engage in these basic social cognitive abilities, the Court endorsed a test for mental retardation that is inconsistent with its own reasoning. Specifically, the Court endorsed a test for mental retardation that fails to recognize the critical role the emotions play in our cognitive and decision-making abilities, in controlling our actions and in motivating our behavior. Individuals with the social cognitive deficits that the Court identified as relevant typically perform normally on most intelligent tests. Notably, such tests do not assess whether an individual has the capacity to synthesize and coordinate his cognitive and emotional processing systems such that he is able to successfully execute a socially appropriate course of action in the face of distractions. Emerging neuroscientific research strongly suggests that the abilities the Court identified as relevant to moral culpability depend on the successful integration of both the cognitive and affective processing systems. The tremendous complexity of human cognition should counsel against the use of any single test as the silver bullet by which we assess moral culpability in the context of the death penalty.
Slovic 2007 Affect, Reason, and Mere Hunches Paul Slovic 4 J.L. Econ. & Pol'y 191 There is a growing respect for the wisdom of emotion and intuition that has emerged from recent research in cognitive psychology and neuroscience. This paper reviews a segment of this research dealing with intuitive feelings, which my colleagues and I call affect. The processing of affect by the human brain is indeed sophisticated, contributing greatly to rationality. Nevertheless, our intuitions can sometimes lead us astray. Better understanding of affective intuition is necessary to enable us to maximize the benefits and minimize the errors of this remarkable system.
Snead 2007 Neuroimaging and the “Complexity” of Capital Punishment O. Carter Snead 82 N.Y.U. L. Rev. 1265 The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over the longer term, these same experts (and their like-minded colleagues) appeal to the recent findings of their discipline to embarrass, discredit, and ultimately overthrow retributive justice as a principle of punishment. Taken as a whole, these short and long-term efforts are meant ultimately to usher in a more compassionate and humane regime for capital defendants. This article seeks to articulate, analyze, and provide a critique of the project according to the metric of its own humanitarian aspirations. It proceeds by exploring the implications of the project in light of the mechanics of capital sentencing and the heterogeneous array of competing doctrinal rationales in which they are rooted. The article concludes that the project as currently conceived is internally inconsistent, and would, if implemented, result in ironic and tragic consequences, producing a death penalty regime that is even more Draconian and less humane than the deeply flawed present framework.
Snodgrass 2007 “Death Is Different”: Limits on the Imposition of the Death Penalty to Traumatic Brain Injuries Laura B. Snodgrass & Brad Justice 26 Dev. Mental Health L. 81 Brain damage has long been recognized as a causal factor in violent crime, so individuals who suffer brain injuries are at a higher risk to commit violent crime, and consequently at a higher risk to face the death penalty. American legal jurisprudence has limited the imposition of the death penalty to a narrow category of the most serious crimes and blameworthy defenders, and, accordingly, has banned the execution of individuals with mental retardation and defendants who were juveniles at the time of their crime. And although evidence shows that severe brain damage can cause many of the same disabilities, functional limitations, and behavioral manifestations seen in mentally retarded persons and juveniles, persons with severe brain injuries may still be executed for their crimes. This article argues that, for the same reasons that the death penalty is considered excessive punishment for those with mental retardation and for juveniles, so is it too excessive for certain persons with severe brain damage. It is no simple task to determine which brain injured individuals should qualify for exemption from the death penalty, as brain injuries can range from mild to severe, with a plethora of symptoms and manifestations. This article attempts to analyze such issues and propose an initial analytical approach for resolving them, including the use of biopsychosocial models and comprehensive neuropsychological evaluations as baselines for diagnosis.
Stoller 2007 Emerging Neurotechnologies For Lie Detection and The Fifth Amendment Sarah E. Stoller & Paul R. Wolpe 33 Am. J.L. & Med. 359 The article examines the legal implications and advantages of emerging Neurotechnological Lie Detection (NTLD). The self-incrimination clause of the Fifth Amendment to the U.S. Constitution was taken into account, including its scope over NTLD. Key information about the reliability and privacy issues of NTLD is further presented.
Stucke 2007 Behavioral Economists at the Gate: Antitrust in the Twenty-First Century Maurice E. Stucke 38 Loy. U. Chi. L.J. 513 Although tossed against the rocks elsewhere, the Law and Economics' rational choice theories, within the quiet waters of antitrust, stand largely unchallenged. Antitrust's economic theories, premised on 'rational' profit maximizing behavior, enjoy the deep slumber of a decided opinion. Although Post-Chicago School antitrust theories have developed, the Chicago School's rational choice theories still dominate. This article explores some possible paradoxes and anomalies with respect to antitrust's merger theories. It appears anecdotally that some corporate behavior is (or is not) occurring which is not readily explainable under the Chicago School's theories. It is an empirical question as to the degree the federal antitrust agencies, relying upon their Horizontal Merger Guidelines, are indeed accurately forecasting the likely competitive effects of mergers today. This article concludes with recommendations for specific legislation to improve the current state of antitrust policy. Today, the federal agencies devote considerable resources investigating ex ante the merger. But the agencies examine only half the picture, namely the state of competition in the few years leading up to the merger. Now it is time for the agencies to systematically review what actually happens post-merger. Close-call mergers would be revisited to determine if the agencies got it right. Empirically testing these Chicago School theories may reduce the likelihood of false negatives and positives in merger review, lead to more effective antitrust enforcement, increase transparency of the merger review process, make the agencies and their officials more accountable for their decisions, and perhaps temper the claims of partisanship in antitrust enforcement, which have increased over the past quarter century.
Suzuki 2007 Unpacking Pandora's Box: Innovating Techniques for Effectively Counseling Asylum Applicants Suffering from Post-Traumatic Stress Disorder Carol M. Suzuki 4 Hastings Race & Poverty L. J. 235 Each year, innumerable asylum seekers are denied relief in the United States because the asylum officer or immigration judge does not believe the applicant is telling the truth. The asylum applicant is determined not to be credible because his story of persecution lacks sufficient detail and is inconsistent. A victim of severe and often prolonged trauma may develop post-traumatic stress disorder (PTSD), which profoundly affects his ability to tell a consistent and detailed story of past persecution. Thus, an asylum seeker suffering from PTSD as a result of traumatic experiences, desperately in need of a safe haven, may be denied asylum as a direct result of the symptoms of his affliction. Recent changes in immigration law have considerably raised both evidentiary requirements and the standard for obtaining asylum. These changes create an asylum process that poses significant obstacles for asylum seekers and dramatically reduces their chances of being granted asylum. This article proposes practical methods to use throughout the lawyer-client relationship in order to help an asylum seeker tell a more credible story of past persecution. These counseling techniques may assist an asylum seeker in consistently remembering details of his past persecution, which form the basis of his well-founded fear of being returned to his home country. The author incorporates the most recent scientific research on PTSD and its affect on memory in recommending the counseling techniques in this article.
Tancredi 2007 The Brain and Behavior: Limitations in the Legal Use of Functional Magnetic Resonance Imaging Laurence R. Tancredi & Jonathan D. Brodie 33 Am. J.L. & Med. 271 The article examines the limitation regarding the use of functional magnetic resonance imaging (fMRI) in a legal setting. The basic functions of brain imaging were taken into account as well as the advantages of fMRI. Key information about conceptual issues concerning the accuracy of fMRI is further presented.
Thompson 2007 Brave New World of Interrogation Jurisprudence? Robert B. Thompson 33 Am. J.L. & Med. 341 .
Tovino 2007 Imaging Body Structure and Mapping Brain Function: A Historical Approach Stacey A. Tovino 33 Am. J.L. & Med. 193 The article examines developments of functional neuroimaging, including the ethical and social issues involved. The developments of phrenology and its legal application were taken into account as well the developments and forensic use of X-ray. Key information about positron emission tomography and single-photon emission computed tomography is further presented.
Tovino 2007 Functional Neuroimaging Information: A Case for Neuro Exceptionalism? Stacey A. Tovino 34 Fla. St. U. L. Rev. 415 Functional magnetic resonance imaging (fMRI) has built on a number of technologies, including electroencephalography, magnetoencephalography, positron emission tomography, and single-photon emission computed tomography, to become one of the decade's most powerful tools for mapping sensory, motor, and cognitive function. Scientists also are using fMRI to study the neural correlates of a range of conditions, characteristics, and social behaviors, including schizophrenia, addiction, racial evaluation, deception, cooperation, and sexual preferences. Now poised to move outside the research context, functional neuroimaging raises a number of confidentiality, privacy, and identity issues. In this Article, I examine whether special, or heightened, confidentiality, privacy, and informed consent provisions are needed to respond to developments in functional neuroimaging. En route to arguing that advances in fMRI renew the call for broad-based privacy protections in the employment and insurance contexts and require an expanded notion of informed consent, I address the proper roles and responsibilities of scientists, physicians, lawyers, and ethicists in the public and neuroethics arenas.
Truog 2007 Brain Death -- Too Flawed to Endure, Too Ingrained to Abandon Robert D. Truog 35 J.L. Med. & Ethics 273 The concept of brain death has become deeply ingrained in our health care system. It serves as the justification for the removal of vital organs like the heart and liver from patients who still have circulation and respiration while these organs maintain viability. On close examination, however, the concept is seen as incoherent and counterintuitive to our understandings of death. In order to abandon the concept of brain death and yet retain our practices in organ transplantation, we need to either change the definition of death or no longer maintain a commitment to the dead donor rule, which is an implicit prohibition against removing vital organs from individuals before they are declared dead. After exploring these two options, the author argues that while new definitions of death are problematic, alternatives to the dead donor rule are both ethically justifiable and potentially palatable to the public. Even so, the author concludes that neither of these approaches is likely to be adopted and that resolution will most probably come when technological advances in immunology simply make the concept of brain death obsolete.
Wardle 2007 The Biological Causes and Consequences of Homosexual Behavior and Their Relevance for Family Law Policies Lynn D. Wardle 56 DePaul L. Rev. 997 What we do not know about the causes of homosexual attraction seems to exceed what we do know; but we have abundant and increasing knowledge about the consequences and effects of homosexual behavior. This paper explores briefly both of those subjects with emphasis upon the effects and outcomes of homosexual behavior that should be very relevant to family law. The evidence that homosexual attraction is immutable (comparable to race, for example) has many gaps and is very unsettled; and even if established it would not necessarily justify the claim for legalizing same-sex marriage. There is substantial evidence that homosexual behavior is associated with significant personal and public health risks. Those risks are not irrelevant to the content of many family policies including marriage, adoption, custody, visitation and guardianship.
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.
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.
Bauermeister 2006 Responding to Juror Bias—Gaining Insight From Cognitive Neuroscience Don C. Bauermeister Winter ATLA-CLE 89 .
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.
Beschle 2006 Cognitive Dissonance Revisited: Roper v. Simmons and the Issue of Adolescent Decision-Making Competence Donald L. Beschle 52 Wayne L. Rev. 1 This article addresses the lack of child-adult dichotomy and its implications in decision-making and degree of punishment.
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.
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.
Deaton 2006 Neuroscience and the In Corpore-ted First Amendment Rodney J. S. Deaton 4 First Amend. L. Rev. 181 .
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
Holley 2006 How Reversible Is Methamphetamine-Related Brain Damage? Mary Holley 82 N.D. L. Rev. 1135 .
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.
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.
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.
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.
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.
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 .
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.
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.
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.
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 .
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.
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.
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?
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 right and wrong, they are unable to avail themselves of the only insanity defense available in many states, a defense based on the narrow McNaghten test. "Irresistible impulse" (or "control") tests, on the other hand, provide an insanity defense to those who committed a crime due to their inability to exercise behavioral control. Control tests have fallen into disfavor, however. Opponents of control tests offer three rationales for their abandonment: (1) that cognitive tests for insanity are sufficient, since those with impaired impulse control will also be cognitively impaired; (2) that mental health professionals are incapable of reliably assessing the capacity for impulse control, particularly in relation to criminal behavior, or of differentiating between a truly irresistible impulse and an impulse that is merely difficult to resist; and, therefore, that control tests lead to erroneous insanity acquittals; and, (3) that because "they directly pose the question of whether a person could control his or her behavior," control tests run counter to the law's assumption that people have free will and bear responsibility for their actions. Current neuroscience research presents a challenge to these claims. This article argues for a return to control tests for insanity, but with important doctrinal modifications.
Rothenberg 2006 The Scarlet Gene: Behavioral Genetics, Criminal Law, and Racial and Ethnic Stigma Karen Rothenberg and Alice Wang 69 Law & Contemp. Probs. 343 Imagine that a scientist from the state university asks you and your family to participate in a study on a particular gene variant associated with alcoholism. The project focuses on your ethnic group, the Tracy Islanders, who have a higher incidence of alcoholism, as well as a higher incidence of the gene variant, than the general population. You will not be informed whether you have the gene variant, but your participation in the study might help scientists develop drugs to help individuals control their addiction to alcohol. You have a family history of alcoholism, and you are concerned that your twenty-one-year-old son may be susceptible to the condition as well. Do you agree to participate in the study? Now imagine that, with your participation, the study concludes that Tracy Islanders with the particular gene variant have a ten percent chance of becoming alcoholics, whereas Tracy Islanders without the gene variant have only a five percent chance. Although the scientists are careful to note that the gene variant exists in the general population and is not the cause of alcoholism, the sound-bite reported by the media is that Tracy Islanders are hardwired to become alcoholics. That same day, your son gets drunk at a bar and pushes an off-duty police officer through a window, killing him. Your son is charged with murder, and his lawyer wants to use his genetic predisposition toward alcoholism as a defense. Some members of your family and community are concerned that this approach will only further stigmatize Tracy Islanders as alcoholics. How do you advise your son and his lawyer? These scenarios were presented to a panel of scientists, legal experts, journalists, and community leaders in a recent PBS television program entitled Genes on Trial: Genetics, Behavior, and the Law. This article uses the television program as a framework for exploring the implications of behavioral genetics research for the individual, family, community, and society. In particular, it focuses on the unique potential for behavioral genetics research, when placed in the context of criminal law, to stigmatize racial and ethnic minority groups through the blame-shifting mechanisms of genetic reductionism and genetic determinism. Like the scarlet A in Nathaniel Hawthorne's famous novel, DNA associated with criminal or antisocial behavior might become a scarlet gene that marks the individual, his family, and his racial or ethnic community as flawed, compromised, and somehow less than fully human. This article proceeds in six parts. The remainder of Part I summarizes the Genes on Trial program and introduces the issues raised by it. Part II explains why behavioral genetics research tends to focus on discrete and insular populations that overlap with socially constructed racial or ethnic groups. Part III locates behavioral genetics research on a spectrum spanning from single-gene disorders to complex behavioral traits, positing that the behavioral end of the spectrum carries the most potential for stigma. Part IV explores how the blame-shifting mechanisms of genetic reductionism and genetic determinism affect the individual, family, community, and society when genetics research focuses on criminal or antisocial behavior. Part V analyzes how racial and ethnic stigma arise from behavioral genetics research and perpetuate inequality. Part VI concludes by considering the ethical dilemmas that geneticists face when choosing who and what to study.
Sherwin 2006 Law in the Digital Age: How Visual Communication Technologies are Transforming the Practice, Theory, and Teaching of Law Richard K. Sherwin, Neal Feigenson & Christina O. Spiesel 12 B.U. J. Sci. & Tech. L. 227 Law today has entered the digital age. The way law is practiced - how truth and justice are represented and assessed - is increasingly dependent on what appears on electronic screens in courtrooms, law offices, government agencies, and elsewhere. Practicing lawyers know this and are rapidly adapting to the new era of digital visual rhetoric. Legal theory and education, however, have yet to catch up. This article is the first systematic effort to theorize law's transformation by new visual and multimedia technologies and to set out the changes in legal pedagogy that are needed to prepare law students for practice in the new environment. The article explores the consequences for legal theory and practice of the shift from an objectivist to a constructivist approach to human knowledge, using an expanded, multidisciplinary understanding of rhetoric to analyze the elusiveness of evidentiary truth and the nature and ethics of persuasion in the digital era.
Taylor 2006 A New Wave of Police Interrogation? “Brain Fingerprinting,” the Constitutional Privilege Against Self-Incrimination, and Hearsay Jurisprudence Erich Taylor U. Ill. J.L. Tech. & Pol'y 287 BF testing is an examination designed to determine if particular information is familiar to a test subject in a specific context (such as that of a crime). Essentially, a BF test asks a suspect’s brain if it is familiar with a particular place, time, or action, and does so using brain monitoring technology that is nearly impossible to deceive. Along with its technological innovations, BF raises some thorny constitutional questions. Among the most significant constitutional issues are the Fifth Amendment’s privilege against self-incrimination (“privilege”), which even strong supporters of the BF technology concede is problematic in the context of BF testing, and how BF test results are viewed under current rules regarding the admissibility of hearsay. Although BF is a relatively underutilized technology in the field of criminal justice, these constitutional issues are rapidly rising to the forefront of the legal consciousness in America. This Note aims to probe further into the implications of the expanded use of brain fingerprinting. Specifically, this Note will first attempt to answer the question of whether a compulsory BF test, issued against a suspect’s will, would violate that suspect’s constitutional privilege against self-incrimination. This Note will also examine whether BF test results of one suspect would be admissible in legal proceedings against a second suspect under current hearsay jurisprudence. Finally, Part IV will recommend certain judicial and legislative actions, and Part V will provide some concluding thoughts.
Thompson 2006 My Brain Made Me Do It Sean K. Thompson 2006-FEB Legal Aff. 50
Appelbaum 2005 Behavioral Genetics and the Punishment of Crime Paul S. Appelbaum 56 Law & Psychiatry 25 .
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.
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.
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.
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.
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.
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.
Kaufmann 2005 Protecting the Objectivity, Fairness, and Integrity of Neuropsychological Evaluations in Litigation Paul M. Kaufmann 26 J. Legal Med. 95
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.
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 .
Rightmer 2005 Arrested Development: Juveniles' Immature Brains Make Them Less Culpable Than Adults Tracy Rightmer 9 Quinnipiac Health L.J. 1 .
Rothstein 2005 Applications of Behavioural Genetics: Outpacing the Science? Mark A. Rothstein 6 Nature Reviews 793 Human behavioral genetics is an established research discipline of the genomic age, and applications for the behavioral genetic information are most likely to emerge in areas such as criminal justice, education, employment, and insurance. However, behavioral genetic research into personality traits and antisocial behavior poses several risks; for example, tentative or preliminary research findings might be misused in legal and commercial settings. Scientific caution, public and media education, expert consultation and confidentiality protection are essential for the responsible use of behavioral genetics.
Saunders 2005 A Disconnect Between Law and Neuroscience: Modern Brain Science, Media Influences, and Juvenile Justice Kevin W. Saunders 2005 Utah L. Rev. 695 Modern brain science has discovered a second period of physical development of the brain in the adolescent years. Paralleling the cognitive development of infancy and early childhood, the judgmental and inhibitory regions of the brain go through a process of synaptic over-blooming and later paring in this later period of life. Just as environment affects cognitive development, it appears it also has an effect on judgment and inhibition. This has consequences that should influence the development of the law. First, if environment affects which synapses remain in the developed brain and later influence judgment, there is greater reason to be concerned about the media environment children face. Second, if children are unable to make adult judgments and inhibit their actions, rather than simply being unwilling to do so, that should speak in favor of a juvenile justice system that recognizes that juvenile offenders may be more amendable to rehabilitation than adults.
Shepherd 2005 The Relevance of Brain Research to Juvenile Defense Robert E. Shepherd 19-WTR Crim. Just. 51
Thompson 2005 The Legality of the Use of Psychiatric Neuroimaging in Intelligence Interrogation Nicholas Thompson 90 Cornell L. Rev. 1601 This Note examines the legality of the use of a form of psychiatric neuroimaging called functional Magnetic Resonance Imaging (fMRI) in the interrogation of detainees in U.S. custody. Part I provides background on current U.S. interrogation doctrine and the potential role of fMRI in interrogation. Part II examines fMRI in light of International Humanitarian Law, arguing that while its use to detect deception in the voluntary statements of detainees is permissible, its involuntary use in interrogation would violate the anti-coercion provisions of the Geneva Conventions. Part III examines fMRI in light of International Human Rights Law (IHRL) and the U.S. Constitution, arguing that although fMRI would not constitute torture its use may shock the conscience and, in many cases, would be illegal under IHRL and the Constitution. If the government can articulate a sufficient interest in obtaining information from the detainee, however, its use would not violate current law. The Note concludes by arguing that although fMRI does not represent a complete technological solution to the legal problem of torture, it nevertheless is permissible in certain limited instances.
Tovino 2005 A Primer on the Law and Ethics of Treatment, Research, and Public Policy in the Context of Severe Traumatic Brain Injury Stacey A. Tovino & William J. Winslade 14 Annals Health L. 1 This article addresses the legal and ethical implications of treatment, research, and public policy decisions in the context of severe traumatic brain injury. Examining the tragic circumstances of a fifteen year-old boy from Connecticut who remained in a near vegetative state for almost three years, the authors provide a thorough discussion of the diverse legal and ethical issues encountered by those close to traumatic brain injury victims as they consider treatment options, research activities, and public policy decisions.
Tovino 2005 The Confidentiality and Privacy Implications of Functional Magnetic Resonance Imaging Stacey A. Tovino 33 J.L. Med. & Ethics 844 Advances in science and technology frequently raise new ethical, legal, and social issues, and developments in neuroscience and neuroimaging technology are no exception. Within the field of neuroethics, leading scientists, ethicists, and humanists are exploring the implications of efforts to image, study, treat, and enhance the human brain. This article focuses on one aspect of neuroethics: the confidentiality and privacy implications of advances in functional magnetic resonance imaging ("fMRI"). Following a brief orientation to fMRI and an overview of some of its current and proposed uses, this article highlights key confidentiality and privacy issues raised by fMRI in the contexts of health care, research, employment, insurance, criminal justice, litigation, and cognitive privacy.
Weinstein 2005 “I Know Better Than That”: The Role of Emotions and the Brain in Family Law Disputes Janet Weinstein & Ricardo Weinstein 7 J. L. & Fam. Stud. 351 This article looks at the role of emotions, particularly in regard to child custody disputes. It examines the positive role emotions play and how they become problematic in the context of family law litigation. It begins with a simplified introduction of brain function, focusing on the organism’s “interests” in reproduction and survival. It then examines the institution of marriage and the trust and vulnerability required for this intimate commitment. The article considers the consequences of a legal system that generally ignores emotions. It also looks at the attempts the legal system has made to accommodate the “reality” of emotions, including the shift from fault-based to no-fault divorce. It discusses other aspects of divorce law and how these might impact the parties’ emotions and it analyzes interventions such as divorce education programs, and other system changes that have been adopted in an attempt to improve the quality and efficiency of court outcomes. The authors contend that if the legal system is to play a therapeutic rather than a damaging role, in these relationship changes, it must take into account how people behave, why they engage in these behaviors, and what kinds of processes might be helpful to them. The goal would be to educate legislators, judges, lawyers, law enforcement personnel, therapists, and others who deal with people suffering through the restructuring of their families, to intervene more effectively.
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.
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 .
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.
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.
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.
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
Sanchirico 2004 Evidence, Procedure, and the Upside of Cognitive Error Chris W. Sanchirico 57 Stan. L. Rev. 291 Humans are imperfect information processors, a fact almost universally bemoaned in legal scholarship. But when it comes to how the legal system itself processes information, cognitive limitations are largely good news. Evidentiary procedure - inclusive of trial, discovery, and investigation - relies heavily on the fact that human mental capacity is limited. Such limits are crucial to separating sincere from insincere testimony. Moreover, notes and other "cognitive artifacts" that individuals make to compensate for their limited cognitive ability are an important source of evidence. This article's primary objective is to elucidate the extent to which cognitive imperfection is beneficial rather than detrimental to evidentiary process and thus to law as a whole. Secondarily, the article discusses how the law of evidentiary process tilts the playing field of litigation in a manner that exacerbates the cognitive limitations of the potentially insincere and offsets the limitations of competing participants.
Sapolsky 2004 The Frontal Cortex and the Criminal Justice System Robert M. Sapolsky 359 Phil. Transactions Royal Soc'y London B: Biological Sci. 1787 In recent decades, the general trend in the criminal justice system in the USA has been to narrow the range of insanity defences available, with an increasing dependence solely on the M'Naghten rule. This states that innocence by reason of insanity requires that the perpetrator could not understand the nature of their criminal act, or did not know that the act was wrong, by reason of a mental illness. This essay questions the appropriateness of this, in light of contemporary neuroscience. Specifically, it focuses on the role of the pre- frontal cortex (PFC) in cognition, emotional regulation, control of impulsive behaviour and moral reasoning. It reviews the consequences of PFC damage on these endpoints, the capacity for factors such as alcohol and stress to transiently impair PFC function, and the remarkably late development of the PFC (in which full myelination may not occur until early adulthood). It also considers how individual variation in PFC function and anatomy, within the normative range, covaries with some of these endpoints. This literature is reviewed because of its relevance to issues of criminal insanity; specifically, damage can produce an individual capable of differentiating right from wrong but who, nonetheless, is organically incapable of appropriately regulating their behaviour.
Seiden 2004 The Criminal Brain: Frontal Lobe Dysfunction Evidence in Capital Proceedings Jessie A. Seiden 16 Cap. Def. J. 395 Recent legal cases have begun to highlight the scientifically well-documented connection between criminal behavior and brain dysfunction. In particular, an individual’s frontal lobes are known to regulate socially appropriate behavior. If the frontal lobe region is damaged, through trauma or disease, a person may experience both cognitive and behavioral deficits. In a criminal defendant, this is most often manifested as an inability to control impulses and anticipate the consequences of one’s actions. Despite the science behind frontal lobe dysfunction, it is still unclear how this evidence can and should be used in criminal proceedings. This is an especially crucial question in capital murder cases given the unconstitutionality of executing mentally retarded individuals because of their compromised ability to reason and control urges. Because brain dysfunction can manifest similarly, a natural extension of the Supreme Court’s decision may be to render people with certain types of brain dysfunction death-ineligible. As it does not fit neatly into either a diminished capacity or an insanity defense, frontal lobe dysfunction evidence is used most effectively as mitigation evidence. This article discusses the science behind frontal lobe dysfunction, including the causes, symptoms, and means of testing, as well as the relationship between criminality and brain dysfunction. In addition, the article explores the various ways to use this evidence in capital proceedings, specifically: (1) in a diminished capacity defense; (2) in an insanity defense; and (3) as mitigating evidence during sentencing proceedings. This article also advises counsel on the most effective methods of explaining frontal lobe dysfunction to juries without upsetting individual notions of morality and free will.
Spellman 2004 Reflections of a Recovering Lawyer: How Becoming a Cognitive Psychologist--and (In Particular) Studying Analogical and Causal Reasoning-- Changed My Views About the Field of Psychology and Law Barbara A. Spellman & Simone Schnall 79 Chi.-Kent L. Rev. 1187 .
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.
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.
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.
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 .
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.
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.
Orme 2003 Clinical Neuropsychologists: Training, Credentials and Courtroom Credibility Daniel R. Orme & George Johnstone 59 J. Mo. B. 184 .
Reeves 2003 Limitations of Brain Imaging in Forensic Psychiatry Donald Reeves, Mark J. Mills, Stephen Billick & Jonathan D. Brodie 31 J. Am. Acad. Psychiatry L. 89 Over the several decades of its existence, brain imaging has moved from the laboratory to the bedside. Brain imaging now plays a routine role in the diagnosis of many central nervous system disorders. However, the appeal of a “snapshot” of the brain extends beyond medicine. Brain imaging, now available in color, with its simplicity and vividness, has sometimes proven irresistible to defense attorneys seeking to exonerate their clients of responsibility for their crimes. Putting aside the question of what brain imaging means for a justice system predicated on the assumption of free will, misrepresentation of brain imaging may mislead a judge and jury.
Siegel 2003 Psychoactive Medication and Your Client: Better Living and (Maybe) Better Law Through Chemistry David M. Siegel 27-DEC Champion 22 Is your client taking psychoactive medication? The U.S. Supreme Court’s decision in Sell v. United States makes this question more important than ever, and means that you must not only know the answer, but must also understand exactly what the medication is and how it could affect your client’s trial-related capacities. Sell makes clear that due process permits forced psychotropic medication of a criminal defendant in order to establish their competence to stand trial, however it severely limits the circumstances under which this should be permissible, and identifies four key considerations a court will have to address in order to approve medication. Satisfying the Sell standard to involuntarily medicate a pre-trial defendant will likely require more thorough hearings, involving more extensive fact development concerning the specific types of medication proposed, their potential side effects and treatment alternatives. Even if you believe that there are no competence issues in your case, you may face greater efforts by the government to involuntarily medicate your client because they are “dangerous,” as this may provide the government an easier route to have a court approve medication. In short, whether your case involves mental health issues or not, your client’s mental health treatment - if it involves medication - is something you need to know about.
Stein 2003 The Admissibility of Expert Testimony About Cognitive Science Research on Eyewitness Identification Edward Stein 2 Law, Probability & Risk 295 Eyewitness identifications are important to jurors, especially in criminal trials. Psychological research has shown, however, that eyewitness testimony is systematically fallible in ways that undermine the goals of the rules of evidence. This article assesses the arguments for and against admitting expert testimony concerning cognitive science research about eyewitness identification. The article concludes that experts should in many instances be allowed to testify about the problems with eyewitness identification testimony.
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.
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.
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.
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.
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.
Risinger 2002 Three Card Monte, Monty Hall, Modus Operandi and “Offender Profiling”: Some Lessons of Modern Cognitive Science for the Law of Evidence Michael D. Risinger, Michael J. Saks, William C. Thompson & Robert Rosenthal 24 Cardozo L. Rev. 193 If modern cognitive psychology teaches us anything, it is that humans are vulnerable to some predictable kinds of processing errors. We appear to be subject to a variety of cognitive tunnels from which it is difficult to escape even when they lead to error. Many of those cognitive tunnels deal with probability judgments. This is well illustrated by the famous Monte Hall problem, and by the results of various studies by Daniel Kahneman, Amos Tverski and others. Some, most notably Gerd Gigerenzer, have responded that these results do not show a fundamental irrationality, but are merely the side effects of “fast and frugal” heuristics developed by evolutionary pressures to allow quick and generally accurate processing in information rich environments. However, modern social arrangements may make heuristics that were beneficial when they evolved generate seriously wrong decisions in the informational environment in which we now operate. For instance, credibility judgments concerning other humans that worked well in small bands of acquaintances may not work so well with strangers in the big city, as anyone falling prey to a Ponzi scheme could attest. As our information derives from less and less local environments, our hard-wired heuristics become less and less secure guides. A simple mind experiment involving multiple roulette wheels spun simultaneously in two separate rooms, establishes that in any information rich environment, there are coincidences that appear to be rare and meaningful, but are neither. One form of supposed expertise sometimes offered in criminal proceedings, and more often used in criminal investigation, “linkage analysis,” presents just such dangers. This asserted expertise, and the larger area from which it is derived, “offender profiling,” are rife with claims for which little empirical evidence exists. The history and empirical record relating to “linkage analysis” and “offender profiling” is examined, and the dangers they present illustrated by reference to various actual cases, particularly the New Jersey case of State v. Fortin.
Risinger 2002 The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion Michael Risinger & Jeffrey L. Loop 90 Cal. L. Rev. 1 After the Supreme Court's decision in Kumho Tire v. Carmichael and the recent amendment of Federal Rule of Evidence 702, proffers of expert testimony will have to be found reliable for the particular application of the asserted expertise to the "task at hand." That is, expertise which is reliable in some global sense, which might apply to other cases but not to the particular application before the court, does not satisfy the requirements for admission. With that in mind, this article examines the phenomenon of "observer effects" and the vulnerability of forensic science examinations to such observer effects. Observer effects occur when the results of an examination are distorted by the context and state of the observer, including the observer's expectations and desires. The article reviews the findings and practices of a range of scientific fields concerning such observer effects and their control, with special attention to the relevant research and theory from cognitive and social psychology. This literature establishes that in virtually every area of human judgment, such observer effects have a relentless and sometimes dramatic effect on the accuracy of results. The article then examines current forensic science practice in light of that research, concluding that forensic science practice is far behind most scientific fields in controlling for such effects, leaving the reliability and accuracy of many forensic science results in doubt. The article then suggests practical ways in which forensic science practice can be changed to reduce such problems, such as the adoption of blind testing regimes. Finally, the article analyzes the current state of the law under Kumho Tire and Rule 702, concluding that the results of forensic science examinations are in danger of being excluded if their reliability continues to be undermined by the failure to control observer effects.
Roskies 2002 Neuroethics for the New Millennium Adina Roskies 35 Neuron 21 .
Rutherford 2002 Juvenile Justice Caught Between the Exorcist and a Clockwork Orange Jane Rutherford 51 DePaul L. Rev. 715 .
Simon 2002 Freedom and Constraint in Adjudication: A Look Through the Lens of Cognitive Psychology Dan Simon 67 Brook. L. Rev. 1097
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.
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.
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.
O'Hara 2001 Brain Plasticity and Spanish Moss In Biolegal Analysis Erin A. O'Hara 53 Fla. L. Rev. 905 .
Tazbir 2001 The Human Genome Project: Ethical and Legal Considerations for Neuroscience Nurses Janice Tazbir 33 J Neurosci Nurs. 180 The Human Genome Project has nearly completed the identification of the human genome. The medical, social, and legal implications are numerous. Neuroscience nurses have the unique opportunity to be an integral part of the genetics age because of the many genetic-based neuroscience diseases.
Waldbauer 2001 The Divergence of Neuroscience and Law Jacob R. Waldbauer & Michael S. Gazzaniga 41 Jurimetrics J. 357 Recent developments in the neurosciences have produced profound insights into brain function and human behavior. There is a hope that neuroscientific studies may conclusively resolve questions about a criminal offender's diminished responsibility. However, neuroscience will never be able to answer conclusively legal questions of individual culpability for criminal actions. The very concept of legal responsibility derives from a particular model of human behavior that neuroscience does not share. Hence, neuroscience will remain mute on the issue of legal responsibility.
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.
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.
Samole 2000 Real Employees: Cognitive Psychology and the Adjudication of Non-Competition Agreements Rena M. Samole 4 Wash. U. J.L. & Pol'y 289 Many companies ask employees to sign non-competition agreements. The reasons for this trend include increases in workplace mobility, escalating competition, and advancing technology. To protect themselves from unfair competition, employers increasingly ask lower-level employees to sign non-competition agreements--often before employees even start to work for the employer. In the past, such practices occurred much later in an employee's career. Still, non-competition agreements fail to deter most job applicants, who understandably care about their salary and the duration of their employment contract. This Note provides a summary of judicial treatment of non-competition agreements and applies cognitive psychologists’ discoveries about human cognitive limits (including bounded rationality, heuristics, framing, over-optimism and defective risk assessment and telescopic faculties) to the employee faced with the decision of whether to sign a non-competition agreement. The Note advocates the use of those discoveries in the future adjudication and regulation of such agreements.
Weinstein 2000 Before It's Too Late: Neuropsychological Consequences of Child Neglect and Their Implications for Law and Social Policy Janet Weinstein & Ricardo Weinstein 33 U. Mich. J.L. Ref. 561 Recent developments in the neurosciences have led to dramatic breakthroughs in the area of brain development and the understanding of consequences of neglect. Because this process was heretofore not understood, legislators have been wary of drafting child protection statutes that afforded the possibility for arbitrary interference with families. Strict statutory standards have been adopted that allow coercive intervention only in cases where the child is at substantial risk of imminent physical harm, or after some of the most severe consequences of neglect have been identified. These laws do not consider developmental harm because it does not present an imminent danger of physical injury, yet such harm will affect a child throughout life. Current understanding of brain development demonstrates the need for proper nutrition and stimulation during the first three years of life in order for the brain to develop the crucial neurological networks that are foundational to the functioning of an individual. The inadequacy of early brain development has permanent and irreversible consequences, leading to problems in physical, cognitive, emotional, and social domains. Costs to individuals and society as a result of these consequences are generally overlooked. Public policy should be based on current knowledge of brain development and its significant impact on adult functioning. Major preventive efforts must be applied and made available to every child. The focus of these efforts must be child-centered and seen as a basic form of education.
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.
Bitz 1999 Incompetence in the Brain Injured Individual Donald M. Bitz & Jean S. Bitz 12 St. Thomas L. Rev. 205 The purpose of this article is narrow, we are looking at a small group of physical factors that appears to influence the occurrence of criminal behavior. This comment will correlate the recent advances both technologically and in the understanding of neurological functions that have occurred in the field of medicine with current concepts and dogma which are present in the legal system. We are not attempting to evaluate all biological, sociological, or psychological factors that influence the occurrence of criminal activities.
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 .
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.
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.
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.
Lidsky 1998 The Neuropsychologist in Brain Injury Cases Theodore I. Lidsky, Jay S. Schneider & Dennis D. Karpf 34-JUL Trial 70 .
Reider 1998 Toward a New Test for the Insanity Defense: Incorporating the Discoveries of Neuroscience into Moral and Legal Theories Laura Reider 46 UCLA L. Rev. 289 .
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.
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.
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.
Oldershaw 1997 Persistent Vegetative State: Medical, Ethical, Religious, Economic and Legal Perspectives John B. Oldershaw, Jeff Atkinson & Louis D. Boshes 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.
Thompson 1997 Securities Regulation in an Electronic Age: The Impact of Cognitive Psychology Sean K. Thompson 75 Wash. U. L.Q. 779
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 .
Greiffensten 1996 The Neuropsychological Autopsy M. Frank Greiffenstein 75 Mich. B.J. 424 .
Kulynych 1996 Brain, Mind, and Criminal Behavior: Neuroimages as Scientific Evidence Jennifer Kulynych 36 Jurimetrics J. 235 .
Martell 1996 Causal Relation Between Brain Damage and Homicide: The Prosecution Daniel A. Martell 1 Seminars in Clinical Neuropsychiatry 184 .
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.
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.
Relkin 1996 Impulsive Homicide Associated with an Arachnoid Cyst and Unilateral Frontotemporal Cerebral Dysfunction Norman Relkin, F. Plum, S. Mattis, D. Eidelberg & D. Tranel 1 Seminars in Clinical Neuropsychiatry 172 A 65-year-old man with no past history of violent or criminal behavior abruptly strangled his wife after she scratched his face during a domestic argument. He appeared emotionally blunted and lacked insight into the motivations for his violent actions. The presence of left-sided cerebral dysfunction was initially suggested by subtly decreased dexterity of his dominant right hand. A magnetic resonance image (MRI) revealed a large arachnoid cyst centered in his left Sylvian fissure that effaced ventral frontal, anterior temporal and insular cortical gyri. The left middle cerebral artery was displaced relative to an earlier study, providing indirect evidence that the cyst had enlarged during his adult life. Neuropsychological testing indicated generally intact cognitive abilities except for mild impairment on tests of prospective memory and executive functions. He was found to have intermittently decreased EEG amplitude in the left fronto-temporal region. Positron emission tomography (PET) revealed significantly reduced resting glucose metabolism in the left frontal and temporal lobes. He was also found to have pathological diminution of autonomic responses to affectively charged visual stimuli, a phenomenon previously reported in patients with ventromedial frontal lobe injury and acquired disturbances of social conduct. In light of these findings, we suggest that his violent behavior represents stimulus-bound aggression, triggered by a novel physical threat and unchecked by learned social restraints owing to the presence of ventral prefrontal dysfunction.
Restak 1996 Brain Damage and Legal Responsibility Richard M. Restak 1 Seminars in Clinical Neuropsychiatry 170 .
Weiss 1996 The Legal Admissibility of Positron Emission Tomography Scans in Criminal Cases: People v. Spyder Cystkopf Zachary Weiss 1 Seminars in Clinical Neuropsychiatry 202 This article discusses various legal issues posed when the results of position emission tomographic scans are sought to be introduced in criminal trials.
Schacter 1995 True and False Memories in Children and Adults: A Cognitive Neuroscience Perspective Daniel L. Schacter, Jerome Kagan & Michelle D. Leichtman 1 Psychol. Pub. Pol'y & L. 411 The authors consider evidence concerning accuracy and distortion in children's recollections within the broader context of recent research on memory that has used the methods and conceptual framework of cognitive neuroscience. They focus on 3 phenomena--source amnesia, confabulation, and false recognition--that have been observed in young children and in adults who have sustained damage to the frontal lobes. Similarities and differences between the memory performance of young children and frontal lobe patients are noted, and evidence concerning frontal lobe maturation and cognitive development is examined. The literature provides suggestive but not conclusive support for the hypothesis that some aspects of memory development and cognitive development are associated with immature frontal functioning. The authors conclude by considering several cognitive and temperamental factors that may be related to suggestibility and memory distortion in young children.
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.
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.
Lelling 1993 Eliminative Materialism, Neuroscience and the Criminal Law Andrew E. Lelling 141 U. Pa. L. Rev. 1471 .
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.
Callen 1991 Cognitive Science and the Sufficiency of "Sufficiency of the Evidence" Tests Craig R. Callen 65 Tul. L. Rev. 1113 .
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.
Smith 1986 Legal Recognition of Neocortical Death David Randolph Smith 71 Cornell L. Rev. 850 .
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.
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 .
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 .
Tesler 2009 Goodbye Homo Economicus: Cognitive Dissonance, Brain Science, and Highly Effective Collaborative Practice Pauline H. Tesler 38 Hofstra L. Rev. 635 .
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.
Victoroff 2009 Aggression, Science and Law: The Origins Framework Jeff Victoroff 32 Int'l J.L. & Psychiatry 189 Human societies have formalized instincts for compliance with reciprocal altruism in laws that sanction some aggression and not other aggression. Neuroscience makes steady advances toward measurements of various aspects of brain function pertinent to the aggressive behaviors that laws are designed to regulate. Consciousness, free will, rationality, intent, reality testing, empathy, moral reasoning, and capacity for self-control are somewhat subject to empirical assessment. The question becomes: how should law accommodate the wealth of information regarding these elements of the mind that the science of aggression increasingly makes available? This essay discusses the evolutionary purpose of aggression, the evolutionary purpose of law, the problematic assumptions of the mens rea doctrine, and the prospects for applying the neuroscience of aggression toward the goal of equal justice for unequal minds. Nine other essays are introduced, demonstrating how each of them fits into the framework of the permanent debate about neuroscience and justice. It is concluded that advances in the science of human aggression will have a vital, but biologically limited, impact on the provision of justice.
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.
Rissman 2010 Detecting Individual Memories Through the Neural Decoding of Memory States and Past Experience Jesse Rissman, Henry T. Greely & Anthony D. Wagner 107 PNAS 9849 A wealth of neuroscientific evidence indicates that our brains respond differently to previously encountered than to novel stimuli. There has been an upswell of interest in the prospect that functional MRI (fMRI), when coupled with multivariate data analysis techniques, might allow the presence or absence of individual memories to be detected from brain activity patterns. This could have profound implications for forensic investigations and legal proceedings, and thus the merits and limitations of such an approach are in critical need of empirical evaluation. The authors conducted two experiments to investigate whether neural signatures of recognition memory can be reliably decoded from fMRI data. In Exp. 1, participants were scanned while making explicit recognition judgments for studied and novel faces. Multivoxel pattern analysis (MVPA) revealed a robust ability to classify whether a given face was subjectively experienced as old or new, as well as whether recognition was accompanied by recollection, strong familiarity, or weak familiarity. Moreover, a participant's subjective mnemonic experiences could be reliably decoded even when the classifier was trained on the brain data from other individuals. In contrast, the ability to classify a face's objective old/new status, when holding subjective status constant, was severely limited. This important boundary condition was further evidenced in Exp. 2, which demonstrated that mnemonic decoding is poor when memory is indirectly (implicitly) probed. Thus, although subjective memory states can be decoded quite accurately under controlled experimental conditions, fMRI has uncertain utility for objectively detecting an individual's past experiences.
Roskies 2010 How Does Neuroscience Affect Our Concept of Volition Adina Roskies 33 Ann. Rev. Neurosciences 109 Although there is no clear concept of volition or the will, we do have intuitive ideas that characterize the will, agency, and voluntary behavior. Here I review results from a number of strands of neuroscientific research that bear upon our intuitive notions of the will. These neuroscientific results provide some insight into the neural circuitsmediating behaviors that we identify as related to will and volition. Although some researchers contend that neuroscience will undermine our views about free will, to date no results have succeeded in fundamentally disrupting our commonsensical beliefs. Still, the picture emerging from neuroscience does raise new questions, and ultimately may put pressure on some intuitive notions about what is necessary for free will.
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.
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.
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.
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.
Zeki 2006 Law and the Brain Semir Zeki & Oliver Goodenough, eds. Oxford University Press The past 20 years have seen unparalleled advances in neurobiology, with findings from neuroscience being used to shed light on a range of human activities-many historically the province of those in the humanities and social sciences-aesthetics, emotion, consciousness, music. Applying this new knowledge to law seems a natural development-the making, considering, and enforcing of law of course rests on mental processes. However, where some of those activities can be studied with a certain amount of academic detachment, what we discover about the brain has considerable implications for how we consider and judge those who follow or indeed flout the law-with inevitable social and political consequences. There are real issues that the legal system will face as neurobiological studies continue to relentlessly probe the human mind-the motives for our actions, our decision making processes, and such issues as free will and responsibility. This volume represents a first serious attempt to address questions of law as reflecting brain activity, emphasizing that it is the organization and functioning of the brain that determines how we enact and obey laws. It applies the most recent developments in brain science to debates over criminal responsibility, cooperation and punishment, deception, moral and legal judgment, property, evolutionary psychology, law and economics, and decision-making by judges and juries. Written and edited by leading specialists from a range of disciplines, the book presents a groundbreaking and challenging new look at human behaviour.
Sinnott-Armstrong 2010 Conscious Will and Responsibility: A Tribute to Benjamin Libet Walter Sinnott-Armstrong & Lynn Nadel Oxford University Press We all seem to think that we do the acts we do because we consciously choose to do them. This commonsense view is thrown into dispute by Benjamin Libet's eyebrow-raising experiments, which seem to suggest that conscious will occurs not before but after the start of brain activity that produces physical action. Libet's striking results are often claimed to undermine traditional views of free will and moral responsibility and to have practical implications for criminal justice. His work has also stimulated a flurry of further fascinating scientific research--including findings in psychology by Dan Wegner and in neuroscience by John-Dylan Haynes--that raises novel questions about whether conscious will plays any causal role in action. Critics respond that both commonsense views of action and traditional theories of moral and legal responsibility, as well as free will, can survive the scientific onslaught of Libet and his progeny. To further this lively debate, Walter Sinnott-Armstrong and Lynn Nadel have brought together prominent experts in neuroscience, psychology, philosophy, and law to discuss whether our conscious choices really cause our actions, and what the answers to that question mean for how we view ourselves and how we should treat each other.
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.
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.
Uttal 2008 Neuroscience in the Courtroom: What Every Lawyer Should Know about the Mind and the Brain William R. Uttal Lawyers & Judges Publishing Company Reading a person’s mind is often attempted in legal cases. There are many legal and ethical questions surrounding these attempts and the science behind them. Neuroscience in the Courtroom presents the most current research in the neuroscience area as it relates to the legal arena. In this text you will learn about the distinctions between the brain and the mind. You will also be introduced to the most recent research on detecting deception, control of aggression and the brain, cognitive disorders and brain adaptations, ethics and reliability and validation of testing and studies, and more. Actual science is distinguished from pseudo-science. This text discusses the scientific validity of information from this research as it relates to use in the courtroom. The author, William R. Uttal, also compares the results to the standards for scientific evidence presented in trial set by the Frye and Daubert criteria. He also makes recommendations as to whether or not this type of information should be admissible in court at this time. This book is an excellent starting point for any legal professional looking to understand the human mind and how research on it has impacted today’s court proceedings and evidence presented.
Sousa 2009 How Brain Science Can Make You a Better Lawyer David A. Sousa ABA Publishing On a daily basis, lawyers are involved in changing someone's brain. Now you can add the latest scientific insights on the human brain to make you be more effective with clients, and be more persuasive in front of a judge or jury. Learn to communicate with juries acclimated to today's technological world. Learn what appeals to the brain and apply it in your day-to-day practice with this unique and informative book.
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.
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.
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.
Tancredi 2004 Neuroscience Developments and the Law Laurence Tancredi Neuroscience and the Law: Brain, Mind, and the Scales of Justice 71 (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.
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.
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.
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’.
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.
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.
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.
Vincent 2010 Madness, Badness and Neuro-imaging-based Responsibility Assessments Nicole A. Vincent Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter poses the interesting question whether lacking the mental capacity for moral agency excuses or condemns further. Heidi Maibom, in a recent article, has argued for the latter, so that such evidence would enhance the prosecution's case. Marga Reimer, also in a recent article, claims that such evidence both increases and condemns. It is argued that once we distinguish condemnation of people ‘for who they are’ from ‘what they do’, and realize that each of these two types of condemnation plays a role at a different stage in a criminal trial, we will see that at the guilt determination stage such evidence clearly favours the defence. The claims of Maibom and Reimer are rejected.
Roskies 2010 Brain Images as Evidence in the Criminal Law Adina L. Roskies & Walter Sinnott-Armstrong Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). This chapter examines the value of brain images as evidence in the criminal law, specifically of the US. Do they pass muster under the Federal Rules of Evidence? It concludes that brain images are as confusing and misleading in trials as in reported experiments, that their ‘moderate dangers’ outweigh their minimal probative value. Thus, they fail the balancing test in FRE 403 and should not be admitted into trials.
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.
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.
Terracina 2010 Neuroscience and Penal Law: Ineffectiveness of the Penal Systems and Flawed Perception of the Under‐Evaluation of Behaviour Constituting Crime. The Particular Case of Crimes Regarding Intangible Goods David Terracina Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). Contemporary penal systems have long suffered a profound crisis of ineffectiveness. Judicial statistics show a crime rate that is constantly on the rise, whether these are blood crimes or crimes of a patrimonial nature. Obviously, the chronic ineffectiveness of the penal systems cannot depend on merely one factor. In addition, it is unlikely on the one hand that all factors determining a crisis of such proportions can be known; while, on the other hand, it is highly likely that the mechanisms of the factors known are not completely understood. Hence, dealing with a combination of heterogeneous factors, both exogenous and endogenous, there can be no single solution that is able to restore the likes of the penal systems by itself. This chapter argues that cognitive neuroscience could provide useful instruments to comprehend some of the factors responsible for the ineffectiveness of the penal systems.
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.
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.
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.
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.
Wilkinson 2010 The Carmentis Machine: Legal and Ethical Issues in the Use of Neuroimaging to Guide Treatment Withdrawal in Newborn Infants Dominic Wilkinson & Charles Foster Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). Currently the main forms of imaging used in newborns are ultrasound, computed tomography (CT), and magnetic resonance imaging (MRI). These modalities provide imperfect guides to the severity and extent of brain damage, and there is often significant uncertainty about prognosis. The courts have placed some emphasis on imaging results in a couple of recent cases. But as neuroimaging techniques improve, predictions may become significantly more accurate. This chapter considers how such developments would influence legal judgments about the permissibility of withdrawing or withholding life support from newborn infants. Part 1 considers a hypothetical form of neuroimaging — called this the ‘Carmentis Machine’ — able to predict accurately future impairments in newborn infants. Part 2 provides an analysis of two different approaches used in guidelines and by the courts to determine the best interests of infants. Part 3 considers a further question raised by developments in neuroimaging and prognosis: what implications would the development of this machine have for the law and for practice?
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.
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.
Viens 2010 Reciprocity and Neuroscience in Public Health Law A.M. Viens Law and Neuroscience: Current Legal Issues (Oxford Univ. Press, Michael Freeman, ed., 2010). There is an underdeveloped potential for using neuroscience as a particular input in the process of law-making. This chapter examines one such instance in the area of public health law. Neuroscience could play an important role in elucidating and strengthening the relevance of the conditions underlying and re-enforcing our ability to cooperate in balancing the benefits and burdens necessary to achieve particular goods; for instance, the protection of public health in an outbreak of pandemic influenza. In particular, the chapter focuses on how a better understanding of the neurobiological basis of reciprocity could be used to help increase support and compliance with public health laws — especially those involving restrictive measures (such as quarantine and isolation).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Zak 2006 Neuroeconomics Paul J. Zak Law and the Brain 133 (Oxford Univ. Press, Semir Zeki & Oliver Goodenough, eds., 2006). This paper introduces an emerging transdisciplinary field known as neuroeconomics. Neuroeconomics uses neuroscientific measurement techniques to investigate how decisions are made. First, the author presents a basic overview of neuroanatomy and explain how brain activity is measured. He then surveys findings from the neuroeconomics literature on acquiring rewards and avoiding losses, learning, choice under risk and ambiguity, delay of gratification, the role of emotions in decision-making, strategic decisions and social decisions. He concludes by identifying new directions that neuroeconomics is taking, including applications to public policy and law.
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.
Spence 2006 A Cognitive Neurobiological Account of Deception: Evidence From Functional Neuroimaging Sean A. Spence, Mike D. Hunter, Tom F.D. Farrow, Russell D. Green, David H. Leung, Catherine J. Hughes & Venkatasubramanian Ganesan Law and the Brain 169 (Oxford Univ. Press, Semir Zeki & Oliver Goodenough, eds., 2006). An organism may use misinformation, knowingly (through deception) or unknowingly (as in the case of camouflage), to gain advantage in a competitive environment. From an evolutionary perspective, greater tactical deception occurs among primates closer to humans, with larger neocortices. In humans, the onset of deceptive behaviours in childhood exhibits a developmental trajectory, which may be regarded as 'normal' in the majority and deficient among a minority with certain neurodevelopmental disorders (e.g. autism). In the human adult, deception and lying exhibit features consistent with their use of 'higher' or 'executive' brain systems. Accurate detection of deception in humans may be of particular importance in forensic practice, while an understanding of its cognitive neurobiology may have implications for models of 'theory of mind' and social cognition, and societal notions of responsibility, guilt and mitigation. In recent years, functional neuroimaging techniques (especially functional magnetic resonance imaging) have been used to study deception. Though few in number, and using very different experimental protocols, studies published in the peer-reviewed literature exhibit certain consistencies. Attempted deception is associated with activation of executive brain regions (particularly prefrontal and anterior cingulate cortices), while truthful responding has not been shown to be associated with any areas of increased activation (relative to deception). Hence, truthful responding may comprise a relative 'baseline' in human cognition and communication. The subject who lies may necessarily engage 'higher' brain centres, consistent with a purpose or intention (to deceive). While the principle of executive control during deception remains plausible, its precise anatomy awaits elucidation.
Stake 2006 The Property "Instinct" Jeffrey E. Stake Law and the Brain 185 (Oxford Univ. Press, Semir Zeki & Oliver Goodenough, eds., 2006). Evolutionary theory and empirical studies suggest that many animals, including humans, have a genetic predisposition to acquire and retain property. This is hardly surprising because survival is closely bound up with the acquisition of things: food, shelter, tools and territory. But the root of these general urges may also run to quite specific and detailed rules about property acquisition, retention and disposition. The great variation in property-related behaviours across species may mask some important commonalities grounded in adaptive utility. Experiments and observations in the field and laboratory suggest that the legal rules of temporal priority and possession are grounded in what were evolutionarily stable strategies in the ancestral environment. Moreover, the preferences that humans exhibit in disposing of their property on their deaths, both by dispositions made in wills and by the laws of intestacy, tend to advance reproductive success as a result of inclusive fitness pay-offs.
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.
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.
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.
Roskies 2010 Why Libet’s Studies Don’t Pose a Threat to Free Will Adina L. Roskies Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). This chapter reviews Libet's main claims, and the implications he drew from them about free will and responsibility. It considers first whether, on the supposition that the claims are correct, the empirical interpretations that Libet and many since have gleaned from his data really are warranted. It then addresses whether his empirical claims really have the implications he thinks they have for free will. It is argued that neither Libet's data nor the reasoning that follows strongly support the fairly radical claims about free will that many have supposed.
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.
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.
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.
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.
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.
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.
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.
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.
Talmi 2010 Neuroscience, Free Will, and Responsibility Deborah Talmi & Chris D. Frith Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). This chapter reinterprets Libet's results in light of a distinction between Type 1 and Type 2 mental processing. It uses this framework to explain why we have a conscious experience of our own free will, and discusses potential moral consequences of seeing apparent free will as an illusion.
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.
Wheatley 2010 Prospective Codes Fulfilled: A Potential Neural Mechanism of the Will Thalia Wheatley & Christine Looser Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). Converging evidence from neuroscience reveals that our brains do predict the future and do so well, but on a short time scale. Bayesian anticipation of likely events appears to be a general principle of brain function. That is, we use information about the probability of past events to predict future events, allowing for a more efficient use of neural resources. While research has begun to show that many systems in the brain code Bayesian predictions, very little work has examined the experiential consequences of this coding. This chapter proposes that prospective neural facilitation may be fundamental to the phenomenological experience of will.
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.
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.
Yaffe 2010 Libet and the Criminal Law's Voluntary Act Requirement Gideon Yaffe Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford Univ. Press, Walter Sinnott-Armstrong & Lynn Nadel, eds., 2010). This chapter explains the meaning and explores the historical sources of the voluntary act requirement in law. It argues that in many ways, even incorporating Libet's discoveries, there is no reason to think that defendants generally fail to match the picture we find in the law. It suggests how further empirical work can help us to develop clarity on the question.
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.
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.
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.
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.
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.
von Papp 2009 Self-Exclusion Agreements: Should We Be Free not to Be Free to Ruin Ourselves? Gambling, Self-Exclusion Agreements and the Brain Florian Wagner-von Papp Law, Mind and Brain 81 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009). Willpower is bounded. In order to cope with bounded willpower, humans put up ‘self-paternalistic’ safeguards to shield themselves from diminished self-control when faced with temptations. Willpower is especially bounded where ‘addictions’ are concerned. This paper focuses on the legal treatment of one specific class of safeguards against limited self-control: Self-exclusion agreements between casinos and problem gamblers, in which the gambler vows not to return to the casino. The common denominator of all ‘self-paternalistic’ safeguards is that the actor tries to limit his or her future strategy space in order to maximise his or her perceived overall self-interest. The limitation of the future autonomy is itself autonomously chosen. This leads to the philosophical and legal question, to what degree (if at all) it is possible to limit one’s future autonomy. The paper is divided into four parts. The first part will outline the dimensions of problem gambling and describe the mechanism of self-exclusion schemes (Chapter II). The second part will deal with the questions whether the law should allow the effective limitation of one’s future autonomy, whether it does allow it, and – if the answer to the latter question is in the affirmative – to what extent actors can limit their future strategy space (Chapters III-IV). The third part of the article addresses the question if there is a good reason to prefer the decision to self-exclude over the later decision to gamble (Chapter V). I will point to several studies which show that there are physiological dysfunctions suggesting that the gambler's decision to gamble is indeed arrived at by different neural processes than the decision to self-exclude. The fourth and final part (Chapters VI-VII) discusses several regulatory options, and scrutinizes the self-exclusion arrangements proposed by the Gambling Commission in the United Kingdom against the background of the experience gained in Germany and the United States. I conclude that the enforcement of self-exclusion agreements by private litigation is preferable to the exclusively public enforcement envisaged by he Gambling Commission.
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.
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.
Ross 2009 A Stable Paradigm: Revisiting Capacity, Vulnerability and the Rights Claims of Adolescents after Roper v. Simmons Catherine J. Ross Law, Mind and Brain 183 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009). This chapter examines the Supreme Court’s decision in Roper v. Simmons in which the Court considered the death penalty as applied to crimes committed by a person under the age of 18. I provide a brief summary of the scientific information that was presented to the Court in Roper, and review the dominant schools of thoughts about the relationship between capacity and children’s legal rights. Finally, I argue that the scientific validation of cultural perceptions regarding the vulnerability of adolescents does not undermine but is completely consistent with theories supporting constitutional rights for minors. This scientific validation supports both increased voice and empowerment for teenagers and procedural protections that account for their developmental limitations.
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.
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.
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).
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.
Stake 2009 Just (and Efficient?) Compensation for Governmental Expropriations Jeffrey E. Stake Law, Mind and Brain 299 (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.
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.
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....
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.
Spiesel 2009 Reflections on Reading: Words and Pictures and Law Christina Spiesel Law, Mind and Brain 391 (Ashgate, Michael Freeman & Oliver R. Goodenough, eds., 2009). The practice of law today is awash with pictures of all kinds – from those that begin conceptually like graphs, diagrams or flow charts to those that originate in perception, like photographs, or those that emerge from the actions of technology, like animations and fMRI. Pictures are used as evidence, demonstratives, and for argument. The legal academy has yet seriously to come to grips with the changes that this infusion of the visual means for legal thinking and rhetoric. This article explores the intellectual implications of picturing in a discipline that has thought of itself as preeminently about the use of words and their linear logics. To do this, the author has sought out eye movement research, asking the question: Do we read pictures differently from words? If so, what are the implications of this as understood both in cognitive terms and in cultural terms? That is, can the differences in perceptual behaviour be seen as offering clues to differences in cognitive behaviour? Existing knowledge seems to answer these questions in the affirmative, which means that the deeply held cultural bias that maintains that only words containing thought needs revision. This article concludes with reflections on some benefits that adjustments to our understanding might give to legal thinkers.
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.
Roskies 2005 A Case Study in Neuroethics: The Nature of Moral Judgment Adina Roskies Neuroethics: Defining the Issues in Theory, Practice and Policy 17 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter describes one particular neuroethical project in more depth, in order to provide a glimpse of what a neuroethical analysis might look like and the kinds of issues that such an analysis might engender. It characterizes in some detail a body of empirical results from neuroscience, and considers the implications of trying to integrate such knowledge into our social and ethical frameworks. It argues that moral belief or judgment is intrinsically motivating and that, in judging morally, one is automatically motivated to act in accordance with one's judgment.
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.
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.
Zoloth 2005 Being in the World: Neuroscience and the Ethical Agent Laurie Zoloth Neuroethics: Defining the Issues in Theory, Practice and Policy 61 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter summarizes several classic arguments about consciousness and the nature of the mind (Descartes, Russell, Parfit, Skinner, Armstrong, Nagel, Dewey, James, Searle, and Koch). It argues that a coherent view of consciousness will include a way to understand memory and rational action, and suggests areas for future research on ethics in a world in which traditional ideas about duty, covenant, ipsity, and relationality are rapidly being re-understood in biological terms. It contends that ethics depends on narrative structures that give meaning to norms. Hence, the way that minds (and brains, to be precise) structure story and rule is critical to how we know and discern. At the core of this is memory and motive, yet for the ethicist, it will be the publicity of the moral gesture, the play out in history and social space, that is the final criterion of what beings mean to one another.
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.
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.
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.
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.
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.
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.
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.
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.
Steven 2005 Trascranial Magnetic Stimulation and the Human Brain: An Ethical Evaluation Megan S. Steven & Alvaro Pascual-Leone Neuroethics: Defining the Issues in Theory, Practice and Policy 201 (Oxford Univ. Press, Judy Illes, ed., 2005). Transcranial magnetic stimulation (TMS) is a neuroscientific technique that induces an electric current in the brain via application of a localized magnetic field pulse. The pulse penetrates the scalp and skull non-invasively and, depending on the parameters of stimulation, facilitates or depresses the local neuronal response with effects that can be transient or long lasting. While the mechanisms by which TMS acts remain largely unknown, the behavioral effects of the stimulation are reproducible and, in some cases, are highly beneficial. This chapter reviews the technique in detail and discusses safety as the paramount ethics issue for TMS. It further examines the ethical arguments for and against neuroenhancement with TMS and how the framework for acceptable practice must differ for patient and non-patient populations.
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.
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.
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.
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.
Sheridan 2005 Neuroethics in Education Kim Sheridan, Elena Zinchenko & Howard Gardner Neuroethics: Defining the Issues in Theory, Practice and Policy 265 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter argues that, in the coming years, educators and the general public will look increasingly to discoveries from the neurosciences for insights into how best to educate young people. It considers how educators can navigate change and opportunities of scientific discovery. The chapter proposes a new cluster of professionals: neuro-educators. The mission of neuro-educators will be to guide the introduction of neurocognitive advances into education in an ethical manner that pays careful attention to and constructively capitalizes on individual differences. The uniquely honed skills of these neuro-educators will enable them to identify neurocognitive advances that are most promising for specific educational goals and then, even more broadly, to translate basic scientific findings into usable knowledge that can empower new educational policy for a new neurosociety.
Wolpe 2005 Religious Responses to Neuroscientific Questions Paul R. Wolpe Neuroethics: Defining the Issues in Theory, Practice and Policy 289 (Oxford Univ. Press, Judy Illes, ed., 2005). This chapter explores the three areas where neuroscience challenges religion. First, in religion's ethical response to neuroscientific findings; secondly, how religion responds to the claims of some neuroscientists that current research refutes ideas such as ensoulment; and finally, through the field that has come to be known as neurotheology, the neuroscientific study of the religious impulse itself.
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.
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.
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.
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.
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.
Reinders 2009 Neuroimage and Crime: Cross-examining Dissociative Identity Disorder: Neuroimaging and Tiology on Trial A. A. T. Simone Reinders Neuroscience and Crime: A Special Issue of Neurocase (Psychology Press, Hans Markowitsch, ed., 2009). Dissociative identity disorder (DID) is probably the most disputed of psychiatric diagnoses and of psychological forensic evaluations in the legal arena. The iatrogenic proponents assert that DID phenomena originate from psychotherapeutic treatment while traumagenic proponents state that DID develops after severe and chronic childhood trauma. In addition, DID that is simulated with malingering intentions, but not stimulated by psychotherapeutic treatment, may be called pseudogenic. With DID gaining more interest among the general public it can be expected that the number of pseudogenic cases will grow and the need to distinguish between traumagenic, iatrogenic or pseudogenic DID will increase accordingly. This paper discusses whether brain imaging studies can inform the judiciary and/or distinguish the etiology of DID.
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.
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.
Spence 2009 Looking for the Truth and Finding Lies: The Prospects for a Nascent Neuroimaging of Deception Sean A. Spence & Catherine J. Kaylor-Hughes Neuroscience and Crime: A Special Issue of Neurocase (Psychology Press, Hans Markowitsch, ed., 2009). Lying is ubiquitous and has acquired many names. In 'natural experiments', both pathological lying and truthfulness implicate prefrontal cortices. Recently, the advent of functional neuroimaging has allowed investigators to study deception in the non-pathological state. Prefrontal cortices are again implicated, although the regions identified vary across experiments. Forensic application of such technology (to the detection of deceit) requires the solution of tractable technical problems. Whether we 'should' detect deception remains an ethical problem: one for societies to resolve. However, such a procedure would only appear to be ethical when subjects volunteer to participate, as might occur during the investigation of alleged miscarriages of justice. We demonstrate how this might be approached.
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.
Strueber 2009 Sex, Aggression and Impulse Control: An Integrative Account Daniel Strueber & Gerhard Roth Neuroscience and Crime: A Special Issue of Neurocase (Psychology Press, Hans Markowitsch, ed., 2009). There is evidence that the male sex and a personality style characterized by low self-control/high impulsivity and a propensity for negative emotionality increase the risk for impulsive aggressive, antisocial and criminal behavior. This article aims at identifying neurobiological factors underlying this association. It is concluded that the neurobiological correlates of impulsive aggression act through their effects on the ability to modulate impulsive expression more generally, and that sex-related differences in the neurobiological correlates of impulse control and emotion regulation mediate sex differences in direct aggression. A model is proposed that relates impulse control and its neurobiological correlates to sex differences in direct aggression.
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).
Raichle 2010 What is an fMRI? Marcus Raichle A Judge's Guide to Neuroscience 5 (SAGE Center For the Study of the Mind, 2010).
Wagner 2010 Can Neuroscience Identify Lies? Anthony Wagner A Judge's Guide to Neuroscience 13 (SAGE Center For the Study of the Mind, 2010).
Ptacek 2010 What Is Neurogenetics? Louis J. Ptacek A Judge's Guide to Neuroscience 26 (SAGE Center For the Study of the Mind, 2010).
Fields 2010 Can Neuroscience Identify Pain? Howard Fields A Judge's Guide to Neuroscience 32 (SAGE Center For the Study of the Mind, 2010).
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).
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). As neuroscience becomes a more readily available resource in the courtroom, educating judges on the importance of the interaction between neuroscience and law has become a necessity. This article briefly outlines the MacArthur Foundation’s Law and Neuroscience Project’s address of said interaction.
Kiehl 2010 Can Neuroscience Identify Psychopaths? Kent Kiehl A Judge's Guide to Neuroscience 47 (SAGE Center For the Study of the Mind, 2010).
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).
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).
Roskies 2010 How Is Neuroscience Likely to Impact the Law in the Long Run? Adina Roskies A Judge's Guide to Neuroscience 66 (SAGE Center For the Study of the Mind, 2010).
Morse 2009 Actions Speak Louder Than Images Stephen J. Morse Using Imaging to Identify Deceit 23 (American Academy of Arts and Sciences, 2009).
Sinnott-Armstrong 2009 Neural Lie Detection in Courts Walter Sinnott-Armstrong Using Imaging to Identify Deceit 35 (American Academy of Arts and Sciences, 2009).
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).
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.
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.
Schaller 2009 Using Neuroscience in Criminal Law Barry R. Schaller Gruter Institute Squaw Valley Conference 2009: Law, Behavior & the Brain Recent developments in neuroscience and brain imaging technology have substantially increased our knowledge of the human brain. The knowledge gained has been applied in a wide variety of disciplines, including the legal system. Although brain imaging evidence has been offered in civil cases, it has been used more extensively in criminal cases. In criminal matters, neuroimaging has been offered with respect to a number of issues, including competence to stand trial, competence to waive essential rights, right to compulsory examinations, criminal responsibility, mitigation in penalty phase litigation, and claims of actual innocence. Some generalizations are possible at this point. CT scans and MRI images as proof of disease or trauma have been readily admitted. Courts have been far more guarded about scans, such as PET and fMRI, when offered as the basis for inferences about broader issues such as competence, insanity, or criminal responsibility in general. Somewhat more liberal standards have been applied to offers of mitigating evidence in death penalty cases. Courts, in ruling, have focused on reliability standards as well as relevance and probative/prejudicial considerations. On the basis of the experience to date, it is fairly predictable that the use of brain imaging, as it continues to improve, will increase in the traditional areas noted above as well as make inroads in some areas where caution and skepticism prevails at this point. In addition, it is possible to envision many potential uses of neuroscience in changing and improving the way the criminal justice system operates and the way traditional roles are carried out. It is reasonable to expect, however, that change of this type is not likely to occur easily in view of the legal system's reliance on traditional roles, methods and procedures.
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.
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.
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.
Wolf 2008 Neurolaw: The Big Question Susan Wolf 8 Am. J. Bioethics 21
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.
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.
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.
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.
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.
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.
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.
Conason 2010 Neurologic Birth Injury: Protecting the Legal Rights of the Child Robert L. Conason & Steven E. Pegalis 31 J. Legal Med. 249
Sartwelle 2009 Defending a Neurologic Birth Injury: Asphyxia Neonatorum Redux Thomas P. Sartwelle 30 J. Legal Med. 181 Neurologic birth injuries, especially cerebral palsy, have survived tort reform. Why? Because the injuries are so devastating and so permanent and because damages are exceedingly large. And because the children are so emotionally appealing to jurors. Finally, birth injuries seem so common sense. Doctors, nurses, and hospitals should easily prevent birth injuries. When they occur it seems so obvious someone was at fault. There are so many positives favoring a birth injury plaintiff that defending such a suit appears almost impossible. This article explores the how to of birth injury defense. Initially, the article explores the belief of the lay public, lawyers, and some physicians, that CP and other birth injuries arise from asphyxia – a lack of oxygen to the brain during birth. It also explores a closely related belief that doctors and nurses can and should prevent and treat asphyxia and are at fault if an asphyxiated child develops CP, seizures, mental retardation, learning disabilities, attention deficit disorders, or some other neurologic disability. These beliefs, rooted in 19th century medical speculation, are shown to be myths. The appeal of these myths was so great among physicians even into the middle of the 20th century, they became the foundation for the medical hoax of the millennium– electronic fetal monitoring – a hoax that continues even today.
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?
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.
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.
Kaye 2010 Powerful Particulars: The Real Reason the Behavioral Sciences Threaten Criminal Responsibility Anders Kaye 37 Fla. St. U. L. Rev. 539
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.
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.
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.
Sirkin 2010 Managing Your Brain: Lessons From Neuroscience Mark I. Sirkin 82-SEP N.Y. St. B.J. 38 Information about the human brain has been increasing dramatically over the past 10-15 years, radically changing our understanding of the brain and its capabilities. Since lawyers rely on their brains (as opposed to specialized instruments and tools) more than most professionals, this knowledge is particularly relevant to them. Think of what follows as a “User’s Guide” or Primer about neuroscience for the practicing lawyer. The brain is, far and away, the most complex organ known to man. Some estimates suggest that there are more potential connections in the brain than there are stars in the universe. That’s a large number. Nor is it the mere quantity of connections but the way the brain interconnects its systems and subsystems that is most fascinating. One reason the brain is so complex is that there are several brain systems that operate simultaneously in living brains. The brain can be understood from an anatomical perspective, a biochemical perspective, and an electrical perspective. Anatomy rules the brain; place, or position, is critical to understanding brain function. If you know the topology of the brain, where things are located, you are well on your way to understanding many of its functions. This principle is true even on the cellular level, where the placement and growth of axons (the antennae that bring information into the cell) and dendrites (the transmitters that send information out of the cell) dictate brain function and growth at the micro-level. The second perspective or system deals with the neurochemistry of the brain – the relevant neuroanatomy here are the tiny gaps between axons and dendrites that are filled with chemicals, called neurotransmitters that excite or pacify the receiving neuron. This is the level at which pharmaceuticals operate. Finally, and perhaps least understood, the brain is an organ of electrical transmission, where brain frequencies (referred to by the Greek terms alpha, beta, theta, delta, and gamma) facilitate or reflect certain states of preparedness, awareness, and learning. Although well documented, these brain waves are not well understood and their function (for example, are they cause or effect?) is still a mystery. However, rather than focus on neuroanatomy or neurochemistry, let us examine the brain in vivo, to provide a “user’s guide” to the legal practitioner. Three areas in particular warrant special attention: information overload, emotional reactivity, and working with others.
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.
Robertson 2010 Law, Science, and Innovation: Introduction to the Symposium John A. Robertson 38 J.L. Med. & Ethics 175
Skene 2010 Recent Developments in Stem Cell Research: Social, Ethical, and Legal Issues for the Future Loane Skene 17 Ind. J. Global Legal Stud. 211 President Obama recently authorised federal funding for human embryonic stem cell research. The FDA approved the first trial to produce human proteins from genetically modified animals' milk. The first US clinical trial of a human stem cell treatment was deferred when an unregulated procedure in Moscow reportedly caused tumors. This paper describes developments in embryonic and induced pluripotent stem cell research - in vitro, animal and human. It outlines regulatory responses (US, Canada, UK, Australia). It argues that any human stem cell research that produces effective treatments will receive community support, despite earlier reservations about the research leading to them.
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.
Taslitz 2010 Police Are People Too: Cognitive Obstacles To, and Opportunities For, Police Getting the Individualized Suspicion Judgment Right Andrew E. Taslitz 8 Ohio St. J. Crim. L. 7 Some Fourth Amendment scholars have embraced the idea that the courts should defer to police judgments about reasonable suspicion and probable cause. The primary argument for deference is that much police reasoning is intuitive and unconscious, thus not accessible to systematic analysis. Yet, the argument continues, intuition is often more reliable than conscious thinking. This article examines this claim by exploring in depth the cognitive biases and abilities that serve respectively as obstacles to, and opportunities for, police making accurate judgments about individualized suspicion. The article concludes that requiring police consciously to justify their intuitions can improve their accuracy, that the greatest accuracy comes from constructing institutions in a way that combines the best of unconscious intuition with more systematic critique, and that police training can be improved in various ways to enhance cognitive accuracy about the individualized suspicion judgment.
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.
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
Tovino 2007 Functional Neuroimaging and the Law: Trends and Directions for Future Scholarship Stacey A. Tovino 7 Am. J. of Bioethics 44 Under the umbrella of the burgeoning neurotransdisciplines, scholars are using the principles and research methodologies of their primary and secondary fields to examine developments in neuroimaging, neuromodulation, and psychopharmacology. The path for advanced scholarship at the intersection of law and neuroscience may clear if work across the disciplines is collected and reviewed and outstanding and debated issues are identified and clarified. In this article, I organize, examine and refine a narrow class of burgeoning neurotransdiscipline scholarship; that is, scholarship at the interface of law and functional magnetic resonance imaging.
Goodenough 2010 Where Is the Field? Are We at a Flexion Point? Oliver R. Goodenough Gruter Institute Squaw Valley Conference 2010: Law, Institutions & Human Behavior, May 14, 2010. For more than two decades, a growing group of academics and practitioners from a number of disciplines have persisted in bringing the insights of neuroscience and evolutionary and behavioral biology to the study of law, economics, and related fields. The Gruter Institute has been a prime mover in this process, and its annual meeting at Squaw Valley a crucial point for learning and planning. The generous and persistent support of the Ann and Gordon Getty Foundation has been crucial as well, as have SEAL and many individual efforts and smaller scale institutional commitments. In the early days of this process there was something of a pioneer spirit among the band or explorers, along with the knowledge that much of the world thought we were a bit crazy (and that was the kind end of the critique). Things have come a long way. In the past few years, law and neuroscience has become a burgeoning field, in part thanks to the MacArthur Foundation grant, but also simply because its intellectual time has come. Behavioral and evolutionary biology is also a recognized and largely accepted mode of analysis for human study, and for application in legal scholarship. It isn’t that everyone agrees with this kind of approach or its conclusions – there are those who strongly disagree with the approaches and conclusions of law and economics. But, like law and economics, law, brain and behavior is an approach to scholarship in the law and related fields that cannot be denied its place at the academic table. Here’s one data point – this spring the Gruter Institute and the MacArthur project helped to sponsor a two-day event organized at the Harvard Law School by its Petrie Flom Center entitled “Moral Biology?” Scientists, economists, lawyers, and even philosophers came together for a very productive give and take on problems including cooperation, responsibility, addiction, racism, and punishment, with the overall question being how biology and mind science can help us better understand these difficult issues. It was like Squaw Valley meets the Charles River. The discipline has arrived. And this arrival puts us at a “flexion point,” a kind of scholarly hinge, and one of our jobs as the curators of this discipline is to reflect on what that means. Here are some thoughts and questions from me, meant to spark further thoughts from all in attendance. - There will be an increasing generational shift to scholars who have recently come to the academy - The needs of cross-disciplinary expertise, and credentialing, will increase – the age of the amateur is ending - As these ideas go mainstream in disciplines like psychology, anthropology, and philosophy, the number of disciplines represented in our interdisciplinary stew will increase - There will be increased attention to tackling specific legal and societal challenges and to proposing courses of action - The emphasis on finding solutions that work with human nature will increase - The emphasis on the is/ought divide will diminish - The role of strategic modeling and institutional design will increase, as will the search within complexity studies, information theory, thermodynamics and other disciplines for models of behavior, predation, collaboration, development and growth: evolutionary processes are still under-described, and the next Darwinian insight awaits - There are increased opportunities and needs to target publishing, placement, and other steps to consolidate and spread the gains within academia - There will be an increased need for quality popularizing – our own Matt Ridley - As all this goes forward, where do the pioneers and explorers go?
Lee Free Exercise and Religious Mania: Neuroscience and Religious Free Exercise Kevin Lee This paper is a presentation given on September 17, 2010 at the conference on Neuroscience in European and North American Case Law sponsored by the Court of Milan and the European Center for Law, Science, and New Technologies at the University of Pavia. It extends the analysis of Steven Goldberg, of Catholic University Law School Professor, who argues that cases in which neuroscience testimony has been used in legal commitment proceeding to invalidate a putative claim of religious belief hold significance (beyond their formal legal meaning) for the use of neuroscience in religious free exercise cases. Like Goldberg, I believe such cases are important for thinking about the future of neuroscience and law in the area of religious free exercise. In this presentation, I argue that while neuroscience testimony may not be used to invalidated the truth-claim of a purported religious belief, it might be admissible to determine the sincerity of a belief or to evaluated the mental state of the believe for consistency with religiousness. While much more work needs to be done in this area, there is promise for enriching the jurisprudence of religious exercise with the insights of the neuroscience of religious belief.
Walsh 2011 Youth Justice And Neuroscience: A Dual-Use Dilemma Charlotte Walsh 55 Brit. J. Criminology 21 Neuroscience is rapidly increasing comprehension of the human brain. This paper considers its prospective relevance to youth justice policy. In the United States, neuroscientific findings have been co-opted as a liberalizing tool. The parallel lure of these studies in the United Kingdom is foreseeable, given how they plausibly mesh with arguments in support of raising the age of criminal responsibility, along with bolstering policies of de-carceration and diversion. However, caution should be exercised: neuroscience can be used in ways that both contribute to human flourishing, along with potentially diminishing it. In science, this is a well recognized quandary, referred to as the dual-use dilemma. More problematically, neuroscience could be utilized to ‘prove’ poor parenting, to ‘predict’ future criminality.
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.
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 2003 From Neuroimaging to Neuroethics Judy Illes, Matthew P. Kirschen & John D. E. Gabrieli 5 Nature Neuroscience 205 .
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.
Wolpe 2009 Is My Mind Mine? Neuroethics and Brain Imaging Paul R. Wolpe The Penn Center Guide to Bioethics (Arthur L. Caplan, Autumn Fiester, & Vardit Ravitsky eds., 2009) .
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.
Greely 2005 Premarket Approval Regulation for Lie Detection: An Idea Whose Time May Be Coming Henry T. Greely 5 Am. J. Bioethics 50 .
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.
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.
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.
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.
Sandberg 2011 Cognitive Enhancement in Courts Anders Sandberg, Walter Sinnott-Armstrong & Julian Savulescu Oxford Handbook of Neuroethics (Oxford Univ. Press, Judy Illes & Barbara J. Sahakian, eds., 2011). Human cognitive performance has crucial significance for legal process, often creating the difference between fair and unfair imprisonment. Lawyers, judges, and jurors need to follow long and complex arguments. They need to understand technical language. Jurors need to remember what happens during a long trial. The demands imposed on jurors in particular are sizeable and the cognitive challenges are discussed in this chapter. Jurors are often subjected to both tremendous decision complexity and tremendous evidence complexity. Some of these problems could be ameliorated if we can somehow enhance the cognitive capacities, including attention and memory, of various players in trials. There are multiple ways in which cognition can be improved either by external tools or by an increasing number of biomedical interventions that act directly on the brain. The article surveys a range of beneficial and detrimental effects that substances can have on cognition.
Wolf 2011 Incidental Findings in Neuroscience Research: A Fundamental Challenge to the Structure of Bioethics and Health Law Susan M. Wolf Oxford Handbook of Neuroethics (Oxford Univ. Press, Judy Illes & Barbara J. Sahakian, eds., 2011). The problem of incidental findings in human subjects research—findings of potential health importance to the research participant that the researcher stumbles upon while pursuing the aims of the research—may at first seem of minor significance. The number and potential gravity of incidental findings force researchers to face difficult questions. The most fundamental of these is whether researchers have any duty to identify, evaluate, and disclose these findings to the research participant. This is a profound challenge to the structure of bioethics and health law. Both fields approach the world of research and the world of medical care very differently. Neuroimaging research can yield a high number of incidental findings. Bioethics and health law must now reconstitute the traditional vision of researcher duties to bring the researcher back into a relationship with the research participant.
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.
Tovino 2011 Women's Neuroethics Stacey A. Tovino Oxford Handbook of Neuroethics (Oxford Univ. Press, Judy Illes & Barbara J. Sahakian, eds., 2011). This article seeks to examine a range of ethical, legal, and social issues that are raised by scientific studies that report neurobiological differences between and within the female and male sexes in the context of depression and psychosis, including postpartum depression and psychosis. It illustrates a broader trend among scientists with respect to the neuroscientific investigation of sex differences. It identifies and examines several legal implications of these studies, including implications for criminal infanticide law, health insurance policy interpretation, mental health parity law, and disability discrimination law. It analyses the risks and benefits of scientific studies that report neurobiological differences between and within the sexes and conclude that these studies have the potential to assist women by providing them with additional criminal, civil, and administrative protections and benefits, although the ethical and social implications invite more concern.
Zarzeczny 2011 Public Representations of Neurogenetics Amy Zarzeczny & Timothy Caulfield Oxford Handbook of Neuroethics (Oxford Univ. Press, Judy Illes & Barbara J. Sahakian, eds., 2011). This article outlines the data about the nature of public representations of neuroimaging. Drawing on research from related domains, particularly genetics, it considers social issues associated with media representations—with an emphasis on the concerns of determinism and fatalism. It discusses some of the key forces that are shaping the direction of trends in this area. This analysis is particularly timely given the current prominence of neuroscience, and neuroimaging in particular, in the public eye. Ideally it will also contribute to the growing discourse surrounding emerging biomedical technologies and how they are framed in public representations. These advances in neuroscience and related research are occurring in an era increasingly characterized by quick and easy access to information, including information about health, medical options, and scientific developments.
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.
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.
Cohen 2010 Merchants of Deception: The Deceptive Advertising of FMRI Lie Detection Technology Jordan T. Cohen 35 Seton Hall Legis. J. 158
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.
Robinson 2010 Realism, Punishment, and Reform Paul H. Robinson, Owen D. Jones & Robert Kurzban 77 U. Chi. L. Rev. 1611 The discussion here concerns the ideas set out in three articles, each with a different set of coauthors: Concordance and Conflict in Intuitions of Justice (“C&C”), The Origins of Shared Intuitions of Justice (“Origins”), and Intuitions of Justice: Implications for Criminal Law and Justice Policy (“Implications”). Those pieces were an attempt to change the way legal scholars think about intuitions of justice. Professors Donald Braman, Dan Kahan, and David Hoffman (“BKH”) offer some criticisms. Some we do not disagree with. Others we do. We concede at the start that our past discussions must have been insufficiently careful in their language, as evidenced by the fact that BKH have misread us as they have. We are in BKH's debt for having revealed the problem. (We also thank them for their true generosity in supporting us in our discussions with the Law Review about writing this Response, and thereby giving us the opportunity to make our positions clear.) The most important exercise here may be to segregate our false disagreements with BKH from our real disagreements. We suspect that we do have some important disagreements. Part I quickly sketches out our line of analysis in the original articles. Part II examines claims that BKH attribute to us that are not our views. Part III considers possible points of real disagreement with BKH.
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.
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.
Shen 2011 Sorting Guilty Minds Francis X. Shen, Morris B. Hoffman, Owen D. Jones, Joshua D. Greene & Rene Marois 86 N.Y.U. L. Rev. 1306 Because punishable guilt requires that bad thoughts accompany bad acts, the Model Penal Code (MPC) typically requires that jurors infer the past mental state of a criminal defendant. More specifically, jurors must sort that mental state into one of four specific categories - purposeful, knowing, reckless, or negligent - which in turn defines the nature of the crime and the extent of the punishment. The MPC therefore assumes that ordinary people naturally sort mental states into these four categories with a high degree of accuracy, or at least can reliably do so when properly instructed. It also assumes that ordinary people will order these categories of mental state, by increasing amount of punishment, in the same severity hierarchy that the MPC prescribes. The MPC, now turning 50 years old, has previously escaped the scrutiny of comprehensive empirical research on these assumptions underlying its culpability architecture. Our new empirical studies, reported here, find that most of the mens rea assumptions embedded in the MPC are reasonably accurate as a behavioral matter. Even without the aid of the MPC definitions, subjects were able to regularly and accurately distinguish among purposeful, negligent, and blameless conduct. Nevertheless, our subjects failed to distinguish reliably between knowing and reckless conduct. This failure can have significant sentencing consequences in some types of crimes, especially homicide.
Shen 2011 Law and Neuroscience: Possibilities For Prosecutors Francis X. Shen 33 CDAA Prosecutor’s Brief 17 Many see the introduction of neuroscience into law as necessarily leading to reduced culpability, mitigation, and the ratcheting down of incarceration rates. But such possibilities may not materialize if prosecutors stay ahead of the brain science curve. This commentary provides a brief introduction to neurolaw, and highlights several key features of neuroscientific evidence that are relevant to prosecutors' work. I propose strategies by which prosecutors may respond to the introduction of neuroscientific evidence by the defense. The first, and perhaps most fundamental, strategy is to emphasize that just because an individual has an abnormal brain, it does not necessarily explain or excuse the defendant's behavior. Brain-behavior linkages are often tenuous. Second, through aggressive cross-examination of defense expert witnesses, prosecutors can highlight the differences between laboratory experiments and the real-world, and show how these differences matter greatly in limiting the law-relevant inferences that can be drawn from brain scans. No one has ever been scanned while in the heat of a fight, while plotting a murder, or while deciding whether or not to go through with a sexual assault. Recognizing that the legal use of neuroscientific evidence relies so heavily on inference and interpretation, prosecutors have an opportunity to harness the power of brain science to both prevent its misuse and to constructively use the science to promote safety and social welfare. Possibilities abound for prosecutors who are willing to research, learn, and engage with the brain sciences.
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.
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.
McCabe 2011 The Influence of fMRI Lie Detection Evidence on Juror Decision Making David P. McCabe, Alan D. Castel & Matthew 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.
Soung 2011 Social and Biological Constructions of Youth: Implications for Juvenile Justice and Racial Equity Patricia Soung 6 Nw. J.L. & Soc. Pol’y 428 .
Schweitzer 2011 Neuroimage Evidence and the Insanity Defense Nick J. Schweitzer & Michael J. Saks 29 Behav. Sci. & L. 592 The introduction of neuroscientific evidence in criminal trials has given rise to fears that neuroimagery presented by an expert witness might inordinately influence jurors’ evaluations of the defendant. In this experiment, a diverse sample of 1,170 community members from throughout the U.S. evaluated a written mock trial in which psychological, neuropsychological, neuroscientific, and neuroimage-based expert evidence was presented in support of a not guilty by reason of insanity (NGRI) defense. No evidence of an independent influence of neuroimagery was found. Overall, neuroscience-based evidence was found to be more persuasive than psychological and anecdotal family history evidence. These effects were consistent across different insanity standards. Despite the non-influence of neuroimagery, however, jurors who were not provided with a neuroimage indicated that they believed neuroimagery would have been the most helpful kind of evidence in their evaluations of the defendant.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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 .
Nevins-Saunders 2011 Not Guilty as Charged: The Myth of Mens Rea for Defendants with Mental Retardation Elizabeth Nevins-Saunders 2011 New York University Public Law and Legal Theory Working Paper, Paper 265 The notion that mens rea is an indicia of culpability runs deep in the American criminal law psyche. For most defendants, a finding that they had the requisite legal intent may be all we need to know to pronounce them morally culpable. This is because most defendants – those of average intelligence – enjoy a level of socialization, rationality, and agency sufficient to be aware of social norms, make a choice to violate them or not, and to control their own impulses in doing so. But for defendants with mental retardation, the state-of-mind element fails to accurately signify a “guilty mind.” Social science research makes clear (and existing neuroscience research seems to support) that these presumptions of consciousness, choice, and control do not apply to people with mental retardation. In essence, then, for this population, all offenses become strict liability offenses, where an intent inquiry is all but meaningless. While the criminal law does make some allowances for differences in cognitive capacity, it does so only in very limited circumstances, through the doctrines of competency, insanity, and diminished capacity. As a result, litigants must resort to crude perversions of justice to introduce evidence of mental retardation. Finding no valid policy or theoretical justification (apart from incapacitation) for this failure to adequately address the disjuncture between actual culpability and criminal liability, this article offers a new, comprehensive approach to cases charging defendants with mental retardation. Specifically, it proposes a new default rule, where non-violent cases against them would be presumptively dismissed. More serious cases charging violent crimes could proceed to trial with the standard mens rea requirements, but would require that any sentence imposed be the least restrictive alternative necessary to accomplish an articulable sentencing goal. This proposal redresses a major flaw in current criminal law doctrine, one which unjustly permits a finding of guilty minds among defendants whose true culpability may not be presumed.
Sacks 2011 Children's Developmental Vulnerability & the Roberts Court's Child-Protective Jurisprudence: An Emerging Trend? Deana Pollard Sacks 40 Stetson L. Rev. 777 The Roberts Court has issued three opinions to date to protect children from harmful media influences or unduly harsh criminal sentences based on their developmental instability and vulnerability. The social science data concerning children's developmental immaturity presents a compelling case for distinguishing between children and adults relative to First Amendment and Eighth Amendment issues, inter alia. Of particular interest is new MRI and fMRI studies that demonstrate that children - unlike adults - are at risk for altered brain activity arising from speech such as violent video games that can affect their beliefs and conduct long-term, and that cognitive damage can result without children's (or their parents') conscious awareness or informed consent. Is the Roberts Court embracing the social science data to usher in a new era of children's constitutional law? This essay briefly reviews the scientific data and the Court's opinions to date and suggests that the opinions may be tied together by the Court's commitment to protecting children based on the strength of the scientific evidence that they are indeed quite different than adults, warranting a different set of legal norms applicable to children.
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.
Rigoni 2010 How neuroscience and behavioral genetics improve psychiatric assessment: report on a violent murder case Davide Rigoni, Silvia Pellegrini, Veronica Mariotti, Arianna Cozza, Andrea Mechelli, Santo Davide Ferrara, Pietro Pietrini & Giuseppe Sartori 4 Frontiers In Behavioral Neuroscience 1 Despite the advances in the understanding of neural and genetic foundations of violence, the investigation of the biological bases of a mental disorder is rarely included in psychiatric evaluation of mental insanity. Here we report on a case in which cognitive neuroscience and behavioral genetics methods were applied to a psychiatric forensic evaluation conducted on a young woman, J.F., tried for a violent and impulsive murder. The defendant had a history of multidrug and alcohol abuse and non-forensic clinical evaluation concluded for a diagnosis of borderline personality disorder. We analyzed the defendant’s brain structure in order to underlie possible brain structural abnormalities associated with pathological impulsivity. Voxel-based morphometry indexed a reduced gray matter volume in the left prefrontal cortex, in a region specifically associated with response inhibition. Furthermore, J.F.’s DNA was genotyped in order to identify genetic polymorphisms associated with various forms of violence and impulsive behavior. Five polymorphisms that are known to be associated with impulsivity, violence, and other severe psychiatric illnesses were identified in J.F.’s DNA. Taken together, these data provided evidence for the biological correlates of a mental disorder characterized by high impulsivity and aggressive tendencies. Our claim is that the use of neuroscience and behavioral genetics do not change the rationale underlying the determination of criminal liability, which must be based on a causal link between the mental disorder and the crime. Rather, their use is crucial in providing objective data on the biological bases of a defendant’s mental disorder.
Scangos 2010 Instinct and Rationality: An Evolutionary Approach to Intellectual Property Law Jennifer W. Scangos 15 Intell. Prop. L. Bull. 65 Part I provides a background on the concepts of evolution and natural selection. Part II argues that property is not a human construct--instinctual possessiveness can be seen in other species as well as humans. Property is defined by the general proposition that an individual will instinctually possess anything that will confer to that individual a net reproductive advantage. Part III turns to intellectual property and argues that ideas can also trigger instinctual possession because they can confer a reproductive advantage to the creator of the idea. The reproductive advantage can only be realized, however, if the idea is unique and has resource-holding power; that is, if it can be turned into resources. This section examines in turn the laws of trade secrets, patents, copyrights, and trademarks. Part IV begins by arguing that uniqueness defines an idea's resource-holding power and thereby makes ideas with resource-holding power scarce in the same way as tangible property is scarce. This section then argues that intellectual property rights need only limited duration because at some point the cost of defending a replicable idea outweighs the value of the idea, after which the idea does not need the law's protection. The point at which this shift happens explains how each type of intellectual property law protects ideas for different durations.
Wright 2010 Taxation of Personal Injury Awards: Addressing the Mind/Body Dualism that Plagues § 104(A)(2) of the Tax Code G. Christopher Wright 60 Cath. U. L. Rev. 211 This Comment provides courts with a definition of and a distinction between physical injury or sickness and emotional distress that comports with the language and intent of the statute in the continued absence of promulgated regulations interpreting § 104(a)(2). It will also help resolve the confusing question that taxpayers like Charles Allen face: whether a personal injury award is compensation for a physical injury or sickness or for emotional distress. It concludes by analyzing current interpretations of § 104(a)(2) to determine whether brain-based illnesses, such as major chronic depression and PTSD, are physical injuries or sicknesses or whether they are emotional distress. Part I of this Comment discusses § 104(a)(2) prior to the 1996 amendment. It then analyzes the legislative record of the 1996 amendment and discusses how the Internal Revenue Service (IRS) and courts have interpreted the amendment. Next, this Comment surveys existing legal and medical literature, as well as Congress's recent Mental Health Parity and Equity Addiction Act of 2008, to highlight legal, medical, and societal changes regarding the definition of physical injury or sickness. Part II analyzes several interpretations of § 104(a)(2)'s physical injury or sickness requirement. Finally, Part III proposes that courts adopt the definitions of “physical injury or sickness” and “emotional distress” provided by the Restatement (Third) of Torts, and asserts that brain-based injuries or sicknesses fit within the meaning of “physical” under § 104(a)(2), as well as its historical underpinnings.
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.
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.
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.
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.
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.
Richardson 2011 Arrest Efficiency and the Fourth Amendment L. Song Richardson 95 Minn. L. Rev. 2035 This Article proceeds in three parts. Part I introduces the science of implicit bias, including a discussion of how implicit biases can affect police-citizen interactions. Since blacks have been the focus of implicit social cognition research, this Article focuses on them. Part II applies the behavioral realist framework to the Fourth Amendment's stop-and-frisk doctrine, revealing the doctrine's perverse effects on privacy and policing. It ends with some tentative proposals for doctrinal reform. Part III suggests structural changes within police departments to ameliorate the effects of implicit bias on police behavior. This Article concludes that the behavioral realist approach is important to the study of the Fourth Amendment and urges criminal procedure scholars to utilize its methods.
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.
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.
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.
Birke 2011 Neuroscience and Negotiation Richard Birke 17 Disp. Resol. Mag. 4 Neuroscience is everywhere. A search in'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?
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.
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.
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.
Snead 2011 Memory and Punishment O. Carter Snead 64 Vand. L. Rev. 1195 Part I offers a necessarily compressed and basic account of the cognitive systems and biological mechanisms of memory. It discusses how revolutionary developments in molecular and systems biology prepared the way for a cognitive neuroscience of memory. It concludes with a discussion of the biological role of emotion in memory. Part II explores a variety of techniques for modifying memory, including memory erasure, memory ―dampening (down-regulating the emotional content of memory), and memory enhancement. Part III offers a humanistic account of memory and its role for the individual and his relationship with others (both on a small and large scale). This Part concludes with a brief reflection on memory, emotion and morality. Part IV explores the implications of memory modification for punishment. It includes a reflection on law and memory as a general matter. It then takes each traditional distributive principle of punishment (retributive justice, deterrence, rehabilitation, incapacitation, moral education, and restorative justice) and shows how the central animating aims of each depend in crucial ways upon the true (meaning accurate) and fitting (in terms of emotional modulation) memory of the defendant, the sentencing authority, and the broader community. Part IV uses hypothetical cases to illustrate the variety of ways in which memory modification might confound the effective and just distribution of punishment (especially capital punishment). The Article concludes by flagging future questions for consideration.
Tomlinson 1995 Pattern-based memory and the writing used to refresh Thomas Tomlinson 73 Tex. L. Rev. 1461 This Note re-examines the underlying logic of the law of evidence in light of pattern-based memory. It reevaluates the reliability of eyewitness testimony and argues that the new conception of memory mandates the repeal or modification of Federal Rule of Evidence 612. Part II briefly shows the current reliance of evidence law upon psychological conceptions. That part further demonstrates that the evidence rules are derived from a flawed understanding of human memory. Part III contrasts the traditional conception of memory with the new theory of pattern-based memory. Part IV examines the implications of pattern-based memory on the law of evidence and scrutinizes the usefulness of challenging the existing reliance upon eyewitness testimony. Part V applies the implications of pattern-based memory to Rule 612 and calls for the repeal of that rule or, alternatively, a modification that would allow only otherwise-admissible writings to be used to refresh a witness's memory.
Weitz 2011 The brains behind mediation: reflections on neuroscience, conflict resolution and decision-making Daniel Weitz 12 Cardozo J. Conflict Resol. 471 On September 13, 1848, an explosives charge sent a three-foot tamping iron about an inch in diameter through the head of Phineas Gage. Although Gage survived, the tamping iron, which entered just under the left eye and exited through the frontal portion of his head, destroyed his prefrontal cortex. Prior to the accident, Gage was a popular foreman of a railroad construction crew. After the accident, he was a tactless, profane, and impulsive man with a dramatically altered personality. It is through extreme examples of severe deficits in the brain that scientists were able to develop our earliest descriptions of how the brain affects behavior. Today, advances in neuroscience have given us unprecedented insights into the workings of the human brain. A great deal has been discovered in disciplines ranging from cognitive-behavioral psychology and neuropsychology to molecular biology. To what extent these discoveries impact other fields, including the dispute resolution profession, is now a hotly-pursued topic. While a quick survey of recent studies of the brain produces a flood of connections to the practice of mediation, even neuroscientists caution against the certainty of their findings. There is still more research to be done and many of these studies provide evidence of correlation but not necessarily causation. Perhaps we should resist the temptation to champion a long sought-after scientific basis for all that we do as mediators. However, there is no denying the fascination with what we are learning about the human brain, how it guides our behaviors, and how it impacts the way we make decisions. At a minimum, it is cause for great reflection.
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.
Shniderman 2012 You Can't Handle the Truth: Lies, Damn Lies, and the Exclusion of Polygraph Evidence Adam B. Shniderman 22 Alb. L.J. Sci. & Tech. 433 Since the decision in Frye v. United States, polygraph results have been deemed inadmissible as evidence in many state and federal courts across the United States. Exclusion has been justified based on purported scientific weaknesses of the test, or the assertion that to allow polygraph evidence would usurp the jury’s role as the arbiter of credibility, wreaking havoc on the American judicial system. This paper suggests that the extensive body of literature on polygraph evidence fails to understand the actual reason polygraph evidence has been an evidentiary pariah. First, this article systematically demonstrates that the justifications for excluding polygraph evidence at trial are equally applicable to nearly every other forensic science except DNA analysis. Second, this paper asks the novel question, “Why is polygraph evidence held to such a different standard?” This article suggests that the only significant difference between many routinely admitted forensic techniques and polygraph evidence is the party most frequently offering the evidence. This article then considers several possible explanations for why this fact matters in judges’ decisions. Finally, this article concludes that because science and law have little to do with the exclusion of polygraph the trend is likely to continue regardless of technological advances.
Jordan 2011 When the Brain Comes to Court Jean Jordan 33 CDAA Prosecutor’s Brief 5 .
Roof 2011 Modern Brain Imaging Techniques in the Legal System: Is the Lesion the Reason? Jason G. Roof 33 CDAA Prosecutor’s Brief 12 .
Jordan 2011 The Role of Neuroscience in Lie Detection Jean Jordan 33 CDAA Prosecutor’s Brief 24 .
Worley 2011 "Just Look at the Picture…There's No Way He Formed Intent" Brain Scans Used as Visual Aids Kurt W. Worley 33 CDAA Prosecutor’s Brief 28 .
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.
Ananthaswamy 2011 AI Lie Detection Could Help Crack Terror Cells Anil Ananthaswamy NewScientist, Mar. 14 This article gives an experimental scenario that weighs the benefits of lie detection techniques (physiological signals recorded via a polygraph) against a concealed information test, which specializes in group information concealment.
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.
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.”
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.
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.
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.
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'.
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.
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.”
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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).
Sacks 2011 Do Violent Video Games Harm Children? Comparing the Scientific Amicus Curiae "Experts" in Brown v. Entertainment Merchants Association Deana Pollard Sacks & Mary Honeychurch 106 Nw. U. L. Rev. Colloquy 1 In Brown v. Entertainment Merchants Ass'n, video game merchants present a First Amendment challenge to a California law regulating sales of certain violent video games to children less than eighteen years of age. A primary issue presented to the Supreme Court is whether California's interest in protecting children from serious psychological or neurological harm is sufficiently compelling to overcome First Amendment scrutiny. This Essay briefly summarizes the California law and the Ninth Circuit's opinion, which held that the law violates the First Amendment and questioned the strength of the scientific evidence used to support the claim of harm to minors. This Essay then compares amicus curiae scientific experts on both sides of the case and presents an original quantitative analysis of the experts' relevant expertise in the psychological effects of violence and media effects based on the briefs' authors' and signatories' published scholarship. This Essay concludes that if the Supreme Court relies on scientific evidence and expert opinion to reach its decision, it should consider the source of the evidence in deciding what weight the amicus curiae briefs deserve.
Salvador 2009 Business ethics and the brain Rommel Salvador, Robert G. Folger 19 Business Ethics Quarterly 1 Neuroethics, the study of the cognitive and neural mechanisms underlying ethical decision-making, is a growing field of study. In this review, we identify and discuss four themes emerging from neuroethics research. First, ethical decision-making appears to be distinct from other types of decision-making processes. Second, ethical decision-making entails more than just conscious reasoning. Third, emotion plays a critical role in ethical decision-making, at least under certain circumstances. Lastly, normative approaches to morality have distinct, underlying neural mechanisms. On the basis of these themes, we draw implications for research in business ethics and the practice of ethics training.
Sanfey 2006 Neuroeconomics: cross-currents in research on decision-making Alan G. Sanfey, George Loewenstain, Samuel M. McClure, Jonathan D. Cohen 10 Trends in Cognitive Sciences, No. 3, at 108 Despite substantial advances, the question of how we make decisions and judgments continues to pose important challenges for scientific research. Historically, different disciplines have approached this problem using different techniques and assumptions, with few unifying efforts made. However, the field of neuroeconomics has recently emerged as an inter-disciplinary effort to bridge this gap. Research in neuroscience and psychology has begun to investigate neural bases of decision predictability and value, central parameters in the economic theory of expected utility. Economics, in turn, is being increasingly influenced by a multiple-systems approach to decision-making, a perspective strongly rooted in psychology and neuroscience. The integration of these disparate theoretical approaches and methodologies offers exciting potential for the construction of more accurate models of decision-making.
Schore 2011 Family law and the neuroscience of attachment, part 1 Allan Schore, Jennifer McIntosh 49 Fam. Ct. Rev. 501 In this far-reaching interview, Allan Schore, renowned scientist, clinical psychologist, and clinical neuropsychologist, considers the place of neuroscience in facilitating developmental knowledge and better decision making in family law matters. He details current science on the neurology of attachment formation, the function of early caregiving relationships, gender, neuroscience perspectives on conflict and family violence, and implications for parenting arrangements. At the meta level, Schore describes the responsibilities of the family law system in promoting the development of the child. On the faculty of the Department of Psychiatry and Biobehavioral Sciences, UCLA, Schore is on the editorial staff of 35 journals in various academic and clinical fields. His integration of neuroscience with attachment theory is documented in three seminal volumes, Affect Regulation and the Origin of the Self, Affect Dysregulation and Disorders of the Self, and Affect Regulation and the Repair of the Self, as well as numerous articles and chapters. He has justifiably earned the nickname of “America's Bowlby.”
Schweitzer 2011 Neuroimages as evidence in a mens rea defense: no impact N.J. Schweitzer, Michael J. Saks, Emily R. Murphy, Adina L. Roskies, Walter Sinnott-Armstrong, Lyn M. Gaudet 17 Psychol. Pub. Pol'y & L. 357 Recent developments in the neuropsychology of criminal behavior have given rise to concerns that neuroimaging evidence (such as MRI and functional MRI [fMRI] images) could unduly influence jurors. Across four experiments, a nationally representative sample of 1,476 jury-eligible participants evaluated written summaries of criminal cases in which expert testimony was presented in support of a mental disorder as exculpatory. The evidence varied in the extent to which it presented neuroscientific explanations and neuroimages in support of the expert's conclusion. Despite suggestive findings from previous research, we found no evidence that neuroimagery affected jurors' judgments (verdicts, sentence recommendations, judgments of the defendant's culpability) over and above verbal neuroscience-based testimony. A meta-analysis of our four experiments confirmed these findings. In addition, we found that neuroscientific evidence was more effective than clinical psychological evidence in persuading jurors that the defendant's disorder reduced his capacity to control his actions, although this effect did not translate into differences in verdicts.
Scruton 2009 More than meets the MRI: The philosopher Roger Scruton laments the rise of nonsensical neuroscience Roger Scruton Sunday Times, July 5 The advances in neuroscience have led to a new academic disease, which one might call “neuro-envy”. Old disciplines in the humanities, which relied on critical judgment and cultural immersion, can be given a scientific gloss when rebranded as “neurophilosophy”, “neuroethics”, “neuroaesthetics” and the like. I have come across “neuromusicology”, “neurotheology”, and even “neuroarthistory”, with a whole book on the subject by John Onians. Michael Gazzaniga’s influential study of 2005, The Ethical Brain, has given rise to “law and neuroscience” as an academic discipline, combining legal reasoning and brain imaging, largely to the detriment of our old ideas of responsibility. One by one, real but nonscientific disciplines are being rebranded as infant sciences, even though the only science involved may have little or nothing to do with their subject matter.
Shen 2011 Brain scans as evidence: truths, proofs, lies, and lessons Francis X. Shen, Owen D. Jones 62 Mercer L. Rev. 861 This Article proceeds in three parts. Part I explores a particular context of law and neuroscience: the use of brain scans as evidence of lying or truth-telling. Part II illustrates the use of those scans by discussing the landmark 2010 federal criminal trial United States v. Semrau. That case involved the first federal hearing-which one of us (Jones) attended-regarding the admissibility of testimony about brain scans proffered as evidence of whether a person was lying or telling the truth. Part III identifies five issues relevant to future encounters between courts and brain scanning evidence. Sufficient scientific progress in addressing issues of experimental design, ecological and external validity, ensuring subject compliance with researcher instructions, false memories, and making individual inferences from group data may one day make brain scan evidence admissible in new legal contexts. But, in the illustrative case of lie detection, not yet.
Siegel 2011 Family law and the neuroscience of attachment, part 2 Daniel Siegel, Jennifer McIntosh 49 Fam. Ct. Rev. 513 Daniel Siegel is renowned for his ability to translate neuroscience for professions working outside the arena of science. Here, Siegel discusses advances in interpersonal neurobiology, specifically considering applications for family law. Siegel is a clinical professor of psychiatry and co-director of the Mindful Awareness Research Center at UCLA and director of the Mindsight Institute. He is the author of numerous articles, chapters, and books, including the internationally acclaimed professional texts, The Developing Mind: Toward a Neurobiology of Interpersonal Experience and The Mindful Brain: Reflection and Attunement in the Cultivation of Well-Being.
Vincent 2010 The Neuroscience of Responsibility - Workshop Report Nicole A. Vincent, Pim Haselager, Gert-Jan Lokhorst 4 Neuroethics 175 This is a report on the 3-day workshop “The Neuroscience of Responsibility” that was held in the Philosophy Department at Delft University of Technology in The Netherlands during February 11th–13th, 2010. The workshop had 25 participants from The Netherlands, Germany, Italy, UK, USA, Canada and Australia, with expertise in philosophy, neuroscience, psychology, psychiatry and law. Its aim was to identify current trends in neurolaw research related specifically to the topic of responsibility, and to foster international collaborative research on this topic. The workshop agenda was constructed by the participants at the start of each day by surveying the topics of greatest interest and relevance to participants. In what follows, we summarize (1) the questions which participants identified as most important for future research in this field, (2) the most prominent themes that emerged from the discussions, and (3) the two main international collaborative research project plans that came out of this meeting.
Woodruff 2010 Functional magnetic resonance imaging to detect deception: not ready for the courtroom William A. Woodruff . Despite media hype and two companies marketing themselves as offering scientific expert testimony admissible in US courts on whether a witness is telling the truth, recent decisions by a Federal District Court in Tennessee and a trial court in New York cast considerable doubt that replacing the jury deliberation room with a magnetic resonance imaging machine is in the foreseeable future.
Wortzel 2008 Forensic applications of cerebral single photon emission computed tomography in mild traumatic brain injury Hal S. Wortzel, Christopher M. Filley, C. Alan Anderson, Timothy Oster, David B. Arciniegas 36 J. Am. Acad. Psychiatry Law 310 Traumatic brain injury (TBI) is a substantial source of mortality and morbidity world wide. Although most such injuries are relatively mild, accurate diagnosis and prognostication after mild TBI are challenging. These problems are complicated further when considered in medicolegal contexts, particularly civil litigation. Cerebral single photon emission computed tomography (SPECT) may contribute to the evaluation and treatment of persons with mild TBI. Cerebral SPECT is relatively sensitive to the metabolic changes produced by TBI. However, such changes are not specific to this condition, and their presence on cerebral SPECT imaging does not confirm a diagnosis of mild TBI. Conversely, the absence of abnormalities on cerebral SPECT imaging does not exclude a diagnosis of mild TBI, although such findings may be of prognostic value. The literature does not demonstrate consistent relationships between SPECT images and neuropsychological testing or neuropsychiatric symptoms. Using the rules of evidence shaped by Daubert v. Merrell Dow Pharmaceuticals, Inc., and its progeny to analyze the suitability of SPECT for forensic purposes, we suggest that expert testimony regarding SPECT findings should be admissible only as evidence to support clinical history, neuropsychological test results, and structural brain imaging findings and not as stand-alone diagnostic data.
Nature 2006 Neuroethics Needed: Researchers Should Speak Out on Claims Made on Behalf of Their Science . 441(7096) NATURE 907 The arrival of No Lie MRI and Cephos suggests that fMRI is entering the ‘real world’, whether neuroscientists consider it ready or not. The community needs to broadcast its doubts about this situation from the rooftops — and prepare for a prolonged, complex and occasionally frustrating engagement with the public on the ethical ramifications of its work.
Mercer Law Review 2010 A Symposium of the Mercer Law Review . 62 Mercer L. Rev. 769 Transcript: the brain sciences in the courtroom
Treadway 2011 On the Use and Misuse of Genomic and Neuroimaging Science in Forensic Psychiatry: Current Roles and Future Directions Michael T. Treadway, Joshua W. Buckholtz Forensic Psychiatry (Child and Adolescent Psychiatric Clinics of North America, William Bernet, MD and Bradley W. Freeman, MD, Eds., July 2011, Volume 20, Number 3). Dramatic advances in the understanding of the neurobiological bases of human behavior have prompted excitement and controversy surrounding the ethical, legal, and social applications of this knowledge. The authors critically examine the promise and challenges of integrating genomic and neuroimaging techniques into legal settings. They suggest criteria for enhancing the viability of incorporating these data within a legal context and highlight several recent developments that may eventually allow genetic and neuroimaging evidence to meet these criteria and play a more prominent role in forensic science and law.
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.
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.
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.
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.
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
Huang 2010 Happiness studies and legal policy Peter H. Huang Annual Review of Law & Social Science, Forthcoming Temple University Legal Studies Research Paper No. 10-13 Social scientists have conducted numerous empirical and experimental studies of self-reported happiness. This review focuses on two fundamental areas of research in happiness and law, namely alternative measures of happiness and various policies to foster happiness. There are many aspects, concepts, dimensions, and visions of happiness. Empirical findings often depend critically on which particular measure of happiness is analyzed. Happiness studies have applications to national well-being indices; policy evaluation; civil judicial and jury decision-making about liability and damages in cases of sexual harassment, employment discrimination, torts; optimal tax law design; family law; criminal sentencing, legal education, and legal practice. There are decision-making, health, productivity, and psychological benefits to various types of happiness. There are more or less paternalistic happiness interventions, including policies to encourage regular physical exercise, good sleep, and meditation. Hopefully analysis of these topics offers exemplars of possibilities and limits to utilizing happiness studies in designing legal policy.
Kar 2012 The two faces of morality: how evolutionary theory can both vindicate and debunk morality (with a special nod to the growing importance of law) Robin Bradley Kar NOMOS: EVOLUTION AND MORALITY, New York University Press, 2012 Given the recent progress that is being made in evolutionary accounts of morality, I use this article to ask the following question: will the correct evolutionary explanation, if any, of our capacities for moral judgment ultimately vindicate them, by revealing our perceptions of their objectivity and special practical authority to be grounded in something suitably real, or is it more likely to debunk them, by explaining away those very same perceptions? (A third possibility is that evolutionary theory will reveal our capacities for moral judgment to have two faces - one which inclines us to participate in a recognizable species of moral life and another which coopts our moral psychologies for more competitive and antisocial purposes.) This article also suggests a specific answer to this question. It argues that there are a specific set of circumstances, which may plausibly hold for us, in which we would be entitled to conclude that our capacities for moral judgment have at least a partial vindication, in a perfectly respectable sense of the word. More specifically, we would be entitled to understand ourselves as having the natural capacities to see (in a clear but metaphorical sense) and be appropriately motivated by certain moral facts, but to see them only imperfectly, and only through a lens that sometimes distorts our moral vision in certain systematic and identifiable ways. Just as our ordinary sense of sight allows us to apprehend various natural facts about the world but also subjects us to certain optical illusions, our natural sense of morality would - if these same circumstances were to hold true - allow us to apprehend various moral facts while subjecting us to certain forms of what I will call “moral illusion.” In addition, while we would be entitled to understand our natural capacities for moral judgment as functioning in part to help us track and respond appropriately to certain moral facts, we would also have to acknowledge that these capacities have other non-moral natural functions, which can serve various programs of domination and exclusion. The conclusion that our capacities for moral judgment admit of a partial vindication would, finally, entitle us to begin engaging in a specific, naturalized approach to moral epistemology, which is guided in part by contemporary evolutionary insights. The final section of this article describes this approach, along with a number of plausible moral illusions to which we are prone. It thereby exhibits how evolutionary insights might help us not only expand our moral vision but also identify and respond better to a host of natural moral illusions. This article argues - in other words - for the third possibility. And in the process, it develops a distinctive form of naturalistic moral realism, which bears some affinities to the prior work of people like Richard Boyd, David Brink, Michael Moore, Peter Railton and Nicholas Sturgeon. As a corollary, it ends with a counterintuitive suggestion. It suggests that the law - at least in some modern (but growing sets of) circumstances - may have the independent authority to override some of our first order moral reasoning, even in its correct and conscientious employment.
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.
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.
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.
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.
Seaman 2011 Race and juries: an FMRI investigation Julie Seaman Gruter Institute Squaw Valley Conference: Law, Institutions & Human Behavior, 2011 This talk will briefly describe a brain-imaging study, currently being conducted, of the role of the criminal defendant's race in juror decision-making. It will then touch on some of the larger legal and Constitutional questions that would arise if race were ultimately found to have a significant impact on jury decisions.
Takahashi 2011 A neuroeconomic theory of rational addiction and nonlinear time-perception Taiki Takahashi 32 Neuroendocrinol Lett. 221 Neuroeconomic conditions for “rational addiction” (Becker and Murphy, 1988) have been unknown. This paper derived the conditions for “rational addiction” by utilizing a nonlinear time-perception theory of “hyperbolic” discounting, which is mathematically equivalent to the q-exponential intertemporal choice model based on Tsallis' statistics. It is shown that (i) Arrow-Pratt measure for temporal cognition corresponds to the degree of irrationality (i.e., Prelec’s “decreasing impatience” parameter of temporal discounting) and (ii) rationality in addicts is controlled by a nondimensionalization parameter of the logarithmic time-perception function. Furthermore, the present theory illustrates the possibility that addictive drugs increase impulsivity via dopaminergic neuroadaptation without increasing irrationality. Future directions in the application of the model to studies in neuroeconomics are discussed.
Teitcher 2011 Weaving Functional Brain Imaging into the Tapestry of Evidence: A Case for Functional Neuroimaging in Federal Criminal Courts Adam Teitcher 80 Fordham Law Review 355 Recent advances in brain imaging technologies allow researchers to "peer inside" a defendant’s brain. Although functional neuroimaging evidence is frequently used in civil litigation, federal courts have been hesitant to admit it into evidence in criminal trials. Scholars and commentators alike continue to debate the merits, detriments, and general admissibility of functional neuroimaging evidence in the criminal context. Meanwhile, federal judges repeatedly admit various forms of forensic science into evidence without seriously considering whether they pass the relevant admissibility standards. This Note argues that this has created a double standard for evidence admissibility. Functional neuroimaging evidence may, in fact, be more scientifically reliable than much of the forensic science evidence currently admitted at trial. Accordingly, this Note proposes that judges should consider the disparity in evidentiary standards when considering the admissibility of functional neuroimaging evidence and carefully and fairly examine such evidence when offered in federal criminal trials.
Vincent 2011 Legal responsibility adjudication and the normative authority of the mind sciences Nicole A. Vincent 14 Philosophical Explorations 3 In the field of ‘neurolaw’, reformists claim that recent scientific discoveries from the mind sciences have serious ramifications for how legal responsibility should be adjudicated, but conservatives deny that this is so. In contrast, I criticise both of these polar opposite positions by arguing that although scientific findings can have oftenweighty normative significance, they lack the normative authority with which reformists often imbue them. After explaining why conservatives and reformists are both wrong, I then offer my own moderate suggestions about what views we have reason to endorse. My moderate position reflects the familiar capacitarian idea which underlies much lay, legal, and philosophical thinking about responsibility – namely, that responsibility tracks mental capacity.
Vincent 2011 Capacitarianism, responsibility and restored mental capacities Nicole A. Vincent Technologies on the Stand: Legal and Ethical Questions in Neuroscience and Robotics (Bibi van den, Ed., 2011). The capacitarian idea that responsibility tracks mental capacity underlies much of our thinking about responsibility. For instance, mental capacity assessments inform whether someone is a fully responsible person, what responsibilities they can be expected to observe, their degree of responsibility for what they did, and whether they can be expected to take responsibility and be held responsible in the sense of standing trial, being answerable, paying compensation and being punished. But what happens when mental capacity is restored through direct brain interventions? Specifically, can direct brain interventions aimed at mental capacity restoration help us to assess the responsibility of someone who becomes mentally ill subsequent to committing their crime or to hold them responsible, to expect them to take responsibility for what they did, to make them fully responsible and maybe even less irresponsible? I will argue that initially capacitarianism seems to strike difficulties in cases that involve direct brain interventions of this sort, or put another way, that responsibility does not seem to track restored mental capacities. However, I will also argue that most of these difficulties can be overcome once we take into account some of the other things that responsibility also hinges upon. In particular, I will argue that historical and normative considerations can explain why responsibility does not seem to track restored mental capacities, and thus why this is not something that undermines capacitarianism.
Vincent 2011 The challenges posed to private law by emerging cognitive enhancement technologies Nicole A. Vincent The Law of the Future and the Future of the Law, pp. 511-521 N. A. Vincent, S. Muller, S. Zouridis, M. Frishman, L. Kistemaker, eds., Torkel Opsahl Academic EPublisher, Oslo We normally think that people’s responsibility diminishes when mental capacities are lost and that responsibility is restored when those capacities are regained. But how is responsibility affected when mental capacities are extended beyond their normal range through cognitive enhancement? For instance, might some people – e.g., surgeons working long shifts in hospital – have a responsibility to take cognitive enhancement drugs to boost their performance, and would they be negligent or even reckless if they failed or refused to do this? Alternatively, once enhanced, would people acquire new and possibly greater responsibilities in light of being more capable? Could they be blamed for failing to discharge those greater responsibilities, and does this make them more vulnerable to liability if things go wrong? The off-label use of prescription drugs such as Modafinil and Ritalin is on the rise, but although the current literature covers issues such as safety, effectiveness, coercion and justice, these drugs’ effects on people’s responsibility have not been investigated. The standards which the law currently uses to assess people’s responsibility presuppose that human mental capacities are capped at a particular level. But if humans can surpass this level of mental capacity through cognitive enhancement, then this calls for a re-assessment of those standards.
Whitbeck 2011 Taming the beast: cognitive enhancement, ethical implications, and regulating today for tomorrow's scientific and technological advancements in neuroscience Jeremy Britton Whitbeck Forthcoming Scientific discovery and technological advances in neuroscience have created the newly formed field of cognitive enhancement. Cognitive enhancement is improving the psychological or intellectual functions of individuals who are not ill. While the opportunities may be endless, careful scrutiny must be paid to the looming ethical implications of improving the cognitive function of an individual with no specific illness or disorder. Because of the increasingly accelerated pace of research and development in the field of neuroscience, it is important that the government, along with key stakeholders and the community-at-large, address these ethical considerations and devise a comprehensive regulatory framework to provide the appropriate guidelines for this emerging science. Part I of this Article will define cognitive enhancement and delineate the difference between treatment and enhancement. Part I identifies cognitive enhancers, including “smart drugs,” memory enhancement and dampening drugs, and dietary supplements, and considers the possibility of a time when humans will no longer be the innovative power behind cognitive enhancement. Part II addresses the ethical implications of cognitive enhancement, such as human dignity and the devaluation of normal, fairness and equality, coercion and pressure to use in a competitive culture, control versus treatment, safety and efficacy, and innovation and the notion of cognitive liberties. Part III outlines the regulatory framework necessary to meet these ethical concerns. In conclusion, Part IV reaffirms the need for a comprehensive regulatory framework to address the ethical implication of cognitive enhancement.
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.
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). .
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.
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
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. .
Yaffe 2012 Intoxication, Recklessness and Negligence Gideon Yaffe 9 Ohio State Journal of Criminal Law 545 According to what is here called the “Intoxication Recklessness Principle,” a defendant who, thanks to voluntary intoxication, is unaware of a condition of which a reasonable person would have been aware is to be treated as though he were reckless with respect to that condition, rather than negligent. And, according to what is here called the “Intoxication Negligence Principle,” a defendant who is unaware of a condition thanks to voluntary intoxication is to be compared to a sober reasonable person when we ask whether his obliviousness was reasonable. When applied in tandem, as these principles often are, a defendant whose mental state is not criminal at all, considered independently of the recent history of intoxication that gave rise to it, will be treated as though he were reckless. Through a proposed model that illuminates the nature of both recklessness and negligence, this paper identifies a set of conditions under which it is justified to employ the Intoxication Recklessness Principle, even in conjunction with the Intoxication Negligence Principle. When the relevant conditions are met, the voluntarily intoxicated negligent defendant is in a mental state that is just as bad as many reckless defendants. This paper, then, defends the law’s current use of the Intoxication Recklessness Principle, but with qualifications, for in identifying the conditions in which the principle is justifiably employed; conditions are also identified in which it is not.
Yaffe 2011 Lowering the Bar for Addicts Gideon Yaffe Addiction and Responsibility (MIT Press, George Graham and Jeffrey Poland, Eds., 2011). .
Yaffe 2002 Recent Work on Addiction and Responsible Agency Gideon Yaffe Philosophy & Public Affairs 30 (Princeton University Press, 2001). We tend to sympathize with addicts who behave illegally or immorally in service of their addictive cravings more readily than we do with those who act in exactly the same ways but who are not addicted. The addict who kills for money to buy crack seems less a moral monster than the unaddicted person who coldly plots the same murder for the same purpose. This distinction in our moral sentiments sometimes manifests itself in a distinction in legal and moral treatment: addicts are rarely thought blameless, but they are often taken to be less at fault than their unaddicted counterparts. But is the fact that a person’s objectionable conduct springs from an addiction of genuine moral or legal weight? And, if it is, what is it about addiction that produces some form of diminished responsibility? In the last few years, a startling amount of literature relevant to these topics has appeared, produced by theorists in a wide variety of disciplines from jurisprudence, psychology and ethics to economics, political science and neurobiology. This essay critically examines some of the most prominent recent efforts to explain the impact, if any, of addiction on freedom and rationality, and, in turn, legal and moral responsibility.
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 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.
Salerno 2009 Emotional Evidence and Jurors' Judgments: the Promise of Neuroscience for Informing Psychology and Law Jessica M. Salerno & Bette L. Bottoms 27 Behav. Sci. & L. 273 This article is a review of psychological and neuroscience research addressing how juror decision making is influenced by emotion elicited from potentially disturbing evidence such as gruesome autopsy photographs, victim impact statements, and information about a defendant's tragic personal history presented as mitigating evidence. We review (a) converging evidence suggesting that the presence versus absence of such evidence results in more punitive juror judgments, (b) social cognition theories that provide potential explanations for these effects, and (c) neuroscience research aimed at understanding the role of emotion in moral judgments by identifying how brain activity is affected by emotion-eliciting stimuli. We argue that neuroimaging evidence showing that emotional stimuli cause heightened emotion and decreased effortful cognitive processing is relevant in understanding jurors' increased punitiveness after being exposed to emotional evidence, and in turn relevant to debates about the admissibility of emotional evidence in courts of law. Ultimately, we argue for more ecologically valid psychological research to clarify these important issues.
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).
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.
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.
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.
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.
Ryan 2010 What Psychiatry, Developmental Psychology, and Neuroscience Can Teach Us About At-Risk Students Eileen P. Ryan 17 Wash. & Lee J. Civil Rts. & Soc. Just. 59 .
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.
Barbee 2011 Juveniles are Different: Juvenile Life Without Parole After Graham v. Florida Michael Barbee 81 Miss. L.J. 299 This article focuses on the neurological and psychological differences between adults and adolescents in considering life without parole for juvenile offenses.
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.
Robertson 2007 The neural processing or moral sensitivity to issues of justice and care Diana Robertson, John Snarey, Opal Ousley, Keith Harenski, F. Dubois Bowman, Rick Gilkey, Clinton Kilts 45 Neuropsychologia, No. 8, at 755 The empirical and theoretical consideration of ethical decision making has focused on the process of moral judgment; however, a precondition to judgment is moral sensitivity, the ability to detect and evaluate moral issues [Rest, J. R. (1984). The major components of morality. In W. Kurtines & J. Gewirtz (Eds.), Morality, moral behaviour, and moral development (pp. 24–38). New York, NY: Wiley]. Using functional magnetic resonance imaging (fMRI) and contextually standardized, real life moral issues, we demonstrate that sensitivity to moral issues is associated with activation of the polar medial prefrontal cortex, dorsal posterior cingulate cortex, and posterior superior temporal sulcus (STS). These activations suggest that moral sensitivity is related to access to knowledge unique to one's self, supported by autobiographical memory retrieval and social perspective taking. We also assessed whether sensitivity to rule-based or “justice” moral issues versus social situational or “care” moral issues is associated with dissociable neural processing events. Sensitivity to justice issues was associated with greater activation of the left intraparietal sulcus, whereas sensitivity to care issues was associated with greater activation of the ventral posterior cingulate cortex, ventromedial and dorsolateral prefrontal cortex, and thalamus. These results suggest a role for access to self histories and identities and social perspectives in sensitivity to moral issues, provide neural representations of the subcomponent process of moral sensitivity originally proposed by Rest, and support differing neural information processing for the interpretive recognition of justice and care moral issues.
Thompson 2011 Clemency for our children Anthony C. Thompson 32 Cardozo L. Rev. 2641 This article posits that state executives should exercise their clemency power to correct the fundamental unfairness that now results. This Article proposes three justifications for the use of the clemency power to redress this harm to juvenile offenders. First, the Article asserts that the use of clemency in cases where juveniles have been sentenced to LWOP fits within the conventional view of clemency--its exercise constitutes an act of mercy. The executive's authority operates as a safety valve to redress fundamental errors after exhaustion of all other remedies. Second, the Article asserts that clemency is not just an act of mercy; it constitutes a political act. Although the political dimension of the power is often criticized, it is a legitimate rationale for its exercise and should be acknowledged and guided. Third, the Article discusses how clemency is required to address an inherently illogical conclusion that results from Supreme Court ruling. Where the highest court has issued a criminal justice decision that creates a fundamentally illogical or inconsistent conclusion in its ruling, the state executive power has an obligation to intervene and redress that inconsistency.
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
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.
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.
Spranger 2012 International Neurolaw: A Comparative Analysis Tade Matthias Spranger Springer, Tade Spranger, Ed., 2012 Whereas the past few years have repeatedly been referred to as the “era of biotechnology”, most recently the impression has emerged that at least the same degree of attention is being paid to the latest developments in the field of neurosciences. It has now become nearly impossible to maintain an overview of the number of research projects dealing with the functionality of the brain – for example concerning its organizational structure – or projects dealing with the topics of legal responsibility, brain-computer interface applications, neuromarketing, lie detection or mind reading. These procedures are connected to a number of legal questions concerning the framework conditions of research projects as well as the right approach to the findings generated. Given the primary importance of the topic for the latest developments, it is essential to compare the different legal systems and strategies that they offer for dealing with these legal implications. Therefore, the book International Neurolaw – A Comparative Analysis contains several country reports from around the world, as well as those of international organizations such as UNESCO, in order to show the different legal approaches to the topic and possible interactions.
Spranger 2012 Neurosciences and the Law: An Introduction Tade Matthias Spranger International Neurolaw (Springer, Tade Spranger, Ed., 2012) The scientific field called (modern) neurosciences covers a wide spectrum of most diverse branches of research and techniques. The scientific disciplines involved comprise inter alia, biology, medicine, chemistry, physics, psychology, mathematics, computer science, engineering, but also philosophy and – last but not least – law. The range of topics in the field of neurosciences now covers studies of the molecular, cellular, evolutionary, developmental, structural, functional, and medical aspects of the nervous system. Furthermore, the techniques used by have been developing rapidly, reaching from studies of individual cells to the imaging of sensory and motor skills.
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.
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.
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.
Toole 2012 Research Ethics Challenges in Neuroimaging Research: A Canadian Perspective Ciara Toole, Amy Zarzeczny, Timothy Caulfield International Neurolaw (Springer, Tade Spranger, Ed., 2012) Neuroimaging research continues to engage the imaginations of scientists, members of the media, and the general public. As an area of human subject research, it also raises a number of research ethics issues that, while not necessarily unique to neuroimaging, offer particular challenges in this growing domain. Here, we consider a number of the key research ethics issues that are emerging as being of central importance to the continued development of this field. We will situate our discussion within the Canadian framework, but many of the issues raised will have broad jurisdictional relevance. While providing a comprehensive examination of all of the research ethics issues implicated by neuroimaging research is beyond the scope of this review, it is hoped that this paper will serve as a useful overview and guide to researchers, research ethics boards, and others interested in neuroimaging research.
Rödiger 2012 The Council of Europe's Next "Additional Protocol on Neuroscientific Research"? Caroline Rödiger International Neurolaw (Springer, Tade Spranger, Ed., 2012) Modern neurosciences are expected to be a twenty-first century challenge for manifold reasons. From the medical law perspective, opinions are highly divided concerning the optimal way to manage incidental findings in brain imaging research. Brain abnormalities place both the researcher and the volunteer in legally complex situations. Which are the duties of the researcher and which rights is the participant allowed to claim? The number of cross-national research projects is growing and adequate data sharing systems have been set up to enable the exchange more efficient, so that incidental findings have become a significant issue even from the international perspective. This remarkable development makes it necessary to envisage an instrument that has the potential to regulate neuroscientific research on international level. The Council of Europe has already presented specific approaches to the major biomedical problems of this time. The Convention on Human Rights and Biomedicine and the Additional Protocol on Biomedical Research could therefore serve as guidelines for a new document dealing with neuroscientific research.
Silvola 2012 Legal Landscape of Neuroscientific Research and Its Applications in Finland Salla Silvola International Neurolaw (Springer, Tade Spranger, Ed., 2012) This article focuses on the regulation of research and use of neuroscientific knowledge in Finland. As no separate regulation on neuroscientific research exists, legislation on medical research has been taken as a starting point for the legal analysis. The recently extended scope of application of the Medical Research Act has both positive and negative effects to multidisciplinary research projects such as neuroscientific research. Although the Act now takes better account of novel research areas outside the scope of traditional medical science, relevant expertise in the ethics committees may be difficult to find. Generally, the Finnish legislation responds reasonably well to the particularities of neuroscientific research such as incidental findings. As the application of neuroscientific knowledge in many areas is still rather sporadic, there has not been sufficient incentive to introduce legislation in the area. The only recorded demands for guidance in the area involve the use of polygraphs in criminal investigation and court proceedings.
Rödiger 2012 The Obtainment and Use of Neuroscientific Knowledge in France Caroline Rödiger International Neurolaw (Springer, Tade Spranger, Ed., 2012) As a reaction to the rapid developments in modern neurosciences, the French legislator proposed the implementation of neuroscientific rules in the French Law on Bioethics in January 2010. Neuroscientific research has indeed not yet been covered by any national code or international treaty and opinions are highly divided with a view to the legal framework for neuroscientific research. Notably incidental findings in brain imaging research pose a big challenge for both the researcher and the participant. They might cause psychological distress, social stigma, and severe financial burdens on the participant’s side and the researcher might be confronted with civil claims for damages or even render himself liable to prosecution. Therefore, it is going to be analyzed in a first step if the insertion of neurospecific rules in the Law on Bioethics could shed light on the management of incidental findings and the regulation of neuroscientific research. Another important issue in neurolaw is that of the recent application possibilities of neuroimaging techniques such as the use of fMRI scanners as lie detectors in courts or as communication methods for vegetative state patients. Even if these procedures are not yet a daily occurrence in France, it is an important time to consider the civil, criminal, and constitutional consequences in a second step.
Spranger 2012 Legal Implications of Neuroscientific Instruments with Special Regard to the German Constitutional Order Tade Matthias Spranger International Neurolaw (Springer, Tade Spranger, Ed., 2012) Whereas the past few years have repeatedly been entitled as the “era of biotechnology,” most recently one has to get the impression that at least the same degree of intention is being paid to the latest developments in the field of neurosciences. It is by now nearly impossible to oversee the number of research projects dealing with the functionality of the brain – for instance concerning the organizational structure of the brain – or projects dealing with the topic of mind reading. Massive efforts have also been taken in the field of prediction; for instance, it is possible to analyze certain structures and thereby presume the research paticipant’s decision before he/she has ever told it. The concept of neurosciences covers a wide range of different scientific branches, all of which investigate the structure and functioning of the nervous system. As far as research in connection to the human brain is concerned, the term of brain research is nearly used as a synonym. The concerned research projects do not only cover experimental basic research, but also search for therapeutic methods of treating nervous diseases.
Vidalis 2012 Neurolaw in Greece: An Overview Takis Vidalis, Georgia-Martha Gkotsi International Neurolaw (Springer, Tade Spranger, Ed., 2012) Given the rapid advancements in neuroscience and its growing involvement in legal proceedings, in this paper, we aim to address the question of whether and to which extent Greek legislation could be revisited in the light of the most recent neuroscientific discoveries. “Reading” the human cognitive and emotional functions by modern neuroscientific technology is relevant to a number of Greek legal provisions, an overview of which is presented in this paper. In the first chapter, we describe the general framework that governs an adult’s capacity of will, taking into consideration the constitutional aspect, the civil law’s approach and some special topics concerning medical law and research, with the aim to examine how these issues could be illuminated with a neuroscientific perspective. The second chapter is exclusively dedicated to criminal law, in an effort to evaluate the potential influence of neuroscience on the Greek criminal justice system. The penal legislation concerning the assessment of criminal responsibility, the evaluation of the sentence, and the admissibility of neuroscientific techniques in criminal Courts, as well as some special issues concerning juvenile offenders and crime prevention are presented. Finally, a unique Greek case where the use of a lie detector was permitted in the context of a criminal trial is cited and briefly analysed. This overview leads to conclude that although the Greek legal system refers extensively to situations of interest for neurolaw, the acceptance of neuroscientific methods for determining the cognitive or mental status of persons involved in civil, medical and criminal relationships is rarely considered as important. However, the aforementioned judicial step towards the acceptance of these methods in criminal settings, as well as the innovative spirit that the Greek legislator shows in regulating biomedical matters during the last decades, lead to consider that a revision of the Greek legislation in the light of new neuroscience, should not be excluded for the future. Providing more information on neurolaw and its expected benefits could be, perhaps, the best motivation for taking action in this promising field.
Santosuosso 2012 Neuroscience and Converging Technologies in Italy: From Free Will Approach to Humans as Not Disconnected Entities Amedeo Santosuosso International Neurolaw (Springer, Tade Spranger, Ed., 2012) In recent years, a vast literature has developed on how neuroimaging may increase our understanding of deception, moral and legal responsibility, behaviour prediction, and much more. Common approaches overlook the global reality of neuroscience and neurotechniques. This is the reason why (beyond controversial implications of neuroimaging techniques: i.e. lie detection, determination of mental impairment, or psychopathy) it is important to survey some technological applications of neuroscience on the human body (even beyond the field of criminal law), such as objective measurement of chronic pain, robots and artificial intelligence, brain–computer interfaces. The review focuses on Italian case law on the concept of “moral damage” and the opportunities that neurotechniques offer in order to have a more objective evaluation. In addition, it is considered the responsibility for robot’s actions (especially referring to learning robots) and the possible application of current Italian civil legislation (especially the responsibility of teachers). Conclusive remarks are on the law and the way basic concepts as human individual are affected by neuroscience.
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.
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.
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.
Schweizer 2012 Switzerland: Brain Research and the Law Rainer J. Schweizer, Severin Bischof International Neurolaw (Springer, Tade Spranger, Ed., 2012) Many of the so far discussed methods of neurosciences have not yet reached a state in which they can be taken as reliable. Thus, the discussion on their application is still at a very early stage. However, it is the task of law to provide a legal compass showing the direction in which new technical developments have to be measured. In this context, one should not only see the risks of neuroscientific developments, but also bear in mind the new opportunities and chances.
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 neureothics 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.
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.
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.
Wegmann 2012 Summary: Neurolaw in an International Comparison Henning Wegmann International Neurolaw (Springer, Tade Spranger, Ed., 2012) After the legal landscape in neurosciences has been described for the individual countries, the last chapter is to give an overview on the most common topics connected to neurolaw. As so far none of the countries has established a genuine neurolaw, it seems to be the major challenge for the near future to try and apply existing regulations on neurosciences.
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.
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.
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.
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.
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.
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.
Ronkainen 2011 Dual-Process Cognition and Legal Reasoning Anna Ronkainen ARGUMENTATION 2011: INTERNATIONAL CONFERENCE ON ALTERNATIVE METHODS OF ARGUMENTATION IN LAW (Masaryk University, Michał Araszkiewicz et al, eds, 2011) The dual-process framework is a set of theories on human cognition in which cognition is seen as consisting of (at least) two substantially different yet interdependent systems: the older, faster, partly unconscious and automatic System 1 and the newer, slower, fully conscious and considered System 2. When viewing legal reasoning through the dual-process model, we can easily see that System 1 is primarily responsible for deciding a case (or finding the best line of arguments in support of a party) with the help of aligning the particulars of the case with the preexisting framework of statute and case law, whereas System 2 is responsible for generating and evaluating arguments in support of the outcome determined by System 1, thereby opening up an individual’s reasoning process for external critique. System 2 may also override System 1 altogether, but this is only possible in easy cases. In part thanks to the dual-process framework we can take a scientific look into the often discussed but substantially neglected question of Right Answers in law through empirically testable hypotheses. This also has significant implications for artificial intelligence and law. By acknowledging the differences between the two, we can better use the most suitable computational models for each of them individually.
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.
Shen 2010 Law and Neuroscience Bibliography: Comments On An Emerging Field Francis X. Shen 38 INTERNATIONAL JOURNAL OF LEGAL INFORMATION 352 Recent years have seen extraordinary growth in the amount of legal scholarship, legal practice, and public policy at the intersection of law and neuroscience. In order to help the legal community navigate this emerging field of neurolaw, the accompanying Law and Neuroscience Bibliography has been created. The published bibliography presented here contains nearly 600 entries, and the updated online version now contains over 700 entries. The brief introductory comments to the published piece discuss the creation and contents of the bibliography, and provide suggestions for where one should begin their research in the area. The comments focus on (1) identification of law and neuroscience scholarship; (2) historical growth pattern of the scholarship; (3) nature of interdisciplinary authorship in the field, and patterns of publication outlets; and (4) closing thoughts on the future of law and neuroscience scholarship. Appendix A provides a list of recommended starting places, including the first Law and Neuroscience casebook (forthcoming from Aspen Publishers), for those who wish to further their understanding of the field. Note on updates since 2010: This article contains the version of the law and neuroscience bibliography published in 2010. Since its initial publication, many additional entries have been added to the online version of the bibliography, which can be accessed through the home page of the MacArthur Foundation Research Network on Law and Neuroscience.
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.
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.
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.
Simpson 2012 Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom Joseph R. Simpson Wiley-Blackwell As neuroimaging becomes more widespread, it is increasingly being used in the courts, even though understanding and interpreting neuroimaging methods and results can be very challenging – even without attempting to evaluate their potential applications to forensic questions. The sheer volume of available information, research results, and opinions can seem intimidating to forensic practitioners and to mental health professionals in general. This will be the first book dedicated to this important topic. Designed as a reference for forensic psychiatrists, it starts with a brief overview of the psychiatric applications of the primary neuroimaging techniques currently in most widespread use, positron emission tomography (PET), single-photon emission computed tomography (SPECT), and magnetic resonance imaging (MRI). Subsequent chapters explore the current and potential uses of neuroimaging in civil and criminal forensic contexts. Diagnostic categories addressed include traumatic brain injury, dementia, psychopathy, paraphilias, psychoses and mood disorders. Legal concepts such as admissibility, relevance, and standards of proof are reviewed as they relate to the possible uses of neuroimaging findings in legal proceedings; prior precedents and court decisions are also reviewed. Novel potential applications of neuroimaging, including detection of deception and identification of memory or recognition, are addressed in dedicated chapters. There is a growing body of writing on the ethical implications of neuroimaging in the legal context, but this has largely been in bioethics journals that have limited readership among members of the mental health profession. Ethical questions generated by the rapidly evolving field of forensic neuroimaging are explored in detail in a dedicated chapter. This book will be of great use to practicing forensic psychiatrists, forensic psychologists and forensic neurologists as they are increasingly likely to find themselves being asked to give professional opinions regarding the impact of neuroimaging findings on medicolegal questions such as competence, criminal responsibility, personal injury and disability. The book will be an invaluable resource for forensic practitioners seeking to understand and navigate this new area.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
Snead 2011 Cognitive Neuroscience and the Future of Punishment O. Carter Snead Constitution 3.0: Freedom and Technological Change (Brookings Press, Jeffrey Rosen & Benjamin Wittes, Eds., 2011) .
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.
Arnaudo 2011 The Quest for Behavioral Antitrust: Beyond the Label Battle, Towards a Cognitive Approach Luca Arnaudo Over the past decades behavioral economics has gained widespread consensus, and, as a consequence, is affecting many areas of law and economics. Antitrust is currently providing an interesting case-study of this new cultural-academic wave, with a growing number of articles and comments focusing on "behavioral antitrust". This paper provides a concise survey of the current state of the art, aiming at better understanding the qualities of the new behavioral approach to antitrust, and, at the same time, considering its limits. Final considerations are dedicated to the need to go beyond the ongoing "label battle" in order to set up a credible frame of referenceknowledge to be used when dealing with antitrust, in view of reaching a sound cognitive approach to the discipline.
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.
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 .
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.
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.
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.
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?
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.
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.
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 limi